March 19, 2011- As the deeply divided state Supreme Court wrestled over whether to force one member off criminal cases last year, Justice David Prosser exploded at Chief Justice Shirley Abrahamson behind closed doors, calling her a "bitch" and threatening to "destroy" her.
The incident, revealed in interviews as well as e-mails between justices, shows fractures on the court run even deeper than what has been revealed in public sniping in recent years. Problems got so bad that justices on both sides described the court as dysfunctional, and Prosser and others suggested bringing in a third party for help, e-mails show.
Prosser acknowledged the incident recently and said he thought it was becoming public now in an attempt to hurt him politically. Prosser faces Assistant Attorney General JoAnne Kloppenburg in the April 5 election.
He said the outburst came after Abrahamson took steps to undermine him politically and to embarrass him and other court conservatives.
"In the context of this, I said, 'You are a total bitch,' " Prosser said.
"I probably overreacted, but I think it was entirely warranted. . . . They (Abrahamson and Justice Ann Walsh Bradley) are masters at deliberately goading people into perhaps incautious statements. This is bullying and abuse of very, very long standing."
The Feb. 10, 2010, incident occurred as the court privately discussed a request to remove Justice Michael Gableman from a criminal case.
"In a fit of temper, you were screaming at the chief; calling her a 'bitch,' threatening her with '. . . I will destroy you'; and describing the means of destruction as a war against her 'and it won't be a ground war,' " Bradley wrote in a Feb. 18, 2010, e-mail to Prosser and others.
"In my view, a necessary step to address the dysfunction is to end these abusive temper tantrums. No one brought in from the outside is going to cure this aspect of the dysfunction."
Three days later, Justice Patience Roggensack wrote to Bradley, criticizing her for copying judicial assistants on her e-mail.
"You were trying to make David look bad in the eyes of others, as a person who uses language that we all find offensive – and I include David in that 'we,' " Roggensack wrote. "Do you think that copying others on your e-mail increased the collegiality of the court or decreased it?
"You are a very active participant in the dysfunctional way we carry-on. (As am I.) You often goad other justices by pushing and pushing in conference in a way that is simply rude and completely nonproductive. That is what happened when David lost his cool. He is not a man who attacks others without provocation. Until you realize that you are an active part of the provocation, not much will change. Perhaps a third party will help you realize that you are not part of the solution; you are part of the problem."
The next day, Feb. 22, 2010, Bradley wrote Roggensack.
"Regardless of our disagreements, there is no justification for this abusive behavior," Bradley wrote. "Blaming his abusive behavior on others merely enables it."
Abrahamson and Roggensack did not return calls about the incident.
At the time, passions ran high on the court because the justices had to decide an ethics allegation against Gableman, as well as requests by defense attorneys to force him off nine cases because they believed he was biased against criminal defendants.
Gableman remained on the cases after the justices split 3-3 on the issue. Months later, they split along the same lines on his ethics case.
Abrahamson, Bradley and Justice N. Patrick Crooks voted to find that Gableman violated the judicial ethics code by misstating facts in a campaign ad; Prosser, Roggensack and Justice Annette Ziegler voted to find that he did not violate the ethics code. With no agreement, the case was then abandoned.
Bradley allowed the Journal Sentinel to review the e-mails at the newspaper's request. She blacked out the name of a case mentioned in the e-mails.
She said Prosser's outbursts have occurred on and off over the years, but there has not been one of similar magnitude since the incident described in the e-mails.
Prosser said he'd helped Abrahamson and Bradley in past campaigns but believed they were trying to get him off the court in the upcoming election. Bradley said she had not talked to Kloppenburg about her campaign, but did discuss the "pros and cons and realities" of a court campaign with others, including Marla Stephens.
Stephens, the appellate director for the state Public Defender's Office, ran for the court but did not advance past last month's primary.
Said Prosser: "There is not the slightest doubt that Ann wrote that e-mail to hurt me in this campaign – and here it is surfacing three weeks before the campaign."
Bradley denied that. "I never intended that this would be public," she said. "I just wanted it to stop."
She said she agreed to an interview in part because Prosser had been portrayed as even-keeled during the campaign.