Thursday, June 28, 2012
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.