Thursday, October 29, 2009

. . . So Help Us God

The Associated Press summed it all up:

"The Wisconsin Supreme Court adopted rules Wednesday allowing judges to hear
cases involving their biggest campaign contributors, siding with business interests and rejecting calls for changes.

Voting 4-3, the court approved rules saying donations by groups and individuals to judges and independent spending to help them get elected do not by themselves require judges to step aside from cases.

The additions to the judicial code of conduct were proposed by two powerful Wisconsin business groups, the Wisconsin Realtors Association and Wisconsin Manufacturers and Commerce, and adopted without a single change

No one who was in the chamber yesterday could have been surprised by the outcome, as the majority of justices wore their preconceived notions on their sleeves.

I certainly expected a good grilling about the Democracy Campaign's view that there should mandatory disqualification of judges in cases involving their biggest campaign supporters. But after watching the League of Women Voters and two national fair courts advocates endure something right out of Salem, Massachusetts circa 1692, I suppose I should be grateful that I got questions like these. . . .

Quoting Justice David Prosser:

"Haven't you called me a thief?"

"It seems to me that there probably is some concern about the Wisconsin Supreme Court, and a lot of it is tied directly to you."

"Did you kind of suggest humorously that people might consider poisoning Justice Ziegler?"

OK, that's two questions and a declaration that the messenger should be shot, but not before I am assigned far more influence than I actually have.

On the last question, if Justice Prosser had been willing to read the offending passage in its entirety, it would have been clear that I did not suggest, jokingly or otherwise, that Justice Ziegler be poisoned. I was commenting on a remark made by state Appeals Court Judge Ralph Adam Fine.

As for the thief question, here is the item Prosser evidently was referring to. And here is more on the subject. If Prosser had allowed an airing of the truth, the whole truth and nothing but the truth, so help us God, and not just the fragment of truth that reinforces his already-made-up mind, this would have been known to all in the room: First, it was Scott Jensen's lawyers who filed a brief asserting that Justice Prosser agreed to testify that when he was Assembly speaker he had engaged in the same conduct that yielded felony charges against top legislative leaders including Jensen. Second, it was the state's attorneys who called the conduct "theft from the public" (go here and see page six) and a trial judge who called it "secretive but highly organized theft" as well as "common thievery elevated to a higher plane."

For the record, I stand by everything I have written concerning Justice Prosser and I rest easy in the knowledge that anyone who reads what I've written will judge for themselves whether I have shown the "reckless disregard for the truth" that Prosser claims I have exhibited.


jess said...

If it were not downright frightening, the mendacity of this court would qualify as satire.

Anonymous said...

I was under the impression, apparently mistaken, that "The Appeal" by John Grisham was fiction. Our Supreme Court has certainly cleared that up. Let's be proud that we have the best court money can buy.

Anonymous said...

Mike, you verbally got your clock cleaned yesterday. The way Prosser was going, count yourself lucky verbally was the only way he cleaned your clock, he was that angry. Groups big and small will continue to contrible to candidates of their choosing and they will not have their rights diminished under the false guise of "clean and impartial" elections.

jennifer nelson said...

Thank you Mike for taking the heat, and please keep up the good work...I think the reactions of the court says it all.

Anonymous said...

Good for Justice Prosser! It's about time you were called out, Mike. They don't refer to you as the Wisconsin Hypocrisy Campaign for nothing! But why don't you keep claiming to be the "poor victim" here so that you can continue to shake the money tree of the WDC membership to fill your own pockets.

Anonymous said...

Mike: I was there and witnessed what I consider to be deplorable conduct on the part of Justice Prosser who exhibited a total lack of Judicial decorum. Curiously Justice Gableman chose to viciously attack counsel for the LWV but failed to question the motives of the big money clients represented by Attorney Williamson. What happened yesterday was a sad day for the citizens of Wisconsin because the public's confidence in our Supreme Court has now been even further eroded by the actions of the majority in bowing to the demands of the big money contributors to Judicial campaigns.

hemlock4judges said...

