Wisconsin Judicial Commission v. Prosser, 817 N.W.2d 830

Justice Prosser moved for recusal from Wisconsin Supreme Court disciplinary proceedings; the court initially found the motion premature but decided to issue a ruling.
Rule of Necessity and the court's duty to sit are cited as requiring participation despite potential disqualifications.
The complaint against Prosser involves two incidents: (i) alleged physical contact with Justice Bradley in her chambers; (ii) a prior remark to Chief Justice Abrahamson after a closed conference.
Prosser sought recusal of multiple justices; Roggensack recused herself, potentially affecting quorum under Wis. Const. art. VII, § 4(1).
The court explains it is the only tribunal authorized to determine discipline and applies the Rule of Necessity to proceed.
The court denies Prosser’s recusal motion, finding no disqualification under Wis. Stat. § 757.19(2)(b) and (g) or SCR 60.04(4), and that it can remain impartial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Rule of Necessity requires the court to hear the matter despite potential disqualifications	Prosser argues disqualification bars participation	Court must sit to avoid depriving forum of dispute	Rule requires participation; court to proceed
Whether the chief judge’s recusal would leave the court without a quorum	Recusal could strip capacity to adjudicate	Quorum could be maintained by remaining justices	No recusal; quorum preserved so matter may proceed
Whether the presiding and other justices’ participation implicates disqualification under Wis. Stat. § 757.19(2)(b) and (g) or SCR 60.04(4)	Potential impartiality concerns	Must assess both subjective and objective standards; no disqualification	Court can act impartially and remain on the case

United States v. Will, 449 U.S. 200 (1981) (Rule of Necessity when all judges would be disqualified)
Pilla v. Am. Bar Ass'n, 542 F.2d 56 (8th Cir. 1976) (necessity overrides disqualification in some contexts)
Laird v. Tatum, 409 U.S. 824 (1972) (equal duty to sit when not disqualified; imparts impartial adjudication)
State ex rel. Cook v. Houser, 122 Wis. 534 (1904) (historic use of Rule of Necessity in Wisconsin)
State ex rel. Wickham v. Nygaard, 159 Wis. 396 (1915) (Wisconsin precedent applying necessity principles)
Wis. Retired Teachers Ass'n, Inc. v. Emp. Trust Funds Bd., 207 Wis. 2d 1 (1997) (integration of necessity in adjudicative decisions)
Ignacio v. Judges of U.S. Court of Appeals for Ninth Circuit, 453 F.3d 1160 (9th Cir. 2006) (necessity doctrine in federal appellate context)
Brinkley v. Hassig, 83 F.2d 351 (10th Cir. 1936) (necessity to prevent denying the only tribunal access to justice)
Milburn v. State, 50 Wis. 2d 53 (1971) (presumption of impartiality in adjudication)
Withrow v. Larkin, 421 U.S. 35 (1975) (presumption of honesty and integrity in adjudicators)