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    Wisconsin Lawyer
    July 28, 2016

    Outside the Box: Justice Prosser on His Career and the Supreme Court

    On July 31, Justice David Prosser will retire from the Wisconsin Supreme Court. His next chapter? Writing law review articles and books, perhaps even a novel, and telling the stories of lesser known American artists from the first half of the 20th century.

    Joe Forward

    Justice David Prosser in the Wisconsin State Capitol Rotunda

    In the fall of 1998, after oral argument in a lead-based paint case, the seven justices of the Wisconsin Supreme Court sat in a high-ceilinged conference room lined with law books, large windows, and flowing drapes at the State Capitol. They started to cast their votes. After six votes, in order of seniority, the decision was split 3-3. The seventh and newest member of the court, David T. Prosser Jr., would cast the deciding vote, in his very first case on the court.

    Then Chief Justice Shirley Abrahamson laid the justices’ poker chips on the table. Justice Donald Steinmetz, the second-most senior justice, picked one up and flipped it over: No. 7. Now Justice Prosser, the seventh and newest member of the court, would be tasked with writing the opinion for the four-justice majority, in his first case. It wasn’t the first time Prosser would be called on to make an important and influential decision, and it certainly would not be the last.

    “That was my introduction to how the system works here and the assignment of opinions,” said Prosser, who will retire as of July 31 with five years remaining on his 10-year term.

    Prosser was last elected in 2011 after a heated race that largely centered on Act 10, the law affecting public-sector unions that Gov. Scott Walker signed the same year. Unlike Prosser’s first election in 2001, when he ran unopposed, the 2011 election saw major money flows, exposing deep political divisions, as well as concerns of a fractured supreme court in Wisconsin. But Prosser prevailed.

    Now he retires after 18 years on the court. First appointed by Gov. Tommy Thompson in 1998, Prosser has written more than 330 opinions, including concurrences and dissents.1 His voting record reveals a justice who is not contained within a box called “conservative” or “liberal.” In fact, the former Republican state legislator has thought outside the box in many cases throughout the years.

    “One of the nicest compliments I ever received came from a lawyer while at the dedication of the new Marquette Law School,” Prosser said. “He said the lawyers at his firm could not figure me out: they never quite knew how I was going to vote. I take that as a major compliment.”

    As Prosser winds down, he talks about his career, opinion writing, judicial independence, recusal, and collegiality. He explains his somewhat unusual path to the supreme court, the legacy he hopes to leave, and his decision to retire with five years remaining on his term.

    Switching Gears

    Unlike most current justices, Prosser had no judicial circuit court or appellate court experience prior to his appointment in 1998. In fact, Prosser had little experience practicing law. Born in Chicago and raised in Appleton, he earned his law degree from the U.W. Law School in 1968. But he never intended to be a practicing lawyer or judge.

    He wanted to be a politician. Returning to Appleton in 1976 from jobs in Washington, D.C., first with the U.S. Department of Justice and then as assistant to U.S. Rep. Harold Froehlich, Prosser was ready to launch his political career.

    “I didn’t have a job,” he said. “I wasn’t anxious to practice law. I wanted a life in politics. But the Outagamie County district attorney was retiring, and Republicans did not have a candidate. Democrats had a prominent defense attorney running. This was a Republican county at the time, and some people asked me to run. So I ran and won. But I had never been in a courtroom as an attorney.”

    So Prosser started lawyering from scratch. He did initial appearances, preliminary examinations, and motion hearings. And when a sensational and high-profile attempted murder case came his way – a wife accused of slowly poisoning her husband with arsenic, even while he lay mysteriously sick in a hospital bed – he made a decision that many eager district attorneys would not make.

    David Prosser speaking with Appleton voters in the late 1970s

    David Prosser speaking with Appleton voters in the late 1970s. He was first elected as Outagamie County district attorney in 1976, then to the Wisconsin Assembly in 1978.

    “I was not going to try that case,” he said. “I wouldn’t know what I was doing, and we were not going to lose that case. So I picked the best attorney in the office to try it. And I told her she wasn’t doing any other work for two weeks before trial. I took her grunt work and assigned others to help on her caseload.”

    He also put his best attorney on other big cases, ensuring the best results and opting to try smaller cases while honing the craft of prosecution. After two years, Prosser had about 20 jury trials under his belt. More importantly, he had also established himself as a perceptive decision-maker and  strategic thinker and someone with the confidence to enter unchartered waters and thrive despite a lack of experience. Although he enjoyed the work as district attorney, his political aspirations persevered.

    He won election to the Wisconsin Assembly in 1978, where he stayed for almost 20 years, from 1979 through 1996. He served six years as minority leader and two years as Assembly speaker. Unlike some lawmakers, he did not practice law or engage in other side work. He was a full-time legislator. “There were some times I had difficulty paying my bar dues,” Prosser said.

