Wisconsin Needs a Real Judicial Discipline Process

By Attorney Gregg Herman
June 26, 2012

According to a story buried deep in today’s Milwaukee Journal Sentinel, Justice Prosser has asked the remaining Supreme Court Justices to recuse themselves from ruling in the ethics case arising from his confrontation with Justice Bradley.

Justice Roggensack has already recused herself.  Since Justice Prosser cannot rule on his own case, if two more recusals occur, the court will not have the necessary majority to order a panel of appellate judges to hear the matter.

Maybe that would be the proper result, but getting there by default does not seem to right way to get there.  Imagine a criminal case where guilt or innocence could never be determined.

While justices should not rule on cases where they are witnesses and where they will continue to serve with the “defendant,” this case points out a gap in the judicial disciplinary rules.

Of course, one hopes that this type of incident never happens again, but this case should serve as a basis to examine the entire structure of judicial discipline to ensure the following:

This entire incident is entirely unfortunate and lawyers as a whole wish that it would go away and stop making bad publicity.  Yet, we also recognize a need for a system for investigating allegations of judicial misconduct.  Judges are not above the law.  It would be nice to turn this ugly episode into something good by using it to patch a gap in the system.

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.