Monday, March 19, 2012

What were they thinking?

Here are a few questions about the Judicial Commission's charges against David Prosser. I know two of the members of the Commission and will not accuse it of bias or ill motive. But I have some rather serious questions about the decision to issue charges and can't quite follow the thinking behind it.

Here are my questions.

First, what is the rationale for charging only Justice Prosser? The rules that the Commission says were violated are very general. A judge must be "patient, courteous and dignified." A judge must cooperate with other judges. A judge must maintain high standards of conduct to preserve the integrity of the judicial system.

I want to put aside - at least for now - the allegations about Justice Prosser losing his temper and calling the Chief Justice a bad name. Making that the basis for an ethics complaint is beyond silly. Let's focus on what is the core of the complaint - the altercation between Justices Bradley and Prosser.

The witness accounts of the incident do have a bit of a Roshomon quality. As I have written before, that's not unusual. This was a startling and sudden event. But while the witnesses differ in certain details and in the characterization that each places on what they saw, their accounts can be summarized in the following way. 
Justice Bradley came at Justice Prosser - perhaps with some degree of aggressiveness. She may or may not have had her fists raised. He put out his hands (in order, he says, to defend himself). He either intentionally or inadvertently placed them on her neck. Although his hands may have been around her neck,he does not appear to have choked her or had her in a "chokehold."
It was an unedifying moment and one  I suspect that both of them wish they could have had back.

Depending on which of the witness accounts one takes to be more accurate, one could conclude that there is probable cause to believe that Justice Prosser violated one of the applicable standards.
But, in fairness, it is also possible to conclude that there is probable cause that Justice Bradley violated one of the applicable standards. This is not a question of "blaming the victim" but in deciding who the victim was and whether there even was a single victim and aggressor. To exonerate one and charge the other - if it can be done - requires one to pick and choose among conflicting accounts of what happened.  Moreover, the differences that must be chosen between often relate to very subjective things - someone's tone of voice or how rapidly something happened - that are almost impossible to resolve.
On what basis did the Commission make these choices? It does no good to say that no one filed a complaint against Justice Bradley. We don't Know that this is the case. Besides, although the administrative rules are written in a way that assumes a complaint, nothing in the authorizing statute limits the Commission to the allegations of a complaint or to a complainant's view of what happened.
I would have charged neither but going after one raises some difficult questions. Again, I am not interested in questioning anyone's good faith, but proceeding in this way will inevitably be seen as political and biased. 
But there is a  bigger problem.  
Second, how does the Commission expect this case ever to be decided? A three judge panel will be appointed to conduct the hearing and make a recommendation. While they will make findings of fact and conclusions of law, they actually decide nothing. All of their findings and conclusions are subject to Supreme Court review.
There is an obvious problem. Six of the seven Justices were either involved in or were witnesses to the underlying events.  Sec. 757.19(2)(b) provides that "[a]ny judge shall disqualify himself or herself from any civil or criminal action or proceeding when one of the following situations occurs: . . . [w]hen a judge is a party or a material witness." The Judicial Code contains a similar provision.
This seems to make it quite clear that only Justice Patrick Crooks can sit on this case and that means that the Court can't act. Wisconsin Constitution Art VII sec. 4(1) provides that "[a]ny 4 justices shall constitute a quorum for the conduct of the court's business."

In Friday's Journal Sentinel, Franklin Gimbel, who the Commission has hired as a special prosecutor, was quoted as saying that the Court will "have to" hear the case. In making that point, he seems to be saying that it will only have to decide on sanctions if the Commission "establishes" a violation - presumably before the three judge panel who will conduct the hearing.

This is more wishful  thinking that anything else. First and most fundamentally, the prohibition against a judge sitting on a case in which he is a witness is not limited to one in which he decides "only" on sanctions. We would never expect a judge to sit on the case of a person charged with a crime that the judge had witnessed on the grounds that the jury will decide guilt.

Second, the Court's role is not limited to deciding on sanctions. It must review the finding of a violation as well.   While it is to defer to the findings of fact by the three judge panel, it must nevertheless review them. Under certain circumstances, they can be set aside. Moreover, it will not defer on conclusions of law, e.g. deciding whether the facts that have been found violate the rule,

Is Mr. Gimbel saying that the need to hear this case trumps clearly applicable law regarding disqualification? On what basis?

This appears to be a very unfortunate decision. The Commission has acted on one set of conflicting accounts to bring charges that can't possibly be acted upon. In doing so, it will inflame the divisions on the Court. It has taken a fire that was banked, and thrown gasoline on it without any hope of accomplishing anything.

