The Wisconsin Judicial Commission, reacting to a June altercation in which state Supreme Court Justice David Prosser put his hands on the neck of fellow Justice Ann Walsh Bradley, recommended Friday that the court discipline Prosser for alleged misconduct.
The commission asked the court to find Prosser guilty of three ethics violations for the June 13 incident. The physical altercation occurred in Bradley's chambers during an argument over the timing of the release of a divided Supreme Court opinion that upheld passage of the state's controversial collective bargaining law.
Prosser fired back in a statement late Friday afternoon, alleging the Judicial Commission charges are "partisan, unreasonable and largely untrue."
And he blamed Bradley, saying "There would have been no physical contact between Justice Bradley and me if she had not suddenly and unexpectedly charged at me from a distance of about six feet with her right hand in a fist."
The complaint puts the Supreme Court in an almost untenable situation: Not only do all of the justices know and serve with Prosser, but six of them were witnesses or participants in the altercation, which normally would prohibit them from presiding. Justice Patrick Crooks was not there.
The June 13 altercation also prompted an investigation by the Dane County Sheriff's Office, which forwarded its reports to a special prosecutor, who declined to file criminal charges.
Bradley said the incident occurred after she told Prosser to leave her chambers as the discussion about whether and when to release the 4-3 Supreme Court decision became heated.
"It was my intent and my hope when I did that that I was de-escalating the situation," Bradley told the commission.
Prosser said in his statement that she told him to leave only after the confrontation.
During the June 13 discussion, Prosser and the other three conservative justices were pushing the court to announce that it planned to release its decision the next day. The four were pressuring Bradley and Chief Justice Shirley Abrahamson, considered part of the liberal bloc, to finish their dissenting opinions, the complaint said.
Prosser acknowledged placing his hands on Bradley's neck but called it a "total reflex."
"Did my hands touch her neck? Yes I admit that. Did I try to touch her neck? No absolutely not," Prosser told a Dane County Sheriff's detective.
The complaint alleges that Prosser "willfully" violated the Supreme Court rule that requires a judge be dignified and courteous to people "with whom the judge deals in an official capacity;" the rule requiring judges to "promote the satisfactory administration of justice" by cooperating with each other; and the requirement that judges personally observe "high standards of conduct."
In recommending discipline, the complaint said Prosser had "demonstrated a tendency toward lack of proper decorum and civility" in a previous incident in which he called Abrahamson "a total bitch" in front of the other justices.
Prosser is the third Supreme Court justice to face possible discipline in the past five years.
Justice Annette Ziegler was publicly reprimanded by her six colleagues after acknowledging that as a circuit judge in Washington County, she presided over cases involving West Bend Savings Bank, where her husband served on the board of directors.
Justice Michael Gableman avoided discipline after the other justices deadlocked 3-3 over whether to cite him for a misleading campaign commercial he had run against his opponent, Justice Louis Butler.
According to the Judicial Commission complaint, Prosser was notified of the substance of the allegations on Nov. 11 and responded in writing on Dec. 8, around the time he announced he was temporarily stepping down from hearing cases because of bout of diverticulitis, an intestinal infection.
In his statement, Prosser alleged that the commission is biased and retaliating against him for winning re-election last year after a contentious campaign in which opponents tied Prosser to Gov. Scott Walker and his controversial policies.
"The Commission has been patently unfair in its handling of this matter," Prosser said. "It has not been interested in discerning the truth. It has been committed to making a political statement.
"The Judicial Commission is trying to accomplish through this prosecution what some of its members failed to achieve at the ballot box," he said, adding that he plans to elaborate on those allegations "in a future statement."
The process calls for a three-judge panel of appeals court judges to be appointed to hear the matter and make a recommendation to the Supreme Court. Discipline can range from public reprimand to suspension to removal from the bench.
Experts in judicial ethics interviewed in September disagreed about whether all or most of the justices would have to recuse themselves in any case stemming from the altercation.
Some states have mechanisms allowing or requiring that members of courts outside the high court make disciplinary decisions when such potential conflicts are present, but Wisconsin does not.
One expert suggested the justices could invoke an ancient doctrine known as the "rule of necessity," which states that it's better to have a disqualified judge decide a case than no judge at all. Another suggested the court could devise an alternate court to hear the matter.
One thing is certain: Prosser plans to fight any discipline.
"They (charges) will be vigorously contested," Prosser said, "because I am innocent."