Wisconsin Supreme Court Justice David Prosser said Wednesday he didn’t need to recuse himself from cases involving groups that spent millions to help get him elected.
The cases were over an investigation into whether Gov. Scott Walker’s 2012 recall campaign illegally coordinated with third-party groups. The groups spent heavily in support of both Prosser’s and Walker’s campaigns.
Special prosecutor Francis Schmitz in February requested Prosser and Justice Michael Gableman recuse themselves, but both denied Schmitz’s motion earlier this month and were part of the majority in a 4-2 decision ending the probe into Walker’s campaign. Gableman has not issued an explanation like Prosser.
In Wednesday’s opinion, Prosser said the millions in 2011 campaign spending by The Wisconsin Club for Growth, Wisconsin Manufacturers and Commerce and Citizens for a Strong America did not trigger a conflict of interest because the spending was done years before the groups appeared in cases before the Supreme Court. The groups spent nearly $5 million to get Gableman and Prosser elected.
“If my recusal were required now because of these expenditures — that is, four years after lawful independent communications were made to support my candidacy when there was no other practical way to support that candidacy and answer the virulent personal attacks on my integrity — the special prosecutor will have found a way to undermine judicial elections in Wisconsin,” Prosser wrote.
Some legal experts say possible conflicts of interest involving the four conservative justices who voted to toss out the inquiry provide grounds for appealing the decision to the U.S. Supreme Court. They cite a 2009 U.S. Supreme Court decision involving a judge who refused to recuse himself in a case featuring a large campaign donor.
The 2009 case, Caperton v. A.T. Massey Coal Co., involved a coal company executive who spent $3 million to elect a West Virginia Supreme Court of Appeals justice, more than three times all other donors. That judge later voted to reverse a $50 million judgment against the company.
In a 5-4 decision, the high court made it unconstitutional for an elected Supreme Court justice to hear a case involving the financial interests of major donors of that justice’s election campaigns.
But Prosser wrote in Wednesday’s opinion that the Caperton case doesn’t apply to his situation. He said the $3.3 million spent for his reelection campaign by outside groups, while nearly eight times the amount of public funding, appeared disproportionate because of new campaign finance laws that reduced the maximum amount an individual or committee could contribute from $10,000 and $8,625, respectively, to $1,000.
“These major reductions in contributions were designed to induce, if not force, supreme court candidates to participate in a new public funding plan designed exclusively for supreme court races,” Prosser wrote.
He said a candidate who applied for public funding could not raise more than $20,000 in private contributions and could not receive more than $400,000 in public funding under the law.
“As a result, a candidate for the supreme court was extremely vulnerable to third-party expenditures, especially if those expenditures were limited to issue advocacy,” he wrote. “The only practical and lawful response to issue advocacy attacks on a candidate taking public funding had to come from other issue advocacy. This reality became apparent to everyone knowledgeable about the new laws.”
He said in the Caperton case, the judge in question received heavy campaign donations from a single person who had a pending or imminent case before the court and benefited from the judge’s reversal after he was elected.
“There was no ‘pending or imminent’ case against any individual or entity who made expenditures in the 2011 election at the time the expenditures were made,” Prosser wrote, also adding he had been on the court for more than a decade rather than being elected new like the judge in the Caperton case.