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Judicial Disqualification – Material Witness

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

¶1   On April 17, 2012, Justice David T. Prosser’s Attorney, Kevin P. Reak, wrote and asked me to disqualify myself from participation in the above-captioned matter, asserting that I am a material witness. …

¶2   … I conclude that I am disqualified by law from participating in the above-captioned proceeding.  In particular, I conclude that I have no choice but to disqualify myself due to Wis. Stat. § 757.19(2)(b), which requires self-disqualification when a justice is a material witness in a matter pending before the supreme court.

¶3   Further, I have investigated the common law doctrine known as the Rule of Necessity.  The Rule of Necessity provides that there are certain circumstances wherein a justice, who is otherwise disqualified because of a personal interest in the outcome of the proceeding, may participate.  However, when the disqualifying event is the status of the justice as a material witness in the pending proceeding, I conclude that the Rule of Necessity cannot trump the mandatory directive of the legislature.  In that circumstance, the justice is disqualified by law pursuant to Wis. Stat. § 757.19(2)(b).  Accordingly, I grant Justice Prosser’s motion, and hereby disqualify myself from judicial participation in the above-captioned proceeding.

¶14  Whether a witness is a “material witness” is determined by the nature of the testimony that the witness is able to provide relative to consequential facts that are in dispute.  As Black’s Law Dictionary explains, a material witness is a “witness who can testify about matters having some logical connection with the consequential facts.”  Black’s Law Dictionary 1741 (9th ed. 2009).  A fact is material or consequential when it is “significant or essential to the issue or matter at hand.”  Id. at 670; see also Wis. Stat. § 904.01; 7 Daniel D. Blinka, Wisconsin Practice Series:  Wisconsin Evidence § 401.101, at 98-101 (3d ed. 2008).

¶15  I was a witness to what was said and done at the events that form the bases for the pending Complaint.  It appears that there are factual disputes about what occurred on June 13, such that testimony about that incident will be required in this proceeding.[4]  Accordingly, any testimony that I may give will be directly related to finding consequential facts.

¶30  Further, even though I am the first justice to respond to a motion to disqualify in this proceeding, I have investigated the common law doctrine known as the Rule of Necessity.  The Rule of Necessity provides that there are certain circumstances wherein a justice, who is otherwise disqualified because of a personal interest in the outcome of the proceeding, may participate.  However, when the disqualifying event is the status of the justice as a material witness in the pending proceeding, I conclude that the Rule of Necessity cannot trump the mandatory directive of the legislature.  In that circumstance, the justice is disqualified by law pursuant to Wis. Stat. § 757.19(2)(b).  Accordingly, I grant Justice Prosser’s motion, and hereby disqualify myself from judicial participation in the above-captioned proceeding.

For discussion re: citing a single-justice memorandum decision, see bottom of this prior post.

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