Wednesday, May 2, 2012

Roggensack recuses

Justice Patience Roggensack has recused herself from the disciplinary proceedings against Justice Prosser. From the decision:

¶29  I have thoroughly researched what the law requires of me upon receipt of Justice Prosser's motion, and 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 the legislative mandate of 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. 
¶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.
Justice Prosser has also filed motions requesting the recusal of other justices, and obviously he has recused himself. If at least two of the other justices consider themselves "material witnesses" and agree with Justice Roggensack's analysis, the Wisconsin Supreme Court will lack a quorum and be unable to hear the matter. In that case, the matter will have to be abandoned.


  1. The quorum rule is odd. Why wouldn't Prosser's fellow conservative justices just recuse themselves and thereby deny the court a quorum. After all, all of the conseervatives witnessed the event.

    I note that Justice Prosser's attorney continues to blame "the touching" on Justice Bradley because she "created the situation in which a touching occurred."

    I believe that is called blaming the victim.

  2. It is only blaming the victim if you assume that Prosser is guilty and Bradley is the victim, which Prosser of course denies.

    I believe that's called question begging.

    Recall that the criminal prosecutor refused to file charges, so there is no "victim" as I understand that word.

    I think all the conservative justices likely will recuse themselves, eventually, denying the court of a quorum, but perhaps Prosser believes it would look better if it were the liberal justices who recused first. (He is proceeding on somewhat of a piecemeal basis in his recusal motions, it seems.) Ultimately, it's impossible for me to believe that the witnesses to the disputed underlying events can sit in judgment of Prosser.

  3. I believe that Justice Proser concedes that he touched Justice Bradley. His defense, as I understand it, consists of blaming Justice Bradley for rushing at him. For reasons we have previously discussed, I am skeptical of that version of events.


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