I see the trolls have come to peddle the pro-Prosser spin. You stood your ground, Mike, and Prosser came out looking extraordinarily bad. I especially got a kick out of his twisted logic that if the rule says judges don't have to recuse in cases involving their biggest campaign supporters, that shows judges aren't biased by the money.

And don't sell your influence short, Mike. What you do sure is getting under the skin of the high and mighty, and there are a great many of us out there who are eternally grateful to you for that.

clyde winter said...

I thought I didn't have any illusions left regarding the effects that legalized bribery has had in corrupting our system of governance in America. But the blatant crass arrogance, together with the distorted perception and twisted logic, and the attempted bullying of citizens testifying at this public hearing that was displayed by certain Justices of "our" Wisconsin Supreme Court lowers my expectations of equal justice for all another big notch, until the people demand and get a Supreme Court that is of, by, and for the people, instead of by and for the corporations and the super-rich.

Throw the bums out.

Anonymous said...

Poor, poor Saint Michael, called on the carpet for telling a bald-faced lie about an honorable man.

Sometimes your hubris is amazing, Saint Michael. What kind of reaction did you expect from the man you libeled? That he would welcome you with open arms and a smile?

If you were a man, Saint Michael, you would have apologized. But that's inconsistent with your smarmy ego, isn't it?

If you had an ounce of sense (or intelligence), you would have sat down and shut up.

Dennis Allen said...


Thanks for getting in Prosser's face! The court's decision was deplorable. That supreme court justices--even those put into office by corporate money--can't see the potential conflict of interest is incredible!

Eventually the public will get it!
Keep up your VERY IMPORTANT work!

Dennis Uhlig

Jack Lohman said...

I cannot believe that we are even discussing this. What is it that people do not understand about "money?" Special interests give money because money works!!!

Brian D. said...

It is extremely telling that those defending Prosser can only do so by attacking McCabe and his group. "Saint Michael" and "Wisconsin Hypocrisy Campaign." They won't (and can't) defend the court letting WMC and the Realtors write the court's ethics rules. They won't (and can't) defend the decision by this "honorable man" to serve as a character witness for Scott Jensen or his admission that he did the same thing when he was speaker that Jensen and Chvala and the others were hauled into court for. These things are "honorable" and McCabe is "smarmy" for calling him on it? Are you serious? You're not embarrassed at all shoveling that load of crap?

Jack Lohman said...

What puzzles the hell out of me is the number of hoops people are willing to jump through to justify a corrupt system, whether a compromised judicial or legislative branch. I don't want even the special interests I support to influence the elections of any public employee.

Anonymous said...

Illusory Tenant commentary illustrates why Prosser was right and why Mike McCabe is absolutely full of excrement:

[From Illusory Tenant posting dated October 31: ]

It's little wonder Prosser lit into McCabe

Some observers made note of a testy exchange Wednesday between Wisconsin Supreme Court Justice David Prosser and activist Mike McCabe, at the court's public hearings on rules for judicial recusals.

Justice Prosser teed off on Mr. McCabe over several items the latter had published at his "Big Money Blog," which is part of McCabe's Wisconsin Democracy Campaign project (a useful resource, btw).

The justice was annoyed — to put it mildly — by McCabe's suggestion last June that Prosser was to sit in judgment of former State legislator Scott R. Jensen's criminal appeal, even though the record clearly shows as early as the preceding February that Prosser wasn't participating in the case.

Prosser and Jensen are estwhile colleagues in the Wisconsin State Assembly, where they served consecutively as speaker.

To make matters worse, after being notified by the Supreme Court, McCabe printed a correction the next day which, instead of leaving bad enough alone, sarcastically wondered whether Prosser was planning on appearing as a "character witness" on Jensen's behalf.

(At least, I assume it was sarcastic. Either that or McCabe believes "character witnesses" regularly appear at oral arguments before the State's highest appellate court. They do not.)

While it's true that Justice Prosser was a witness during Scott Jensen's trial at Dane County in 2006, Prosser was doing so under a subpoena — that is, an order of the court — to appear. The more serious problem with McCabe's sarcasm is that he quoted from the Wisconsin Supreme Court Rules, in particular a passage forbidding judges from "testify[ing] voluntarily as a character witness."

