Embattled Wisconsin Supreme Court Justice David Prosser has unexpectedly announced he will recuse himself from an upcoming case involving a Tea Party challenge to proposed election disclosure rules. Prosser was asked to step down on conflict-of-interest grounds because his campaign attorney, James Troupis, is also the attorney for the Tea Party groups; for weeks, Prosser had insisted on his impartiality.

Unexpected Recusal

In a one-sentence letter (attached) issued to lawyers in the case Thursday afternoon, Prosser wrote, "Please be advised that I will not participate in the oral argument or decision in Wisconsin Prosperity Network v. Myse."

The case involves a challenge by Koch-funded Americans for Prosperity to proposed campaign disclosure rules passed in the wake of the U.S. Supreme Court's Citizens United [3] decision (and subsequently enjoined by the Wisconsin Supreme Court). Troupis Law Office is representing Americans for Prosperity and other Tea Party groups, and was also paid $75,000 by Justice Prosser to represent his campaign during last spring's supreme court election recount. The justice had previously said "I believe I can be completely impartial" and his campaign manager told reporters Prosser would stay on the case.

Wisconsin Supreme Court justices are supposed to recuse if their impartiality can be reasonably questioned, but the final decision rests solely with that justice.

Recusal issues have flared up in the past. Justice Annette Ziegler came under fire in 2007 for staying on a case important to the state's business lobby, Wisconsin Manufacturers and Commerce (WMC), which spent $2 million to help get her elected. In 2009, Justice Michael Gableman refused requests to step aside in criminal cases because of a perceived bias expressed in his election campaign, where he approved and ran a misleading ad deriding incumbent Justice Louis Butler for doing his job as a public defender, wrongfully attributing to Butler an unrelated later crime committed by one of his state-assigned clients. Gableman was also supported financially by WMC.

Collective Bargaining Controversies

Prosser's spring reelection campaign turned into a referendum on Wisconsin Governor Scott Walker [4]'s collective bargaining bill, elevating what would typically be a mundane win for the incumbent into a national news story. After a very close election and recount (where Prosser was represented by Troupis Law Office), Prosser voted to uphold Governor Walker's union law. Unions contributed to Prosser's opponent, JoAnne Kloppenburg, and anti-union business interests contributed heavily to Prosser's campaign. Given this spending, some [5] have questioned whether Prosser should have recused himself from that case, as well.

Prosser has been in the spotlight for months. During his already controversial reelection campaign, it was revealed he had called Chief Justice Shirley Abrahamson a "bitch" and threatened to "destroy" her earlier this year. After the election and collective bargaining decision, reports emerged that Prosser had put his hands around the neck of fellow Justice Ann Walsh Bradley on June 13, the evening before the court issued its contentious decision upholding Governor Walker's law.

After a very brief reprieve, attention swung back to Prosser last week [6] with conflict-of-interest allegations and the recusal request. In the following days, the Dane County Sheriff released the report [7] of its investigation into the June "choking" incident. Prosser claimed vindication because no criminal charges were filed, but the report also describes Prosser's temper as contributing to a dysfunctional supreme court.

The Wisconsin Prosperity Network v. Myse case is scheduled for oral arguments on Tuesday, September 6. Prosser's recusal raises the possibility that the court will split 3-3, meaning the campaign transparency rules would likely remain in place.

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The Center for Media and Democracy submitted an amicus brief [8] in the Wisconsin Prosperity Network v. Myse case asking the court to uphold the campaign disclosure rules.