RoggensackMADISON, Wis. (Legal Newsline) - The special prosecutor who brought a case against Wisconsin Supreme Court Justice David Prosser says he "strongly opposes" the resolution of the case outside of a three-judge panel.
Franklyn M. Gimbel, founding partner of Milwaukee-based Gimbel Reilly Guerin Brown LLP and who is representing the state's Judicial Commission, sent a two-page letter to Supreme Court Clerk Diane M. Fremgen Friday.
"By this correspondence, I seek to put on record that the Judicial Commission strongly opposes any approach to resolution of the issues raised in the Judicial Commission's complaint that does not involve having a three-judge panel of appellate court judges address the merits of the allegations of the complaint and the answer of Justice Prosser thereto in a public proceeding," he wrote.
The commission, in a filing with the state Supreme Court in March, 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."
Last month, Prosser, who will not participate in his own case, asked that Justice N. Patrick Crooks not sit on the case. He also asked Bradley, Chief Justice Shirley Abrahamson and Justice Patience Roggensack to recuse themselves.
Kevin P. Reak, one of Prosser's attorneys, argues that the justices were involved in the incident somehow, or witnessed it or learned of it soon after.
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.
So far, only Roggensack has recused herself.
In a ruling Tuesday, the justice said she had no choice, pointing to state law.
"It is regretful that Justice Roggensack has opted out of participating in this proceeding and it is the view of the Judicial Commission that Justice Gableman ought not to follow suit," Gimbel wrote Fremgen.
In particular, Gimbel took issue with recent correspondence between Reak and Gableman. Reak apparently wrote the justice in an attempt to convince him to step aside.
"I am miffed to understand under what procedure a litigant can correspond with a single justice of a seven-justice body, seeking that justice to take a position concerning his role in a decision-making process," Gimbel wrote. "In my 52 years as a lawyer, I have never observed such a tactic."
He said the correspondence "smacks of an ex parte communication."
"Attorney Reak's personal view that the complaint filed in the captioned action should not be heard in a public forum is inconsistent with the legislative framework that provides for the State Judicial Commission to undertake its role as an institution that provides oversight of judicial behavior," Gimbel wrote.
Last month, the commission urged Richard Brown, the chief judge of the Court of Appeals, to create a three-judge panel to hear the disciplinary case.
However, Brown told the commission that he can't form a panel to hear the case unless the Supreme Court tells him to.
From Legal Newsline: Reach Jessica Karmasek by email at firstname.lastname@example.org.