    Among his many legislative accomplishments, he was instrumental in passing legislation to build a new stadium for the Milwaukee Brewers, something that may have hurt his run for a seat in the U.S. House of Representatives in 1996. He won a primary, but lost in the general election to Democrat Jay Johnson.

    “That was the rallying point for a lot of people,” Prosser said. “I’ll never forgive the Appleton paper because they repeatedly published letters and editorials that suggested that people up there were paying for it. That was not true. That was not true at all.”

    After that election, Prosser switched gears when Gov. Thompson appointed him to serve on the Wisconsin Tax Appeals Commission. He was there just 20 months before Thompson called again with a better offer: replace Justice Janine Geske on the Wisconsin Supreme Court.

    On the Record

    Once again, Prosser was thrust into unfamiliar territory: no judicial experience and now sitting on the state’s highest court. But 77 state lawmakers from both the Senate and the Assembly had sent Thompson a letter of support, urging him to appoint Prosser as a “man of unmatched integrity.”2

    Joe ForwardJoe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    “Like my work as district attorney, I started on the court knowing nothing,” said Prosser. “I had very little contact with the Supreme Court of Wisconsin and did not pay much attention to it. I did file a few amicus briefs, that’s true. But it was a new experience. I was really green.”

    Prosser took the bench at a time when the court, based on historical statistics, seemed relatively unified. In the three terms before Prosser joined the court, it was unanimous, on average, in almost 80 percent of its cases.3 That percentage has steadily declined, with spikes here and there, since the late 1990s.4 In the 2001-02 term, the number of unanimous decisions dropped to 48 percent.5

    And in the 2013-14 term, only 30 percent of cases were decided unanimously.6 Of the court’s 61 decisions in 2013-14, 62 percent were decided by a 5-2, 4-2, or 4-3 decision.7 That’s fodder for the conservative versus liberal label, especially in politically charged cases. And Prosser, based on his record, has been aligned more closely with so-called conservatives.8

    But not always. Look at the 16 decisions decided by a 4-3 vote in 2013-14, for instance, and you’ll see that Prosser was in the minority in 10 of those cases.9 In eight, he aligned his vote with Justice Shirley Abrahamson and Justice Ann Walsh Bradley10 – considered the court’s most liberal-leaning justices – although he may have filed a separate writing. And this is a former Republican lawmaker.

    “If you look at my history on paper, it is obvious that I have the most pronounced partisan background of anyone on the court,” he said. “But it does not follow that I’m the most partisan person on the court.

    “That doesn’t mean that with my whole background and the way I have thought over the years, that I don’t have a certain philosophy or a certain way of looking at things. But it was not my purpose to be the most conservative person on the court. A judge is not supposed to be a part of a group with an agenda. A judge is supposed to decide each case independently. That’s what I tried to do.”

    What about outside pressures? “Because of my background, all my traditional friends might expect me to vote in a particular way, regardless of how good or bad that decision might be. I can honestly say that no one has ever contacted me to encourage a vote on a case. So it was frustrating to read constantly, for instance, that I am beholden to various groups who donated to my campaign.”

    After he retires, Prosser will work to address the “deplorable development” of trying to get justices to recuse themselves if they are not likely to vote for a party to a case.

    “The math is very simple,” he said. “If you think philosophically that someone is not going to vote for you, can you find a way to get rid of them? Because if you get rid of them, nobody is going to take their place. So it has become a strategy to try and force a justice off a case. And it’s deplorable.”

    Prosser is contemplating a potential constitutional amendment that would allow each of the seven justices to create a list of possible replacements in the event of their recusal. “If I pick someone like former Justice Jon Wilcox as one of my potential replacements, then there would be a lot less pressure to replace me, and fewer ginned up media reports about conflicts that do not exist.”

    David Prosser speaking at his investiture in 1998

    David Prosser speaking at his investiture in 1998. In the background, from left: Justice Donald Steinmetz, Chief Justice Shirley Abrahamson, and Justice William Bablitch.

    A Changing Court

    Prosser said the court has changed in various ways since the late 1990s, when he took the bench. Shirley Abrahamson had just become chief justice in 1996, followed by Justice Patience Roggensack in 2015. New members have come and gone, altering the court’s cohesiveness and unanimity. For instance, the court changed significantly, based on majority statistics,11 when Louis Butler Jr. was appointed to the court in 2004, replacing Justice Diane Sykes. And it was altered significantly again in 2008, when challenger Michael Gableman defeated Butler for the seat. That’s just the pendulum that swings over time.

