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Wis. chief justice introduces idea of open meetings

By Jessica M. Karmasek | Sep 8, 2011


MADISON, Wis. (Legal Newsline) - In response to a recent alleged physical altercation between two Wisconsin Supreme Court justices, Chief Justice Shirley Abrahamson suggested this week making more of the Court's deliberations public.

In a five-page memo released Tuesday -- the start of the state high court's new term -- Abrahamson admitted this year has been "difficult" and that the Court has experienced its own problems.

"No one of us is blameless. This is a new term, however, and each term is a new beginning. Each of us, individually, will decide the best way forward -- in part, to repair damage but, equally to improve this institution to serve the people of this State," she wrote.

"We should be, above all, a place where disputes are resolved -- openly, civilly, professionally -- not where they are created."

Last month, a special prosecutor announced she would not bring charges against Justice David Prosser, who was alleged to have physically attacked Justice Ann Walsh Bradley in her chambers in June.

According to the 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.

"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.

The special prosecutor said Bradley also will not face criminal charges. However, the state Judicial Commission is doing its own investigation into the matter.

In her memo, Abrahamson called her suggestions "varied" but "not original."

However, she said they have a common theme: "The open and candid discussion of ways to make the Court and the judicial system better places to work and to meet our constitutional responsibilities."

"I am sure each Justice is committed to promoting civility and safety in our workplace; to maintaining personal control in our language, demeanor, temperament, and conduct on and off the bench; to bolstering public trust and confidence in the Court and our judicial system; and to upholding the Court's long-standing reputation for excellence," the chief justice wrote.

First and foremost, Abrahamson suggested making all court conferences open to the public.

Right now, only the Court's administrative meetings and oral arguments are public.

As an alternative, all conferences at which the Court considers petitions for review to determine which cases the Court will take could be made open to the public, she said.

The chief justice also suggested all court conferences be taped. The tapes would be released in the fall after the period for reconsideration of opinions has expired, she explained.

She also suggested an expert on small group dynamics could be retained -- at no expense to taxpayers -- to work with each justice to help him or her work in a more constructive manner. Each justice also could -- again, at no expense to taxpayers -- obtain professional training in conflict resolution.

Abrahamson also proposed that an internal operating procedure or rule could be adopted that four justices not be considered a quorum or a binding majority that can direct action by the chief justice or Court staff unless all justices have been advised of the meeting/conference and all justices have had the ability to participate in the meeting/conference and in the decision making.

In addition, the chief justice proposed that the Court hold oral arguments two or three times a year outside Madison for justices to meet with the public, lawyers and members of local and state government entities whose work affects the judicial system.

In recent years, the Court has taken only one trip outside of Madison a year to keep taxpayer costs down, Abrahamson said.

The chief justice also made a number of suggestions as to recusals.

"Recent judicial elections and motions by litigants seeking a justice's recusal have raised numerous contentious recusal issues," she wrote.

She proposed, among other things, that judges must disqualify themselves when "a reasonable, disinterested person would conclude that an appearance of impropriety exists."

A tribunal, not composed of justices, also could be established to rule on a litigant's objection to a justice's recusal to disqualify himself or herself, she said.

Abrahamson said her purpose in presenting and considering the proposals is not to "rehash or measure past concerns or tensions, not to point fingers, and not to assess fault."

"My purpose is, and I hope it is each Justice's purpose, to look to the future, having learned from the past and resolved to do better, much better," she wrote.

The Court will discuss the chief justice's suggestions on court conferences and recusals at an administrative meeting next week. Her other proposals on the release of opinions and selection of justices will be taken up at a later meeting, she said.

However, Abrahamson said she would continue to make specific proposals, as "change is needed."

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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