The “Judicial Independence” of Justice David T. Prosser

“This was a decisive election about judicial independence,” Wisconsin Supreme Court Justice David Prosser said at a press conference in Madison last Monday, declaring victory and explaining his opposition to a recount of the April 5th Wisconsin Supreme Court election.

“The people realized that judges should be much more than partisan politicians who wear black robes. Judges should be impartial in theory and in fact. They should faithfully apply the law without fear, and without favor,” he told the assembled media.

However, as an investigation by The BRAD BLOG reveals, there is a stunning gap between the lofty ideals of “independence” espoused by the incumbent Justice as quoted above, and the sordid reality of his own personal record as a hard-Right partisan official in Wisconsin, with the state's GOP caucus, and even during his role as a justice on the state's highest court.

It is a reality, well-documented through court records and other sources, finding Prosser and his former Republican colleagues in the Wisconsin Assembly enmeshed in a criminal scheme to utilize state employees and resources at taxpayer expense in order to finance and organize Wisconsin GOP political campaigns. A reality which includes an astounding legal filing by this same sitting Supreme Court Justice in which he not only acted as an advocate for the accused, but even confessed to his own participation in the alleged crime.

In short, it's a reality which led The BRAD BLOG to wonder whether Prosser was truly better characterized as an 'independent' jurist, as per his self-description, or a partisan criminal in a robe…

A Cautionary Note

Readers would be wise to avoid the conclusion that involvement in political corruption turns upon whether a politician places a (D) or an (R) at the end of their name, though there does seem to be a significant difference between (D) and (R) when a crooked politician is convicted and sentenced in the Badger state.

Two Democrats, former state Senators Charles Chvala and Brian Burke, faced multiple felony charges for misconduct in office similar to that discussed in this article.

Burke, a former co-chair of the Legislature's Joint Finance Committee, was prosecuted by the then Dane County DA, now elected Justice of the Court of Appeal, Brian Blanchard (D). On Nov. 30, 2005, Burke was “sentenced to six months in jail and ordered to pay almost $88,000 in fines for using his office to run his failed bid for attorney general,” according to Channel 3000.com.

Channel 3000.com also reported that on Oct. 25, 2005, Chvala pleaded guilty to two of 19 felony counts. He was “sentenced to nine months in Dane County Jail and two years probation.”

Neither does this article mean to suggest that political corruption is limited to elected officials —- a point that was underscored when the “Badger Herald News” recently reported that “Wisconsin & Southern Railroad CEO William Gardner will plead guilty to…felonies after he violated two state laws” related to illegal campaign contributions made to Gov. Scott Walker (R) and other Republicans.

Our focus here is on the direct links between Supreme Court Justice David Prosser, his former Republican Assembly colleagues and those in the state's Assembly Republican Caucus (ARC) —- including Kathy Nickolaus who now serves as County Clerk of Waukesha County —- and their involvement in the criminal misuse of state resources and state employees for partisan political gain.

The BRAD BLOG found no similar links between past political corruption scandals and Prosser's opponent in the contested election for the supposedly non-partisan position of Wisconsin Supreme Court Justice, Asst. Attorney General JoAnne Kloppenburg, who, by the way, is neither a Republican nor a Democrat. She is an avowed independent.

The 2002 Criminal Complaint

Prosser represented the state Republican party as the Wisconsin Assembly's minority leader from 1989 to 1994 and then as speaker in 1995 and 1996. Scott Jensen (R-Waukesha), who would ultimately become the speaker himself, served as Prosser's number two man in the Assembly during Prosser's term as speaker.

After reviewing accounts of an extraordinary court filing in which a sitting Supreme Court Justice, David Prosser, acted as an advocate for Jensen, who was accused of political crimes, The BRAD BLOG felt it appropriate to review pertinent court documents and decisions from the “State of Wisconsin vs. Jensen” case in which Prosser played a remarkable key role.

The case began in October 2002 when David Collins, Director of the White Collar Crimes Bureau for the Wisconsin Department of Justice’s Division of Criminal Investigation submitted a five-count criminal complaint [PDF].

