August 31, 2011

Prosser, J., did not participate.

Apparently there's been a flurry of motions in the case of Wisconsin Prosperity Network v. Myse, a challenge to a campaign finance disclosure rule propagated by the State Government Accountability Board, which oversees Wisconsin's electoral processes.* This space noted back in April that the petitioners' lead attorney, ubiquitous Republican activist James Troupis, was hired by Justice David Prosser to defend the latter's 0.46% margin of victory over challenger JoAnne Kloppenburg.

Four months later, the local press finally took notice, contacted some experts in legal ethics, who unanimously cast Prosser's continued participation in the case in a dim light, and Prosser was forced to issue a public statement and formally request of the parties their views as to whether or not he should disqualify himself from hearing the case (oral arguments are scheduled for next Tuesday, September 6). It appears WEAC, the teachers' union that was granted intervenor status on behalf of the respondent Government Accountability Board, filed a motion requesting Prosser's disqualification, which Mr. Troupis countered.

On August 18 the court ordered all of the parties to respond to a set of ten questions, the tenor and substance of which might incline one to believe there is a strong possibility that this case — which is an original action, meaning the petitioners went straight to the State Supreme Court, bypassing both the trial court and the court of appeals — will be dismissed. Justice Prosser did not participate in that August 18 order.

And yesterday the court granted WEAC's request to respond to Troupis's response on the question of Justice Prosser's recusal. Obviously Prosser did not participate in that order either but another component to yesterday's directive addressed the continuing written arguments pursuant to the August 18 order; that is, the substantive elements of the case as opposed to the ancillary question of Prosser's participation.

So while Justice Prosser has made no announcement** as to whether he'll sit in on Troupis's presentation next Tuesday, he's at least in some sort of holding pattern with respect to taking part in the court's continuing deliberations. And since the parties now have until this Friday at 5:00 p.m. to file their next collection of papers, we probably won't hear anything of Justice Prosser's disqualification until nearly the last minute.

The present action dates back one year, when Justice Prosser and his mutual admirer Mike Gableman issued a temporary injunction against the Government Accountability Board prior to their determining whether the Supreme Court even had any judicial authority at all over the case.

I admit I'm far from the sharpest knife in the drawer, but that's still a bit of a head-scratcher to me, injunctive power without the jurisdiction.

See also: Koch outfit friend of the [Wisconsin Supreme] court

* Gordon Myse is a former member of the Board and in fact weighed in on the recusal controversy, telling the Milwaukee Journal-Sentinel's Patrick Marley, "I think the fact that [Prosser's election] lawyer appeared in a case before him is objectively a conflict in almost anybody's book."

** Contrary to last week's ill-sourced Think Progress assertion. In the spirit of "Know thine enemy," you'd expect TP to have apprehended the fact it was relying on another one of these right-wing "news services" — in this case a Chamber of Commerce front — but it was not to be.


gnarlytrombone said...

Prosser was forced to issue a public statement and formally request of the parties their views

It is not at all unusual - in fact it is admirable - for a justice to recognize he looks like a dink.

James Rowen said...


Thanks for following this issue.

illusory tenant said...

Thank you. Once again, the process is more interesting than the legal questions presented.

Display Name said...

What's that, Rowen? Illusory-forward-slash-Tenant?