MADISON, Wis. (Legal Newsline) - Attorneys for Wisconsin Supreme Court Justice David Prosser argued in a filing this week that none of the members of the state's high court can act on a motion to appoint a judicial conduct panel to hear an ethics complaint against the justice.
Kevin P. Reak and Gregg J. Gunta of Gunta and Reak SC filed their memorandum in response to the state Judicial Commission's May 24 motion Thursday.
The commission, by its counsel Franklyn M. Gimbel of Milwaukee-based Gimbel Reilly Guerin Brown LLP, moved the Court to issue an order directing the chief judge of the state Court of Appeals to appoint a panel to hear the commission's complaint against Prosser.
"Under the unusual circumstances of this case, none of the members of the Wisconsin Supreme Court is in a position to act on the commission's motion," Reak and Gunta wrote.
"Each member of the Court is disqualified by law from participating in proceedings involving the commission's complaint because each justice is a material witness and two justices are complainants."
Reak and Gunta argue that the commission is asking Prosser's fellow justices to violate a statutory duty and judicial ethics "in order to launch a prosecution that, under the Constitution, must come back to a Supreme Court that can neither exonerate nor discipline" him.
Earlier in May, Gimbel sent a letter to Supreme Court Clerk Diane M. Fremgen saying he "strongly opposes" the resolution of the case outside of a three-judge panel.
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."
In April, 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.
Reak has argued 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 last month, the justice said she had no choice, pointing to state law.
Also Thursday, meeting minutes were released showing that the commission voted 6-0 in January to file a complaint against Prosser.
However, according to the commission's minutes from a February meeting, it split 3-3 on whether to reconsider its decision.
The commission went on to file its complaint with the Court a month later.
For now, the complaint is stalled.
From Legal Newsline: Reach Jessica Karmasek by email at firstname.lastname@example.org.