Justice Prosser’s Legal Defense Fund

By Attorney Gregg Herman
July 24, 2012

An article in today’s Milwaukee Journal Sentinel entitled “Prosser May Use Campaign Account to Pay Legal Bills” raises several common questions about judicial politics and finances with an unusual twist.

The common question relates to the practice of judges raising money for election, where some – or even most – of these funds come from lawyers who practice in front of them.  While judges try very hard not to let contributions influence their rulings (I’ve even had instances where the judges have bent over backwards the other way in an effort to prove impartiality), judges are human.    As such, they are influenced the same way as everyone else.  As a result, contributing to a political campaign is perceived as a form of legal bribery, much as judges try to be impartial.  The political system being what it is, judges have no choice as long as we have an elected judiciary.  And, there does not seem to be any movement towards an appointed one.

The Prosser case has a twist, however.  The legal defense part of his need for contributions arise from a confrontation with Justice Bradley.  Since political contributions are public, would a contribution to Justice Prosser be viewed as taking sides by Justice Bradley?  So, to the extent lawyers would be currying favor with one justice by making a contribution, would they be antagonizing another one?

If you don’t believe that lawyers think in these terms, consider the free representation provided by Michael Best & Friedrich  to Justice Gableman.   According to accounts, the representation was worth tens of thousands of dollars.  By a 3-3 vote, Justice Gableman will not have to recuse himself in cases before the court where that firm appears.  Does anyone really think that representing Justice Gableman was done as a pro bono contribution by that firm out of the goodness of their hearts?

Personally, I am conflicted.  I know both justices somewhat, although not intimately.  I’ve met Justice Prosser on several occasions and recently served on a Supreme Court committee which he chaired on unpublished decisions.  Similarly, I’ve met Justice Bradley on several occasions (her husband, Mark, was in my class in law school).  I’ve appeared in front of them on the two occasions I’ve had the privilege of arguing a case before the Supreme Court.  I’ve always felt they are both superior justices and people.

So, I’m not sure what I will do, other than wish that these fine people would find a means to resolve their issues outside of the media and that money did not play such an important role in our legal system.  The latter wish is not going to happen so let’s hope for the former one.

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.