MADISON, Wis. (Legal Newsline) - Wisconsin Supreme Court Justice David Prosser, under fire for the alleged choking of a colleague which he says never happened, has asked another justice to step down from his disciplinary case.
Tuesday, Prosser asked Justice Michael Gableman to disqualify himself from the case, something he has already requested of several other justices. His legal team says Gableman will most likely be called as a fact witness during the proceedings.
Attorney Kevin Reak also has written that the case should be transferred to the state Court of Appeals.
"I believe it would be pointless for the Supreme Court to initiate a proceeding that must come back to a court when it is known now that every member of the court is disqualified by law," Reak wrote to Gableman.
"No one knows better than you the futility that comes from receiving a unanimous favorable recommendation from a Judicial Conduct Panel that the Supreme Court is not able to approve. In Justice Prosser's case, the entire Supreme Court is disqualified from ever vindicating him, just as it is disqualified from every disciplining him."
Prosser also asked justices Ann Walsh Bradley (the victim of the alleged attack), Shirley Abrahamson, N. Patrick Crooks and Patience Roggensack to step off the case. Roggensack has agreed to do so.
Prosser, in an answer to a complaint filed against him by the state Judicial Commission, wrote that Bradley was the aggressor in a June 13 incident. The argument stemmed from an argument over the release date of an opinion regarding Gov. Scott Walker's controversial Budget Repair Bill.
"(Bradley) charges Justice Prosser with her right hand in a fist after Justice Prosser said he had lost confidence in (Chief Justice Shirley Abrahamson's) ability to lead the court," Prosser's answer says.
"She lost control of her actions and emotions. When Justice Bradley was within inches of Justice Prosser, he instinctively put his hands up to protect himself and briefly made contact with Justice Bradley's neck."
In March, the commission said it found probable cause to believe that Prosser violated the state code of judicial conduct. Bradley has 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.
Other accounts of the incident back up the story put forth Monday by Prosser, who was re-elected to the court last year and has asked that Bradley, Abrahamson, Justice Patience Roggensack and Justice Patrick Crooks to recuse themselves from the case because they are witnesses.
"(Prosser) did not put Justice Bradley in a 'chokehold,' as she publicly claimed," Prosser's answer says. "He did not 'choke' her. He did not apply pressure to her neck. He did not injure her or cause her any pain. She did not feel threatened."
Prosser did admit to the allegation that he called Abrahamson a bitch prior to the incident with Bradley.
"Admit that on one occasion in a confidential closed conference, Justice Prosser stated to the chief justice, 'You are a total bitch,'" Prosser's answer says.
In April, the commission urged Richard Brown, the chief judge of the Court of Appeals, to create a three-judge panel to hear the case. Brown told the commission he can't form a panel to hear the case unless the Supreme Court tells him to.
From Legal Newsline: Reach John O'Brien by e-mail at email@example.com.