Thursday, June 28, 2012

Judges Judging Judges In Wisconsin

Justice N. Patrick Crooks had denied a motion to recuse himself in judicial disciplinary proceedings against Justice David Prosser:

Given this court's critical role in judicial discipline proceedings as the only forum available to make a final determination and the involvement or recusal of at least three other justices on this court, I view my decision on Justice Prosser's motion for recusal in light of the Rule of Necessity and my duty to sit in cases. 

 Justice Prosser asserts that I am disqualified pursuant to Wis. Stat. § 757.19(2)(b) and (g), and SCR 60.04(4) of the Wisconsin Code of Judicial Conduct.  I have carefully considered all of the arguments raised by Justice Prosser in his recusal motion.  As required by Wis. Stat. § 757.19(2)(g), I have made a subjective determination that I can act impartially in this matter.  See State v. Am. TV and Appliance of Madison, Inc., 151 Wis. 2d 175, 182-83, 443 N.W.2d 662 (1989).  I believe that I could be fair in judging the allegations against Justice Prosser and would act in an impartial manner. 

 I have also determined I am not disqualified from participating under the objective standard in SCR 60.04(4).  In regard to the first incident, I am confident that a reasonable person could not question my ability to be impartial in this matter.  I was not present during the incident between Justices Prosser and Bradley.  I am not, under such circumstances, a material witness under Wis. Stat. § 757.19(2)(b).  While I have heard different versions of what transpired during this incident, I have not heard anyone testify under oath about what took place.  Therefore, I believe that I could hear the allegations pertaining to the first incident under the objective standard of SCR 60.04(4).  Under the objective standard, I conclude that it appears that I can act in an impartial manner.

 In regard to the second incident, I also believe that a reasonable person would not question my ability to act as an impartial adjudicator.  While I was present after the closed conference when Justice Prosser made this statement to the Chief Justice, I have not heard any explanation by Justice Prosser as to why he made that statement.  In his answer to the complaint he admitted that he made the statement.  I am not, under such circumstances, a material witness under Wis. Stat. § 757.19(2)(b).  Additionally, I have not heard any testimony under oath about this incident.  I recognize that the second incident might raise more concerns than the first from an objective observer about my ability to remain impartial, but I am confident that my presence when this statement was made would not affect my ability to decide the matter fairly and impartially.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2012/06/justice-patrick-crooks-had-denied-a-motion-to-recuse-himself-in-judicial-disciplinary-proceedings-against-justice-david-pross.html

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