Can Justice Escape Justices?

In light of the frailty of human emotion, what happens when the highest judicial officials act or are otherwise alleged to participate in acts of physical violence and certain judicially unethical conduct?  Because they are the officials who are charged with doling out sanctions of such misconduct, and because they were material witnesses to the incident giving rise to the mandated sanctions, should there be such a windfall for the accused that would prevent justice from being accomplished – even against a Wisconsin Supreme Court Justice?

Wisconsin Justice for Supreme CourtElected non-partisan officials, the seven Wisconsin Supreme Court Justices are charged with one of the most honorable and delicate responsibilities of any court of the state.  Wisconsin’s highest court of law, the Supreme Court justices are the cornerstone of the state’s constitutional “checks and balances” system which makes certain that our system of justice and the rule of law do not go awry.  But just like any other human, justices experience emotions, feelings, and even act with certain imperfections.  Granted, judges and justices alike are expected to shed their bias and negative emotions at the chambers door so they can administer their duty in an ethically responsible manner, but again, like you and I they are human.

On June 13, 2011, a violent confrontation between recently re-elected Justice David Prosser, Jr. and Ann Walsh Bradley occurred in Justice Bradley’s chambers. With the exception of Justice N. Patrick Crooks who was not present, Justices Prosser, Bradley, and the other four justices were informally discussing the next day’s decision when the incident in question took place.

According to one source, the discussion became fiery after Bradley, upset by Prosser’s comments questioning the leadership of Chief Justice Shirley Abrahamson, asked Prosser to leave her chambers.  Accounts as to what happened after this point vary, but allegations that Prosser became physically violent with Bradley resulted in the matter being brought before the Wisconsin Judicial Commission and Justice Prosser has been formally accused of violating judicial ethics.

Under Wisconsin law the ultimate punishment for all judges is administered by the Supreme Court.  However, under Wisconsin law any judge who is a material witness in a case should recuse themselves in the interest of justice. Prosser, arguing the latter, contents that all of his colleagues should withdraw from the case because they either saw the incident between him and Bradley, or because they were otherwise biased against him.

So far two of the seven justices have recused themselves from the sanctions proceeding under their belief that state law mandates it.  Justice Prosser himself has stated that he will not sit on the case, therefore leaving four justices to decide the matter.  Prosser has also asked Justice Ann Walsh Bradley and Chief Justice Shirley Abrahamson to recuse themselves because they too were material witnesses.  Ironically there needs to be four justices in order to create a quorum, otherwise the matter cannot be heard by the court.  If that were to happen Prosser would evade sanctions based upon the Judicial Commission’s findings of his unethical judicial conduct.

Clearly, it would not be fair for justices who were witnesses to the case to recuse in Prosser’s case, leaving the court without a quorum to hear the case because Prosser would avoid the scrutiny and potential discipline that every other judge in Wisconsin would face in a similar situation.  Essentially we have a justice of the state Supreme Court asking and arguing for immunity even from basic judicial process.

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