The investigations are now proceeding in Wisconsin of the alleged incident on the Supreme Court, in which liberal Justice Ann Walsh Bradley has accused conservative Justice David Prosser of grabbing her neck in a chokehold, during an argument. As it turns out, for one of the ongoing investigations into the problems on this very polarized and acrimonious state Supreme Court, the ultimate arbiter of the controversy would be…that very Supreme Court.
Assuming both Prosser and Bradley recused themselves, that would leave the court’s now very polarized wings at 3-2 for the conservatives. But even this could be a hairy situation — how would recusal work when multiple other justices were witnesses to the incident in question?
On Monday, the Dane County (Madison) Sheriff’s Office announced that it was taking up the investigation of the alleged assault, after the case was handed over to it by the Capitol Police (who in turn consulted with the Supreme Court itself on the decision). In addition, the Wisconsin Judicial Commission, which investigates alleged misconduct involving judges, released a statement Monday that it, too, was looking into the alleged incident, and would have no further comment about the case.
To be clear, both of these investigations could potentially continue, separate from one another.
According to the commission’s web site, the commission consists of “one court of appeals judge, one circuit court judge, and two attorneys, all appointed by the Supreme Court; and five non-lawyer members appointed by the governor with Senate confirmation.” The commissioners are appointed to three-year terms, with a limit of two consecutive terms. The current members of the commission were appointed over a spread of the past six years.
TPM called up the commission, seeking a basic civics lesson in how the commission and its investigations work, keeping in mind that they could not comment on the specifics of this case.
Commission spokesman James Alexander explained that the commission itself does not mete out judicial discipline. “The commission is just an investigatory and prosecutorial agency,” Alexander explained. “It can’t make findings of fact and law. We have to try our cases like anyone else.”
Instead, in cases of alleged misconduct by a judge, the commission’s attorneys try a case before a three-judge panel, selected by the Chief Judge of the Court of Appeals. “They make findings of fact, and conclusions of law,” said Alexander, “and make recommendations to the Supreme Court.”
It is then the Supreme Court that makes the final decision.
This process in relation to the polarized Supreme Court came to a head in 2010, when conservative Justice Michael Gableman, who had defeated appointed incumbent liberal Justice Louis Butler in a heated election in 2008, faced a complaint of false advertising from the race, in which he attacked Butler’s past career as a defense attorney.
When the commission tried the case before a three-judge panel, the panel sided with Gableman and recommended dismissing the case. When this decision was then brought to the Supreme Court, with Gableman recusing himself, the court split 3-3 — thus not overturning the decision of the lower court, in a win for Gableman — along the court’s existing conservative and liberal lines. The liberals — a group that included Bradley — called for the commission to be able to re-try its case before a jury, and were in turn castigated by the opinion of the conservatives, including Prosser.
TPM asked Alexander whether in a case of alleged attack by one judge against another judge, would both judges be required to recuse themselves. Alexander declined to comment.