Monday, February 18, 2013

An interesting filing in the state Supreme Court

Last week's filing by Justice Bradley was ostensibly an order recusing herself on a disciplinary case involving Justice David Prosser. That she would step aside is extraordinary only in the fact that it took her ten months to get around to it. It was clear from the get go that she should not sit on a matter in which she is the complainant.  

But the nature of filing - what Justice Bradley sought to say - was extraordinary and revealing.  

What she wrote was extraordinary because it had little or nothing to do with whether she ought to recuse herself. It largely consists of a reiteration of her allegations with Justice Prosser joined to an expression of displeasure with the law governing the discipline of Supreme Court justices and annoyance that the statement of a number of her colleagues who witnessed the incident with Justice Prosser don't completely corroborate her own. 

As I have written before, there is no support in the witness statements of any of the other justices - including the Chief Justice - that Justice Prosser "choked" Justice Bradley. Indeed, one can read Justice Bradley's own statement as suggesting that this did not occur. All seem to agree that Justice Bradley charged or rapidly approached Justice Prosser – perhaps with her fist or finger raised. 

Beyond that, the statements tend to depart on very subjective points in which the witness characterizes the volume of some one's voice or the rapidity with which an action was taken. Depending on which version one credits, the incident reflects poorly on Justice Bradley or both justices. If you are inclined to the latter view, it is possible to conclude that Justice Prosser was more at fault than Justice Bradley, but that is far from clear. One might well reach the opposite conclusion. It is possible that one might conclude that Prosser (or Bradley) ought to be disciplined, but that result is not foreordained. 

It is understandable that Justice Bradley is committed to her version of events and upset that others don't see things the same way. What is important for purposes of recusal is the resolving the conflicts will reflect on her testimony (which is not undisputed) and even on whether she ought to be subject to discipline. Perhaps all of those questions should be resolved in her favor. But she can't be the one to decide that.  

Normally, a judge in her position would simply step aside without comment on the merits. He or she would not use a recusal order as an occasion to editorialize. Justice Bradley is quoted as saying that her filing is a response to Justice Roggensack’s statement that the court is “doing fine.” But judges normally don’t use court filings to weigh in on their colleague’s campaigns. 

The filing is, nevertheless, revealing. The filing demonstrates the wisdom of the general rule that someone ought not to be a judge in his or her own case. 

Here's an example. Justice Bradley is upset that her colleagues' witness statements will not concede what Justice Prosser has admitted. "They deny," she writes, "what has already been admitted." But a careful - no, even a cursory - reading of the witness statements of Justices Roggensack, Ziegler, and Gableman all reveal consistency with Prosser's statement. Each of them says that Justice Bradley charged Justice Prosser with her fist or finger raised. He put up his hands in response and his hands came into contact with her neck but did not close, i.e., he did not choke her. (In any event, it was not for these witnesses to base their own version of events upon the statement of either of the participants. They were asked to relate what they saw.)

Depending on the details, one might take these statements to warrant no discipline, discipline against either Justice Prosser or Bradley alone, or discipline against both Justices. But they are not inconsistent with Justice Prosser's statement - at least not one the critical point identified by Justice Bradley. 

That she is unhappy with them is all too human. Again, she may be right and they may be wrong. But the filing also demonstrates why she was correct to recuse herself.
Cross posted at Purple Wisconsin.


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Unknown said...

What better way to resurrect the squabble in the media just one week before the election? No mere press release would generate any interest on the part of the media and/or general public

Anonymous said...

Can you give us an analysis of Judicial Commission v. Carver, 192 Wis.2d 136 and why it might apply to what Justice Bradley did in this writing? It is my understanding from the Carver Case that SCR 60.16 prohibits a judge from giving commentary about a case before a recusal. Thanks for any analysis.

Anonymous said...

The Abrahamson court has been an embarrassment to the state for many years.

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