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The Wisconsin Judicial Commission V. David Prosser? Come On, Man!

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The Wisconsin Judicial Commission V. David Prosser? Come On, Man!

CREATED Mar 20, 2012

Just when you thought the Wisconsin legal community couldn't make itself look any more foolish, along comes "The Wisconsin Judicial Commission versus The Honorable David T. Prosser"!

The dust up last June between Wisconsin Supreme Court Justices David Prosser and Ann Walsh Bradley was, in a word,  embarrassing.  

For those keeping score at home, a dispute had arisen between the various Justices on the timing of the release of the Court's decision upholding the Collective Bargaining Act. At one point, Justice Bradley apparently charged Justice Prosser in a fit of rage.  Justice Prosser responded by raising his hands in what he describes as a defensive gesture.  In the process, Prosser's hands came in contact with Bradley's neck.

No one was injured in the confrontation and a Special Prosecutor found no basis was to issue criminal charges against either Prosser or Bradley. 

Many of us hoped that the "no prosecution" decision would be the end of an unfortunate situation. No such luck.

The Wisconsin Judicial Commission, up until very recently stacked with appointees of former Governor Jim Doyle, has now chosen to file ethics charges against Justice Prosser - and Justice Prosser alone.  In doing so, the Commission assures that while nothing will ultimately happen with regard to Prosser, the incident will continue to make headlines.  

Perhaps embarrassing Justice Prosser is all they hope to accomplish.  I mean, it's hard to see what else they could be trying to do?

Here's how ethics complaints against judges work. A three judge panel is typically set up to hear the complaint.  The panel then determines whether there has been a violation of the Rules and, if so,  makes recommendations to the Supreme Court (which then decides on sanctions).  It takes four Justices to hear a case.

In this situation, two of the Justices (Bradley and Prosser) are participants in the underlying event.  Four other Justices are witnesses.  That leaves Justice Crooks (who is undoubtedly extremely thankful that he was not in the office on that particular day) as the only Justice without first-hand knowledge of the event.

The long and short of this is that from a practical (and probably ethical) perspective, this case will never be able to be heard by the Supreme Court.  As such, pursuing questionable charges like this is the definition of an exercise in futility.

Beyond this, if a prosecutor couldn't find a basis for bringing charges because of conflicting stories, why do we presume the three judge panel (who undoubtedly know all the parties) will have any additional insight?

Under these circumstances, it's hard not to view the action of the Commission in pursuing this matter as being politically motivated .... and that's the last thing the Wisconsin legal community needs at this particular point.

"The Wisconsin Judicial Commission versus The Honorable David T. Prosser"?  Come on, man!