Why Does Prosser Even Need To Ask?

The fate of state rules requiring disclosure of special interest election spending rests with the Wisconsin Supreme Court. The court is scheduled to hear the case early next month. Justice David Prosser has said he plans to participate in the case despite close personal and political ties to attorney Jim Troupis who is representing the tea party groups and conservative organizations like Americans for Prosperity that are challenging the rules.

Prosser acknowledges a longstanding friendship with Troupis. More importantly, Prosser's campaign paid the Troupis Law Office $75,000 to look out for his interests during the statewide recount that followed his narrow victory in this spring's Supreme Court election.

By the way, the Troupis Law Office is one of two firms with strong Republican ties that have run up a huge tab at taxpayer expense, billing the state more than $700,000 under no-bid contracts paying up to $395 an hour to represent Governor Scott Walker and GOP legislative leaders in defending the controversial collective bargaining law and state redistricting plan. It was Prosser who wrote the majority opinion upholding the law stripping most public workers of their collective bargaining rights. The ruling overturned a circuit court judge who had thrown out the law on the grounds that lawmakers ignored state Open Meetings Law requirements in acting on the bill and therefore it was illegally passed. With a presumably straight face, Prosser argued the judge was wrong to rely on laws that “apply to the Legislature except when the Legislature says they do not.”

Now, with all the appearances of coziness and the obvious conflict of interest that results from the Prosser campaign's payments to the Troupis Law Office, Justice Prosser is asking the parties involved in the state campaign finance disclosure case whether he should step aside from that case.

He shouldn't have to ask.

Wisconsin's Code of Judicial Conduct is clear-cut on the matter. It says "a judge shall recuse himself or herself in a proceeding when the facts and circumstances the judge knows or reasonably should know establish" that the "judge has a personal bias or prejudice concerning a party or a party's lawyer...." Or "when reasonable, well-informed persons knowledgeable about judicial ethics standards and the justice system and aware of the facts and circumstances the judge knows or reasonably should know would reasonably question the judge's ability to be impartial."

Three national experts on judicial ethics say it's a no-brainer. Prosser should recuse himself. These law professors from Hofstra University, New York University and Indiana University certainly qualify as reasonable, well-informed persons knowledgeable about judicial ethics standards and the justice system. And they all question Prosser's ability to be impartial in this case.

So do state newspapers including the Milwaukee Journal Sentinel, the Appleton Post-Crescent and the Oshkosh Northwestern, all of which have editorialized that Prosser should recuse himself. As have national papers like the New York Times.

Prosser has no business participating in this case. His ability to be impartial has been reasonably questioned. When that happens, the state judicial ethics code says a judge shall recuse. Not may. Shall.

If Prosser cannot follow clear ethics rules on his own, then the state Government Accountability Board whose disclosure rules are being challenged should insist that he does. That should happen if the state Justice Department attorneys who are representing the GAB and work under the direction of Attorney General J.B. Van Hollen do what is in the best interest of the people of Wisconsin and the public agency that is their client in this case.

That's a big if.