Justice Prosser, hoping to end discipline case against him, asks final colleague for recusal
Post by Emily Mills on 6/26/2012 10:00am
Updated 6/27: Justice David Prosser of the Wisconsin Supreme Court asked the last of his six colleagues on the bench to recuse herself from a discipline case against him.
Prosser asked Justice Annette Ziegler to get out of the case on Monday, meaning he has now asked all of the justices to do so. If at least four recuse themselves the case could be dismissed at a later point in the process for lack of quorum.
State regulators filed the case against Prosser on March 16 of this year, stemming from an incident that occurred between Prosser and Justice Ann Walsh Bradley in June of last year.
During an argument over release of the 5-4 decision that upheld passage of Gov. Scott Walker's bill that effectively stripped public employees of collective bargaining rights Prosser and Bradley bickered in front of four of the other five justices. Justice Patrick Crooks was not present for the altercation.
Bradley confronted Prosser and told him to leave the office, when Prosser admitted to placing his hands on her neck in what he claims was a reflex.
Justice Patience Roggensack, along with Prosser, are the only two so far to recuse themselves from case. The final decision about any disciplinary action against Prosser would fall to his fellow justices.
Prosser says the other judges must recuse themselves because they were witnesses and are therefor biased against him.
Franklyn Gimbel, the special prosecutor who filed the complaint against Prosser, said he "believes everyone but Prosser and Bradley can participate in the case. Even though other justices witnessed the incident, they should participate in the case under the 'doctrine of necessity,' Gimbel said. Under that doctrine, judges must participate in cases they would normally step away from because the cases otherwise would not be resolved."
The state's Judicial Commission is conducting the current investigation into the incident: "The commission, in a filing with the Supreme Court in March, said it 'found probable cause' to believe that Prosser 'willfully violated' the state code of judicial conduct."
In a motion filed with the Supreme Court in May the commission moved the Supreme Court to direct the chief judge of the Court of Appeals to appoint a panel that would hear the commission's case against Prosser.
So far the complaint is stalled, though, since Chief Judge Richard Brown has not yet ordered the creation of the 3-judge panel. According to Wisconsin statute the Supreme Court has no authority over the formation of that panel--it's left to the chief judge of the court of appeals--and indeed wouldn't play any role in the case until the commission has completed its investigation and filed its findings.
Prosser's attorneys argue that his fellow justices should recuse themselves because they would be the ones in charge of eventually reviewing any recommendations made by such a panel.
Correction: In the original version of this article it was noted that a lack of quorum of Supreme Court justices in this case would automatically lead to dismissal, and that the order to create a panel to review the case was the responsibility of the Supreme Court. This is not so. We have updated the article to reflect the more nuanced reality of the case, and regret the initial error.
Emily Mills is Editor-At-Large for Dane101, as well as Editor of Our Lives Magazine. She is also a freelance writer, photographer, actor, and musician (drummer and singer in local band Little Red Wolf). Originally from several states up and down the Midwest Emily has called Madison home since 2000. Contact her at