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Wednesday, May 16, 2012

How Do You Solve a Problem Like Justice Prosser?

His ethics complaint stalls

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Precisely two months ago, the Wisconsin Judicial Commission filed an ethics complaint against state Supreme Court Justice David Prosser Jr., alleging that he violated the code of judicial conduct when he put his hands around the neck of Justice Ann Walsh Bradley last year and, on a separate occasion, called the chief justice a “total bitch.”

But the two-month-old complaint sits in limbo, with no action taken on it.

And no action may be taken at all, if Prosser gets his way, leaving open the possibility that he may evade discipline by his own peers on the state's highest court—even after he admitted putting both of his hands on Bradley's neck during a heated conversation in Bradley's office, with four other justices in the room.

Stuck

State statutes set out a pretty clear line of action when the judicial commission investigates allegations that a judge has engaged in misconduct. A special prosecutor is appointed—in this case, Franklyn Gimbel of Milwaukee's Gimbel, Reilly, Guerin & Brown, who has supported Prosser in the past.

When the prosecutor, acting on behalf of the commission, finds probable cause that the judge has engaged in misconduct, that complaint is sent to the state Supreme Court.

According to state statute, once the case has been filed with the Supreme Court, the chief judge of the court of appeals—in this case, Judge Richard Brown of District II of the Court of Appeals, based in Waukesha—sets up a three-judge panel to hear the case.

If the panel finds that the judge did in fact act improperly, it makes recommendations for discipline to the Supreme Court. The Supreme Court then reviews the case and determines “appropriate discipline.”

Although the process seems simple, it also seems to be stuck.

The commission filed the Prosser complaint with the Supreme Court on March 16. And there it sits.

Attorney Gimbel said he wrote two letters to Judge Brown, requesting that he set up the three-court panel. Brown responded to the second letter, Gimbel told the Shepherd, and said he was waiting for an order from the Supreme Court before proceeding.

“Even though there's nothing in the statutes that requires it, apparently there's some past practices where that's happened,” Gimbel said.

Former Justice Janine Geske, a Republican appointee, said that in the past, the Supreme Court would refer the case to the chief judge of the appeals court. That referral has always been “pro forma,” not one that requires a majority vote, or even a quorum. It's not even required by state statutes.

“It's not something that the court weighs and balances,” Geske said.

Stopping the Process Before It Starts

So what's causing the delay?

Judge Brown and a spokesman for the Supreme Court declined to comment for this article.

But Prosser's attorney, Kevin Reak of Gunta & Reak of Wauwatosa, is asking the justices to recuse themselves from the case because they saw the altercation and could be called as witnesses before the three-judge panel. They cannot decide a case in which they've given evidence, Prosser is arguing. (Attorney Reak did not respond to the Shepherd's request to comment for this article.)

Already, Justice Patience Roggensack accepted Prosser's argument and has recused herself.

Prosser is pushing for more to recuse themselves, hoping that the court won't have a four-justice quorum and therefore will not be able to discipline him, if that's the recommendation of the three-judge panel—if it's ever set up.

Gimbel said it's reasonable for defendant Prosser and victim Bradley to step away from the case. Since Roggensack has recused herself, that brings the number of available justices down to four—Chief Judge Shirley Abrahamson, Justice Patrick Crooks, Justice Michael Gableman and Justice Annette Ziegler. If any one of those justices leaves the case, then the court will not have a four-person quorum and, theoretically, will not be able to decide Prosser's fate.

What's more, there's no alternative to the Supreme Court. Under current law, it's unable to appoint another body to hear any disciplinary case against Prosser.

“Even if the panel recommends discipline, there will be no one to hear it,” Geske said.

Geske said that the court and the Legislature need to find another way to deal with ethics cases on the Supreme Court, since it's impossible for peers on a collegial body to sit in judgment of each other. In 2010, the court deadlocked 3-3 on whether Gableman should be disciplined for lying in a 2009 campaign ad.

“It's been so destructive,” Geske said of the current disciplinary process.

The Gableman Letter

Last week, Prosser's attorney sent a letter to Gableman—Prosser's close ally on the court—asking him to decline to sit on the case. Gimbel took issue with that letter in his own communication with the court.

“I said that was inappropriate communication,” Gimbel said. “My view is that it's an attempt to sidestep having a public hearing on the complaint. It's unfortunate. And in my view it defeats the legitimacy of the judicial commission, which was established by the Legislature.”

Marquette University associate law professor Edward Fallone said Prosser's attempt to disqualify the justices from hearing his case was a way to “pre-empt the entire process.”

He said Prosser's requests for recusal were premature, since the case isn't even in front of the Supreme Court, and the requests aren't being made according to standard procedure.

Fallone said Prosser is trying to use the “fair amount of ambiguity in the process” to prevent Brown from setting up the panel.

“I don't know for a fact what the strategy is in the Prosser camp, but my guess is that they do not want to have a three-judge panel of the Court of Appeals issue a negative ruling against Prosser and then have the Supreme Court unable to hear an appeal of that ruling because of conflicts of interest,” Fallone said. “They're trying to avoid that situation, which is their worst-case scenario. So the way to do that is to try to prevent the three-judge panel from being appointed at all.”

Attacking the Commission

Meanwhile, Prosser's allies in the conservative movement have been attacking the Wisconsin Judicial Commission and Chief Justice Shirley Abrahamson in an attempt to discredit the Prosser complaint. They apparently scored one victory last week.

On Friday, justices Abrahamson, Bradley and Crooks informed the chair of the judicial commission, John Dawson, a retired partner of Foley & Lardner in Milwaukee, that the majority of the Supreme Court did not support reappointing him to a second full term on the commission.

In doing so, it's assumed that the conservative four-member majority of the court—the members not signing the letter—overruled the unanimous recommendation of the commission's nominating committee to reappoint Dawson.

The letter stated that Dawson was “eminently qualified,” and that “appointments to the Judicial Commission are especially sensitive now.”

The letter noted that Dawson was on the commission when formal disciplinary complaints were made against sitting justices in 2007 (Ziegler), 2009 (Gableman) and 2012 (Prosser) and that “news stories indicate that the commission presently may have requests to investigate possible misconduct by one or more justices.”

So Dawson is out as chair.

Former Justice Geske said she was disappointed that Dawson is being removed as chair while a formal complaint is under way.

“This is not the time to rock the boat,” Geske said. “The court needs to show that it is above things.”

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