Wisconsin Judicial Commission v. Prosser, 817 N.W.2d 875

On June 25, 2012, Justice Prosser moved to disqualify the author, asserting the author is a material witness to events on February 10, 2010 and June 13, 2011 referenced in a complaint.
Each Supreme Court justice faced a similar fundamental issue of whether a sitting justice who is a material witness may sit in judgment on related matters.
The author concludes that, under state law, a judge who is a material witness must disqualify or recuse from the proceeding.
Wisconsin statutes and the Code of Judicial Conduct require disqualification when a judge is a party or a material witness and when the judge has personal knowledge of disputed facts.
The author emphasizes fairness and the right to an impartial decision-maker, noting personal perceptions as witnesses make impartial judging impossible.
The author rejects the Rule of Necessity as inappropriate here, since applying it would force some disqualified mediators to participate.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a justice who is a material witness may sit as final decision-maker	Prosser contends disqualification is required.	Court argues disqualification under Wis. Stat. § 757.19 and SCR 60.04(4)(e).	Disqualification required
Whether Rule of Necessity applies when all are potentially disqualified	Prosser argues it would be absurd to have all sit.	Court objects to extending the rule to force participation by all.	Rule of Necessity should not apply
Whether the integrity of the tribunal requires recusal for fairness	Prosser asserts personal knowledge and witness status undermine impartiality.	Court emphasizes constitutional fairness and avoidance of prejudice.	Recusal is required for fairness

State v. Henley, 338 Wis. 2d 610 (2011 WI 67) (recusal is individual responsibility of the justice sought to be disqualified)
Ignacio v. Judges of the U.S. Court of Appeals for the Ninth Circuit, 453 F.3d 1160 (9th Cir. 2006) (Rule of Necessity discussed)
In re Disciplinary Proceedings Against Ziegler, 309 Wis. 2d 253 (2008 WI 47) (recusal mandatory even in minimal proceedings)
In re Judicial Disciplinary Proceedings Against Gobleman, 325 Wis. 2d 579 (2010 WI 61) (supreme court may depart from panel recommendations)
Heritage Farms, Inc. v. Markel Insurance Co. (Heritage Farms I), 316 Wis. 2d 47 (2009 WI 27) (context of recusal and disqualification discussed in related cases)
Heritage Farms, Inc. v. Markel Insurance Co. (Heritage Farms II), 339 Wis. 2d 125 (2012 WI 26) (continued discussion of disqualification in related dispute)