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Saturday, July 2, 2011

Prossergate: Week 1

The story that started it all:

Wisconsin Supreme Court Justice David Prosser allegedly grabbed fellow Justice Ann Walsh Bradley around the neck in an argument in her chambers last week, according to at least three knowledgeable sources. The Milwaukee Journal Sentinel, in an article published late Saturday, reported that the incident took place in Justice Bradley’s chambers on June 13, the day before the court issued its decision upholding a bill to curtail the collective bargaining rights of public employees.

The sources who spoke to the Center and WPR said an argument about that ruling culminated in a physical altercation in the presence of other justices. They say Bradley purportedly asked Prosser to leave her office, 
whereupon Prosser grabbed Bradley by the neck with both hands. 

In March, the Milwaukee Journal Sentinel reported that, in a disagreement over a case last year, Justice Prosser had called Justice Abrahamson a “total bitch” and threatened to “destroy” her. Prosser, the paper reported, confirmed making the remarks, saying he “probably overreacted” while accusing Justices Abrahamson and Bradley of being “masters at deliberately goading people into perhaps incautious statements.”

Prosser's statement on his comments towards Justice Abrahamson:

Presentation by Wisconsin Eye Media at Work: Behind-the-Scenes on Supreme Court Story 

"Justice Bradley has affirmed that a physical altercation took place and disputed the assertions of others that the contact was incidental. “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,” Bradley told the Journal Sentinel. And in response to the conflicting interpretation offered by unnamed sources, that Prosser put up his hands defensively as she rushed toward him, Bradley told the paper: “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.” She added: “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.”"

"Wisconsin Supreme Court Justice David Prosser responded to reports Saturday that he had placed his hands around the neck of fellow Justice Ann Walsh Bradley during an argument in her office earlier this month: "Once there's a proper review of the matter and the facts surrounding it are made clear, the anonymous claims made to the media will be proven false," he said."

Investigations are launched by Dane County Sheriff David Mahoney and the state judicial commission.

"Dane County Sheriff David Mahoney said his office opened an investigation into the incident at the request of the Capitol Police, which have jurisdiction in the building where the argument took place.
The state judicial commission, which oversees judicial conduct, also announced it had opened an investigation. The commission could ultimately make a discipline recommendation to the state Supreme Court, potentially putting some justices in a position to rule on their colleagues' fate."

"Gov. Scott Walker says infighting on the Wisconsin Supreme Court is a serious matter that needs to be resolved for the sake of public confidence in the court.
Speaking on WTMJ radio, Walker said Monday that regardless of your political beliefs, "there's got to be confidence that the people on the court can rationally discuss and debate" issues."

Bill Lueders who helped break the Prossergate story, describes the thorough and detailed investigation that lead to this story and responds to some of the criticism leveled at him.

"The week before the legislature was set to re-pass the collective-bargaining provision, three of the four conservative justices were ready to issue a ruling reinstating the union law as originally passed. Prosser, on the other hand, wanted to wait longer, to avoid the appearance that the court was rushing their decision through. Prosser thought he had an agreement with liberal Chief Justice Shirley Abrahamson to delay release of the opinion until Tuesday of the following week.

As Monday arrived, there was no word from Abrahamson on whether the decision would be issued the next day. At 5:30 p.m., Prosser and the other conservative justices marched around the chambers, looking for Abrahamson, who was found in Justice Bradley’s office. Prosser stood outside Bradley’s door, talking to the justices in Bradley’s office. The discussion got heated, with Prosser expressing his lack of faith in Abrahamson’s ability to lead the Court.

According to one witness, Bradley charged toward Prosser, shaking her clenched fist in his face. Another source says they were “literally nose to nose.” Prosser then put his hands up to push her away. As one source pointed out, if a man wants to push a woman who is facing him, he wouldn’t push her in the chest (unless he wants to face an entirely different criminal charge). Consequently, Prosser put his hands on Bradley’s shoulders to push her away, and in doing so, made contact with her neck.

At that moment, another justice approached Bradley from behind and pulled her away from Prosser, saying, “Stop it, Ann, this isn’t like you.” Bradley then shouted, “I was choked!” Another justice present replied, “You were not choked.” In a statement following the incident, Bradley maintained Prosser “put his hands around my neck in anger in a chokehold.”

On Monday night, Bradley called Capitol Police Chief Charles Tubbs to talk to him about the incident. On the morning of Wednesday, June 15, Tubbs joined the justices in a closed-door meeting, where he discussed “issues relating to workplace violence.”

