It's a bit of legal inside baseball but the current maneuvering going on in the proceedings on the complaint filed by the Judicial Commission against Justice David Prosser reflects the inherent flaw in the Commission's decision to file the complaint. It is unclear - I would say highly unlikely - that the Supreme Court will ever be able to act on it.
Justice Prosser's lawyers have filed a series of requests for individual Justices to recuse themselves. I am not sure that this is what I would do if I were in their position. I might ask the Court to dismiss the complaint because it is clear - under both state statute and applicable provisions of the Judicial Code - that there will not be a constitutional quorum.
The problem with my approach (and, I suspect, the reason that is has not been tried) is that the Court has made clear that it believes recusal decisions are committed to individual justices without review by the rest of the Court. I still think I can argue for my approach but let's put that aside.
The Chief Justice is reported to have said that a decision on recusal is premature because the matter is not "before" the Court and, presumably, is "in" the Court of Appeals.
Is that right? Technically, it would seem that the case is clearly "before" the Court. Under Chapter 757, a judicial discipline case is never "before" any other court. It is filed in the Supreme Court and never leaves that Court.
Just as with attorney disciplinary proceedings, the case is not tried by the Justices. Initial proceedings are to be may be conducted before a panel of three Court of Appeals judges or before a jury presided over by a Court of Appeals judge. But either proceeding is before the Supreme Court in that it can result only in a recommendation - as opposed to the panel issuing its own decision which is then subject to further appellate review.
This is reflected in the fact that pleadings in an attorney or judicial discipline case are generally captioned as pending in the Supreme Court throughout the matter.
Of course that doesn't mean that the Justices must act on a recusal request now or that they might not regard it as "premature." In that less formal sense, one might say that the matter is not yet "before" the Justices. The Chief Justice, or any Justice who has been requested to recuse may decide to defer a decision until after this three judge panel acts.
But I would hope that they do not do that. Here's why.
The proceeding before the three judge panel is pointless if the Supreme Court cannot act on the case. This is not like a normal criminal or civil proceeding in which the decision of the lower court stands even if it cannot be - or is not - reviewed by the Supreme Court. The three judge panel only makes a recommendation that must be adopted or modified by the Supreme Court.
In other words, if the Court can't hear the case, there will be no outcome. It would, in my view, better for the Court and in the public interest to decide now - rather than later - if the case can proceed to resolution.
It would be a different matter if there was reason to believe that proceeding before the panel would clarify the recusal decision, but that seems unlikely. The problem here is that six of the seven justices are either participants in or witnesses to the underlying conduct. All have publicly committed to a version of those events. Nothing in the proceedings before the panel will change or elaborate on that.
Nor does it seem that the outcome of the panel proceeding could make the need to decide on recusal unnecessary. As I have written before, the attorney for the Judicial Commission seems to think that the Court can simply accept whatever version of the facts that the three judge panel has decided to adopt.
That is, with respect, pure fantasy. First, the findings of fact, while subject to deferential review, are nevertheless subject to review. How a judicial officer is supposed to defer to a finding on whether he or she has accurately described what happened in his or her capacity as a witness is beyond me. This is one of the reasons that I think the doctrine of necessity has no role here.
Second, deciding on discipline is inextricably bound up with one's view of precisely what happened. Even if one could put aside one's lying eyes on the question of a violation, it can't be done - and legally need not be done - on the question of discipline.*
Now, you may think that this is no problem. That the five or six or seven justices should decide the case based on what they saw as witnesses. That doesn't look much like a judicial proceeding to me, but maybe you think that the doctrine of necessity compels such a curiosity. My point is that the merit - or lack of merit - in proceeding in this way is as clear now as it ever will be and, I would argue, ought to be addressed now.
This problem is further reflected in the skirmishing over whether or not a three judge panel can be empaneled without an order from the Court. That is apparently the way that is has always been done.
But here, the Judicial Commission wants to argue that it is not necessary. It claims that statutory language empowering the Chief Judge to appoint a judge in a disciplinary case filed with the Supreme Court empowers him to do so without being directed to do so by the Court.
First, the Chief Judge of the Court of Appeals apparently doesn't read the statute in this way. He is refusing to act without an order. If he won't do form a panel, it's hard to see how he's going to be made to do it. Can a circuit court (or ultimately his colleagues on the Court of Appeals) order him to do it? Would they? We may found out - and, if they do issue such an order, we may find out whether there is a quorum on the Court when that order results in a petition for review.
I can't help but think that the effort of the Judicial Commission to go forward without the normal order from the Court is ill advised. I understand why a lawyer, as advocate for the Commission, would want to avoid asking the Court for an order to create a panel. It is possible - maybe likely - that he won't get one because there is not a quorum of participating Justices. If so, his case implodes.
Perhaps it is possible to make that implosion less likely if one can proceed before the panel and, hopefully, get a recommendation of discipline. That would increase political pressure on the Court to proceed and, while judges can be pretty good at ignoring political pressure, no one is completely immune.
That's good legal strategy but is it something that the Judicial Commission ought to be doing?
I understand the desire to have what was a very unjudicial episode reviewed in some way. But considerations of procedural fairness often prevent cases from going forward and that seems likely here.
In that regard, some of the comments by law professors in the Journal Sentinel miss an important point. For example, James Sample of Hofstra is quoted as saying that Prosser is asking to be immune from "basic judicial process." That's wrong. He's asking that "basic judicial process" be respected. I know James. I have debated him twice and I think he's a good and smart guy. But he is as far to the left as I am to the right and I can't imagine that he would be so ready to endorse trial by a intrinsically compromised panel for a garden variety criminal defendant.
Another prof, Keith Swisher of Phoenix, thinks that "the people of Wisconsin deserve a remedy." But that begs the question of what fairness requires and prejudges the matter. There was - and maybe could still be - a better way to proceed. But that's a subject for another post.
* Maybe a different result would be appropriate for the second claim advanced by the Judicial Commission regarding Justice Prosser calling the Chief Justice a bad name. If there are no factual disputes, maybe 5 of the 7 can sit. Whether or not we need to have a disciplinary proceeding for that is, of course, another question. Justice Prosser has already acknowledged and apologized for this remark. His colleagues could condemn it (which is all such a case would ever lead to) but, whether they do or not, is not what this controversy is about.