Wisconsin Justice David Prosser, accused of breaching the state’s judicial ethics code, recently contended that a state disciplinary commission’s investigation was itself a violation of his constitutional rights (see Gavel Grab). To an expert on judicial conduct and ethics, Justice Prosser’s approach is a stretch.
“This is the first I’ve seen where [judicial] conduct on the job is above scrutiny,” Charles Geyh (photo), a law professor at Indiana University, told the (Madison) Capital Times. “If I were Justice Prosser, what I would do is accept a reprimand and indicate that it won’t happen again and step up and say we need to move on as a court.”
Justice Prosser stands accused of violating the code of judicial ethics when he allegedly put Justice Ann Walsh Bradley in a chokehold during an argument, and separately, of telling Chief Justice Shirley Abrahamson, “You are a total bitch.”
The problems at the sharply divided Wisconsin Supreme Court have drawn attention near and far. “It’s embarrassing in the state, and it’s embarrassing in the nation,” Geyh said. He added, “What strikes me, and I think strikes the larger community, that is so unusual about Wisconsin is the bare-knuckled, naked political overtones of not just their decision-making, but of their interrelationships.”
How can state Supreme Court justices who witnessed an incident involving one of their own be involved in judging a related ethics case lodged against him? Alternately, how can the accused justice be disciplined if his colleagues recuse themselves?
A Milwaukee Journal Sentinel editorial poses these thorny questions in the context of an ethics violation filed against Wisconsin Justice David Prosser (see Gavel Grab). The editorial’s headline states, “It may be time to drop the Prosser ethics case.” The editorial has some other suggestions, including consideration of a shift from popular election of Supreme Court justices to an appointive system:
“Maybe the answer lies in bringing in retired Supreme Court justices to replace justices who have to recuse themselves. Maybe it lies in an independent panel with authority to discipline justices. And maybe part of the answer lies in switching from an elected court to an appointed one, along the lines of the U.S. Supreme Court and some other state courts. That could solve a number of problems.”
Justice David Prosser of the Wisconsin Supreme Court has raised to four the number of fellow justices he wants to step aside from an ethics case against him.
On Wednesday, his attorneys filed a motion asking that Justice N. Patrick Crooks step aside, because the justice was a witness to an incident at issue when Justice Prosser allegedly told Chief Justice Shirley Abrahamson, “You are a total bitch.”
Because four of Wisconsin’s seven justices must participate to take any action, an ethics case could not proceed if three justices recuse themselves, a Milwaukee Journal Sentinel article stated. Justice Prosser has said he would not participate in the matter.
Meanwhile Legal Newsline reported that Wisconsin’s state judicial commission has urged the chief judge of the Court of Appeals to set up a three-judge panel to hear the ethics case against Justice Prosser. Richard Brown, the chief judge, told the commission he was unable to create a panel for the case unless told to do so by the Supreme Court.
Wisconsin is a bruising and costly judicial election battleground where feuding on the state Supreme Court has drawn criticism near and far. ”What we are seeing in Wisconsin borders on a crisis,” said Bert Brandenburg, executive director of Justice at Stake, in 2011. “Five years of sustained special-interest warfare is exacting a profound toll in public confidence in the state’s supreme court.” To learn more, see the Justice at Stake news page for the state.
Wisconsin Justice David Prosser has now asked three fellow justices to step aside in an ethics case against him, because they witnessed an incident at issue.
If Justice Prosser and the three others recuse themselves soon, a Milwaukee Journal Sentinel article said, the case would likely end even before a panel of appeals judges is convened to hear it. At least four justices are needed for the court to take any action, and it falls to the Supreme Court to order a panel of appeals judges to hear a case such as the one against Justice Prosser.
Justice Prosser stands accused of violating the code of judicial ethics when he allegedly put Justice Ann Walsh Bradley in a chokehold during an argument, and separately, of telling Chief Justice Shirley Abrahamson, “You are a total bitch.” Justice Prosser has asked for both of them to step aside from his case, and recently asked for Justice Patricia Roggensack to step aside.
The article by Patrick Marley was headlined, “Justice’s ethics case may be nullified on quorum rule.” To learn more, see Gavel Grab.
Wisconsin Supreme Court Justice David Prosser is asking Justice Ann Walsh Bradley and Chief Justice Shirley Abrahamson to step aside from an ethics case against him. The motions, and response, suggested exceptional acrimony on the court.
Justice Prosser (photo, above left) stands accused of violating the code of judicial ethics when he allegedly put Justice Bradley (photo, above center) in a chokehold during an argument, and separately, of telling Chief Justice Abrahamson, “You are a total bitch.”
In a motion filed on Thursday, Justice Prosser’s lawyers argued, according to a Milwaukee Journal Sentinel article, “Justice Bradley is not only a material witness but also the central figure in leaking skewed representations of both incidents cited in the complaint to the news media, initiating a criminal investigation against Justice Prosser and contacting the Judicial Commission to press a complaint against him.” It also accused Justice Bradley of leading a public relations campaign to discredit him.
A companion motion targeting Chief Justice Abrahamson (photo at right), the Journal Sentinel reported, ”said her bias against him is shown by her calling him paranoid, personally criticizing him in dissents, refusing to speak to him when others are not present and locking her door ‘because she is afraid of him.’”
A Wisconsin Supreme Court justice’s alleged chokehold on another justice has drawn additional media attention in Wisconsin. A special prosecutor for the Wisconsin Judicial Commission has recommended disciplining of Justice David Prosser in two conflicts on the bitterly divided court, according to an ABA Journal article.
