A Philadelphia philanthropist and his wife gave Wisconsin Supreme Court Justice David Prosser $100,000 this spring for his recount effort, and three others gave a combined $100,000, records show.
A quirk of state election law allows candidates to receive unlimited sums during recounts, and Prosser used that opportunity impressively, campaign finance reports show. Over 13 days in April, he collected three $50,000 donations and two $25,000 donations.
In all, he raised $272,887 for his recount efforts. The fundraising was conducted in April and May.
More than $75,000 went to the Troupis Law Office, which is headed by Jim Troupis and has a major First Amendment case before the court Prosser sits on.
Three legal experts said judges and justices cannot hear cases argued by attorneys who have recently done work for them. Prosser plans to remain on the case regardless.
In addition to Troupis, other attorneys billed Prosser's campaign nearly $260,000 for the recount. Prosser's recount fund continues to raise money to pay off that debt.
Prosser narrowly defeated Assistant Attorney General JoAnne Kloppenburg in April, and Kloppenburg called for the first statewide recount in more than 20 years. Both campaigns then hired lawyers to observe the recounts at the local level, perform legal research and make arguments in court.
Before the election, Prosser and Kloppenburg participated in a public financing program that allowed them to each receive $400,000 from taxpayers because they agreed to forgo private fundraising. The program was meant to help curtail the influence of special interests on the court. This year's race was the only one conducted under that system; Democrats created it when they ran the Legislature in 2009, and Republicans this year ended it.
Once the recount was ordered, both candidates could engage in private fundraising with the normal limits on donations lifted. Aides to Prosser set up a recount fund and raised money for it. Prosser was not personally involved with fundraising and was not informed of where the money was coming from, his aides said. That was done in an effort to limit conflicts of interest.
Some of the donations to Prosser were large:
John Templeton Jr. of Pennsylvania and his wife, Josephine, each gave Prosser's recount fund $50,000 on April 14. John Templeton Jr. heads the conservative John Templeton Foundation created by his late father, a renowned investor. The foundation had $1.7 billion in assets as of the end of 2009, records show.
John Templeton Jr. has made large political contributions in the past, giving a total of $209,500 to three candidates for the Pennsylvania Supreme Court in 2007, according to the National Institution on Money in State Politics.
Richard Uihlein of Pleasant Prairie, the owner of shipping supply distributor Uline, gave $50,000.
David Humphreys of Missouri gave $25,000 toward the recount. Humphreys is part of a family that owns Tamko Building Products Inc., which makes roofing products and has been named in numerous asbestos lawsuits, according to the Kansas City Star. Humphreys pushed an effort last year to elect judges in his home state.
Virginia James of New Jersey also donated $25,000. She is an investor who has given large sums to Republicans and conservative causes, including $350,000 last year to Club for Growth Action, according to the Federal Elections Commission.
James could not be reached, and the other donors did not return phone calls seeking comment.
None of them have cases pending before the Wisconsin Supreme Court. If they do come before the court in the future, Prosser would be able to sit on their cases because the court passed a rule in 2009 that says campaign contributions by themselves are not enough to force a judge from a case.
Kloppenburg's biggest contribution came from her mother-in-law, Barbara Hickey of Madison, and was for $10,000, far outstripping the next highest donation of $2,500. Kloppenburg raised a total of $126,789 for her recount effort, her report shows.
Troupis, one of the key attorneys for Prosser's recount, is representing tea party groups and other conservatives in a case they brought last year to halt state regulations on political speech. The case will be argued before the court on Sept. 6.
In April, Prosser said he had not thought much about whether he could remain on the case but that his initial impression was that he could do so. Prosser could not be reached Friday, but his campaign director, Brian Nemoir, said Prosser planned to stay on the case and could remain impartial.
"Justice Prosser's commitment is to the oath of office," Nemoir said. "By no means would any contractual obligation (with a lawyer) cloud that obligation."
The money that went to Troupis' office was for expenses and work done by other attorneys. Troupis did not bill for his own time working on the recount, according to Nemoir.
Experts in legal ethics said Prosser should not sit on the case because state ethics rules say judges cannot sit on cases in which a reasonable person would question their ability to be impartial.
"A lawyer-client relationship is one of the highest fiduciary relationships," said professor Monroe Freedman, a professor at Hofstra Law School in New York. "The judge has put his trust and confidence in this lawyer in retaining him. The fact that the judge has had this kind of extremely close relationship with this lawyer - a relationship built on dependency and trust - in the recent past is something that might well cause a reasonable person to question the judge's ability to be impartial.
"Ordinarily a judge listens to each lawyer, giving each lawyer the weight the argument is entitled to without having a thumb on the scale. . . . (This relationship) is one of those thumbs on the scale."
Another expert on legal ethics, New York University School of Law professor Stephen Gillers, said Prosser shouldn't hear the case because Troupis' work was so important to keeping Prosser on the bench and because it occurred so recently. He said legal scholars may differ on the issue, but the argument for recusal is strong.
"I think under the rules on disqualification, Justice Prosser should step aside now," Gillers said.
Agreeing was Charles Geyh, a professor at the Maurer Law School at Indiana University Bloomington.
"It's a bad idea" to stay on the case, he said. "The perception is you would act to do your own attorney a good turn."
If Prosser stepped aside in the case, it would open the possibility of the court splitting 3-3, which would likely leave the regulations in place. Normally if the court splits evenly, the decision by the next highest court stays in place, but this case is unusual in that it was initiated in the Supreme Court.
Prosser also incurred $258,973 in charges for the recount from the Reinhart Boerner Van Deuren law firm. The lead attorney from that firm who worked on the case, Daniel Kelly, does not have any matters pending before the state Supreme Court.Wisconsin WaveWisconsin WaveWisconsin Wave