David Prosser Jr.
David Thomas Prosser Jr. was an American lawyer, jurist, and Republican politician from Appleton, Wisconsin. He was a justice of the Wisconsin Supreme Court from 1998 until his retirement in 2016. Prior to joining the court, he served as the 72nd speaker of the Wisconsin State Assembly, during the 1995-1996 term, after serving in the Assembly since 1979. Prior to becoming speaker, he led the Republican Assembly caucus for three terms as minority leader.
Earlier in his career, he worked as a congressional aide to U.S. Representative Harold V. Froehlich, and served two years as district attorney of Outagamie County, Wisconsin, before his election to the Assembly.
After an unsuccessful bid for the U.S. House in 1996, Prosser was appointed by Wisconsin Governor Tommy Thompson to a vacant seat on the state tax appeals board, then in 1998 to a vacant seat on Wisconsin Supreme Court. He was elected to his first 10-year term without opposition in 2001. His re-election in 2011 came at a time of intense partisan attention on the Court, following the election of Republican Governor Scott Walker and litigation around his signature law, Prosser narrowly won re-election in that race over Wisconsin assistant attorney general JoAnne Kloppenburg.
Prosser received national media attention in 2010 following verbal altercations with Chief Justice Shirley Abrahamson, and also in June 2011 when allegations were made of a physical altercation between Prosser and fellow justice Ann Walsh Bradley that occurred during court deliberations over. A special prosecutor investigated but declined to press criminal charges. An ethics action against Prosser was recommended by the Wisconsin Judicial Commission, however, after three other justices recused themselves from the matter, no further action was taken.
Prosser retired from the court in 2016, but returned to state affairs near the end of his life in the fall of 2023, when he was one of three former justices asked to advise Wisconsin Assembly speaker Robin Vos on the question of whether to impeach the then-newest justice, Janet Protasiewicz. Prosser publicly advised Vos to avoid impeachment, saying, "Impeachment is so serious, severe, and rare that it should not be considered unless the subject has committed a crime, or the subject has committed indisputable 'corrupt conduct' while 'in office.'"
Early life and education
Prosser was born in Chicago to David T. Prosser Sr. and his wife Elizabeth Prosser. He was raised in Appleton, Wisconsin. After graduating from Appleton High School, he attended DePauw University, receiving his B.A. in 1965. He went on to law school at the University of Wisconsin and received his J.D. in 1968.Career
Early career
Prosser lectured at Indiana University-Indianapolis Law School from 1968 to 1969, before working from 1969 to 1972 in Washington, D.C., as an attorney advisor in the Office of Criminal Justice, U.S. Department of Justice. He ran unsuccessfully for a seat in the Wisconsin State Assembly in 1972, then served as an administrative assistant to U.S. Representative Harold Vernon Froehlich. Froehlich was a Republican and a former speaker of the Wisconsin State Assembly, serving his first term in the U.S. House of Representatives. As a member of the House Judiciary Committee during the Watergate impeachment hearings, in the 1973-1974 term, he was one of the few Republicans who voted in favor of impeaching Richard Nixon. Froehlich lost re-election in the Democratic wave of 1974. Prosser returned to Wisconsin and, after two years in private practice as a self-employed lawyer, he was elected Outagamie County district attorney in the 1976 election, serving from 1977 to 1978.Wisconsin legislature
Prosser represented the Appleton area in the Wisconsin State Assembly as a Republican from 1979 through 1996. His committee assignments included Criminal Justice and Public Safety and Judiciary. During his tenure in the Assembly, he served six years as Minority leader and two years as Speaker.In 1981, he opposed removing criminal penalties on sexual activity and cohabitation between unmarried, consulting adults, though he did express a willingness to repeal the jail terms. He stated that legalizing sex outside of marriage would increase divorce rates, the number of children born outside of wedlock, welfare payments, sexually transmitted diseases, and abortions. In 1995, while he was Assembly Speaker, Prosser led the push for the new baseball stadium for the Milwaukee Brewers, saying that Wisconsin had a choice of being either a "big league or bush league" state.
