Supreme Court Justice Patience Roggensack will recuse herself from an ethics case involving two of her fellow judges, claiming as a material witness she cannot preside over the case.

Last June, colleagues accused Justice David Prosser of putting his hands around the neck of Justice Ann Walsh Bradley. He is currently facing a formal ethics complaint. Prosser said he put his hands on Bradley as a matter of defense after Bradley rushed him. 

Roggensack said in a court memo she is disqualified by law from participating in the trial because she is a material witness in the case.

The recusal comes as no surprise to Wisconsin Institute for Law & Liberty President and General Counsel Rick Esenberg, who said there is a fundamental problem with the continuation of the case.

Esenberg said the case, which by law can only be decided by the Supreme Court, involved almost all of the justices as either witnesses or participants.

According to Esenberg, some judges have argued the rule of necessity applies to the case, which allows for judges to put aside personal interest to sit on a case when normal ethical rules would otherwise make the case impossible to proceed.

“The problem here with applying rule of necessity is that it’s one thing to say a judge should put aside personal interest and another thing to ask a judge to ignore what they saw,” Esenberg said.

In the memo announcing the decision to remove herself from the possible trial, Roggensack said the status as a material witness is a disqualifying circumstance of personal interest that does not fall under the terms of the rule of necessity.

If three more judges remove themselves from the case, it cannot continue. This is an outcome Esenberg believes is most likely.

Jay Heck, executive director of Common Cause in Wisconsin, was also not surprised by the recusal and said he would not be surprised if more judges disqualify themselves. According to Heck, the Supreme Court is “polarized and dysfunctional.”

“The court is so divided in factions now that it almost doesn’t matter what the issue is,” Heck said. “The conservatives on the court, which are Prosser, Gableman, Ziegler and Roggensack, seem to be sticking together on anything and everything.”

Heck added Prosser is putting pressure on his fellow justices not to follow him in an apparent effort to escape all responsibility for last year’s incident.

Heck said the case shows the need for the Supreme Court to determine a better method of policing themselves, and as a solution he suggested bringing in judges who make up the Government Accountability Board or another impartial third party entity to act as arbiter in this case.

“One of the things that is most sad about all this is that the citizens of Wisconsin used to look at the court with great respect as an entity that is impartial and acted with justice,” Heck said. “As a result of these incidents, and as a result of the very expensive and negative campaigns that have emerged from the Supreme Court since 2005, I’m confident the public’s opinion of the Supreme Court has never been lower.”