MADISON, Wis. (Legal Newsline) - The Wisconsin Supreme Court, already mired in a controversy over an alleged attack, is split on when a justice should be disqualified from hearing a case.

In a 4-3 decision released Tuesday, the court ruled Justice Patience Drake Roggensack was not wrong to hear the case of Dimitri Henley, who was appealing a 20-year prison sentence 10 years after being convicted of second-degree sexual assault.

But in doing so, the majority frustrated the three dissenting justices. Justice Shirley Abrahamson wrote a dissenting opinion in which justices Patrick Crooks and Ann Walsh Bradley joined. The three say Roggensack shouldn't have participated in Henley's motion for reconsideration, which was essentially a motion to disqualify her.

"Justice Roggensack fails to respect a bedrock principle of law that predates the American justice system by more than a century -- "no man is allowed to be a judge of his own cause" -- a principle recently repeated by Justice Anthony Kennedy, writing for a majority of the United States Supreme Court in the Caperton case," Abrahamson wrote.

"That Justice Roggensack participates in this motion for reconsideration is not a due process or ethical calculation but a mathematical one: one vote plus three votes equals an attempt to achieve a majority."

Bradley is already at odds with Justice David Prosser. She is claiming that Prosser physically attacked her in her chambers.

According to the Milwaukee Journal Sentinel and the Wisconsin Center for Investigative Journalism, Prosser allegedly attacked Bradley on June 13. That was the day before the state's high court released an opinion upholding Gov. Scott Walker's controversial Budget Repair Bill.

"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.

Roggensack participated in Henley's appeal when it was before the state's Court of Appeals. She had not participated in a February order requesting briefs on the issue, Abrahamson said.

"A justice's participation in a motion addressed to the court challenging that justice's refusal to disqualify is unprecedented in this court," Abrahamson said.

"Justice Roggensack's inconsistent conduct in sometimes disqualifying herself in the Henley case, and other times not, conflicts not only with accepted practice in this court but also with Supreme Court Internal Operating Procedure, which provides in part: 'When a justice recuses or disqualifies himself or herself, the justice takes no further part in the court's consideration of the matter.'"

The majority says the court's procedure for determining if a justice should be disqualified is no different from that of the U.S. Supreme Court. Either the justice decides the motion, the entire court including the justice vote on the motion or the entire court issues a one-sentence denial of the motion with a notation that the justice did not participate.

"Furthermore, the United States Supreme Court has never held that a majority of that Court has the power to disqualify another Justice, i.e., a judicial peer, from participating in a pending proceeding because the Justice at whom the motion is directed is not impartial or that there is the appearance that the Justice is not impartial," the majority wrote.

"(I)n a 2004 interview, Justice Ruth Bader Ginsburg explained that the decision about whether a Supreme Court Justice will be disqualified from participating in a proceeding is always made by the individual Justice at whom the motion to disqualify is directed."

From Legal Newsline: Reach John O'Brien by e-mail at

More News