Last month, when Wisconsin Supreme Court Justice Michael Gableman recused himself from hearing the disciplinary case against fellow Justice David Prosser, it appeared the case was officially dead.
Now a suggestion that the chief justice refer the case to the Court of Appeals has drawn a stinging response from Prosser's lawyer.
Prosser is facing possible discipline for a June 2011 incident in which he put his hands on the neck of fellow Justice Ann Walsh Bradley after he says she charged at him during a heated argument. Six of the seven justices were present.
Prosser has asked the entire panel to recuse itself, saying that state law and ethics rules bar them from sitting on a case in which they are witnesses or participants or know information that could prejudice their decision.
By the time Gableman recused himself Aug. 11, two justices had already stepped down from the case. Counting Prosser, that made four of the seven-member court disqualified to consider the matter. That left only three justices including Bradley — not enough for a quorum.
But Prosser and the Wisconsin Judicial Commission continue to battle over whether the case can still proceed.
Late last month, the commission's special prosecutor, attorney Franklyn Gimbel, suggested that Chief Justice Shirley Abrahamson move the case to the next step in the process and send it to the Court of Appeals for appointment of a three-judge panel for a hearing.
Prosser's attorney responded Tuesday, saying such a move would be inappropriate and unprecedented and could lead to "mischief and chaos," with dueling orders from different justices.
Prosser's attorney, Kevin Reak, argued in a letter filed Tuesday that sending the case to the appeals court would "trigger a meaningless but very costly 'mock trial' that can never produce a definitive conclusion."
In a letter to the court, Gimbel argued that state law requires the commission to prosecute all formal complaints of misconduct "regardless of the end result." Not doing so, he wrote, "would leave allegations of judicial misconduct unaddressed."
The Prosser matter is the third disciplinary case brought against a state Supreme Court justice in the past four years. In 2008, Justice Annette Ziegler was publicly reprimanded after she acknowledged a conflict of interest while on the Washington County Circuit Court, where she sat on cases involving West Bend Savings Bank, whose board of directors included her husband.
In 2010, the Supreme Court deadlocked 3-3 on whether to discipline Gableman, who was accused of airing a 2008 campaign ad that he knew was false against his opponent, then-Justice Louis Butler.
So far in the Prosser case, the recusals have fallen along ideological lines, with conservative justices Patience Roggensack, Gableman and Ziegler agreeing to step down.