— Wisconsin Supreme Court Justice David Prosser said
Thursday he didn't have to recuse himself from a ruling
that ended a secret investigation into coordination
between Republican Gov. Scott Walker's recall campaign and
outside groups. Prosser acknowledged spending by some of
those same groups helped him win re-election in 2011 but
argued that was years ago.
investigation centered on whether Walker's 2012 recall
campaign illegally coordinated with Wisconsin Club for
Growth and other conservative organizations on advertising
during the 2012 recall. Prosecutors ran the probe as a
so-called John Doe proceeding, Wisconsin's version of a
grand jury investigation where information is kept secret.
is part of the high court's conservative majority that
ended the investigation earlier this month, saying
Walker's campaign and the groups legally coordinated on
so-called issue advocacy, a political term for
communications that outline a candidate's positions but
don't expressly call for his or her election or defeat.
The ruling removed a potential obstacle for Walker as he
seeks the 2016 Republican presidential nomination.
three groups named in the probe have spent millions to
support the court's conservative majority. That prompted
Francis Schmitz, the lead prosecutor in the investigation,
to ask Prosser and Justice Michael Gableman, another
member of the conservative majority, in February to step
out of the case. The court denied the request with no
explanation the same day it issued the ruling halting the
probe. That could give Schmitz grounds for an appeal to
the U.S. Supreme Court.
released an opinion Thursday saying he was the justice
Schmitz wanted out. He wrote that Schmitz alleged several
groups under investigation had spent about $3.3 million to
help get him re-elected in 2011. Prosser said he couldn't
name the groups because of secrecy orders.
wrote that he couldn't name the groups due to secrecy
orders still in place, but acknowledged some targets of
the investigation "engaged in expenditures that,
under all the circumstances, were very valuable to my
noted Schmitz doesn't argue the spending was improper,
contending instead that Prosser shouldn't participate in
the case simply because he received help from the groups.
said the public chooses who sits on the Supreme Court and
it's not up to prosecutors to permit justices to
participate in cases. He noted that the spending took
place four years ago, enough time to make recusal moot.
my recusal were now because of these expenditures — that
is, four years after lawful independent communications
were made to support my candidacy ... the special
prosecutor will have found a way to undermine judicial
elections in Wisconsin," Prosser wrote.
also argued that Prosser's campaign treasurer also serves
as campaign treasurer for one of the investigation's
targets and Prosser's campaign was closely connected to
Walker's administration, noting Prosser's campaign manager
issued a news release in December 2010 promising to
complement Walker's office, Prosser wrote.
said his campaign treasurer has served as treasurer or
bookkeeper for nearly 30 political candidates and he
doesn't remember ever meeting her in person. She wasn't a
target of the investigation anyway, he wrote. As for the
news release, Prosser wrote that it went out without his
knowledge or approval and he didn't agree with it.
declined comment on Prosser's opinion but said he was
still weighing his options for an appeal.
has not explained why he declined to recuse himself.