During the meeting, Chief Justice Abrahamson actually reenacted the incident on Chief Tubbs — no doubt an amusing sight, as the diminutive Abrahamson mimicked choking the tall, portly police chief. During her demonstration, Abrahamson emphasized that Prosser had exerted “pressure” on Bradley’s throat.
“There was no pressure,” interrupted the justice who had initially broken up the incident between Bradley and Prosser. “That’s only because you broke us apart,” shot back Bradley."

"Mahoney’s announcement Tuesday that he will not be involved in the investigation came a day after Capitol Police Chief Charles Tubbs passed off the investigation to the county sheriff.  “As the Sheriff, I have no role in the assignment of detectives and supervisors or overseeing the investigation,” Mahoney said in the statement.  Mahoney was leading the police investigation. However, in light of Mahoney’s involvement with Abrahamson’s and Kloppenburg’s campaigns, Rich Esenberg, political science professor at Marquette University, said Mahoney should remove himself."

“As it turns out, for one of the ongoing investigations into the problems on this very polarized and acrimonious state Supreme Court, the ultimate arbiter of the controversy would be...that very Supreme Court.
Assuming both Prosser and Bradley recused themselves, that would leave the court's now very polarized wings at 3-2 for the conservatives. But even this could be a hairy situation -- how would recusal work when multiple other justices were witnesses to the incident in question?

... in cases of alleged misconduct by a judge, the commission's attorneys try a case before a three-judge panel, selected by the Chief Judge of the Court of Appeals. "They make findings of fact, and conclusions of law," said Alexander, "and make recommendations to the Supreme Court. It is then the Supreme Court that makes the final decision."”

“Justice David Prosser says he is planning to fully cooperate with investigations into an alleged fight with another justice.  The statement says “The sheriff can expect the full cooperation of Justice Prosser who believes a thorough and impartial review will be the proper channel for the facts surrounding this incident to be reported to the general public."  It went on the say "In light of the referral and potential inquiry, additional public comments would not be appropriate.””

"Supreme Court Justice Ann Walsh Bradley asked Justice David Prosser to seek therapy to manage his anger two days after she says he put his hands around her neck, but he declined to do so, according to sources familiar with the situation.  The request came June 15, when all the justices met with Capitol Police Chief Charles Tubbs to discuss the June 13 altercation between Prosser and Bradley. At least some of Prosser's fellow conservatives on the court said it would be ridiculous for him to take such courses, the sources said.

Prosser has not hired an attorney, but a spokesman for him held out the possibility he would.  "He has not contracted with an attorney yet, but he plans to fully defend himself," Prosser spokesman Brian Nemoir said. "He'll do whatever is necessary to make sure he's properly represented."

According to sources familiar with the situation:
Four justices - Prosser, Michael Gableman, Patience Roggensack and Annette Ziegler - were frustrated on June 13 that a decision putting in place Gov. Scott Walker's plan to limit collective bargaining was not yet ready for release.

The four made up the majority in the split decision, and they believed an agreement had been reached the Friday before to have the opinion ready to release on that day.  Walker's fellow Republicans who run the Legislature had insisted they needed a decision from the court by June 14, when they were to take up the state budget. 

About 6 p.m. on June 13, Prosser and the others walked together to Chief Justice Shirley Abrahamson's office. She wasn't there, so they went to Bradley's office, where Abrahamson and Bradley were.  The encounter quickly grew heated and did not last long - perhaps 10 minutes in all. 

Bradley's chambers consist of three connected offices. Bradley and Abrahamson were in the office where Bradley herself works. The others were in a connecting room, with at least some of them positioned in the entryway into Bradley's office.  They argued about when the decision would be released and their frustrations over what the majority considered delays. 

Bradley asked Prosser to leave, but he did not and the justices continued to argue. Abrahamson said she did not know when her opinion would be ready, saying it might take a month.  Prosser then told Abrahamson - with whom he has often clashed publicly and privately - he'd lost faith in her leadership. Bradley got close to Prosser and again demanded that he leave, with some sources saying she charged at him with her fists raised.  It is here that accounts differ most significantly, with some saying Prosser put his hands around Bradley's neck and others saying Prosser touched her after raising his hands in defense or to push her back.  Bradley yelled for Prosser to get his hands off her neck or that she was being choked, sources said. Roggensack pulled the two apart.  Justice N. Patrick Crooks was not there at the time, making him the only justice who was not in the vicinity. It is unclear how many judicial assistants and law clerks may have seen or heard the incident. 

