MADISON, Wis. (Legal Newsline) - Wisconsin Supreme Court Justice N. Patrick Crooks, in an order filed with the Court Wednesday, says he will not recuse himself from an ethics case against fellow Justice David Prosser.
After giving "careful consideration" to Prosser's motion for his recusal, Crooks said a legal rule known as the Rule of Necessity -- as well as a duty to sit on cases -- requires him to remain on the case.
"This matter -- involving discipline of a sitting Supreme Court justice arising from incidents with sitting justices that were witnessed by other sitting justices -- places this court in a difficult position," Crooks wrote. "It is the only available tribunal to make a final determination regarding appropriate discipline.
"This situation is precisely the reason for the Rule of Necessity: to provide a forum where no other would be available."
In April, Prosser, who will not participate in his own case, asked that 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.
And in a letter Monday, attorneys for Prosser asked Justice Annette Kingsland Ziegler to step aside.
Kevin P. Reak and Gregg J. Gunta of Gunta and Reak SC, Prosser's attorneys, have argued that the justices were somehow involved in Prosser's alleged attack on Bradley or witnessed it or learned of it soon after.
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.
In November, the state's Judicial Commission notified Prosser that it was investigating allegations that he physically attacked Bradley.
In a filing with the Supreme Court in March, the commission said it "found probable cause" to believe that Prosser "willfully violated" the state code of judicial conduct.
Crooks, who says he takes "very seriously" his duty to sit on cases, noted in his five-page order that he was not present during Prosser's alleged attack on Bradley.
"In regard to the first incident, I am confident that a reasonable person could not question my ability to be impartial in this matter," he wrote.
"While I have heard different versions of what transpired during this incident, I have not heard anyone testify under oath about what took place.
"Therefore, I believe that I could hear the allegations pertaining to the first incident under the objective standard of SCR 60.04(4)."
As to a second incident involving Prosser -- he allegedly called Abrahamson a "total bitch" in a closed conference -- Crooks admitted he, indeed, was present.
However, he said he has not heard any explanation by Prosser as to why he made the statement. Nor has he heard any testimony under oath about the incident.
"I recognize that the second incident might raise more concerns than the first from an objective observer about my ability to remain impartial, but I am confident that my presence when this statement was made would not affect my ability to decide the matter fairly and impartially," Crooks wrote.
So far, only Roggensack has recused herself from the case. In a ruling last month, the justice said she had no choice, pointing to state law.
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.
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 email@example.com.