Jensen was charged with three felony counts involving misconduct in office in his “hiring, retaining and supervising” several state employees to assist in organizing and funding political campaigns while the employees were compensated as state employees and for using state resources toward the same. Republican Assembly Majority Leader Steven Foti was charged in one of those felony counts, and one of the state employees, Sherry L. Schultz, was charged in another. The fifth count charged Jensen and Republican Assemblywoman Bonnie Ladwig with a misdemeanor violation in having “intentionally used their public positions…to obtain financial gain for the private benefit of an organization with which they were each associated, namely the Republican Assembly Campaign Committee.”

Misuse of State Employees, Resources for Partisan Political Gain

Collins did not end the complaint with the charging paragraphs. Instead, he laid out a powerful case by summarizing multiple witness statements obtained by state investigators, including Jensen's statement.

Jensen told state investigators “State employees should not raise or discuss raising campaign money at all on State time”, according to the criminal complaint.

Jensen's admission, as will be shown below, is manifestly inconsistent with the position both his legal team and even Justice Prosser himself would later take in an extraordinary pretrial motion.

Jensen claimed he did not know what job duties his co-defendant Sherry Schultz performed. The statements of numerous witnesses interviewed by state investigators reveal Jensen's claim on that score to be, shall we say, less than candid.

Schultz, according to witnesses, was ostensibly employed by the ARC as a state employee, but worked full time in close consultation with, and under the direction of Jensen on campaign organizing and funding. Her duties included the use of master campaign lists to help determine how Republican Assembly campaign funds would be disbursed to various members.

Jason Kratochwill served as the ARC's Director from 1999-2001. According to the complaint, “Kratochwill estimated that the campaigns of 50 of the 56 Republican members of the State Assembly used the ARC for campaign purposes that included graphic design work.”

Kratochwill told investigators that he and Jensen “spoke often and without regard to whether Kratochwill was on State time…dealing with such issues as: recruiting candidates; which districts to do polling in; how to get ARC and legislative staffers to agree to work on particular campaigns; who to run ads for in what medium; how to staff and fund campaigns; what opposition research was needed…”

He said Jensen knew that “ARC employee Kathy Nickolaus developed a campaign finance software program that Nickolaus tried to sell for a profit.”

[Yes, that's the same Kathy Nickolaus, now serving as County Clerk in Waukesha County, who announced the addition of 14,000 previously-unreported votes from the city of Brookfield on April 7, 2011, two days after the remarkably close Supreme Court election, turning what had been a razor-thin 204 vote lead for Prosser's challenger JoAnne Kloppenburg into a still thin, but much larger 7500 vote lead for her old colleague from their ARC days.

On April 6, 2011, one day before Nickolaus publicly announced her “discovery,” (but on the same day she now “claims” she made that discovery) Wisconsin’s Republican Gov. Scott Walker, announced “there might be 'ballots somewhere, somehow found out of the blue, that weren't counted before,'” according to a complaint [PDF] filed with the Wisconsin Government Accountability Board (GAB), by Asst. Attorney General Kloppenburg's campaign manager, Melissa Mulliken. On that same day, according to the complaint, Prosser met privately with Walker in his office, though the Justice vehemently denies that allegation.

This is also the same Kathy Nickolaus who is currently the subject of another investigation by the GAB for election irregularities in Waukesha County going back five years. Those irregularities include her own election reports stating that some 20,000 more votes than “ballots cast” were tallied by Nickolaus in the county's 2006 general election, and a remarkable 97.63% voter turnout for the 2004 Presidential election. She was also the subject of an independent audit commissioned by the county's Executive Committee after it was discovered she kept all of the counties election results on a personal computer available only in her own office.]

But back to the 2002 complaint which states that Kratochwill said he prepared proposals for Jensen and Ladwig that contained “phony” numbers to suggest that ARC employees were off working part-time on campaigns. For example, a Jensen office staffer “was listed as being off of the State payroll 50%” but “Jensen knew that [the staffer] was working on a campaign 100% of the time.”

ARC employee Paul Tessmer compiled a “master voter list for use in campaigns.” Tessmer told investigators that in early 1999 he was asked “to create a campaign finance computer software program…for use by Jensen. Some legislators were then using a prior existing, but ineffective, campaign finance report software program prepared by Kathy Nickolaus…”

Tessmer admitted he did not disclose the use of the software to the Elections Board “because he felt it was an advantage to Republicans to have exclusive use of it.”

