In the nearly 40 years since Wisconsin created an ethics panel to try judges for misconduct, charges had been filed only twice against members of the Wisconsin Supreme Court. Justice David Prosser became the third on March 16, when the Wisconsin Judicial Commission announced that wrapping one's hands around the neck of another justice would establish probable cause of judicial misconduct. Under normal procedures, the complaint would now go to a three judge panel picked by the Court of Appeals who would then make a recommendation to the Supreme Court itself for final action. However, in his most recent move, Prosser has demanded his fellow justices recuse themselves from any final action.
"Total Reflex," "Total Bitch"
All but one of the seven justices was present at Justice Ann Walsh Bradley's office during a heated exchange on June, 13, 2011, over when the court would release a decision on the legality of legislation virtually ending all collective bargaining for public sector workers. A 4-3 conservative majority eventually upheld the legislation. Prosser has told investigators that he placed his hands on Bradley's neck as a "total reflex" to the Justice rushing at him with a raised fist. (Bradley, for her part, told investigators that she ordered Prosser out of her office after he began to disparage Chief Justice Shirley Abrahamson.)
Prosser has become known for intemperate outbursts, such as when he called the Chief Justice "a total bitch" some months prior to the incident with Bradley. Yesterday, he could not resist venting frustration with the Judicial Commission itself stating: "The truth of the matter was, they were not interested in what my defense was or any provocation for my action," Prosser said. "They were only interested in my conduct."
Prosser has demanded that all the Supreme Court Justices recuse themselves from hearing the complaint. He has also demanded that the only justice who was not present for the altercation recuse himself as well.
Panel's Members From Legal and Civic Mainstream
Prosser has issued a statement calling the Commission's action "partisan." But the Commission at the time of the investigation was made up of a political mix of members.
The prosecutor who filed the charges on behalf of the Judicial Commission is Frank Gimbel. He supported Prosser's reelection last year against a Democratic challenger and is currently representing former Scott Walker operative Kelly Rindfleisch in a criminal case alleging that Rindfleisch illegally conducted campaign fundraising work while on then-Milwaukee County Executive Walker's payroll.
The Commission comprises four jurists appointed by the court, which has long had a conservative majority, and four lay members, one who was appointed by Governor Walker and three by his Democratic predecessor. Commission members at the time of the Prosser investigation included: attorneys Michael Aprahamian, an ethics expert at Foley & Lardner, a firm that specializes in management side labor relations, and retired Foley managing partner John Dawson, a mediation expert; circuit judge Emily Mueller (of Racine, WI) and appellate judge Paul Reilly (a former Republican leader of Waukesha County, Walker's home county); James Heaney, the former communications director of the Wisconsin Department of Justice; Lynn Leazer, a court interpreter appointed by Walker; Michael Miller, a former mayor and accountant; and Ginger Alden, a public radio fundraiser and former bank vice president.
Penalties for judicial misconduct range from reprimand to removal. The Commission has recommended discipline in two other cases against Supreme Court justices: obtaining a reprimand against Justice Annette Ziegler in 2008 for her participation in a lower court matter that implicated her husband, and failing to obtain discipline in 2010 against Justice Michael Gableman for a misleading advertisement that he ran against his Supreme Court opponent. The Supreme Court deadlocked 3-3 in that matter after the Court of Appeals had turned down the Commission's recommendation.
Prosser's call for the justices to recuse themselves could put an end to any final action.