"This relationship is one of those thumbs on the scale." "Prosser should step aside now." "It's a bad idea to stay on the case."Herewith a "friend of the court" brief filed by the Institute for Justice, Minnesota chapter (a.k.a. "out-of-State agitators"), in the case of Wisconsin Prosperity Network v. Gordon Myse, a challenge to a State of Wisconsin campaign financing rule. The Institute for Justice was "initially funded" by the Bros. Koch and is sustained by 2.4 millions of dollars in Milwaukee's own Lynde and Harry Bradley Foundation generosity.
Wisconsin Prosperity Network is one of ten petitioners to the Wisconsin Supreme Court, which ten also includes such local right-wing luminaries as Republican candidate for Senate Kim Simac, the shouting Tea Party preacher "Apostle" David King, the Koch Bros. front group Americans For Prosperity, and the MacGyver Institute, which maintains what it calls — in what just has to be an ironic, postmodern jape — a "news service."
All are represented by oft-celebrated WISGOP counsel, James Troupis, along with our friend Rick Esenberg, known to profess the law — and lay effusive bouquets on the Bradley Foundation — at Marquette University.
Which is all fine and dandy, I'm sure, quite apart from the fact Supreme Court Justice David Prosser, to whose considered deliberation the petition now falls, retained one James Troupis to preserve Justice Prosser's bid to maintain his position among the "conservative" majority of that court, for the next ten years, and for which Mr. Troupis did zealously advocate (and did promptly bill a cool seventy-five thousand).
Notwithstanding its dubious provenance, is the Koch/Bradley amicus brief meritorious? Perhaps. The First Amendment is — and should be — an imposing barrier to restrictions on political speech. After all, it was none other than Justice Prosser who ruled that a State Supreme Court may not oblige its members, through a reasonable code of ethical judicial conduct, to refrain from slandering their colleagues without offending the First Amendment (a ruling that offends the intelligence).
Nevertheless it's worth noting that one of Justice Prosser's colleagues, Mike Gableman — for it was his unethical shenanigans to which the aforementioned ruling was designed to protect* — publicly interrogated a Wisconsin attorney for her alleged ties to the Open Society Institute, which for present purposes might be seen as a "liberal" corollary to the Koch/Bradley consortium. We thank Justice Gableman for providing the illumination upon his vague paranoias, but we don't expect any similar grilling of the petitioners' counsel during oral argument Setpember 6.
Another unique feature of this case dates to last August, when Justices Prosser and Gableman literally rewrote the Wisconsin constitution.
They did so to articulate a power of theirs which they had just divined, the power to prevent the two other equal branches of government from operating. This they did before even deciding whether the petitioners — or "Apostles," in at least one instance — had even bare standing to sue.
Whereas Article VII of the Wisconsin constitution empowers the Supreme Court to "issue all [injunctions] necessary in aid of its jurisdiction," the two self-advertised conservatives inserted language to the effect of "necessary in aid of deciding whether or not we have its jurisdiction."
More detail here and here.
There's a pretty decent argument to be made that Prosser/Gableman were way out of line, in terms of what "in aid of its jurisdiction" means in the Wisconsin constitution. It contemplates a jurisdiction that has been taken, a case that has been accepted in compliance with the judiciary's enumerated powers of jurisdiction. It doesn't contemplate empowering the court to slap injunctions on the executive branch prior to making any other judicial determinations at all, including whether or not the court itself has jurisdiction over the action in the first place.
If you haven't the jurisdiction, then how can you issue the injunction?
And it wasn't the last time the duo fabricated a novel judicial power.
I have no idea what's so "conservative" about either of them, frankly.
Except that they're "pro-life," or something.
* Here's a short film of Gableman, J. returning the favor, featuring Gableman denouncing, inter alia, "out-of-State influences." Seriously. Special disapprobation is reserved for Jesse Jackson, for some reason.