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Tuesday, December 09, 2014

Courts - Quandary in Wis. over who will judge ethics case involving Supreme Court justices

Patrick Marley reported Sunday in the Milwaukee Journal Sentinel in a long story that begins:

Madison — A Rock County judge running for state Supreme Court wants to ship an ethics case against Justice David Prosser to another state's top court — an idea that two law professors suggested is legally impossible.

In 2012, the state Judicial Commission filed an ethics complaint against Justice David Prosser for a June 2011 incident in which he put his hands on the neck of Justice Ann Walsh Bradley as the two argued about a case.

Prosser, Bradley and three other justices have declined to participate in the case against Prosser because they were involved in or witnessed the incident. That has caused the matter to stall.

Rock County Circuit Judge James Daley is running to replace Bradley, and he said he would like to see the issue sent to the Supreme Court of Minnesota or another nearby state. He said it was not acceptable to leave the matter unresolved and believed the Wisconsin Supreme Court has the power to hand the case off to a court outside the Badger State.

"They have the ability to resolve the issue in any way they can," he said.

Daley said the justices had the power to give the case to another state by invoking what's known as "the rule of necessity."

That rule says that judges can hear cases they normally would have to refuse to take if they are the only ones who can resolve a matter.

But two legal experts said that doctrine doesn't give a court from one state the power to hand off a case to a court from another one.

"I don't know if there are other tribunals in the state that could hear it, but I've never heard of sending one state's matter to (a) sister state under the rule of necessity," New York University law professor Stephen Gillers said by email.

"The Minnesota Supreme Court lacks jurisdiction over a Wisconsin ethics complaint. The doctrine does not work that way.

"Wisconsin and Minnesota are not part of the same system. They are creatures of different sovereigns."

Charles Geyh, a professor at the Indiana University Maurer School of Law, said he believed transferring such a case to another state would be unprecedented.

"Wisconsin cannot make its 'necessity' Minnesota's necessity, and I'm not sure how the Minnesota Supreme Court could deem it necessary to squander its scarce judicial resources (and taxpayer dollars) to solve Wisconsin's problems," Geyh wrote in an email to the Milwaukee Journal Sentinel.

Posted by Marcia Oddi on December 9, 2014 12:27 PM
Posted to Indiana Courts