Recusal In Prosser Proceeding

Justice Patience Drake Roggensack has recused herself in the judicial disciplinary case against Justice David Prosser, granting a motion that had asserted that she is a “material witness.”

From the decision:

I have thoroughly researched what the law requires of me upon receipt of Justice Prosser’s motion, and I conclude that I am disqualified by law from participating in the above-captioned proceeding. In particular, I conclude that I have no choice but to disqualify myself due to the legislative mandate of Wis. Stat. § 757.19(2)(b), which requires self-disqualification when a justice is a material witness in a matter pending before the supreme court.

Further, even though I am the first justice to respond to a motion to disqualify in this proceeding, I have investigated the common law doctrine known as the Rule of Necessity. The Rule of Necessity provides that there are certain circumstances wherein a justice, who is otherwise disqualified because of a personal interest in the outcome of the proceeding, may participate. However, when the disqualifying event is the status of the justice as a material witness in the pending proceeding, I conclude that the Rule of Necessity cannot trump the mandatory directive of the legislature. In that circumstance, the justice is disqualified by law pursuant to Wis. Stat. § 757.19(2)(b). Accordingly, I grant Justice Prosser’s motion, and hereby disqualify myself from judicial participation in the above-captioned proceeding.

(Mike Frisch)