Prosser recused himself from this case under public pressure because it was scheduled to be argued by Jim Troupis, Prosser's friend and an attorney in his successful recount earlier this year. Troupis was not in court for arguments. That could leave the court with a 3-3 split, which would allow the rule to go forward.But see:
IT IS ORDERED that to preserve the status quo, the respondents are enjoined from enforcing the amendments to Wis. Admin. Code § GAB 1.28 published on July 31, 2010, pending further order of this court. — Wis. S. Ct., August 13, 2010That is, enforcement of the rule, which requires disclosures from individuals making "express advocacy" on behalf of specific political candidates, is prohibited by the court's August 13, 2010 injunction. And, if the Prosser-less court is unable to reach a majority disposition, then no "further order" can be made reversing the order of injunction.
Moreover, because Wisconsin Prosperity Network v. Myse is an original action, filed directly with the Supreme Court, there is no lower court decision to stand, in the event of a high court deadlock. Therefore, contrary to Wisconsin Public Radio's claim — and the claims of other press reports — such a division would not allow the rule to go forward, but rather serve to keep the court's August 13, 2010 injunction in force.
So not only would 2011 be the year of "supervisory/original jurisdiction," it would also be the year of the "temporary/permanent injunction."
Yet another remarkable wrinkle of this case is the fact that Justice Prosser was part of the majority that ordered the injunction in August, 2010, ceased participating in the case in August, 2011, and finally, on September 2, 2011, formally disqualified himself from the case (the Milwaukee Journal-Sentinel editorial board took credit for Prosser's disqualification this month, even though this here blog had pointed to Prosser's conflicting relationships with James Troupis way back in April).
That is, Justice Prosser's non-availability for formation of a majority disposition may prevent the Supreme Court from undoing that which Justice Prosser himself hath wrought. And, finally, it may be recalled that a majority of the court — complete with a concurring opinion authored by Prosser and joined by his close political ally Mike Gableman — exercised the extraordinary power of injunction prior to deciding whether it even had jurisdiction over the case in the first instance.
And by way of doing so, literally rewrote the Wisconsin constitution.*
Unprecedented, or, less charitably, making-it-up-as-they-go-along.
* How anybody considers this "conservative jurisprudence" is beyond me.