Notes otherwise highly astute Milwaukee Journal-Sentinel reporter Patrick Marley, in the 30th paragraph of a 31-paragraph story:
State law does not explicitly say an order from the Supreme Court is needed to create a panel to review a judge's conduct.Nor even does it implicitly say it. However what State law explicitly does say is that the chief judge of the Court of Appeals shall create a panel. That is a statutory directive to the chief judge. Justice Prosser's is not a case that is "before" the Supreme Court until the three-judge panel has done its work, heard from the parties and their attorneys, made its findings, and published its recommendations. Then the panel's work becomes a thing* that is before the Supreme Court. Thus Justice Prosser's demands that several of his colleagues step aside from his case are unripe, clearly. That the Wisconsin Judicial Commission's complaints are filed initially with the Supreme Court is but mere formal notice.
Obviously that court needs to be made aware that there is a pending complaint against one of the State judges over whom the high court has supervisory authority** in matters concerning a judge's alleged unethical conduct or questions as to a judge's competence or mental fitness.
To put it bluntly, Court of Appeals Chief Judge Richard Brown is failing to comply with an explicit statutory command so long as he waits for the Supreme Court to "order" the formation of the three-judge panel. He himself needs to order that panel's formation without further delay.
The law mandates it. Full stop.
* Neither civil nor criminal.
** The supervisory authority does not extend to cases where justices of the Supreme Court disagree with the legal work — be it procedural or substantive — of a trial court judge. Indeed it was the flagrant abuse of the supervisory authority that led Justice Prosser and his three allegedly conservative sistren/brethren to their unwarrantedly mean-spirited vacating of Dane County Circuit Judge Maryann Sumi's orders last June.
Dispositions such as those are what appellate — and not supervisory — jurisdiction is for and, somewhat incredibly, those same four allegedly conservative justices at the same time dismissed the appeal of Judge Sumi's orders. You want to talk about a dysfunctional court, never mind the much-publicized personal animosity among the justices, look at how this court's conservative majority is sneering in the face of the law.
The law is a pliable concept in many instances but this ain't one of 'em.