Judicial Recusal

Citing the “Rule of Necessity” and the fact that he did not witness one of the events that gave rise to the case, Justice Patrick Crooks declined to recuse himself from the discipline case involving Justice David Prosser. Prosser and Justice Patience Roggensack have recused themselves, and Prosser requested that his other colleagues do so as well.

Two supreme court races are on the ballot in November, with two Republicans and six Democrats vying for the seats. As the May 8 primary approached, the candidates expressed differing views on judicial recusal, public financing for judicial campaigns, and the need for an intermediate appellate court.

Competing proposals for judicial recusal were offered by the chief justice and a supreme court candidate. One plan would allow the other justices to determine when a colleague should recuse, while the other would leave the decision to an independent person or group. The full court must approve a rules change.

The state judicial commission is investigating an ethics complaint against Justice David Prosser, stemming from a physical altercation with another justice. The supreme court will ultimately decide whether sanctions should be imposed, and Prosser is expected to ask those colleagues who witnessed the incident to recuse themselves.

Justice Michael Gableman rejected requests that he recuse himself from three cases involving a law firm that defended him for free against an ethics violation charge. Gableman noted that justices should recuse  themselves only when they believe they cannot act impartially or when it might appear that they cannot do so.

IAALS board member Russell Wheeler discusses recent proposals to apply the United States Judicial Conference's Code of Conduct for United States Judges to members of the Supreme Court and establish a new appellate route to review recusals.