Wis. Justices Deadlocked Over Chokehold Allegation

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Justices on the Wisconsin Supreme Court are deadlocked over or whether to discipline one of their own. The state Judicial Council has accused one of them of violating the ethics code by putting one of his colleagues in a chokehold during an argument over a controversial ruling. But all the justices watched it happen so how can they be impartial judges in the matter? One justice has already recused herself. The aggressor and the victim can't sit on the case. If one more Justice does that, then there can't be a quorum.


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Wisconsin's Supreme Court was already sharply divided, split four to three in favor of the conservative justices. Now they're deadlocked on the question of whether to discipline one of their own. This all stems from an argument last June that apparently turned physical. One liberal justice accuses a conservative of grabbing her around the neck.

Gilman Halsted of Wisconsin Public Radio picks up the story from there.

GILMAN HALSTED, BYLINE: What exactly happened in Justice Anne Walsh Bradley's office last year on June 13th depends on which of the six justices who were present you talk to. Justice Bradley and two of her colleagues say Justice David Prosser put his hands around Bradley's neck in a chokehold. Prosser and the other three justices on the court say Prosser was just defending himself when Bradley rushed at him with her fist in the air. Leading up to the incident, tensions in the Capitol building had been high for months.

UNIDENTIFIED FEMALE: ...the bill. Kill the bill, kill the bill. Let's hear it. Kill the bill.

UNIDENTIFIED GROUP: Hey, ho, ho, the budget bill has got to go. Hey, hey...

HALSTED: Thousands of protesters spent weeks occupying the building, fighting a bill that would strip most public employee unions of their bargaining rights. At times, the chants could be heard in the justices' chambers. After the bill passed, it ended up in the state Supreme Court. The alleged chocking or charging incident occurred in Justice Bradley's office during an argument about when to release a 4-to-3 ruling upholding the bill. Bradley and her two liberal colleagues in the minority wanted to delay it. The four conservative justices wanted to release it that day.

An investigation by the county prosecutor found it impossible to prove who started the fight, and no charges were filed. But in March, the state judicial commission filed an ethical conduct complaint against Justice Prosser. Now, the court must decide whether to discipline him. Marquette University law professor Rick Esenberg says the complaint never should've been filed because none of the six justices can be impartial.

RICK ESENBERG: That's humanly impossible. And it is why both state's statute and the judicial code say that if a judge is material witness in a case, he or she can't sit as a judge.

HALSTED: And that's exactly what Justice Prosser's attorney has argued, calling on all the justices to recuse themselves. But University of Wisconsin law professor Walter Dickey says there's no reason the court should be paralyzed. It's the highest legal authority in the state. It can create a process to resolve the issue.

WALTER DICKEY: They are the final authority. Since they're deciders of what the parameters of their authority are, in the event members of the court wish to recuse themselves, they can appoint members of the appellate court to the Supreme Court for purposes of discipline.

HALSTED: Frank Gimbel represents the commission that filed the judicial complaint against Justice Prosser. He says public confidence in the court will plummet if this isn't resolved.

FRANK GIMBEL: This case does demonstrate the flaws in addressing ethical behavior issues with Supreme Court justices because there are at least principles upon which the accused justice can sidestep accountability.

HALSTED: None of the justices would comment on the case, but their conflicting descriptions of what happened that day in Justice Bradley's office are contained in a 70-page report compiled from interviews carried out by county sheriff's investigators. To date, only one justice, Patience Roggensack, the leader of the conservative wing of the court, has decided to recuse herself. If one more justice does that, there won't be a quorum, and it's likely Prosser won't be disciplined for the alleged attack. For NPR News, I'm Gilman Halsted in Madison.

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