Campaign for U.S. Congress
In 1996 he ran for the 8th congressional district seat in the U.S. Congress vacated by retiring U.S. Representative Toby Roth. Prosser won what the Milwaukee Journal Sentinel described as a "bitter and high-spending" primary, but was defeated in the general election by Democrat Jay W. Johnson. One month later, Governor Thompson appointed Prosser to the Wisconsin Tax Appeals Commission where he conducted hearings and ruled on disputes related to state taxation.Wisconsin Supreme Court
In September 1998, Thompson appointed Prosser to a vacant seat on the Wisconsin Supreme Court, hailing him as a conservative. In an unusual move, a bipartisan group of 77 of the 132 state legislators sent a letter to Thompson supporting the appointment, describing Prosser as, "learned, thoughtful, and fiercely defensive of our system of law".In 2011, the Milwaukee Journal Sentinel said Prosser is a "reliable judicial conservative, but he's also independent", citing an August 2010 Wisconsin Law Journal analysis which concluded "Prosser voted with no justice more than 85% of the time, though he generally combined with three other conservative justices, to form a 4-3 majority on the court." The New York Times said some observers believe that Prosser is a member of a conservative 4-3 bloc on the court.
In October 2010, Prosser indicated that he supported limiting free online access to Wisconsin trial court records because the information can be misused by employers and landlords, saying, "Some people are actually innocent, and they shouldn't be disadvantaged forever" by the online records. Opponents of the change argued that restricting free online access may result in private vendors selling the information, and may conflict with Wisconsin's open records law.
Following the decision in Donohoo v. Action Wisconsin Inc., Prosser voted to amend the state's judicial code of conduct to allow judges to decide cases involving their campaign contributors, saying there are various levels of support and a campaign contribution or endorsement "in and of itself does not create so close or special relationship so as to require automatic recusal." He has also said his policy is not to recuse himself from cases involving lawmakers he has served with in the past unless the case is actually about the lawmakers.
Prosser retired from the Wisconsin Supreme Court on July 31, 2016.
Other professional activities
Prosser served as a member of the Wisconsin Council of Criminal Justice, the Judicial Council Commission on Preliminary Examinations, the Wisconsin Sentencing Commission, the Wisconsin Sesquicentennial Commission, and the National Conference of Commissioners on Uniform State Laws.Controversies
Decision not to prosecute abuse case
In 1978, while serving as District Attorney of Outagamie County, Prosser declined to prosecute a Catholic priest accused of sexual abuse by two brothers, who said the priest had touched their chests and unsuccessfully attempted to touch lower. Prosser later explained he did not file charges because the case was weak; it involved relatively new sexual assault laws that were untested at the time, and he did not think he could win a jury trial. He said he had assumed the priest, John Patrick Feeney, would be reassigned as a result of his discussion with Feeney's bishop. The priest was not removed from duties which allowed him contact with children, and he went on to abuse other children before being sent to prison on a 15-year sentence in 2004. The prosecutor who ultimately and successfully prosecuted the case in the early 2000s said that when Prosser had the case in the 1970s, he was lacking sufficient information: "We were able to gather a wealth of information that far exceeded what Prosser had," he said, adding, "It's not fair to second-guess him now." When interviewed in 2011 one of the victims said that in 1978 he and his brother had not communicated detailed information about the abuse to the authorities, and that when the case came to trial in 2002, Prosser helped in the prosecution.During Prosser's 2011 run for re-election to the Wisconsin Supreme Court, the incident was revived in a political ad by a pro-union organization which claimed that Prosser did not investigate the abuse allegations and participated in a coverup. The ad was ultimately rated "Mostly False" by the fact-checking website, PolitiFact.com, which concluded that the ad omitted critical facts and created false impressions. One of the abuse victims, who had been critical of Prosser's decision not to prosecute, criticized the ad as "offensive, inaccurate and out of context." Prosser asked his opponent, Kloppenburg, to call for the removal of the ad—she replied that the First Amendment gave the group the right to run such ads.