Anonymous said...

McCabe's implication — at least — is that Justice Prosser violated the code of judicial conduct in 2006 and was by McCabe's insinuation preparing to violate it again in 2009. One generally needs evidence for those sort of accusations, or at least supporting documentation that someone credible has made them.

But unfortunately McCabe didn't reproduce the comment below the rule (SCR 60.03(2)), which notes, "A judge may, however, testify when properly summoned." Which is to say, there is a considerable legal (and, by extension, ethical) distinction between testifying voluntarily and testifying after having been properly summoned.

And had McCabe undertaken one of those "Google is your friend" adventures, he would have easily discovered Justice Prosser telling then-Milwaukee Journal-Sentinel reporter Steven Walters, "I've been subpoenaed as a witness in a criminal trial, and witnesses are expected to cooperate."

Indeed, they are. At risk of contempt.

Moreover, and while I admit I don't follow these things as closely as many others do, it's not clear to me that Prosser was specifically called as a "character witness," although he reportedly fielded a question or two concerning Scott Jensen's character.

I could be mistaken, but it appears that Justice Prosser was solicited as a witness primarily to testify generally about so-called political campaigning* by lawmakers and their aides during his tenure as a Republican leader in the State Assembly.

That's another important distinction Mr. McCabe should have taken into consideration and I would distrust (both intuitively and from vast experience) any and all press descriptions of Prosser's status as a "character witness" — which is a legal term of art as it appears in the Supreme Court Rules — without more support.

I'm all for criticizing politicians (and, sad to say, judges in Wisconsin are undeniably also politicians) but when one ventures into substantive allegations, one had best do one's homework in advance.

And, unfortunately, at least one other local blog has repeated similar allegations of wrongdoing against Justice Prosser, and it's hoped that correctives are issued in light of the foregoing.

That would serve to defuse Prosser's larger point, which was that some of those who are purportedly concerned about public perception of fairness in Wisconsin courts are themselves occasionally engaged in unwarrantedly undermining that very perception. It's a fair cop.

Anyway, to make a long story even longer, I can't say I blame Justice Prosser one bit for blowing his stack at what quite obviously and evidently justifiably appear to him to be Mr. McCabe's sloppy reporting and insinuations of impropriety. So would anybody.

firelawyer said...

It's funny...

If I give a juror $100 in cash in hopes that he or she will vote my way in a trial, I'm committing a felony.

But if I give a supreme court justice $1,000,000 in campaign assistance in hopes that he or she will vote my way on an appeal, I'm simply exercising my First Amendment rights.

OK, I guess it's not so funny, after all...

Appalled said...

I don’t know if “Illusory Tenant” is a lawyer or just someone who regularly stays at the Holiday Inn, but as an attorney it is truly frightening to think that either that comment or the one following it might have come from a fellow member of the Bar.

I was not able to attend last week’s Supreme Court hearing, but later watched the whole proceeding on Wisconsin Eye. What I saw was an embarrassment to the legal profession and should never happen in a court of law. Justice Prosser’s entire line of questioning had nothing to do with the matter before the court and was unbecoming of a judge. His questions to the representatives of NYU Law School and the other national group whose name escapes me about who funds them were out of bounds and left me wondering why in the interest of fairness he did not ask the same questions of WMC’s counsel Mr. Wittenwyler. His questions to Mr. McCabe were similarly off the topic of the hearing and were nothing more than a personal attack.

Justice Prosser did indeed “blow his stack” and anyone who defends his deplorable conduct does not have sufficient appreciation for and devotion to the adversarial system that relies on a contest between advocates representing their party’s positions and then an impartial person or group of people trying to determine the truth.

No advocate should be treated as Mr. McCabe was. I give him credit for keeping his cool. I am not sure I could have done the same in those circumstances. I have not heard that he has asked Justice Prosser for an apology, so I’m assuming he does not care if he gets one or not. But as a practicing attorney, I believe Justice Prosser owes an apology to his colleagues on the court as well as all members of the organized Bar.

