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Wisconsin State Journal for February 3, 2006

Justice Prosser admits campaign conduct in Assembly

DEE J. HALL dhall@madison.com  

(Our emphasis added in BOLD - J4J)

Wisconsin Supreme Court Justice David Prosser is prepared to testify that during his seven years as an Assembly leader, the legislative employees under him routinely worked on private political campaigns, even at the Capitol, according to a brief filed Thursday by the attorney for state Rep. Scott Jensen.

Prosser and another former legislative leader, Joseph Strohl, acknowledge in the filing that they used their taxpayer- funded caucus staffs for campaigning - the same type of behavior for which Jensen faces three felonies and a misdemeanor charge. The two said maintaining their party's grip on power in the Legislature was a key part of their duties as leaders.

Thursday's filing is the latest bid by the Republican lawmaker from Waukesha to avoid a trial looming this month in Dane County Circuit Court against him and former legislative aide Sherry Schultz, who is charged with a single count of felony misconduct in office. Judge Steven Ebert will hear pretrial arguments in the case at 1:30 p.m. today.

Prosser, who preceded Jensen as Assembly speaker, would testify that while he was a top leader, legislative caucus workers attended campaign meetings at the Capitol, recruited political candidates, gathered voter lists and set up, attended and staffed fundraisers, according to the brief.

Prosser, 63, who has served on the state's high court for seven years, declined to take media calls Thursday, Supreme Court spokeswoman Amanda Todd said. Prosser was appointed to the seven-member court by former Gov. Tommy Thompson in 1998 and elected to a 10-year term in 2001.

In the brief, Prosser said the campaign activity took place from 1989 until 1994, while he was the Assembly minority leader, and in 1995 and 1996, when the Republicans gained the majority and Prosser became the Assembly speaker. Jensen served as the No. 2 Assembly Republican under Prosser, then succeeded him as speaker in 1997. Jensen resigned from leadership in 2002 after he was charged.

All of the activities described by Prosser took place more than six years ago, which is the statute of limitations for prosecuting felonies in Wisconsin.

"The legislative branch is the political branch of government, and a legislative office is a thoroughly political office," Prosser said in the court brief. "For the most part, every activity that could be characterized as a campaign activity can be conceivably construed to be an act that furthers the legislative process."

Legal scholars disagreed Thursday on whether Prosser, by linking himself to the biggest political scandal in Wisconsin history, was undermining public confidence in the state Supreme Court. Four lawmakers and three legislative aides have been convicted or fined so far.

"David Prosser needs to be a little bit careful here," UW- Madison law professor Walter Dickey said. "He might be admitting to a crime. Even if it's not prosecutable, it undermines the legitimacy of the judiciary if you admit to behavior that amounts to a felony."

Richard Jacobson, a private attorney and lecturer in legal ethics at the law school, said Prosser's admission only shows he disagrees with rulings by the 4th District Court of Appeals and upheld by the Supreme Court that operating private political campaigns with public resources wasn't a legitimate state duty.

"This justice is standing up very nobly for what he believes is right," Jacobson said, adding that he disagrees with Prosser's reading of the law. "It shows considerable honor and courage to say, 'I did something in the past that I don't think is wrong.' It's admirable really - admirable but mistaken."

Since they were charged with misconduct in 2002, Jensen and his co-defendants in the legislative caucus scandal have appealed the legitimacy of the case against them, a battle that landed at the state Supreme Court last spring.

On the question of whether the defendants should have known that using state resources to run campaigns was illegal, the court deadlocked, 2- 2. That allowed a Court of Appeals ruling to stand that such behavior could be prosecuted as felony misconduct in office.

Prosser and two other justices recused themselves from the case, citing no reason.

Jensen attorney Stephen Meyer argued in his brief that testimony by Prosser, Strohl and former leaders and caucus staffers on the Democratic side of the Assembly would show campaign activity was pervasive throughout the Capitol. The fact that everyone was doing it, Meyer said, shows Jensen and Schultz didn't act with "corrupt intent."

In his statement, Strohl, who was the Democratic Senate majority leader from 1986 to 1990, said he, too used caucus employees to run campaigns. He said the duties of legislative leadership including "raising money, recruiting candidates, targeting key races and developing issues.

"Caucus staffs are instrumental in achieving those objectives," said Strohl, a long-time Capitol lobbyist.

But Dane County District Attorney Brian Blanchard said the Court of Appeals already has ruled in this case that the alleged activities of Jensen and Schultz constitute "public financing of private campaigns without the public's permission.

"There is no reasonable argument that this alleged activity serves any legitimate legislative duty or purpose. No statute, rule or policy sanctions this behavior," the court found.

Both Dickey and Jacobson agreed the "everybody did it" defense probably wouldn't fly with Ebert - or the public.

"I do disagree that just because everybody did it, that makes it lawful," Jacobson said.

Jensen and Schultz also have been pressing to have their cases set aside on the basis of alleged "selective prosecution" by Blanchard.

In a brief earlier this week, the two submitted previously confidential investigative reports that showed state staffers of the Assembly Democratic Caucus, Democratic lawmakers and their leader, former Rep. Shirley Krug, D-Milwaukee, engaged in the same kind of behavior that Jensen and Schultz allegedly did but weren't charged because they, like Blanchard, are Democrats.

But Blanchard noted in his brief that he successfully prosecuted former Democratic Sen. Brian Burke. Former Democratic Senate Majority Leader Chuck Chvala was successfully prosecuted by the Milwaukee County district attorney's office.

Jensen was targeted in part, Blanchard said, because he was "among the three of four most powerful elected officials in state government at that time (and) as such, he was more accountable for his actions than other public officials who did not have this power."

The Wisconsin State Journal reported in March 2003 that Prosser, like Jensen, presided over a system in which Assembly Republican Caucus (ARC) staffers worked on campaigns during state time and from their taxpayer-funded offices.

In the criminal complaint against Jensen, former ARC director Ray Carey said that during his tenure from 1994 to 1999, the primary duties of his government job were campaign-related. As speaker in 1995 and 1996, Prosser headed the ARC and was Carey's direct supervisor. Prosser was not referred to by name in the complaint.

WHAT'S NEXT

Dane County Circuit Judge Steven Ebert will hear pretrial arguments today in the misconduct case against Rep. Scott Jensen, R-Waukesha, and Sherry Schultz, a former legislative aide. The two are charged with illegally using state staff and resources to run private political campaigns. Thursday, Jensen's attorney filed a brief in which Wisconsin Supreme Court Justice David Prosser said he also used legislative caucus staff members to run campaigns when he was a Republican leader in the state Assembly.

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