THE BLOG

​Big Business Groups, Facing Criminal Investigation, Succeed in Ousting Wisconsin Chief Justice

04/10/2015 09:36 pm ET | Updated Jun 10, 2015

Earlier this week, Wisconsin Supreme Court Justice Ann Walsh Bradley managed to hang onto her seat in Wisconsin's most recent election, after raising more than $750,000 and resorting to despicable attacks on her opponent, Rock County Circuit Court Judge James Daley.

Despite her win, Bradley will surely be disappointed by the fact that her colleague Chief Justice Shirley Abrahamson will lose her post as Wisconsin's top judge, due to a voter-approved constitutional amendment pushed by GOP legislators. The amendment -- which allows a majority of Wisconsin's seven justices to determine who serves as chief justice -- is a stark departure from the state's 126-year-old system, which assigned the leadership position to the most senior justice.

The most troubling aspect of the amendment was the startling amount of special interest money spent supporting it in this week's referendum. Unlike other recent elections, where the incumbent justice faced attack ads funded by big-business groups, these special interest groups instead poured their money into ousting the chief justice. The most prominent of these groups, Wisconsin Manufacturers and Commerce, funded $600,000 worth of ads urging passage of the amendment.
In recent years, Chief Justice Shirley Abrahamson was a frequent dissenter in the court's increasingly conservative decisions. Abrahamson and Bradley, the most liberal members of the court, have openly clashed with the conservative majority -- particularly Justice David Prosser, a former leader in the state legislature.

Their disputes have gone far beyond disagreements about the law: In 2011, Prosser faced a criminal investigation for placing his hands on Bradley's throat during an argument, though no charges were filed. Prosser claimed that Bradley charged at him and that his hands touched her throat as he raised his hands in a defensive posture.

The argument happened while the justices were writing their opinions in the lawsuit concerning Act 10, Gov. Scott Walker's divisive union-busting bill. Prosser wanted Abrahamson to immediately issue the court's opinion upholding the bill or a press release with the result, but Abrahamson refused. Prosser was incensed. At other times, Prosser had also called Abrahamson a "total bitch" and threatened to "destroy her."

Through Wisconsin's new amendment, Prosser's allies have presumably succeeded in ousting Abrahamson from her post, despite her long career as a distinguished jurist. Abrahamson has served on the court for nearly 40 years, much longer than any other justice. When the constitutional amendment was first floated, the Milwaukee Journal-Sentinel called it a "troubling power play" by Republicans who were "targeting Abrahamson."

These divisions between the justices erupted in a very public way while the court was deliberating the Act 10 case, and it started because the conservatives had no power to speak for the court as a whole. When the new conservative chief is chosen, he or she may push the court to more quickly announce its ruling in another politically-charged case: a lawsuit involving Gov. Scott Walker and some corporate-funded groups that have spent $10 million to elect the four conservative justices.
The plaintiffs in the lawsuit are big-business groups accused of coordinating with Walker's 2012 campaign to survive a recall election, breaking a state law that prohibits coordination with independent groups that are often not subject to the same disclosure rules and contribution limits as campaigns. The groups are currently the subject of a "John Doe" proceeding, which is similar to a grand jury, except that a judge decides whether prosecutors have enough evidence to charge someone with a crime.

With a new chief justice and a clear partisan divide among the justices, the Wisconsin Supreme Court could now act quickly to stop a criminal investigation alleging that the sitting governor ignored campaign finance laws. The four-justice conservative majority can do this, despite the fact that the political groups involved spent $10 million to elect them, as well.

This conflict of interest might cause a problem for justices in states where judicial ethics rules address conflicts of interest involving campaign contributors. Fortunately for the targets of the John Doe probe, the Wisconsin Supreme Court's rule says that campaign cash can never be the reason for a justice to step aside because of a conflict of interest. In 2010, the rule was literally written by two big-business groups that have spent big to elect the conservatives, and one of them is Wisconsin Manufacturers & Commerce.

These groups have spent millions to elect the justices and influence the chief justice referendum. The justices expect Wisconsinites to believe that they are not influenced by the fact that the targets of this criminal investigation are the most powerful players in Wisconsin Supreme Court elections.