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Recusal – “Rule of Necessity”

Memorandum Decision on Recusal in: Wisconsin Judicial Commission v. David T. Prosser, Jr., 2012 WI 69 (Justice Crooks); case activity; companion decision: 2012 WI 43

Justice Crooks declines to recuse himself (with respect to the pending misconduct complaint against Justice Prosser) under the Rule of Necessity, namely the possible loss of a quorum (4 justices) and thus loss of ability altogether to resolve the matter:

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. It is the only available tribunal to make a final determination regarding appropriate discipline. See Wis. Stat. § 757.91. This situation is precisely the reason for the Rule of Necessity: to provide a forum where no other would be available.

The United States Supreme Court, faced with possible disqualification of every United States judge, including all United States Supreme Court Justices, reaffirmed that “the ancient Rule of Necessity prevails over the disqualification standards of” the federal statute. United States v. Will, 449 U.S. 200, 212 (1980). The Court explained, “It was precisely considerations of this kind that gave rise to the Rule of Necessity, a well-settled principle at common law that, as Pollack put it, ‘although a judge had better not, if it can be avoided, take part in the decision of a case in which he has any personal interest, yet he not only may but must do so if the case cannot be heard otherwise.'” Id. at 213 (quoting F. Pollack, A First Book of Jurisprudence 270 (6th ed. 1929)) (emphasis added). The Rule of Necessity applies with particular force where all judges are arguably disqualified. The United States Supreme Court’s discussion of the Rule of Necessity has been concisely summarized as follows: “where all are disqualified, none are disqualified.” Pilla v. Am. Bar Ass’n, 542 F.2d 56, 59 (8th Cir. 1976) (quoting the district court). 2

I also take very seriously my duty to sit in cases. As Chief Justice William Rehnquist of the United States Supreme Court wrote, “Those federal courts of appeals which have considered the matter have unanimously concluded that a federal judge has a duty to sit where not disqualified which is equally as strong as the duty to not sit where disqualified.” Laird v. Tatum, 409 U.S. 824, 837 (1972). He added that “the policy in favor of the ‘equal duty’ concept is even stronger” where there is no opportunity to substitute for the disqualified judge and where it would result in the issue presented by the case being “left unsettled.” Id. at 837-38.

Given this court’s critical role in judicial discipline proceedings as the only forum available to make a final determination and the involvement or recusal of at least three other justices on this court, I view my decision on Justice Prosser’s motion for recusal in light of the Rule of Necessity and my duty to sit in cases.

Justice Crooks goes on to reject the idea that he is indeed disqualified under § 757.19(2)(b) and (g), or SCR 60.04(4). He’s not “a material witness” to either of the events in question, and is able to be fair and impartial. “Additionally, to the extent that there is any doubt about whether a reasonable person would question my ability to remain impartial, the Rule of Necessity controls my decision not to recuse myself in this matter.”

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