    But Prosser said something else changed. “In my first year on the court, all the justices would go to lunch once a month. We don’t do that anymore. So that kind of collegiality was simply terminated. We also used to come in here and discuss cases after oral argument. We still do that. But we used to discuss opinion drafts, sometimes in six or seven meetings. We don’t do that anymore,” said Prosser, noting that the justices now vote on draft opinions by email.

    Prosser opposed rule changes to create efficiencies at the expense of face-to-face interaction, the kind of collegiality that one would expect from the state’s justices. But he understands why the rules changed. “Certain members of the court dominated the conversation, and were very confrontational in doing so. Changing the rules prevented that from happening.”

    I have the most pronounced partisan background of anyone on the court, but it does not follow that I’m the most partisan person on the court.

    Additional rule changes created shorter time limits for circulating opinions. “I was always the slowest justice, so that change has certainly affected me,” he said. “I used to write 50-page dissents on important cases. I just can’t do that anymore. It’s impossible under the new time constraints.

    “One of the reasons I’ve been slow over the years is that I have devoted a tremendous amount of time to writing dissents and concurrences, at great length in presenting an alternative view. That takes time. It’s a plus to get opinions out faster, but I don’t think it’s progress when we are not talking with each other and trying to find common ground. That’s why, it seems to me, you see so many separate writings. You don’t have people coming together, face-to-face, to find the common ground.”

    Prosser said one of the most satisfying experiences on the job came in his first year, when the court accepted five cases on juror bias. The court needed to create a broad philosophy on how to handle these cases. “But nobody had the answer, and nobody had an agenda,” he said. “We sat around the table and hashed it out. That experience was the most satisfying of my career. That’s the way it’s supposed to work. But the truth is, that interaction was rarely repeated the rest of my 18 years.”

    Making Decisions

    Prosser wants to be remembered as an important decision-maker. Look closely at the record and you’ll find instances where he departed from the group, wielding influence when nobody agreed with his position. In one case, the city of South Milwaukee was granted the authority to raze an entire apartment complex because it was built without the city’s approval. Six justices denied the petition for review, which would have allowed the city to demolish the building.

    “Six justices said, okay. That’s fine. But the building was filled with people, some with disabilities, and it was built because the city led the builders on before pulling the rug out from under them. So I wrote a scorching dissent on the court’s failure to take the case. Today, that building is still standing.” The dissent, Prosser said, likely encouraged the petitioners to take their case to federal court.

    “Any one of us can persuade others to take a case they voted not to take. But if we come in here, and a justice has made his or her pitch, and still there are not enough votes to take the case, that’s when I have, a number of times, written separately and changed minds or had some collateral effect.”

    Prosser has also made important decisions in another significant area: selecting law clerks. He says it’s one of the most important decisions a justice can make. “I never pick anyone because of their political credentials. That’s ridiculous. Compatibility? Yes. I don’t want someone who is telling me I’m wrong every single day. But I pick the smartest person I can find, people who work well with others.”

    With one exception, Prosser has always picked someone who served as an editor on law review. “Having picked somebody who I think is literally smarter than I am, they always do the first draft,” Prosser said of opinions. After returning from conference, Prosser discusses the various positions of the other justices with his clerk.

    It’s a plus to get opinions out faster, but I don’t think it’s progress when we are not talking with each other and trying to find the common ground.

    “I talk about what my impressions are, what I want to accomplish in the opinion, and the problems we’ll have to deal with. For instance, we know Shirley [Abrahamson] is going to say this, this, and that, so we’ll have to deal with it. So I give instructions and the law clerk does the first draft. And then we go through that draft over and over and over again, and the thinking evolves over time. New ideas come up. Sometimes it’s a matter of editing to sound like me. Sometimes it’s a complete re-write.”

    Prosser used clerks on majority opinions. But he tended to write concurrences and dissents himself. His books and legal pads spread on the conference table, the last rush to write opinions, it’s easy to see how Prosser spends his days.

    “These books are mine. I don’t know if it’s a concurrence or a dissent, but I know there is something wrong with the majority opinion,” he said. “I need to write it myself to figure it out. The second thing I would say about opinions: I love to tell stories. I am much more comfortable with the facts than the law. As a general rule, if you read the facts, you know who is going to win the case. Now, sometimes you have to live with the law. But as much as possible, I like to have the facts determine what the law is.”

    Prosser recalls that he was appointed to the court with little formal legal practice and experience. He had to learn entire areas of the law, knowledge other justices may have developed in practice before they became justices. “I’m not exaggerating. When I came here, I had to learn virtually everything. So I’m not trying to write an opinion that will stand the test of time. There’s always a concern that we may get this wrong. But if we get it wrong, let’s have all the facts so people can try and distinguish the case in the future.”