The decision on collective bargaining was ultimately released the next day, June 14, allowing Walker's plan to go into place. It goes into effect Wednesday."

“A Dane County board member has asked Supreme Court Justice David Prosser to take a leave of absence while accusations of a physical attack are investigated.  Board member Melissa Sargent is circulating a letter asking him to take a leave of absence until the investigation is complete. Justice Ann Walsh Bradley says Prosser grabbed her by the neck and choked her.  Sargent says about 10 other board members have agreed to sign the letter, but at least one board member says asking that, assumes he's guilty.”

And then...Wisconsin Supreme Court Justice David Prosser grabbed the microphone of a local FOX6 reporter who asked him about Justice Bradley allegations. He quickly gave the microphone back, but refused to answer any questions about the incident.

"In the wake of a physical altercation between two state Supreme Court justices, several of the judges discussed whether a planned photo session for the court should take priority over a meeting with the Capitol police chief.  The email exchange among all the justices came late in the afternoon on June 14, one day after the incident between Justices Ann Walsh Bradley and David Prosser. The emails were released to the Journal Sentinel first by Prosser and then by Chief Justice Shirley Abrahamson after a request was made to each justice under the open records law.  The response to the request for Abrahamson's emails also suggests that she had considered putting out a public statement in response to the incident but did not release it.

On June 14, Bradley sent an email to the other justices saying that she wanted a meeting about "workplace security" on the following morning at 8:30 a.m. and had invited Capitol Police Chief Charles Tubbs to be present, saying the photo session planned for that same time could be delayed.  Justice Patience Roggensack, who according to anonymous sources separated Prosser and Bradley, questioned the proposed change in plans in an emailed response. Roggensack and Prosser are seen as part of a block of four conservative justices on the court, while Bradley is part of the court's liberal wing.  "What is the need for the meeting with Chief Tubbs? Have you had problems with security?" Roggensack wrote.  Bradley responded with only a one-word answer: "Yes." Roggensack initially wrote back that with the Capitol police in the building, she had "never felt unsafe." Then she wrote that one of her staff had already set up the photo session and that it shouldn't be rescheduled.  "The time and date was set quite a while ago. I suggest we stick to the schedule that had been agreed upon," Roggensack wrote. "We can do the Chief Tubbs visit at 9:00."

After the email exchange between Bradley and Roggensack, Crooks sent an email saying the Tubbs meeting should come first."I believe that if Chief Tubbs is coming at 8:30 a.m. on workplace security issues, that should take priority over the court photos. We all appreciate the time and effort . . . in regard to the photos, and hopefully those photos can still be taken right after Chief Tubbs' visit tomorrow," Crooks wrote.  Ultimately, a meeting between the justices and Tubbs did happen on the next day, June 15, and Todd confirmed that the photo was taken afterward. Todd said the photo was an end-of-term tradition that is taken as a memento for law clerks.

In a few emails, Prosser received expressions of both criticism and support. On Sunday, Maria D. Auge wrote Prosser to ask that he resign, calling him a "disgrace."  "To think people like you have the fate of others in your hands (literally and figuratively)," Auge wrote.  But John R. Byrnes emailed Prosser to say that he was "sorry to hear about the latest dust-up" and invited Prosser for a vacation.  Byrnes sent his email from a federal Department of Justice address. There is a John R. Byrnes who serves in Roanoke, Va., as the assistant U.S. Trustee in the U.S. Trustee Program, an arm of the federal Department of Justice that oversees the administration of bankruptcy cases.  A John Byrnes formerly served as an assistant U.S. Bankruptcy Court Trustee in Milwaukee. Byrnes could not be reached for comment.  "If you want or need an out of town vacation, I have a nice house out in the country and you're invited. To say it's quiet would be an understatement. Let me know if I can help," Byrnes wrote.

In releasing Abrahamson's email, courts official Pam Radloff said the court would not be releasing "drafts of communication prepared for the Chief Justice personally by the court's public information officer but never finalized or issued."  Abrahamson's emails also included one from recently retired Eau Claire County Chief Judge Benjamin Proctor offering to mediate for the court. In her reply, Abrahamson thanked Proctor "for your thoughts" without accepting or declining his offer and said that the justices would soon be wrapping up their opinions for the term.  In another email sent about two hours after the June 13 altercation, Bradley wrote Abrahamson that she was having trouble concentrating on the union bargaining law case "given the events of this evening." Abrahamson apparently did not reply."

Stay tuned…

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