Prosser retirement means big changes for high court

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For Milwaukee criminal defense attorney David Ziemer, Justice David Prosser’s recent retirement announcement means the state’s highest court will be losing a justice who could always be counted on to provide a perspective a bit out of the common run.

“If there were three opinions, and one of the opinion argued X and the dissent said not X, David might write a concurrence that says Y,” he said. “He might just decide his vote might be determined on a basis that the six other justices didn’t even discuss, that the issue was different than what the other justices believed.”

Ziemer is not the only lawyer who expects big changes from Prosser’s retirement in July. Tom Shriner, a partner at Foley & Lardner who has argued before the court many times, said that the court will inevitably take on a new complexion once a successor has been chosen.

“What’s important is that there will be a new justice with a different set of life experiences, and he or she will inevitably influence which cases the court will take,” Shriner said.

One thing to keep in mind, he said, is that the Supreme Court differs from the state Court of Appeals in that it is known as a discretionary court. That means the justices can influence the law not only through their rulings in particular cases but also by merely deciding to take up certain cases or not.

Gov. Scott Walker is now searching for someone to appoint for the rest of Prosser’s term. Some of the people being circulated as possible applicants for the spot are Court of Appeals Judge Mark Gundrum, Public Service Commission Chair Ellen Nowak, District 3 Court of Appeals Judge Tom Hruz, District 2 Court of Appeals Judge Brian Hagedorn, Dane County Circuit Court Judge Jim Troupis and Jefferson County Circuit Court Judge Randy Koschnick.

“Whoever Walker appoints will be someone who buys into statutory construction as set forth in State ex rel Kalal v. Dane County Circuit Court,” Ziemer said.

In other words, that person will have established conservative credentials. That should be no surprise given Walker’s membership in the Republican Party and his support for other candidates who have helped bolster the court’s current 5-2 right-leaning majority.

Ziemer said the likely appointment of another conservative justice should tell appellate lawyers that they have little to no reason to change how they argue before the court.

“That means in terms of statutory construction, you really pound, ‘This is the plain meaning of the statute,’” he said.

Ziemer said appellate lawyers seldom tailor their arguments to be persuasive to particular justices. Yet, from 2000 to 2004, a time when many cases before the Supreme Court were being decided by 4-3 votes, a common strategy was to argue things in a way calculated to win over Prosser.

“He was the swing vote back in those days, but that hasn’t been the case in 12 years,” said Ziemer.

Ziemer also observed that Walker’s recent picks for the state Court of Appeals have all been younger than 50. Walker appointed Brian Hagedorn, 37, to the District 2 Court of Appeals last year and Thomas Hruz, 42, to the District 3 Court of Appeals in 2014. In the best-known instance, Walker placed Justice Rebecca Bradley, 44, on the District 1 Court of Appeals last year, just months before appointing her to the Supreme Court.

Matt Rothschild, executive director of the Wisconsin Democracy Campaign, said that Prosser’s retirement gives Walker an opportunity to solidify the conservative majority.

“It’s a big win for Walker and for the right-wing agenda he’s been promoting aggressively,” Rothschild said. “It gives Walker an opportunity to leave his firm imprint on the court for another three decades.”

Walker’s appointment would have a four-year test-run on the bench before having to run for election in 2020.

“Whoever it is will have years to build their record, unlike (Rebecca) Bradley, who ran without much opportunity to establish her record because there was a vacancy right away,” said Ziemer.

Recent history has shown no reason to doubt the generally accepted rule that appointees tend to prevail when they seek the support of voters. The only exception seen so far came with Justice Louis Butler, who was appointed by then-Gov. Jim Doyle but was taken down by Justice Michael Gableman in 2008.

Before the remaining four years of Prosser’s term have come to a close, three seats on the court will be up for re-election. Justice Annette Ziegler’s term ends in July 2017. She will then be followed by Gableman, whose term ends in July 2018, and Justice Shirley Abrahamson, whose term is up in July 2019.

Rothschild predicted every one of those elections, as well as the one for Prosser’s seat, will be contested.

“The situation here with Walker having the ability to nominate another young justice, the majority will still be 5-2, but a younger 5-2,” he said.

Prosser announced last week that he plans to retire in July, ending nearly 20 years on the court.

He earned his law degree from the University of Wisconsin-Madison law school in 1968. He spent much of his career in politics, serving in the state Assembly from 1979 through 1996 as a Republican. He worked alongside Walker during the governor’s stint as a state representative in the 1990s.

Former Gov. Tommy Thompson appointed Prosser to the high court in 1998. He was elected to a 10-year term in 2001 and re-elected in 2011.

The Associated Press also contributed to this report.