Prosser asks fourth Wis. SC justice to recuse self

MADISON, Wis. (Legal Newsline) - Wisconsin Supreme Court Justice David Prosser is asking yet another justice to recuse himself from a case brought by the state's Judicial Commission, in which Prosser is accused of violating the state's ethics code.

The commission, in a filing with the state Supreme Court last month, said it "found probable cause" to believe that Prosser "willfully violated" the state code of judicial conduct.

In November, the commission notified Prosser that it was investigating allegations that he physically attacked fellow Justice Ann Walsh Bradley in her chambers last June.

According to the Journal Sentinel and the Wisconsin Center for Investigative Journalism, Prosser allegedly attacked Bradley on June 13, 2011. That was the day before the state's high court released an opinion upholding Gov. Scott Walker's controversial Budget Repair Bill.

"Three knowledgeable sources" told the Center that Prosser and Bradley were arguing about the ruling in front of the other justices. When Bradley asked Prosser to leave her chambers, Prosser then grabbed her neck with both hands, the sources said.

Bradley, herself, recounted the attack to the Journal Sentinel.

"The facts are that I was demanding that he get out of my office and he put his hands around my neck in anger in a chokehold," she told the newspaper.

However, others told the Journal Sentinel that Bradley charged Prosser and that the justice put up his hands to defend himself, coming in contact with Bradley's neck.

Prosser, who was reelected to the Court last year, has said Bradley's claims will be "proven false."

On Wednesday, Prosser asked that Justice N. Patrick Crooks not sit on the case.

"He is a material witness and thus disqualified by law," Kevin P. Reak and Gregg J. Gunta, attorneys for Prosser, wrote of Crooks.

"Moreover, if he were to participate as a judge at any stage of the proceedings in this matter, he would deprive Justice Prosser of the due process of law guaranteed under the Fourteenth Amendment to the United States Constitution and Article 1, Section 8 of the Wisconsin Constitution."

Prosser's attorneys argue in their five-page motion, filed with the state's high court, that Crooks is likely to be called as a fact witness by the commission and likely to be required to submit to pre-trial discovery if an evidentiary hearing before a panel of three judges becomes necessary.

"As a material witness and, in effect, an accuser of Justice Prosser, Justice Crooks cannot sit in judgment of Justice Prosser and thereby serve to judge the accuracy of his own accusations and testimony."

Reak and Gunta contend that Crooks' recusal is not only appropriate but also necessary to "satisfy the appearance of justice" and to ensure that the Court acts as an "impartial decision maker."

Last week, the commission urged Richard Brown, the chief judge of the Court of Appeals, to create a three-judge panel to hear the disciplinary case.

Brown told the commission that he can't form a panel to hear the case unless the Supreme Court tells him to.

However, if three or more justices agree to recuse themselves, the case against Prosser could come to an end, simply because of a lack of quorum.

Including Prosser, there are seven justices on the Court.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.