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Supreme Court Justice Recusal – Material Witness

Memorandum Decision on Recusal in: Wisconsin Judicial Commission v. David T. Prosser, Jr., 2012 WI 103 (Justice Ziegler);  case activity; companion decisions: 2012 WI 692012 WI 43

Justice Ziegler, like Justice Roggensack and unlike Justice Crooks, recuses herself from a pending judicial complaint against Justice Prosser.

¶2   The highly unusual issue each justice is called upon to decide is whether he or she, being a material witness to or co-actor in an alleged altercation between two colleagues, may sit in judgment of one or both of the justices involved in the alleged altercation?  The answer to that issue, for me, is an ineluctable “no.”

¶3   First and foremost, my conclusion is dictated by the law on judicial ethics.  Pursuant to Wis. Stat. § 757.19(2)(b) (2009-10),[2] “[a]ny judge,” including a supreme court justice,[3] “shall disqualify himself or herself from any civil . . . action or proceeding when one of the following situation occurs . . . (b) When a judge is a party or a material witness . . . .”  That rule is echoed by SCR 60.04(4)(e)4. of our Code of Judicial Conduct, which provides that a judge “shall recuse himself or herself in a proceeding when the facts and circumstances the judge knows or reasonably should know establish one of the following . . . (e) The judge . . . 4. Is to the judge’s knowledge likely to be a material witness in the proceeding.”[4]  Likewise, SCR 60.04(4)(a) directs that a judge shall recuse himself or herself in a proceeding when the judge has “personal knowledge of disputed evidentiary facts concerning the proceeding.”  Again, the law leads me to the irrefutable conclusion that I must disqualify or recuse myself from the above-referenced matter.[5]

Gravamen: she was a witness to the alleged basis for the complaint, therefore she “is in the position to have already formed conclusions regarding the nature of the events … (and) there is simply no way for me to separate my personal perceptions and fairly and impartially judge this matter,” ¶4. Implication: “Frankly, there is no need for a three-judge panel to conduct an evidentiary hearing and make findings of fact, see Wis. Stat.§ 757.89, because the justices, the final decision-makers, already know the facts.  Consequently, any findings of fact by the three-judge panel would be window-dressing at best,” id. Note that by state constitution, “a quorum for the conduct of the (supreme) court’s business” requires four justices, Art. VII, §4(1). Justice Ziegler’s recusal appears to mean that the court would not have an eventual quorum to act upon the complaint (given Justice Roggensack’s prior recusal; and, of course, it is inconceivable that Justice Bradley or Justice Prosser himself could rule on the complaint). Hence an investigation by a 3-judge panel of the court of appeals preliminary to ruling by the supreme court would be no more than wheel-spinning.

Justice Crooks declined recusal under the “Rule of Necessity”; Justice Ziegler parts company on this issue (though, to be sure, Justice Crooks was not, in contradistinction to Justice Ziegler, a witness to the alleged incident):

¶5   In the recent past, this court has employed the common law “Rule of Necessity” when deciding to adjudicate a particular matter[8] but has never applied the Rule of Necessity in a case in which the justices were also material witnesses.  Under the Rule of Necessity, “where all are disqualified, none are disqualified.”  Ignacio v. Judges of the U.S. Court of Appeals for the Ninth Circuit, 453 F.3d 1160, 1165 (9th Cir. 2006) (internal quotations omitted).  Given the unique factual situation of the instant case, applying the Rule of Necessity would produce an absurd result: even Justices Bradley and Prosser would presumably be required to participate.  Certainly, application of the common law Rule of Necessity should not result in the defendant, potential defendant, and the witnesses also sitting in final judgment of the case.

¶6   Unfortunately, some parties do not receive their day in court despite wishing to be heard.  For example, some parties are deprived of their day in court because the statute of limitations has passed, a court order has been violated, evidence is suppressed, or a myriad of other circumstances occur that have nothing to do with the merits of the underlying dispute.  Here, if a quorum of four justices cannot hear this matter, this may be one of those circumstances.

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