Wisconsin

Justice Michael Gableman recused himself from considering charges of ethical violations against fellow justice David Prosser, making him the fourth justice of the seven-member court to do so and leaving the court without a quorum to hear the case.

A second justice has withdrawn from considering disciplinary charges against Justice David Prosser, with Justice Annette Ziegler joining Justice Pat Roggensack. Prosser has asked the other four justices to recuse themselves as well.

Justice David Prosser converted his campaign fund to a defense fund to aid him in battling allegations of judicial ethics violations. According to the state’s government accountability board, using the campaign fund in this way satisfies the “political purpose” standard because the disciplinary proceeding affects Prosser’s “reputation and electability.”

As a result of a split vote on the issue by the supreme court, Justice Michael Gableman will not be required to recuse himself from cases involving a law firm that provided him with free legal representation in an ethics case in 2010.

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.

The Seventh Circuit Electronic Discovery Pilot Program has released its Final Report on Phase Two. The Seventh Circuit Electronic Discovery Pilot Program originated in the U.S. District Court for the Northern District of Illinois as a response to widespread discussion about the rising burden and cost of electronic discovery. The effort was inspired by the ACTL Task Force and IAALS Final Report, as well as The Sedona Conference® Principles.

The judicial commission called for the discipline case against Justice David Prosser to be sent to a panel of three court of appeals judges. The role of such a panel is to recommend to the supreme court what, if any, disciplinary action should be taken, but it is unclear whether the supreme court must call for a panel’s consideration of the case.

By a 4-3 vote, the supreme court declined to reappoint the chair of the Wisconsin Judicial Commission, which recently found probable cause that Justice David Prosser violated three parts of the state’s code of judicial conduct and recommended a trial by a panel of three intermediate appellate court judges.

Numbers may prevent a disciplinary complaint against Justice David Prosser from going any further. Prosser formally requested that two justices recuse themselves from consideration of the complaint against him, and he asked personally that two other justices recuse themselves, on the grounds that these justices were witnesses to the incident that gave rise to the complaint.

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.