Ernest A. Canning Byon 8/16/2011, 11:16am PT

Guest blogged by Ernest A. Canning

Controversial Wisconsin state Supreme Court Justice David Prosser has a new special investigator looking into allegations of assault made against him by another sitting Supreme Court Justice.

At the request of Dane County Circuit Judge William Faust, Sauk County District Attorney Patricia Barrett (R) agreed to serve as a special prosecutor regarding the physical assault and battery allegations made by WI Supreme Court Justice Ann Walsh Bradley. Bradley claims that Prosser placed her in a "chokehold" during a contentious argument about the overturning of a lower court ruling on Gov. Scott Walker's controversial and hastily enacted union-busting legislation. The lower court found that it was passed in violation of the state's open meeting law and is therefore null and void. Prosser and his 3 colleagues on the bench who enjoy a 4 to 3 Right-leaning majority on the state's high court, eventually overturned the lower court's ruling. Bradley was in the minority.

According to Tim McCumber, the head of the Sauk County GOP, Barrett is essentially an independent who ran for DA in 1994 as a Republican to get onto the ballot in a GOP-dominated county. Barrett, who is 62 and plans to retire in the fall of 2012, stated that she does not see either the sheriff's or prosecutor's jobs as a partisan one.

Justice Bradley's allegations are also the subject of of an internal investigation by the WI Judicial Commission.

The key question is whether Barrett and the WI Judicial Commission can proceed in their investigations on the basis of the facts and the law? What is at stake is not simply a possible Class A Misdemeanor Battery charge against a sitting Supreme Court Justice. The very survival of the rule of law in the Badger state is spotlighted here. All if this happens with a backdrop of a billionaire-funded, partisan onslaught on fundamental fairness and democracy, not only as it pertains to the electoral process, but in how the state's executive, legislative and judicial branches of government function...

Supreme Court felon?

In "The 'Judicial Independence' of Justice David T. Prosser - A BRAD BLOG Special Investigation" we set forth in detail the facts linking Prosser to a hornet's nest of state GOP corruption. The criminal convictions and allegations included, among others, Prosser's former State Assembly colleague and convicted felon Scott Jensen (R), as well as former subordinate and now Waukesha County Clerk Kathy Nickolaus (R). The 2002 case investigated in that article arose from the misuse of public employees and resources for partisan political gain while Prosser and Jensen served in the Assembly and Nickolaus was employed by the Republican Assembly Caucus.

As we detailed at the time, Jensen, unlike a number of his colleagues who cooperated with the state investigation, ultimately avoided jail time thanks to a change of venue which finally placed his case in the friendly hands of Republican Waukesha County D.A. Brad Schimel. Nickolaus evaded prosecution through a grant of criminal immunity.

As a sitting Supreme Court Justice, Prosser not only presented filings which made him an advocate for the accused felon, Jensen, but which amounted to a confession that he, Prosser, had participated in the crime.

The fact that Prosser's confession came after the statute of limitations had run, barring criminal prosecution, is of little moment. His participation in the crime raises a serious question as to whether he should be permitted to practice law, let alone sit on a state's highest court.

There is no indication in recent press reports that the WI Judicial Commission is examining the Prosser's filings in the Jensen case as part of its current investigation.

Disdain for the democratic process

The context for the latest investigation is to be found at the outset of the union-busting legislative process, with what began as a "budget repair bill."

Recall how the original Assembly vote transpired, as explained by Slate's Dave Weigel and captured by this remarkable video...

MADISON, Wisc. --- The debate in the Assembly appeared to be a few hours away from ending when Speaker Pro Tem Bill Kramer interrupted their speeches and called the vote. It was gaveled in with lightning speed, less than the standard 15 seconds --- it was so fast that 28 members did not even vote on it, some out of protest but some failing to reach their buzzers. There were 51 ayes and 17 nays, and the nays included Republicans Dean Kaufert, Lee Nerison, Richard Spanbauer, and Travis Tranel. Democrats exploded as soon as the vote was called, yelling "Cowards!" and "Shame!" at the Republicans filing out of the room.

Lest one come away believing that this disdain for the right of the opposition to be heard was an isolated instance, consider this video of the WI Senate Republicans ramming their polling place photo ID restriction bill through the chamber in minutes.





This from the same political party which, at the federal level, utilized the filibuster to engineer gridlock and practiced brinksmanship in the recent debt ceiling crisis.

Because they could not legally pass the anti-union legislation as a form of budget reconciliation after Senate Democrats had fled the state depriving the chamber of the quorum needed to vote, the WI GOP hastily arranged to strip the anti-union issues from the budget bill by scheduling a conference committee meeting on two hours notice. It was that action that gave rise to a lower court injunction, effectively nullifying the bill, as based on a violation of the state's open meeting law requiring 24 hours notice.

The level of disdain for the right of the opposition to be heard sets the stage for understanding what took place in chambers between a partisan jurist in clear need of anger management and a female colleague who did not share his views.

As reported by the Journal Sentinel, the high court disposed of the case with "unusual speed." Within one week of going through the motions of hearing five hours of oral arguments that were supposedly limited to the question of whether the Court would even take up the case, the four GOP jurists decided the case itself, issuing a lengthy written opinion on the merits.

Prosser, who, during the course of his hotly contested election, promised fealty to the legislative agenda of his former Assembly colleague, Gov. Scott Walker, even as he proclaimed his "judicial independence," wrote an eight page concurring opinion which Chief Justice Shirley S. Abrahamson criticized as being "long on rhetoric and long on story-telling that appears to have a partisan slant. This kind of order seems to open the court unnecessarily to the charge that the majority has reached a pre-determined conclusion not based on the facts and the law..."

Prosser's Anger Management Problem

The alleged assault was, by no means, the first time Prosser displayed problems controlling his anger. During his recent controversial election against Asst. Attorney General JoAnne Kloppenburg, information surfaced that he had called Chief Justice Shirley Abrahamson a "total bitch", and threatened to "destroy" her.

After being called on it publicly, Prosser admitted the incident occurred, but failed to take personal responsibility for it. He blamed Abrahamson (and Bradley) for his own behavior.

"I probably overreacted," Prosser explained, "but I think it was entirely warranted. ... They [Abrahamson and Bradley] are masters at deliberately goading people into perhaps incautious statements. This is bullying and abuse of very, very long standing."

Sort of reminiscent of the late Flip Wilson: "The devil made me do it."

Prosser's anger again got the best of him when he angrily snatched a microphone out of the hand of a local TV reporter who was asking him about the alleged choking incident.

In California, the state bar rates judicial candidates as "well-qualified," "qualified" and "not qualified, lacks a judicial temperament." Where does Prosser fit on that scale? Will either the WI Judicial Commission or Prosser's new independent investigator Barret get to the bottom of the question?

The jury is still out for the moment...

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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968).



