Carolyn Fath
David Prosser in 2017.
Chief Justice Annette Ziegler said Prosser 'brought a keen intellect and deep sense of fairness to every case, leaving an indelible mark on Wisconsin jurisprudence.'
When I interviewed David Prosser in early March 2011, as he was seeking reelection to a second 10-year term on the Wisconsin Supreme Court, he told me a story about earplugs. Roughly two weeks earlier, when the building was packed with protesters opposing Gov. Scott Walker’s plan to strip most public employees including teachers of their collective bargaining rights, a custodian he knew well came into his chamber. He noticed that she was not wearing earplugs.
“Working in the building, the noise has just been deafening,” recalled Prosser, a former state lawmaker who was appointed to the court in 1998 by then Gov. Tommy Thompson and was elected to his first term without opposition in 2001. He noted that law enforcement officers throughout the Capitol were wearing protection against ear damage from the cacophony, and it made sense to him that the custodial crew should be wearing them, too.
“I think you need earplugs,” he told the custodian. And then Prosser, as he explained it to me, did something about it: “I went down to the police and said, ‘You have got to give custodians at least the opportunity to wear earplugs.’ It was done within the hour.”
David Prosser Jr., who died Sunday of cancer at age 81, spent 18 years on the high-court bench. None were more contentious than in 2011, when Walker’s declaration of war on unions and his austerity measures for schools turned the Capitol into an occupied territory. Prosser’s once-commanding lead in the Supreme Court race evaporated, as voters identified him with Walker and the Republicans and lined up behind his opponent, longtime Assistant Attorney General JoAnne Kloppenburg.
Beside being thoughtful toward custodian staff, Prosser contended during our 90-minute interview that he was not the raging ideologue people were making him out to be. At one point, he gave me a list of 13 court decisions in which he had sided with the court’s reigning liberal, Chief Justice Shirley Abrahamson. But he also admitted that it “is usually not difficult to determine exactly what the vote was” in closed session after oral arguments, something he had his staff engage in as a guessing game. The court was and remains an ideological institution and he found his place among its conservative wing.
Prosser ended up winning that election by a margin so thin it took days to call and led to a recount. He would serve only half of that term, stepping down in 2016 and letting Walker appoint his successor, the ultraconservative Daniel Kelly, who would go on to lose two elections to liberal rivals.
Not long after the election came a moment that would forever taint Prosser’s legacy. On June 13, as the Supreme Court was arguing in chambers about its 4-3 opinion upholding Walker’s bill curtailing collective bargaining (the court’s conservatives, Prosser included, were in the majority), Prosser placed his hands on liberal Justice Ann Walsh Bradley’s neck. He described the contact as incidental; she called it a “chokehold.” The Judicial Commission later recommended disciplinary action against Prossser, which his conservative colleagues on the court prevented from happening.
I was the reporter who broke this story, shortly after leaving Isthmus after 25 years and taking a job at the Wisconsin Center for Investigative Journalism. It set off a tidal wave of accusation and recrimination. Afterward, Justice Patience Roggensack accused Bradley and Abrahamson of leaking the story. They did not. The leak came from outside the court, from others who were made aware of what had happened.
Some months after this incident, I gave a talk about the Supreme Court to the Wisconsin League of Women Voters. As I looked out into the audience I saw that Prosser was in attendance. Afterward, I met up with him on the street, where he was intent on showing me how he had touched Bradley’s neck, to show how innocent it was. He walked toward me in pantomime and replicated what he said transpired.
On Monday, the day after Prosser’s death, a Dane County judge issued a ruling that could restore the collective bargaining rights of public employees.
Born in Chicago and raised in Appleton, Prosser attended DePauw University and UW Law School. He worked as a lecturer at the Indiana University-Indianapolis law school, then as a U.S. Justice Department official, congressional aide, and Outagamie County district attorney. He served in the state Assembly from 1979 to 1996, including six years as minority leader and two years as speaker. He served briefly on the Wisconsin Tax Appeals Commission before being appointed to the bench. He never married.
Chief Justice Annette Ziegler, in her statement Monday announcing Prosser’s passing, remembered him fondly and hailed his legacy: “On the bench, Justice Prosser brought a keen intellect and deep sense of fairness to every case, leaving an indelible mark on Wisconsin jurisprudence. He was well known for digging into the books and conducting exhaustive research, often ‘burning the midnight oil’ in the law library.”
One attorney I spoke to for a profile of the court likened Prosser to a Shakespearean figure, haunting the chambers of justice deep into the night. His work was his life and one sensed he felt diminished by its absence.
In 2017, Prosser wrote a lengthy article for Isthmus arguing in favor of a state gas tax and other vehicle-related fees. It concluded: “These unpopular suggestions are intended to provoke meaningful dialogue. Readers should accompany all criticisms and invective against the author with realistic alternatives.”
In an accompanying interview with Isthmus editor Judith Davidoff, Prosser took the point further, arguing that Democrats “deserve credit for their courage to vote no” on a 2006 repeal of gas tax indexing. “And if they still have the same integrity, some will say we have to vote for additional revenue here. It would be very easy to say these stupid Republicans created the problem now so we get to vote ‘no’ on any gas tax increase.”
He added, “Well, I’m a pretty conservative guy but there will always be a place for intelligent, well-reasoned spending and regulation. The country always has to be moving forward.”
