Justices decline Jensen case
11:38 AM 3/13/03
Dee J. Hall Wisconsin State Journal

The Wisconsin Supreme Court declined without comment Thursday to hear an appeal by former Assembly Speaker Scott Jensen and two other Republicans seeking the court's help in fighting charges of felony misconduct in office.

Three justices did not participate in the decision - David Prosser, Diane Sykes and Jon Wilcox. Earlier this month, the Wisconsin State Journal reported that those three and a fourth justice, N. Patrick Crooks, have campaign ties to Jensen or the state Republican Party that could cause them to remove themselves from hearing the case and could force the court to return the matter to the Court of Appeals.

Thursday's Supreme Court order said Chief Justice Shirley Abrahamson concurred with the decision not to hear the case. However, it's unclear how Crooks and Justices Ann Walsh Bradley and William Bablitch voted, only that the group failed to cast the four votes necessary to take the case. In its order, the court said Abrahamson favored revealing the reasons for refusing take the case, but the order gave no reason.

The appeal was filed by Jensen, R-Waukesha, and co-defendants Assembly Majority Leader Steve Foti, R-Oconomowoc, and former Foti aide Sherry Schultz. It asks a higher court to take the unusual step of intervening in the felony misconduct case in Dane County Circuit Court in which the three are charged with illegally using state employees and resources for political campaigns.

The three argue that, among other things, the laws they're charged with violating don't expressly prohibit using state resources for campaigns. Jensen and Foti also have argued that it was part of their duty as legislative leaders to ensure the election of Republicans to the Assembly.

Dane County District Attorney Brian Blanchard, who is prosecuting the case, said it's unclear whether the move back to the appeals court would affect the timing of the trial, set for Oct. 8. He declined further comment.

Citing statements from a witness in the Jensen case and a former Assembly Republican Caucus (ARC) employee, the State Journal reported on March 2 that in his former role as Assembly speaker, Prosser presided along with Jensen during 1995 and 1996 over a system in which ARC staffers worked on campaigns during state time and from their taxpayer-funded offices.

According to the criminal complaint against Jensen, former ARC director Ray Carey said that during his tenure from 1994 to 1999, the primary duties of his government job were campaign-related. While speaker in 1995 and 1996, Prosser was Carey's direct supervisor. Prosser is not referred to by name in the complaint.

Jim Alexander, executive director of the Wisconsin Judicial Commission, told the newspaper earlier this month that one possible reason a judge might decline to participate in a case is if a judge "has knowledge of facts that are at dispute in the litigation" - in this case, whether legislative employees and resources were used to run campaigns.

Two other Supreme Court justices - Crooks and Wilcox - hired Jensen as a key campaign adviser in their successful bids for 10-year terms on the court, putting him in charge of arranging tens of thousands of dollars worth of advertising, according to documents at the state Elections Board.

Under the state's judicial ethics code, a judge is advised not to participate in a case if he or she has a personal bias or prejudice toward the defendant or if a reasonable person who knows all the facts could question the judge's impartiality.

In addition, the campaigns of two justices received thousands of dollars' worth of "in-kind" contributions from the Republican Party of Wisconsin. One of the charges against Jensen alleges that he placed one of his legislative staffers at the Republican Party headquarters during 2000 to hide the fact that she was raising money for his private re-election campaign, Taxpayers for Jensen, while remaining on the state payroll.

That same year, the Republican Party gave Sykes $7,895 worth of free campaign help, campaign-finance records show, while the Wilcox campaign got $2,500 worth of free help during his 1997 race.

Jensen, R-Waukesha, resigned as the Assembly's top leader after he was charged last fall with three felony counts and a misdemeanor in the legislative caucus scandal. Foti and Schultz also was charged with misconduct for allegedly having Schultz use her job to raise money for Republican Assembly candidates.