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Thursday, Sept. 1, 2011

An Out-of-Control Justice

Supreme Court members explain what really happened when Prosser grabbed Bradley's neck

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Although a special investigator announced that she would not seek charges against Justice David Prosser for grabbing the throat of his colleague, Justice Ann Walsh Bradley, that doesn't mean that Prosser is completely innocent.

According to transcripts of police interviews, the justices of the state Supreme Court confirmed that Prosser grabbed Bradley when they argued over the conservative majority's attempt to rush a decision on blocked implementation of the politically charged collective bargaining bill championed by Gov. Scott Walker and the Republican legislative majority.

But in interviews with police investigators—just released last week—the justices provide differing views of the June 13 encounter. Not surprisingly, Prosser's conservative allies on the court paint Bradley as the aggressor, while Bradley and her allies allege that Prosser has created a hostile work environment that has finally escalated to the point of physically attacking his colleague.

Here's what the justices told investigators:

An Out-of-Control Majority:
On June 6, the court heard five hours of oral arguments on whether or not to take the open meetings case decided by Circuit Court Judge Maryann Sumi. It's highly unusual for the court to hear oral arguments on whether to take a case, but it became clear that the court was not only deciding whether to take the case, but to decide it at the same time. In doing so, the court was skipping a few steps of the legal process and enabling a rushed decision to be reached based on incomplete evidence.

The four conservative justices wanted to announce their decision within days of the oral arguments.

"Justice Prosser said four people on the court wanted to take the case, and three did not want to decide because they wanted to hear more arguments," the investigators' report states. "Justice Prosser said Justice Roggensack said she was going to prepare the order, which was going to state that the Supreme Court was going to vacate the decision of the circuit court."

According to Prosser, Justice Patience Roggensack—not, as was widely assumed, Justice Michael Gableman—wrote the order by Friday, June 10, and dated it "June 13." Roggensack circulated the order to the entire Supreme Court and noted "opinions may follow." Prosser told investigators that there was an "absolutely clear understanding" that the order would be released on June 13.

Prosser spent the weekend writing a concurrence, but apparently did not notify his colleagues that he was doing so. Chief Justice Shirley Abrahamson submitted her dissent on the morning of June 13. Prosser submitted his concurrence later and said the chief justice was shocked that he had written a concurrence and wanted time to respond to it. The chief justice warned that she might not be finished until Wednesday, June 15.

What Was the Rush?
Although the state's highest court condensed the legal process when taking oral arguments on the open meetings case, the conservative majority felt that the court wasn't acting quickly enough on the matter. Why? Politics, pure and simple.

Prosser told the investigators, "The [Republican] speaker of the Assembly, Jeff Fitzgerald, put the court in an awkward position by saying they needed to have a decision by June 14, 2011 [when the Legislature would begin voting on the state budget]; otherwise they would have to vote all over again. Justice Prosser said there was a commitment by everyone on the court that the decision would go out on the 13th."

That, apparently, wasn't an opinion shared by all of the justices.

Justice Bradley told the investigators that she "continued asking [Prosser] why they needed a press release done and explained that the 'justices work on court time, not the legislature's time.'"

Mutiny:
Prosser said on June 13 his colleagues in the majority were "getting antsy" and wanted to release the order "irrespective" of what the chief justice said. "Justice Prosser said essentially they wanted to march over to the clerk's office and order the clerk to issue the order." Prosser didn't want to do that, so he decided to discuss the matter with Chief Justice Abrahamson. He and his fellow conservative justices went to Abrahamson's office—she wasn't there—and then went to Bradley's office, where the two justices were discussing the case.

After the four conservative justices sought out Chief Justice Abrahamson to force her to send out a press release stating that the order would be published on June 14, Abrahamson said she would do no such thing.

Abrahamson told investigators that Prosser was "agitated" and accused her of "holding things up."

Prosser then told her, "Chief Justice, I have lost confidence in your ability to lead this court.'"

Justice Gableman told investigators "it was a fairly unremarkable comment."

That's when the scuffle between Bradley and Prosser ensued.

What Justice Bradley Did:
Prosser claimed that Bradley "exploded out of that room" and "charged" him. "When she got near him, he said her right fist was in his face," Prosser told investigators. Prosser said Bradley never hit him and he could not remember if she was moving her fist in any manner. He said he is a few inches taller than Bradley but was looking up at her fist and did not have to look up to see her eyes.

