MADISON, Wis. (Legal Newsline) - The Wisconsin Judicial Commission says the only way to clear the mess that the state Supreme Court finds itself in is to assign it to someone else.
The commission is urging Richard Brown, the chief judge of the Court of Appeals, to create a three-judge panel to hear the disciplinary case of Supreme Court Justice David Prosser, who is accused of attacking fellow Justice Ann Walsh Bradley.
Prosser has asked Bradley and justices Shirley Abrahamson and Patience Roggensack to recuse themselves from the case. The Judicial Commission wrote Roggensack Monday.
"Under the circumstances, I do not see how you could or should sit as a judge in any part of this case, either on the front end issuing an order to the Court of Appeals, or on the back end reviewing your own testimony in relation to any recommendation of the panel," wrote Kevin Reak, an attorney representing the Judicial Commission.
"This disqualification of a material witness does not necessarily implicate the fairness or impartiality of the witness, and certainly no such inference should be drawn here."
Brown told the Judicial Commission that he can't form a panel to hear the case unless the Supreme Court tells him to.
Last week, Bradley, who is Prosser's alleged victim, was opposed to recusal when she responded to Prosser's request. She said his motion was "rife with inaccuracies."
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 re-elected to the Court last year, has said Bradley's claims will be "proven false."
"This motion anticipates that Justice Bradley will recognize that she must not participate as a judge in this case," Prosser's motion says.
"She is not only a material witness, but also a complaining witness and thus disqualified by law. If she were to participate as a judge at any stage of the proceedings in this matter, she would deprive Justice Prosser of the due process of law guaranteed under the Fourteenth Amendment to the United States Constitution."
Bradley urged her co-workers to work on an objective process for review of recusal decisions by individual justices.
From Legal Newsline: Reach John O'Brien by e-mail at email@example.com.