Tessmer's admission that the program was concealed from the Election Board for exclusive use by the GOP is at odds with the claim later made by Nickolaus, who earned $54,000/year as an ARC data analyst and computer specialist, that “she developed the software on her own time because she wanted to sell it to the state elections agency for use in automating state-required campaign reports.”

A former co-worker of Nickolaus' during the time both were employed by the Wisconsin Integrated Legislative Information Services (now Legislative Technology Services) told Blog talk radio recently that Nickolaus was “secretive” and “exceptionally partisan”:

What struck me though about Kathy was that she was exceptionally partisan. This was supposed to be a non-partisan agency…Kathy was the kind of person, it didn’t matter what you said to her, ah I would say 'I’m going down the street to get a muffin, you want one?' and she would say, 'We have to stop abortions!'

Immunity and Plea Deals

Nickolaus now claims she prepared her apparently deficient campaign finance computer software program on her own time. Yet, in June 2002 AP reported that the Wisconsin Ethics Board “was looking into lists of registered voters bought with state money by a former state employee who resigned to run for office.” That employee was Kathy Nickolaus, who resigned her state employment on May 10, 2002 and subsequently ran for Waukesha County Clerk.

No problem, said Nickolaus. She didn't obtain those lists for her own use. She obtained them for then Assembly Majority Leader Steve Foti who “said lawmakers routinely use the voter lists for legitimate state business,” according to AP.

Three months after the AP story broke, the Wisconsin DoJ's Collins filed the criminal complaint which charged the same Steve Foti with a class E felony for misuse of state employees and resources for partisan political gain.

Even if Nickolaus prepared the campaign finance report on the state's dime, she didn't need to fear prosecution. She was granted immunity from criminal charges in exchange for her testimony in the Jensen case.

Foti was not so fortunate. While he did make a deal with prosecutors to testify against former Assembly Speaker Scott Jensen (R) and his aide, Sherry L. Shultz, as revealed by a state publication [PDF], Foti's eventual plea agreement included a January 2006 conviction for a misdemeanor ethics violation for having kept a campaign fundraiser on his payroll. His sentence included 60 days in jail.

Ladwig, another Republican member of the Wisconsin Assembly named in the 2002 criminal complaint, also agreed to testify as part of a plea bargain. She was convicted in Dec. 2005 “of a misdemeanor ethics violation for legislative staff to obtain private benefit for the Republican Assembly Campaign Committee.” Her sentence included 30 days in jail on a work release program.

Sitting Supreme Court Justice Confesses Crime, Advocates for Accused

By March 2006, Justice's Prosser's old colleague Scott Jensen was in dire straits. His former GOP cohorts, Foti and Ladwig turned state's witnesses. A state appellate court expressly rejected the position taken by his legal counsel that the words “legislative activity” in the state's Assembly Employee Handbook meant that ARC employees could engage in political campaign activities at taxpayer expense.

“The Assembly's own rules prohibit the type of conduct in which the defendants allegedly engaged,” the court of appeal stated.

Desperate to evade a trial in Democratic-leaning Dane County (Madison, where the state capitol is located), the Jensen legal team submitted one of the most extraordinary court filings this writer has become acquainted with in more than 33 years of practicing law.

As reported by Dee J. Hall of the “Wisconsin Journal”, Jensen's brief revealed that Supreme Court Justice David Prosser —- who was, by then, immune from prosecution for the same crimes due to the statute of limitations —- was prepared to testify on Jensen's behalf.

Hall states [emphasis in original]:

Prosser and another former legislative leader, Joseph Strohl, acknowledge in the filing that they used their taxpayer- funded caucus staffs for campaigning —- the same type of behavior for which Jensen faces three felonies and a misdemeanor charge. The two said maintaining their party's grip on power in the Legislature was a key part of their duties as leaders.

In the brief, Prosser admitted that while he served as speaker, “caucus members and…directors…participated in…[c]ampaign and political meetings in the Capitol office; assisting the speaker and the elected leadership by recruiting candidates, gathering voting lists and target lists; setting up, attending and staffing fundraisers; and assisting legislators in creating and implementing office plans.”