    On the other hand, Prosser said there was an advantage to inexperience. “Maybe you are a former circuit court judge and you’ve seen these types of cases. Your mind might be made up on how they should be handled. But I’m sitting there learning the area of law, and I can see how it starts one place and gets to another. And I ask myself: ‘How did it get over there? Shouldn’t it be over here?’

    “So besides setting out a clear statement of the facts, I have tried to get us back on the straight line of what I think the law ought to be. That’s where you often see an extensive chronological discussion of how these cases developed. But I’m also looking for the alternative arguments that may be lurking.”

    Back in 2002, the court was faced with a constitutional challenge to a state law that prohibited people from carrying concealed weapons, despite a relatively new constitutional amendment that said people could keep and bear arms for lawful purposes. The defendant was convicted for carrying a concealed weapon, but he argued that the law was unconstitutional under the Wisconsin Constitution.

    “I had a sense that there might be a majority that was prepared to declare the concealed carry statute unconstitutional,” Prosser said. “I was not for that. It seemed to me that there ought to be a law giving people the right to carry a concealed weapon under certain circumstances. But I didn’t want the law to be declared unconstitutional. Then I realized the incident occurred the same day the constitutional amendment was adopted.”

    As a former legislator, Prosser knew constitutional amendments don’t take effect the same day they are adopted. An amendment takes effect the day it is certified by the state elections board. So Prosser brought it up at the court’s conference. The parties had not considered the effective date. “That changed the entire case. We were unanimous. Shirley Abrahamson wrote the opinion. Crisis averted. There again, one person had the ability to change everything. It lends some credence to the idea that people with different backgrounds really bring something to the court. They shouldn’t all fit in a nice box.”

    Moving On

    In April 2016, Prosser sent Gov. Walker a letter, informing the governor that he would be retiring with time left on his 10-year term. He said his public service goals had been fulfilled, and it was time to start a new chapter in his life.

    But Prosser offered some additional reasons for retiring, including the loss of Justice N. Patrick Crooks, who died Sept. 21, 2015, in his own chambers at the age of 77. Crooks had previously announced that he would retire at the end of his term in 2016.

    “Pat Crooks didn’t have the opportunity to retire and enjoy life for a while with his family,” said Prosser, age 73. “I didn’t want that to happen to me.” Prosser also said he doesn’t have the same energy level.

    A night owl, he stays up until midnight. He used to wake up at 6 a.m. and work weekends. “I just don’t have the energy to do that anymore,” he said. “It’s more difficult to get up in the morning, but I still like to stay up late. Now, at the end of the week, I decompress by doing virtually nothing.”

    So Prosser will move on to the next chapter. But he doesn’t want to “fade into total obscurity.” He wants to write law review articles and books, including potentially novels. An avid collector of American prints for the last 40 years, he’s also interested in writing about obscure or lesser known American artists from the first half of the 20th century. He has not ruled out practicing law in some capacity, or serving as a reserve judge. That remains to be seen, he said.

    And he may be open to performing more weddings as officiant. “I think I’ve done more than 70 weddings, and I always enjoyed that,” he said. “I always meet with the couple ahead of time, learn about how they met and what they see in each other. Then I do a little roast of the couple before the ceremony begins.”

    Prosser said it was never his intention to write the greatest opinion that has ever been written. But he likes to tell stories. When all is said and done, the story of influential Wisconsin Supreme Court justices will certainly include Justice David T. Prosser Jr.

    Endnotes

    1 Alan Ball, Scowstats.com, Wisconsin Supreme Court Statistics: Distribution of Opinion Authorship (1997-98 to 2014-15). As of press time, more opinions were still slated for release for the 2015-16 term.

    2 Steven Walters, Lawmakers Back Prosser for High Court, Milw. J. Sentinel, 5B (May 15, 1998).

    3 Ball, Scowstats.com, Wisconsin Supreme Court Statistics: Decisions Arranged by Vote Split (1995-96, 1996-97, 1997-98).

    4 Ball, Scowstats.com, Wisconsin Supreme Court Statistics: Decisions Arranged by Vote Split (1998-99 to 2014-2015).

    5 Ball, Scowstats.com, Wisconsin Supreme Court Statistics: Decisions Arranged by Vote Split (2001-02).

    6 Ball, Scowstats.com, Wisconsin Supreme Court Statistics: Decisions Arranged by Vote Split (2013-14).

    7 Id.

    8 Ball, Scowstats.com, Wisconsin Supreme Court Statistics: Decisions Arranged by Vote Split (1998-99 to 2014-15).

    9 Ball, Scowstats.com, Wisconsin Supreme Court Statistics: Four-to-Three Decisions (2013-14).

    10 Id.

    11 Ball, Scowstats.com, Wisconsin Supreme Court Statistics: Frequency of Justices in the Majority (2013-14).




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