April 17, 2012

Patience Roggensack Prosser's latest recusal target

"The objective standards for recusal in Wis. Stat. $ 757.19(2)(b) are unequivocal," asserts Justice David "Side Door" Prosser's attorney, Kevin Reak. "In view of the statutory mandate, I am writing to request respectfully that you [Justice Patience Roggensack] recuse yourself in this matter." Firstly, Mr. Reak's reference to the "statutory mandate" is inconsistent, in that he just got done asserting that "the [Wisconsin Judicial Commission's] complaint will remain in the Supreme Court until the Court issues an order sending the matter to the Chief Judge of the Court of Appeals for the appointment of a three-judge panel."

And ironic because there is no "statutory mandate" requiring any such Supreme Court order and in fact the statutory mandate issues directly to the Chief Judge of the Court of Appeals to appoint the three-judge panel without any supplementary order required from the higher court.

Secondly the recusal statute to which Counselor Reak cites is limited to "any civil or criminal action or proceeding," which raises the question whether a judicial commission investigation is either a civil or criminal action. We know it's not a criminal action because there are no criminal penalties attached to the panoply of disciplinary moves the Supreme Court may make upon review of the three-judge panel's recommended disposition (which the Supreme Court may also ignore completely).

And we may quite possibly know that a judicial commission investigation is not a civil action either, because as Wis. Stat. § 757.85(7) instructs, "[i]nsofar as practicable, the procedures applicable to civil actions apply to proceedings under ss. 757.81 to 757.99 [the statutory sections regulating the judicial commission and its activities] after the filing of a complaint or petition." In other words the statutes explicitly contemplate that procedures applicable to civil actions may not be practicable, which inapplicable or impracticable procedures would place them outside the purview of Wisconsin civil procedure delineated elsewhere in the State statutes. So how could a judicial commission investigation be a civil action if it doesn't conform to the rules of civil actions? It cannot be.

In any event the plain language of the Wisconsin statute prima facie distinguishes judicial commission investigations from civil actions.

This here blargh has mentioned on previous occasions that the statutory framework governing judicial commission investigations is a bit of a mess. Indeed Justice N. Patrick Crooks pointed out a number of discrepancies to a State legislative committee in the wake of the Mike Gableman debacle a couple of years ago and suggested that representatives of that committee would do well to sit down and review those discrepancies and do something about them, but they never did.

They should have listened to him. He's a very smart guy, in particular in matters of legal procedure, and he's been a judge for several decades.

So here we are again, and Mr. Reak has apparently unwittingly limned yet another inconsistency in the law. However it seems to me he cannot rely on the recusal statute he's referencing for the above-mentioned reasons so perhaps he needs to get back to the drawing board himself.

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