According to Hall, University of Wisconsin-Madison Law Prof. Walter Dickey took a dim view of these extraordinary admissions by a sitting WI Supreme Court Justice, saying that Prosser “might be admitting to a crime. Even if it's not prosecutable, it undermines the legitimacy of the judiciary if you admit to behavior that amounts to a felony.”

Hall went on to note that, in the Jensen brief, Prosser said:

“The legislative branch is the political branch of government, and a legislative office is a thoroughly political office. For the most part, every activity that could be characterized as a campaign activity can be conceivably construed to be an act that furthers the legislative process.”

Dane County DA Brian Blanchard, noting that Prosser's remarkable assertion was at odds with a decision just handed down by the court of appeal in the same case, responded, “There is no reasonable argument that this alleged activity serves any legitimate legislative duty or purpose,” Hall reported.

[AUTHOR'S NOTE: I am as appalled by this aspect of Prosser's participation in the Jensen brief as Prof. Dickey is with Prosser's statute of limitations-protected admissions of participating in an alleged felony.

Prosser's legal position is all too reminiscent of President Nixon's infamous statement that “when the President does it, that means it is not illegal.” Prosser and Jensen seem to be saying that if a sitting Supreme Court Justice did it, then that must mean it's not illegal.

It is manifestly inappropriate for any appellate justice to publicly express a legal opinion on a litigated matter before legal arguments and evidence have been duly presented. While Prosser would ultimately recuse himself when “Wisconsin vs. Jensen” reached the Wisconsin Supreme Court, his effort to persuade the trial court, by acting as an advocate for the accused, amounts to nothing less than an abuse of his office as a Supreme Court Justice in a manner designed to undercut the due process rights of the state of Wisconsin.

Opinion testimony from a sitting Supreme Court Justice, if it had been permitted, could have served to undermine the authority of the trial judge in the eyes of a jury, especially if that testimony conflicted with jury instructions.]

All of this underscores what must be a new definition for the phrase “judicial independence,” as uttered last week by Prosser during his “victory speech” to the media at his press conference in Madison.

Moreover, the fact that Justice Prosser retained an attorney to oppose a recount in the incredibly close April 5th Supreme Court election —- an attorney who is scheduled to soon appear before the Wisconsin Supreme Court on a major campaign finance issue —- coupled with his “belief…that he would not need to recuse himself” when the Court hears that same campaign finance case, severely undercuts his purported aspirations to “judicial independence.”

'The Most Discredited Wisconsin Political Figure Who Has Not Served' Time

In an article in which he described Scott Jensen as “the Lindsay Lohan of Wisconsin politics,” progressive journalist John Nichols opined that Jensen was “arguably the most discredited Wisconsin political figure who has not served a jail sentence.”

In March of 2006, Prosser's former second, and his successor as speaker of the Wisconsin Assembly, Scott Jensen was convicted [PDF] of three felony counts entailing misconduct of public office and a misdemeanor for his misuse of public funds. He was sentenced to 15 months in prison.

Jensen's felony convictions were overturned on appeal in 2007 based on improper jury instructions. The circuit court had instructed the jury that “a legislator's use of state resources for campaign purposes established that the legislator obtained a dishonest advantage.” This improperly “constituted a mandatory conclusive presumption,” the court of appeal stated. The court of appeal upheld the trial court's refusal to permit testimony from “past assembly leaders” (e.g., Justice Prosser) “regarding long-standing practices in the assembly of using state employees…for political campaign purposes” as the proffered evidence “was not relevant to whether Jensen intended to gain a dishonest advantage.”

The court of appeal noted that Jensen did not appeal his misdemeanor “conviction for Intentional Misuse of Public Position for Private Gain.” It remanded the case for a new trial on the felony charges.

Upon remand, Jensen moved for a change of venue based on a politician-friendly venue law which was passed by the WI legislature while the Jensen appeal was pending. The statute permitted individuals charged with “violations arising from or in relation to elections, ethics, and lobbying regulation laws” to be tried in their county of residence, rather than the county where the crime was allegedly committed.