Gableman, Prosser's closest ally on the court, said that Bradley's blue glasses were in her right fist and he thought at the time that they might break. He said "Justice Bradley's fist was going towards and away from Justice Prosser's face in almost a punching motion" and that Bradley told Prosser, "You have no right to talk to the chief justice that way."

Although Bradley is 6 inches shorter than Prosser, Gableman claimed that Bradley is a "little bit taller" than Prosser and was hovering over Prosser while repeatedly motioning with her right fist.

Bradley remembers the incident differently. According to her police interview, "Justice Bradley told Justice Prosser, 'Buddy, don't raise your voice again. I'm no longer willing to put up with this.' Justice Bradley described how she was standing close to Justice Prosser and was 'face to face to confront him.' Justice Bradley stated she was pointing with her left hand towards the door that was behind him and said, 'You get out of my office.'"

Bradley said she pointed with the index finger of her left hand over Prosser's shoulder toward the door that was behind him. She told investigators she was "100% certain" she used her left hand "because it would have been awkward to reach across her body to point toward the door."

Abrahamson said she did not see what happened but that she heard Bradley telling Prosser to get out of her office.

What Prosser Did:
After Bradley confronted him, Prosser admitted putting both of his hands on Bradley's neck. He told investigators, "I remember feeling her neck," that he remembered the warmth of Bradley's neck in his hands and that he never squeezed her neck. He said he definitely did not have his hands on her shoulders. He said he went "limp" after the altercation.

Bradley told investigators that Prosser "made contact with the skin around my neck like a full circle" for a few seconds. She was not bruised but she did not specifically check for marks.

Justice Patience Roggensack pulled Bradley away from Prosser and told Bradley that "it wasn't like her."

Despite the fact that Prosser admitted to putting both of his hands on Bradley's neck, his allies Gableman and Roggensack both told investigators a very different story and said that Prosser's hands were on Bradley's shoulders, not her neck. After the incident, Gableman repeatedly told Prosser that he did not choke Bradley.

Prosser's Temper Tantrums:
"Justice Bradley described Justice Prosser as being verbally abusive in the past, describing these incidents as screaming incidents and fits of agitation and rage. She further described Justice Prosser as being irrational at times and making verbal threats [to the chief justice] like, 'You bitch; I will destroy you if you don't withdraw and it won't be by a ground war.'"

Bradley said she's usually able to calm down Prosser when he's having a tantrum but that she was no longer willing to tolerate his abusive behavior in the office.

Justice Patrick Crooks, who did not witness the Prosser/Bradley altercation, told investigators that Prosser had a long history of creating a hostile work environment. Prosser called Crooks a "viper" for not supporting the chief justice during her re-election in 1999, and reportedly slammed the door behind him "hard enough to cause the glass to vibrate."

"Justice Crooks said he has noted Justice Prosser 'loses his cool repeatedly.' Justice Crooks has witnessed Justice Prosser get red and pound on tables with his fists, and get louder and louder in tone during meetings, conferences and sometimes even during public meetings. Justice Crooks said there are times that nothing happens that trigger Justice Prosser losing his cool. Justice Crooks said he estimated Justice Prosser 'explodes and storms out of a room' approximately three to four times a year.

He said he watches what he says to Prosser and "has to walk on eggshells" around him so that he doesn't trigger one of Prosser's outbursts.

Crooks said Prosser's outbursts were so bad that in 2010 he and Bradley met with the director of state courts asking that something be done about Prosser "because they felt there was an escalation of violence" and they were concerned about the chief justice's safety after Prosser threatened her.

He told investigators that others in the office were fearful of losing their jobs if they spoke out about Prosser's rage.

Margaret Brady, personnel manager for the state Supreme Court, told Crooks that there was nothing she could do because the justices are elected officials.

The Wisconsin Judicial Commission is investigating the incident. But any finding of wrongdoing by the commission would ultimately end up in the hands of the Supreme Court, where the divided justices would likely deadlock in a 3-3 vote—as happened in a decision on whether to discipline Justice Michael Gableman for a false, race-baiting campaign ad in 2008.