Justice Bradley recuses herself from Prosser case, cites ongoing safety concerns (UPDATE)

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By Caley Clinton and Dan Shaw
Wisconsin Law Journal

In recusing herself from the ongoing ethics case against fellow State Supreme Court Justice David Prosser, Justice Ann Walsh Bradley unloaded Wednesday in a memorandum decision addressed to James Alexander of the Wisconsin Judicial Commission and others.

The justice’s letter, which cites ongoing security concerns, comes less than a week before Tuesday’s primary election for a spot on the state Supreme Court.

In March 2012, the state Judicial Commission alleged Prosser violated judicial conduct codes in 2011 when he allegedly wrapped his hands around Bradley’s neck during a heated argument in her chambers in front of three other justices.

In her memo Wednesday, Bradley noted that “since the time that law enforcement began its investigation, I have not made any public comments about what happened that evening because I respected the process.”

But, as she notes in the recusal decision, in light of fellow Justice Pat Roggensack’s recent comments dismissing talk of animosity among the judges, Bradley felt it was time to speak out.

Roggensack, the incumbent, will face off Tuesday against two other candidates in a primary election for another 10-year spot on the state Supreme Court.

Brandon Scholz, campaign adviser to Roggensack, said he doesn’t think it’s a coincidence Bradley released her statement less than a week before the primary election. He noted that the alleged altercation took place in June 2011.

“Now it’s almost mid-February 2013,” he said Wednesday. “So a year and a half has gone by and all of a sudden Justice Bradley has chosen to write this.”

Scholz said Roggensack has never denied that the June 2011 incident was unfortunate but said nothing similar has happened since.

At a candidates forum last week, Roggensack said, ““If we were really after each other constantly, screaming and yelling at each other, do you think I’d be seeking another 10-year term on this court?”

“It strains credulity,” Bradley wrote in her memo, “that a justice on our court would be perpetuating the myth that our issues of workplace safety and work environment have somehow healed themselves.”

Ongoing security concerns

In issuing her decision to recuse herself from the case, Bradley noted an ongoing concern for Prosser’s behavior and states that a security plan was in place two months before the alleged June 13, 2011 chocking incident.

The plan was devised by law enforcement, she states, “for enhanced security due to concerns that Justice Prosser’s behavior posed a threat to our physical safety. Because the danger came from the inside and not the outside, the locked entry doors that limit public access to the area of the Supreme Court offices were not a sufficient protection. Both the Chief Justice and I were advised to take steps for personal security, including locking ourselves inside our personal offices when working alone at nights and on weekends.”

Those concerns continue, Bradley said, stating, “To this day, the Chief Justice and I continue to lock ourselves inside our private offices when working alone because of concerns for our physical safety due to Justice Prosser’s behavior.”

Opponents join criticism of Roggensack

Vince Megna, a consumer advocacy lawyer who will face Roggensack in Tuesday’s primary election, questioned Wednesday how a court could be operating properly if two of its members were frightened enough of a third member to take special measures to protect themselves from him. He said Bradley’s memo adds weight to assertions that the court has become an embarrassment to Wisconsin.

“This statement shows the court has not been functioning properly,” Megna said.

Ed Fallone, the third candidate in Tuesday’s primary and a law professor at Marquette University, issued a statement attacking Roggensack’s denial last week of trouble on the court. According to the statement attributed to Fallone, he said Roggensack “is wrong to be dismissive of an environment of fear, intimidation and violence within our state’s highest court.”

During the Milwaukee Bar Association’s candidate forum last week, at which Roggensack dismissed as gossip most of the reports about spats between the justices, Fallone said he thought it was wrong of Roggensack to recuse herself from the Prosser case.
In response, Roggensack said she took that step because she was a material witness to the events that are under scrutiny. She said the state Supreme Court can and should handle the matter internally.

Recusal changes little

Frank Gimbel, the special prosecutor appointed by the Judicial Commission to look into the misconduct complaint, said he is not aware of any formal means the court has of dealing with such cases internally.

Bradley’s memorandum decision was addressed to Gimbel, Alexander and two attorneys representing Prosser.

Bradley’s recusal does almost nothing, Gimbel said, to change where the case against Prosser stands. He noted justices Roggensack, Michael Gableman and Annette Ziegler have already recused themselves and that Prosser would not hear his own case, meaning that the investigation is effectively “stuck in quick sand.”

Gimbel said he has asked Chief Justice Shirley Abrahamson to move the case on to the state Court of Appeals but has received no response to that request.

He also said he has suggested several alternative ways the Judicial Commission might try to proceed further with the investigation but that his client has not elected to pursue any of them. Gimbel declined to say what his suggestions were, citing attorney-client privilege.