Wisconsin Supreme Court Justice David Prosser requested another of his colleagues on the Supreme Court remove himself from a case involving an ethics complaint against Prosser on Wednesday, a move which calls into question whether he will face discipline for allegedly placing his hands around another justice’s neck last June.

In a motion filed with the court Wednesday, Prosser said Justice David Crooks, who did not witness the altercation between Justice Ann Walsh Bradley and him last June, should step aside in the case.

Prosser said the Wisconsin Judicial Commission, an independent state body bringing charges, has cited two counts against him, one which pertains to a separate incident which happened in February 2010 when Prosser allegedly referred to Chief Justice Shirley Abrahamson as a “bitch.”

“Justice Crooks is likely to be called as a fact witness on this matter by the commission. … As a material witness and, in effect, an accuser of Justice Prosser, Justice Crooks cannot sit in judgment of Justice Prosser and thereby serve to judge the accuracy of his own accusations and testimony,” the motion said.

Earlier in the month, Prosser’s attorneys also sent a letter on April 17 asking Justice Patience Roggensack to recuse herself because she was a witness to the June incident. Prosser has also asked for the recusals of Abrahamson and Bradley.

Rick Esenberg, president and general counsel of the Wisconsin Institute for Law and Liberty, said if four out of the seven justices recuse themselves, the case cannot proceed because the state Constitution requires a quorum of four justices on the court.

He said the case would not even move forward in the disciplinary proceedings, even in the three-judge panel that makes recommendations on discipline cases that the Wisconsin Judicial Commission has requested.

Esenberg said people have suggested the justices should not recuse themselves because of the rule of necessity. According to the rule of necessity, a case can go forward even if the judges are partial if it is the only way the case can occur.

However, Esenberg said the rule of necessity is typically only used in cases in which a judge has an interest. He added this case may be different because many of the justices saw the event happen.

“I don’t see how those who witnessed the altercation can put aside their own version, and I don’t see anything useful coming from the process,” Esenberg said.

He also said the six justices at the event, including Prosser and Bradley, have given statements. Some have said Bradley should be disciplined while others have said Prosser should be disciplined, and some have said both. He said it is impossible for the judges to set aside their perceptions of the event and opinions on the case. 

Executive Director of the Wisconsin Democracy Campaign Mike McCabe said the recusal process underscores the problem of having the Supreme Court serving as the final arbitrator in Supreme Court ethic cases.

He said Prosser is likely planning to ask all members of the Court to step down, which means the case can not be heard if quorum cannot be reached. McCabe said the case shows the need for an independent body to hold Supreme Court justices accountable.

“In this case, the court is going to be paralyzed, meaning Prosser gets off the hook, which is just a travesty and a complete miscarriage of justice,” McCabe said.