Justice Prosser's Conduct: Wrong, Right or Just Right-Wing?

I began researching this post by reading the Wisconsin Code of Judicial Conduct, which readers can peruse for themselves here.  (A special thanks to my favorite lawyer for his assistance in understanding what I read.)  Both the Dane County Sheriff's office (at the request of the Capital Police) and the Wisconsin State Judicial Commission have found sufficient grounds to open two investigations into the accusations.

Justice David Prosser, Jr. was accused last week of behavior which if true, was possibly misconduct at the very least, illegal at worst.  Justice Ann Bradley has accused Justice Prosser of putting his hands on her in an unwelcome and intimidating manner during a dispute in which he was asked to leave her office, and did not do so.

This alleged act was witnessed by six of the seven Supreme Court Justices; all but one appears to have confirmed the accusation of Justice Bradley.  Justice Bradley has been very specific and clear in her accusation, which you can read here, courtesy of  JSOnline:

"The facts are that I was demanding that he get out of my office and he put his hands around my neck in anger in a chokehold. Those are the facts and you can try to spin those facts and try to make it sound like I ran up to him and threw my neck into his hands, but that's only spin.
Matters of abusive behavior in the workplace aren't resolved by competing press releases..
I'm confident the appropriate authorities will conduct a thorough investigation of this incident involving abusive behavior in the workplace."

It is worth noting that it was Justice Bradley who called out Justice Prosser for his verbal abuse of Chief Justice Shirley Abrahamson.  It was her emails becoming public which eventually led to Prosser admitting he made the 'intemperate remarks', but he blamed the victim of his attack rather than taking responsibility for his own behavior. 

Again, from JSOnline, The conflict with Chief Justice Abrahamson was, it should be noted in order to properly understand this subsequent conflict, the possible recusal of Justice Michael Gableman from ruling on a criminal case.  The justices on the Wisconsin Supreme Court who are perceived as more liberal held to the higher ethical standard of Justice Gableman not ruling on a criminal case, and also over an ethics violation by Judge Gableman for not being honest and factual in campaign ads.  Justice Prosser has also opposed Justice Abrahamason over an ethics issue, where Justice Ziegler was formally reprimanded for violating the judicial ethics code.  I think it would be a fair statement that Justice Prosser tends to consistently favor a lower or lesser bar for conduct in the context of the judicial ethics code, rather than the higher standard of interpretation.  This appears to be reflected in his own conduct as well.
Justice Prosser's statement in response to the choking accusation by Justice Bradley, is here.

Once there's a proper review of the matter and the facts surrounding it are made clear, the anonymous claim made to the media will be proven false. Until then I will refrain from further public comment.

As additional context to this specific accusation, is the assertion that the improperly aggressive conduct by Justice Prosser is not recent, and that it is part of a larger pattern of conduct.  Justice Bradley had written in emails and described in interviews:

In a March interview, Bradley said Prosser had flashes of extreme anger on and off over the years.

"It's been going on for years off and on," she said.

After Prosser's outburst, Bradley sent an email to him and other justices saying the behavior was unacceptable. She said this March that from the time of her email until then there had been no incidents of similar magnitude.

She said she sent the email in an effort to stop Prosser from behaving inappropriately.

"I've been trying over the years to (figure out) best how to deal with it and one way is to call it out, and that's what this email was," Bradley said in March. "I've thought of other ways that have been unsuccessful. This was to describe it as it is and then you can deal with it." "This . . . for me at least in part is about the institution," she added. "This behavior shouldn't be occurring at the workplace."

An hour and a half before sending her Feb. 18, 2010, email to all the justices, Bradley sent an email to Abrahamson and Crooks expressing her frustration with Prosser's outbursts.
"As you both know, I am no longer willing to tolerate Prosser's abusive behavior," Bradley wrote. "I have been at a loss just how to proceed."

Just because Justice Prosser has had anger issues, which appear to be documented by conflicts outside the Supreme Court as well as within it, does not prove that Justice Prosser battered Justice Bradley.  But it does raise concerns in the context of the Judicial Code of Conduct as to his behavior.

While Justices on the Wisconsin Supreme Court have described Justice Bradley as aggressive in presenting her point of view, and even as provocative, I cannot find any similar pattern of Justice Bradley or Chief Justice Abrahamson having lost their self-control, or resorting to swearing, or threats and intimidation, or a similarly physical aggressiveness.  The following youtube video presents actual footage of Justice Prosser in action:



I could find no comparable video footage of either Justice Abrahamson or Justice Bradley acting in anger.  But what I did find was that Chief Justice Abrahamson was named Wisconsin's best justice in 2009 by the Wisconsin Law Journal, as shown in this video.  This is the woman that Justice Prosser called a bitch and threatened to destroy Abrahamson, with the bizarre and enigmatic additional statement that it 'wouldn't be a ground war', whatever the heck that means.  :

Additionally, in March, former Democratic Governor Lucey, who had been the CO-Chair of his re-election campaign, left that campaign, and gave his support to Prosser's competition, JoAnne Kloppenburg:

MADISON, Wis. -- Former Democratic Gov. Patrick Lucey is withdrawing his support for incumbent Justice David Prosser for Wisconsin Supreme Court and is throwing it to Assistant Attorney General JoAnne Kloppenburg.

Lucey released a statement to the media Thursday evening saying the campaign has revealed what he called "a disturbing distemper and lack of civility" in Prosser, though he did not cite specifics.  "I have followed with increasing dismay and now alarm the campaign of Justice David Prosser, whom I endorsed at the outset of his campaign and in whose campaign I serve as the honorary co-chairman," Lucey said in the statement. "I can no longer in good conscience lend my name and support to Justice Prosser's candidacy. Too much has come to light that Justice Prosser has lost that most crucial of characteristics for a Supreme Court Justice -- as for any judge -- even-handed impartiality. Along with that failing has come a disturbing distemper and lack of civility that does not bode well for the High Court in the face of demands that are sure to be placed on it in these times of great political and legal volatility."

At the same time, Lucey said he has continued to be impressed by Kloppenburg, saying she has shown the proper judicial temperament.

While I commend many of my conservative friends and colleagues for their vehement opposition to any form of violence against women, there is what appears to me to be a significant atmosphere of threats and intimidation against women on the bench in Wisconsin, that appears partisan in nature.  The cumulative effect of the apparently chronic loss of self control and anger management issues attributed to Justice Prosser, in conjunction with his lower standards for judicial ethics strongly suggests to me that there are some serious problems with behavior issues for Prosser.

 

There have been threats of violence on both sides of the political divide in Wisconsin; a 26 year old teacher was arrested for making death threats by email to Republican legislators, for which she was charged.  The woman told investigators that she had no intention of carrying out the threat, which parallels some (but not all) of the threats against Democratic federal law makers over the passage of health care reform.  However, as the Wisconsin Code of Judicial Conduct notes, the judiciary is held to a higher standard of conduct that other people, which should be kept in mind as we await the outcome of the dual investigations of Justice Prosser.