We need to see the internal records of the Wisconsin Judicial Commission in the case against Justice Prosser.

Wisconsin Supreme Court Justice David Prosser — who has been charged with 3 counts of judicial misconduct in the notorious "chokehold" incident — wants the Wisconsin Judicial Commission "to release records of its deliberations in the matter to allow him and others to determine whether the commission was... politically biased against him":

"As far as I'm concerned, I don't think I have anything to hide here," Prosser said. "I don't know who made the complaints. I don't know what their (commission members') votes were. I don't know if it was a unanimous vote or not a unanimous vote."...

Prosser... charged that the Judicial Commission's makeup is inherently biased because five of the nine members are appointed by the sitting governor, who is a partisan.

In his case, at least some of those who participated in discussion about the ethics charges against Prosser, a former Republican speaker of the Assembly, were appointees of former Democratic Gov. Jim Doyle.

I want to see the internal records. Judicial ethics matter, but who's watching the ethics of the ethics watcher, the Judicial Commission? The people have a compelling interest in seeing what happened.



Why, for example, was there no charge against Justice Bradley, who, based on the police investigation, which I've read, seems to have charged across the room at Prosser and was perhaps waving fists in his face, causing him to make a reflexive, defensive move that touched her. And she seems to have accused him of putting her in a "chokehold," which none of testimony (from 6 of the 7 justices) supports.

Why take what Prosser did out of context? That alone raises an inference of bias on the Commission.

The commission's executive director, James Alexander, declined to say which members participated in the decision or decisions to seek discipline against Prosser or how they voted....

Under the law, confidentiality can only be waived in writing by the judge facing discipline. Prosser said he will confer with his attorneys, Keven Reak and Gregg Gunta of Wauwatosa, to decide whether to ask the commission to open up its records. He said he testified before seven of the nine commission members on Sept. 23 for three hours, and for another hour in front of six members on Dec. 16, but was not present for any votes.

"The truth of the matter was, they were not interested in what my defense was or any provocation for my action," Prosser said. "They were only interested in my conduct."

Prosser must waive confidentiality first. He's going public with his assertion that the Commission was biased, but he still needs to talk to lawyers about whether to waive confidentiality. If he does, I assume the Commission will have to release the records to rebut the inference of bias. If, on the other hand, after making the accusation of bias, Prosser fails to waive confidentiality, I think Prosser should resign and let Scott Walker appoint a replacement.

Also at the first link: Prosser takes the position that all of the Supreme Court Justices should recuse themselves in his case — including Patrick Crooks, the one Justice who was not a participant/eyewitness. I don't see why Crooks must recuse, though I do see that it would be odd to let one justice decide alone. I would be much more distressed about his possible bias — he votes with the liberal justices — if we did not have the security of knowing that if Prosser is driven out, a conservative governor will name the new justice.

ADDED: It occurs to me that, if "confidentiality can only be waived in writing by the judge facing discipline," a waiver might also be needed from Justice Bradley. Didn't she face discipline too? If not, why not?