May 12, 2012

WJC v. David Prosser, the story so far

A reader asks.

The Wisconsin Judicial Commission has done its own initial investigation, having been alerted to "possible misconduct" by a Wisconsin judge, namely David Prosser. The Commission found probable cause that Justice Prosser "has engaged" in misconduct. The Commission has filed a formal complaint "with" — notably, not in — the Wisconsin Supreme Court.

Now, the Judicial Commission "shall prosecute any case of misconduct ... in which it files a formal complaint." (All of these quotations are from Chapter 757 of the Wisconsin statutes, by the way). And now, "[t]he chief judge of the court of appeals shall select the judges [for the three-judge panel] and designate which shall be presiding judge."

But the Commission cannot prosecute its case until the chief judge selects the panel, which he hasn't yet done because reportedly he's waiting for an order from the Supreme Court. There is no such order mentioned, contemplated, or even implied by the Wisconsin statutes.

Why Franklyn Gimbel, who is the attorney the Commission has retained to prosecute the case, hasn't explicitly pointed this out, or taken steps to force the chief judge of the court of appeals' hand, I have no idea.

Even if it was the case that the Supreme Court "ordered" the formation of the panel in prior misconduct actions, it has no statutory authority to do so, nor, more importantly, has it any statutory authority to withhold such an "order," because such an order does not exist in the Wisconsin statutes. It could be that some members of the Supreme Court believe its supervisory authority — which is constitutionally granted — supersedes the clear directives of the statutes. I have no idea of that either, because none of them has said so, and perhaps nobody has asked them.

If any of them believe that, and if any of those are self-described "judicial conservatives," I, for one, would find that belief highly comical.

But not in the least bit surprising.
"Your precious belief that we have a government of laws in Wisconsin never fails to amuse."@BrewCityBrawler


Anonymous said...

I thank you for your clear and concise response.

Anonymous said...

the statute also contemplates the possibility of a jury, which would make a panel unnecessary, as that is just one of the options, not the mandatory one. right?

illusory tenant said...

Yep "the commission may, by a majority of its total membership not disqualified from voting, request a jury hearing. If a jury is not requested, the matter shall be heard by a panel constituted under sub. (3)."

Sub (3): "A judicial conduct and permanent disability panel shall consist of either 3 court of appeals judges or 2 court of appeals judges and one reserve judge. Each judge may be selected from any court of appeals district including the potential selection of all judges from the same district. The chief judge of the court of appeals shall select the judges and designate which shall be presiding judge."