Justice David Prosser
Although he isn’t on the Feb. 19 primary ballot for state Supreme Court, Justice David Prosser’s actions on the court seem to be a focal point of the race.
At a Milwaukee Bar Association forum last week, the three candidates for the state’s highest court—Justice Patience Roggensack, running for a second 10-year term, as well as Marquette Law professor Edward Fallone and lemon law attorney Vince Megna—sparred over the court’s handling of Prosser’s drawn-out disciplinary case.
Or, more specifically, Roggensack’s role in the stalemate.
Roggensack Fails To Act on Prosser Complaint
In 2011, Prosser put his hands around fellow Justice Ann Walsh Bradley’s neck—which he himself admitted—when the four conservative justices approached Chief Justice Shirley Abrahamson about deciding an open meetings case quickly. The case involved the passage of Act 10, Gov. Scott Walker’s controversial effort to gut public employees’ collective bargaining rights.
At the time, Republican legislative leaders said they needed a quick decision from the court so that they could incorporate the bill’s savings into their biennial state budget, which was up for a vote. Prosser—along with his fellow conservatives Michael Gableman, Roggensack and Annette Ziegler—wanted to release the court’s decision on the Republicans’ timeline. Abrahamson and Bradley weren’t willing to adhere to a deadline imposed by another branch of government if it didn’t give the justices enough time to evaluate the Act 10 case.
During the argument in Bradley’s office, Prosser put his hands around her neck; then, as he put it, he “went limp.”
The authorities were called but no criminal charges were filed against Prosser.
However, in March 2012, the Wisconsin Judicial Commission filed an ethics complaint with the Supreme Court against Prosser for allegedly assaulting Bradley and, in a separate incident, calling Abrahamson “a total bitch.”
And here’s the sticking point.
According to state statute, the Supreme Court is supposed to send the complaint to the chief judge of the court of appeals, who then sets up a three-judge panel to hear the matter.
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.”
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But Prosser wanted his fellow justices to recuse themselves so that the matter could not go forward. The three conservatives complied with his wishes—Gableman, Roggensack and Ziegler—and the complaint has not been sent to the appeals judge.
And there the matter sits, unresolved, in limbo.
Who Can Discipline a Supreme Court Justice?
At the forum, Roggensack defended her decision to recuse herself from the case because she witnessed the altercation and was a material witness who couldn’t sit in judgment on the case.
Roggensack said the “interaction” between Prosser and Bradley “breaks my heart,” and said the court needed to address the problem.
“I did research this summer on the inherent authority of the court and the court has the inherent authority to take up this matter and deal with it,” Roggensack said. “I’ve made a suggestion to my colleagues in August before we started in September. I asked that this issue be cleared from the decks, from the bench, the first day of oral argument. My colleagues didn’t buy my suggestion. But I will continue to work on it because we need to put that behind us.”
That said, Roggensack denied that the justices don’t get along, calling it “just a bunch of gossip at its worst.”
Fallone countered that Roggensack’s “inherent authority” argument—which she didn’t detail at the forum—wasn’t an issue.
“The state Supreme Court doesn’t need to rely on some vague, undefined inherent power to proceed with disciplinary proceedings,” Fallone said. “It simply has to follow the procedures that are in place and not duck the issue.”
Megna said that an alternative dispute resolution process needed to be set up to resolve complaints about Supreme Court justices.
“This case, which has not been resolved in two years, may never be resolved, so yes, something has to happen,” Megna said. “We are where the Supreme Court cannot police itself. Some other entity is going to have to come in to do the policing.”
Roggensack then repeated her claim that the court had the “inherent authority” to police itself and said she was confident the justices would find a resolution.
Fallone said that the current disciplinary process works well but hasn’t been allowed to proceed in the Prosser case due to the justices’ stalemate.
“The Judicial Commission has the authority to bring disciplinary charges to make the case,” Fallone said. “Having a contested disciplinary proceeding, where the commission explains the reasons why it believes a sanction is warranted and the justice has the opportunity to respond, is the best way of resolving the matter. Not cutting the disciplinary officials out of the loop.”
The top two vote-getters will appear on the April 2 general election ballot.
