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Wis. SC justice asks for another recusal in ethics case against him

By Jessica M. Karmasek | Jun 26, 2012



MADISON, Wis. (Legal Newsline) - Attorneys for Wisconsin Supreme Court Justice David Prosser are asking yet another member of the Court to not sit on an ethics case against him.

Kevin P. Reak and Gregg J. Gunta of Gunta and Reak SC sent a letter Monday to Justice Annette Kingsland Ziegler, contending that she is disqualified by law from sitting as judge in "any part of the matter."

Ziegler is the sixth justice to be asked by Prosser to step aside.

In April, Prosser, who will not participate in his own case, asked that Justice N. Patrick Crooks not sit on the case. He also has asked Chief Justice Shirley Abrahamson and justices Ann Walsh Bradley, Patience Roggensack and Michael Gableman to recuse themselves.

Reak and Gunta have argued that the justices were involved in the incident somehow, or witnessed it or learned of it soon after.

The same goes for Ziegler, who, the lawyers claim, is a "material witness" to the events of which are the subject of the complaint.

"There is near certainty that you would be a fact witness in any evidentiary hearing before the panel and subject to pretrial discovery as well," Reak and Gunta wrote in the two-page letter to the justice.

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 state's high court.

So far, only Roggensack has recused herself. In a ruling last month, the justice said she had no choice, pointing to state law.

According to the letter to Ziegler, the justice was interviewed twice by the detectives investigating the complaint against Prosser.

"It appears the (state's Judicial) Commission disregarded your statements. The Commission made no attempt to seek any testimony or additional information from you, Justice Roggensack or Justice Gableman," Reak and Gunta wrote.

"The Commission's complaint is not consistent with your statement or the sworn testimony of Justice Prosser. Thus, if the Commission were serious about the complaint, it would have no choice but to attempt to discredit your testimony as well as the testimony of Justice Prosser, Roggensack and Gableman."

The commission, in a filing with the 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 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."

The justice's attorneys said in Monday's letter that they don't see how Ziegler "could or should" sit as a judge in any part of the case -- either on the "front end" issuing an order to the state Court of Appeals or on the "back end" reviewing her own testimony in relation to any recommendation of the panel.

"If your decision on recusal is not made now, it will have to be made later," Reak and Gunta wrote.

In a May 24 motion, the commission moved the Court to issue an order directing the chief judge of the Court of Appeals to appoint a panel to hear the commission's complaint against Prosser.

For now, the complaint against the justice is stalled because the Court has not told Chief Judge Richard Brown to create the panel.

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

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