Both the circuit court and court of appeal denied Jensen's motion concluding that the statute did not apply to the charges pending against Jensen. On May 20, 2010 in “State v. Jensen”, the Wisconsin Supreme Court reversed, ruling that Jensen was entitled to be tried in Waukesha County, the Republican-friendly enclave of County Clerk Kathy Nickolaus, and Jensen's county of residence.

For Jensen, this ruling carried the collateral benefit that he would no longer have to face those pesky Dane County prosecutors who'd had the temerity to enforce the law against him.

In October 2010, John Nichols reported that, while his case was still pending in Waukesha, Jensen re-emerged “as one of the most active players” in Wisconsin politics. Jensen linked up with “the American Federation for Children, which has registered as a corporation making independent expenditures in state legislative races…[a] group [which] intends to dump something in the order of $100,000 into each of a dozen or so key Assembly races in the final days before the Nov. 2 general election,” Nichols added.

Nichols also reported that Jensen “helped Rebecca Kleefisch secure the Republican nod for lieutenant governor, which links him to this fall’s GOP gubernatorial run by Scott Walker…”

In December of 2010, after the November election had assured Walker and the GOP were about to assume full control of both the legislative and executive branches of state government, Jensen entered a plea agreement with the Republican DA of Waukesha County, Brad Schimel. According to the agreement, two of his felony counts were dismissed, one felony count was reduced to a civil forfeiture of $5,000 and one misdemeanor conviction, which was final since it was not challenged following Jensen's 2006 conviction, was allowed to stand. Jensen was also ordered to reimburse the state $67,000 for the portion of his legal fees that had previously been charged to Wisconsin taxpayers.

Fellow Republicans Ladwig and Foti had been sentenced to 30 and 60 days in jail for their misdemeanor convictions, respectively, even after turning state's evidence. Democratic State Senators Burke and Chvala received respective sentences of six and nine months for felony convictions, as noted earlier in this article.

But Prosser's friend and former second-in-command, the powerful Scott Jensen —- despite solid evidence supportive of the subsequently overturned felony convictions —- walked away without having to serve one day in the slammer.

The “Wisconsin State Journal” described the plea deal as “an early Christmas present” from Schimel to Jensen. The Journal also reported that the Republican “Schimel said the case had dragged on long enough, and bringing it to trial would have overwhelmed his office.”

The sole reason the case had “dragged on” as long as it did was due to Jensen's multiple appeals.

One can just imagine the noise that would have bounced through the right-wing echo chamber if then Dane County DA Brian Blanchard had declined to prosecute fellow Democrats, Charles Chvala and Brian Burke, because their trials “would have overwhelmed his office.”

Hornets Nest Comes Full Circle in Supreme Court Election

Schimel's role in the Jensen case brings us full circle to the controversial Waukesha County Clerk Kathy Nickolaus and her April 7th news conference announcing the “discovery” of 14,000 previously-unreported votes from the city of Brookfield which served to offer a stunning reversal of fortune for Prosser in the April 5th Supreme Court election.

On April 20th, on the same day Prosser's opponent JoAnne Kloppenburg announced she was exercising her right for a statewide recount in the race, her campaign also made an official request [PDF] that a special, independent investigator be appointed by Wisconsin's Government Board of Accountability (GAB), the state's chief election agency, to probe whether or not Nickolaus had violated state election laws during the post-election canvass.

The complaint [PDF] was filed together with supporting exhibits [PDF] which, the Kloppenburg campaign contends, demonstrate the appearance of a lack of impartiality by the GAB and by the County Prosecutor, Brad Schimel, who “would likely be involved in such an investigation.”

One of those exhibits was an email sent by Schimel to Nickolaus on 8:24am on Friday, April 8th, the morning after her extraordinary evening press conference which shocked the state by giving Prosser a 7,500 vote lead in the election.

The email from Schimel, who would otherwise be tasked with prosecuting Nickolaus if wrong-doing is discovered, reads…

The good people of Wisconsin are sure to take comfort in Schimel's 'prosecutorial independence' at least as much as they are able to count on Prosser's 'judicial independence' should he eventually be found the official winner of another 10-year term on the state's highest court.