I understand the Commission's concern about the unseemliness of the incident. But there was a way for it to act without plunging into this morass. Under its own rules - JC 4.08(4) - it could have dismissed the complaint "with such expression of concern or warning" as it deemed appropriate. It could have expressed concern and called on members of the Court to treat each other with respect. It could have called upon the Justices to remember that the outcome in any particular case is important, but so is the integrity of the Court.

Maybe that would have been an empty gesture but these charges are almost certainly one.


George Mitchell said...

One news report says that 4 members of the Judicial Commission signed the recall. I don't know if that is true. There apparently is no dispute that Gimbel signed the recall. Apart from the many issues highlighted by Rick, Gimbel's partisan political history make it clear he was a poor choice. What were members of the commission who signed the recall petition thinking? What is it about "appearance of conflict" that they (and the dozens of judges who signed) don't get? Their actions deprive this process of the independence needed for it to be credible.

Anonymous said...

Oh, come on now, Rick. Surely you've heard of the Rule of Necessity. The U.S. Supreme Court invoked it in U.S. v. Will, Hubert Will's challenge to a Congressional enactment that arguably reduced the pay of federal judges, even though each Justice had a financial interest in the outcome of the case. As the Court noted in U.S. v. Will, the Rule dates back to 1430, when the Chancellor of Oxford was the only judge authorized to sit on a case in which he was a party. If judges can sit on cases in which they have financial interests, or, indeed, are parties, if the alternative is that no court could hear the case, surely judges can sit on cases in which they are merely witnesses. The Wisconsin Judicial Ethics Code recognizes the decisional law that creates the Rule of Necessity.

Rick Esenberg said...

I have and I suppose that's the argument but I don't see it. The problem here is not that the justices have an interest but that they will be placed in the position of evaluating their own testimony. That is fundamentally at odds with the judicial function.

Beyond that, is is likely to lead to an outcome which mirrors the testimony. What is to be gained by that?

This was an unfortunate incident that I wish would have been handled in another way.

Michael Duffy said...

Your mother must be very proud of you.
Tie yourself in knots reasoning this if you must, but when I went to school, we didn't hit girls.

Anonymous said...

When all is said and done, all of the dissension in this court comes down to Shirley. I have talked to almost everyone that has served on that court the last 20 years and they all say the same thing: "Shirley is a total bitch".

Anonymous said...


Anonymous said...

Yeah, shame in that bitch who forced Prosser to choke Bradley!

The Bemused Bystander said...

I would just like to see Prosser testify that he was afraid for his own safety based on the aggressive approach of a TINY 70-YEAR OLD WOMAN.

God help him if he ever shops at the deli counter at Sendik's. Those women would kill him.

Quite the profile in courage!

Anonymous said...

Justice Bradley is 8 years younger(she's 61) and at least 50 lbs bigger and 6 inches taller. If you put the two together during testimony it will be clear why Prosser was afraid. Bradley is in the larger weight class.

Tom said...

Actually anon 7:57, aside from the age thing, those size stats are wrong. Prosser is both taller and larger than Bradley.

Rick, you think that a 3-judge panel will be appointed? I'm not so sure. The Supreme Court itself is the entity that appoints such a panel, and if they are disqualified to impose discipline, they are also disqualified to take any earlier action in the case.

Anonymous said...

Anonymous 7:57, thanks for the laugh. Read the police reports: Prosser is 5'9, so Bradley would be 6'3! Even Prosser states in the police reports that Bradley is several inches shorter than he is. Or just google the group photos of the justices.

Where do you people get this stuff? Which squawk radio fools feed you this nonsense? And, the big question: Why do you believe it, when it's so easy to check whether we have a woman justice, past 60 years old, who would have been a basketball center in her day?

George Mitchell said...

Correction: Apparently members of the Judicial Commission did not sign the recall petition.

George Mitchell said...

Rick: How can I edit my initial comment to delete the Judicial Commission reference? Or can you do it? Thanks.

Anonymous said...

Which news outlet was incorrect in reporting that four members of the Judicial Commission had signed recall petitions?

Unknown said...

Prosser is 5'9

B.S. I'm 5'3 and have shaken Prosser's hand. I was kind of shocked what a physically slim and moderate sized man he was maybe 3 inches taller than I, but no more than that.

I also know people who have left their positions working for the WI Supreme Court who say that it was because Abrahamson is a bitch.

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