In one episode, Justice Prosser allegedly put his hands around Justice Ann Walsh Bradley’s neck during an argument (see Gavel Grab). In the other, he is accused of telling Chief Justice Shirley Abrahamson, “You are a total bitch” (see Gavel Grab). Justice Prosser said the charges in the ethics complaint were “partisan, unreasonable and largely untrue.”
While a three-judge panel will hear the case, the decision whether to issue sanctions against Justice Prosser falls in the hands of the state supreme court. The article noted that six of the seven justices were in Justice Bradley’s chamber when the altercation occurred, raising questions about whethe r they must recuse from any hearing involving that incident.
Wisconsin is a bruising judicial election battleground where feuding on the state Supreme Court has drawn criticism near and far. To learn more, see the Justice at Stake news page for the state.
Wisconsin’s dissension-riddled supreme court rejected the idea of hiring an organizational consultant to repair the court’s damaged communications, but it did approve a statement pledging to work more collegially.
The proposals were among a dozen put forward by Chief Justice Shirley Abrahamson after a widely publicized physical altercation occurred between two justices in June while they discussed a case. The idea of a consultant was voted down 4-3, with the court’s conservative majority all in opposition. The collegiality pledge won unanimous approval, but a Wisconsin State Journal article noted that even that vote was tinged with tension.
Justice David Prosser, who was accused of putting his hands around the neck of fellow Justice Ann Walsh Bradley, and once reportedly called Justice Abrahamson a “bitch,” expressed skepticism about what he called a “nice sounding, but somewhat meaningless” pledge. According to the article:
Abrahamson asked the justices to raise their hands if they supported the statement. Six immediately raised their hands. Prosser paused and then slowly raised his hand.
Abrahamson said there were six votes and one reluctant vote, making the total seven. “Is this in the spirit of what we just adopted?” Prosser asked. Abrahamson said she was joking and apologized.
Friction among the Wisconsin high court justices has paralleled an explosion in costly, divisive elections dating back to 2007. The court’s problems are documented in a New York Times editorial, “A Study in Judicial Dysfunction,” and an April Justice at Stake press release said public confidence in the court had reached a “crisis.”
The furious mud-slinging continued in Wisconsin’s highly politicized state Supreme Court race as TV spending by special interest groups climbed to $2.2 million by Thursday.
At the current pace, spending by outside groups could surpass the $3.4 million poured into Wisconsin’s nasty 2008 Supreme Court race, a Milwaukee Journal Sentinel article reported. The figures were compiled by the Brennan Center for Justice, a partner of Justice at Stake.
A new ad by the liberal Greater Wisconsin Committee highlighted incumbent Justice David Prosser’s calling Chief Justice Shirley Abrahamson “a total bitch” and threatening to “destroy” her in an exchange a year ago (see Gavel Grab), according to a Journal Sentinel article.
A conservative group named Citizens for a Strong America, meanwhile, has a TV ad stating that the challenger, JoAnne Kloppenburg, “is so extreme, she even put an 80-year-old farmer in jail for refusing to plant native vegetation on his farm.”
The claim is “ridiculously false,” said the Journal Sentinel’s PolitiFact column after checking out the facts.
Justice Prosser, a former Republican legislator, and Kloppenburg, an assistant district attorney, are campaigning in a feverish contest that is officially non-partisan. Voters go to the polls April 5. Read more
Increasingly, pundits are framing next month’s Wisconsin Supreme Court election as a referendum on Republican Gov. Scott Walker’s bid to curb collective bargaining by public employees.
As a headline in the Milwaukee Biz Blog of BizTimes summed up this view, “Voters will decide fate of Walker’s bill April 5.”
But is this the right way to choose judges, and to preserve fair and impartial courts? That’s the question asked by Christopher Murray in a Washington Examiner commentary, entitled “Wisconsin has become ‘exhibit A’ for not electing judges.” Here is the heart of his argument:
“Regardless of how one feels about the [Wisconsin] Budget Repair Bill, making a judicial election a proxy fight for that (or any other) bill serves to further politicize the bench. It will delegitimize whatever rulings the court passes down in the future and will subject judges’ motivations to second guessing.
“While we expect legislators and executives to defend their actions to voters and the press, the image of judges on the stump, holding fundraisers, and taking to the airwaves to advertise their campaign should give all voters pause….Wisconsin voters should insist not on a particular ruling, but rather a new process for selecting those called upon to deliver it.” Read more
With an election for the Wisconsin Supreme Court less than three weeks away, unusual details of bitter infighting on the court and a threat by one justice to “destroy” another have become public.
Justice David Prosser (photo at right), who is running for reelection against attorney JoAnne Kloppenburg, figures centrally in the Milwaukee Journal Sentinel article, headlined “Supreme Court tensions boil over.” Voters will go to the polls April 5.
When the court was mulling last February a request to remove one of its own from a criminal case, Justice Prosser “exploded” privately at Chief Justice Shirley Abrahamson (photo above left), calling her a “bitch” and threatening her destruction, the article said, based on interviews and e-mails it obtained.
The justice acknowledged the incident. He thought it was made public at this time in an effort to harm him politically, he said. Justice Abrahamson had acted in ways calculated to weaken him politically and embarrass him and fellow conservatives on the court before the outburst, he contended.
Justice Ann Walsh Bradley, who let the newspaper review court e-mails, agreed to an interview. She did so, she explained, partly because Justice Prosser had been depicted during the campaign as even-tempered. Read more