Anonymous said...

Dear Appalled --

Yes, Illusory Tenant is a lawyer, and a liberal one at that, so when he dissects Mike McCabe he is taking down one of his ideological fellow travelers. That is a measure of Mike McCabe's character.

Consider this single paragraph from Illusory Tenant's dissection:

"The justice was annoyed — to put it mildly — by McCabe's suggestion last June that Prosser was to sit in judgment of former State legislator Scott R. Jensen's criminal appeal, even though the record clearly shows as early as the preceding February that Prosser wasn't participating in the case."

The point is that Mike McCabe is either a bald-faced liar or incredibly sloppy. Then, when he was shown the error (a charitable reading) of his ways, he tossed a few more grenades at Justice Prosser. It is Mike McCabe who owes Justice Prosser an apology.

I am no fan of Justice Prosser's politics (I don't vote Republican), but I know from close personal observation that he is an honest and moral man. One of Mike McCabe's problems is that he is apparently congenitally incapable of acknowledging that someone with whom he disagrees can be anything but a scum-bag. This is a deep flaw in Mike McCabe's character, in my view.

A wise person would have skipped the Supreme Court hearing, but not Mike McCabe. Were Justice Prosser's comments unusual? Indeed they were, which is what makes them so interesting.

This isn't Mike McCabe's first scrape with the truth, and it likely won't be his last. The movement for campaign finance reform is ill-served by having such an arrogant egomanic at the helm.

Bill M. said...

This whole exchange says a lot more about what the Internet has done to public discourse than it does about Mike McCabe. Here we have people blogging under pseudonyms and posting anonymous comments bloviating about his character. Hasn't anyone noticed that he's the only one here who has put himself out there and spoken his mind - in his own name?

And anyone noticed lately that this is WDC's blog and he's left all of this pathetic excuse for public discussion here for all to see, no matter how moronic or juvenile it is? He could make it all disappear and he hasn't. And you question his character?

Anonymous said...

Earth to Bill M.! Earth to Bill M.! (To take a play from the Mike McCabe playbook) What part of this do you not understand?

McCabe libeled Prosser. He claimed in June that Prosser was participating in a case which Prosser had recused himself from four months earlier! Either McCabe was a liar or incredibly sloppy. And, when he was caught in the lie (or error, if you are inclined to be charitable to McCabe), what did he do? Did he "man up" and apologize? Of course not -- he reloaded and misfired again!

McCabe is an attention freak, so this likely doesn't bother him at all. Anything that keeps his name in the public eye is good, apparently. Why else would the little weasel show up at the Supreme Court hearing and bloviate?

Again, from personal observation, Prosser is a moral man. I don't agree with his political philosophy, but I can recognize his strength of character. Why can't McCabe understand that the people he disagrees with aren't necessarily bad people?

There is a case to be made for campaign finance reform in Wisconsin. I personally support campaign finance reform, at both the Supreme Court and legislative levels. But when you send up an asshole to represent the movement, why are you surprised that there is pushback?

Display some cojones, McCabe, if you have any. When you are wrong, apologize!

Anonymous said...

Amen X 2 to what Bill M. said. As Dave Zweifel noted in his latest column, "Prosser's accusations were based on comments taken completely out of context."


Unless his defenders show they are as concerned about the accuracy of his statements and willing to hold him accountable for what he says too, then what they say is just spin, so much hot air.

What this still all comes down to is Prosser voted to approve rules written by WMC and the realtors that say it's OK for judges to decide cases involving their donors no matter how much they've received from them.

I'm glad Mike McCabe is willing to call that what it is and take all the blowback that one gets when you do it.

Anonymous said...

Anonymous said: Why else would the little weasel show up at the Supreme Court hearing and bloviate?

I happen to know that he was specifically invited by the court to appear. And the League of Women Voters wanted him there.

Bet part of him wishes he had told them both no.

Anonymous said...

One of the anonymous posters made this comment - "He (McCabe) claimed in June that Prosser was participating in a case which Prosser had recused himself from four months earlier!"

