MADISON (WSAU) State Supreme Court Justice Pat Roggensack withdrew yesterday from the ethics case against her fellow Justice David Prosser. Prosser has asked four of his six colleagues to recuse themselves when the court is asked to make a final decision on charges filed against Prosser in March by the state Judicial Commission. Roggensack became the first. And if two others follow suit, there would not be enough justices left to consider punishing Prosser for his alleged choke-hold on fellow Justice Ann Walsh Bradley last June, and a derogatory remark he admitted making to Chief Justice Shirley Abrahamson in 2010.
Roggensack said she had no choice but to withdraw, saying she was a material witness to the Bradley altercation. And Roggensack – who, like Prosser, is part of the court’s four-member conservative majority – said it’s against the law for judges to take part in cases in which they were witnesses.
The special prosecutor in the case, Franklyn Gimbel, said he fears that Roggensack’s withdrawal might trigger an end to the case. Gimbel told the Milwaukee Journal Sentinel that Prosser would win by quote, “procedural impotency.” Gimbel recently said the justices could still decide Prosser’s fate under a “rule of necessity,” in which recusals are waived if no one else can decide a case. But Roggensack says the rule cannot be invoked for judges who were material witnesses.