If you actually read what was written, that's not true. He never said Prosser was or wasn't participating, just that neither Prosser nor Crooks should.

If this was such an outrageously inappropriate thing to say, why isn't Crooks bellyaching about it? Maybe because this is just a diversionary tactic by Prosser's friends to make Mike McCabe the issue instead of how Prosser did the bidding of WMC and the WI Realtors Assoc.?

Anonymous said...

"I happen to know that he was specifically invited by the court to appear. And the League of Women Voters wanted him there."

Wait a minute -- this absolves McCabe for everything? If what you say is true, then McCabe had no justification for complain about Prosser in the first place, since Prosser was subpoenaed to testify at Jensen's trial. It wasn't Prosser's idea to sho up -- he was commanded to appear! As noted in Illusory's Tenant's dissection of McCabe, there is a rule against a Judge so appearing without being compelled to do so. Just another of McCabe's little lies!

"If you actually read what was written, that's not true. He never said Prosser was or wasn't participating, just that neither Prosser nor Crooks should."

If Prosser wasn't participating, what was the basis including him in the broadside? Why didn't McCabe aim is solely at Crooks? Why did McCabe feel compelled to issue his "apology" the day after he mis-fired?

Again, there is a strong case to be made for campaign finance reform in Wisconsin. But when you send up an asshole to represent the movement, why are you surprised that there is pushback?

Anonymous said...

You and others who've weighed in here have claimed you support campaign finance reform but said that having Mike McCabe out in the lead hurts the cause.

Um...the Impartial Justice bill just passed. No thanks to you. Major credit due to Mike McCabe.


Anonymous said...

Folks, do not discount the possibility that the Supreme Court funding legislation might have passed the legislature faster without McCabe.

Anonymous said...

OK, we get it, whoever you are. You hate Mike McCabe. But face it, it was a minor miracle to get any kind of public financing bill passed in this economic climate and with all the budget problems. No, make that a major miracle.

Anonymous said...

I was thinking the same thing. Judging from the numerous classless comments that have been posted here, all I can say is that if foul-mouthed jerks like these hate Mike Mccabe, it makes me like him all the more. Keep doing what you're doing Mike. When you are getting under the skin of the likes of these, as you obviously are, you are doing something very right.

Anonymous said...

Wasn't McCabe being "classless" when he defiled a good man? You folks apparently don't like Justice Prosser's stand on campaign finance reform, but do you have any evidence that he isn't a moral or ethical person? That's the issue with McCabe -- He is unable, apparently, to take a mature view of Prosser's entire body of work.

Anonymous said...

Allowing WMC and the Realtors to write a major new portion of the judicial ethics code is morally and ethically dubious in my book.

Anonymous said...

The defense of Prosser hits the same note over and over and over again. He is a good and decent man who had no choice but to defend Scott Jensen's character and sign over the deed to his soul to corporate lobby groups. It obviously wasn't persuasive the first time you said it. Repeating it endlessly only makes it monotonous.

Maybe he is the straighest of arrows in his personal life, but sorry, the morals he displays as a public official leave a great deal to be desired.

The subpoena excuse is lame. The summons was nothing but cover. One of the state's prosecutors said privately he's never seen a more eager character witness. Everyone knows there's no way Jensen's attorneys summon Prosser if they have any fear whatsoever that he might say Jensen is a lying scoundrel. Bottom line is that Prosser said Jensen is honest and fair and trustworthy and has the utmost integrity. That alone makes me question Prosser's ethical compass. And he was even willing to testify that when he was Assembly Speaker he had done the very same thing Jensen did. That makes him a paragon of moral virtue?

Nobody here has said anything about Prosser's private life or his personal qualities. It's his public conduct that has been challenged, and rightfully so.

Anonymous said...

Here are the opinions of some who are actually willing to sign their names to what they think of the action by Prosser, Ziegler, Gableman and Roggensack:

Peter A. Beatty

Rich Zietko

Carl Silverman

John Hallinan

Mark Sundquist

Appleton Post-Crescent

Milwaukee Journal Sentinel

Eau Claire Leader-Telegram

Sheboygan Press

The Capital Times