Former Supreme Court justice declines to name others on panel considering Protasiewicz impeachment

Attorney for Speaker Robin Vos claims there is 'no secret panel'

Wisconsin Supreme Court Justice David Prosser
Wisconsin Supreme Court Justice David Prosser posing a question during a hearing at the state Capitol in Madison, Wis., June 6, 2011. Former Justice Prosser, tapped to investigate impeaching newly elected Justice Janet Protasiewicz for taking Democratic Party money, accepted donations from the state Republican Party when he was on the court. John Hart/Wisconsin State Journal via AP

The makeup of a panel of former Supreme Court justices advising Republican leadership on a possible impeachment of Justice Janet Protasiewicz is no less opaque after a court hearing Friday.

The liberal watchdog group American Oversight is asking a Dane County judge to find that what it’s calling a “secret panel” advising Republican Assembly Speaker Robin Vos must follow requirements of open meeting law.

“We do not have secret panels in Wisconsin, the work of government isn’t secret, and I don’t think this is a very heavy lift, what we are asking,” American Oversight attorney Christa Westerberg said.

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Vos announced on Sept. 13 the creation of what he called a panel to advise him on the criteria for impeachment. “I am asking a panel of former members of the Wisconsin Supreme Court to review and advise what criteria are for impeachment,” Vos said during an interview with WISN-AM.

He told the Associated Press the panel would consist of three former Wisconsin Supreme Court justices, saying he would not name them until after their work was done. He said then that he expected their work to be complete in the “next few weeks.”

Republicans have discussed impeaching Protasiewicz if she does not recuse herself from cases before the court seeking to overturn GOP-drawn voting maps. They argue she has predetermined her ruling because of statements she made during her successful campaign.

One of the members of the group, former conservative Justice David Prosser Jr., appeared at Friday’s hearing. He argued the three-member panel described by Vos in interviews would not be subject to the state open meetings law. Instead, he compared it to legislators consulting with experts.

Prosser called the litigation “frivolous,” and said the group met once for lunch. He said they would not be producing a formal report.

At Friday’s hearing, Dane County District Attorney Ismael Ozanne said Vos and Prosser have not responded to requests for information from his office as they investigate the open meetings violation claim. He asked whether Prosser would identify the other former justices involved.

“Justice Prosser, would you like to answer District Attorney Ozanne’s question?” Circuit Court Judge Frank Remington asked.

“Uh, no,” Prosser said.

Other than Prosser, there are eight former justices who are still living. Janine Geske, who was appointed by Republican Governor Tommy Thompson, and Louis Butler, appointed by Democratic Governor Jim Doyle, wrote in a joint newspaper column that they were “not invited” to join the panel. Other living former justices include Republican appointees Dan Kelly, Diane Sykes, Jon P. Wilcox and Louis J. Ceci, as well as conservative Patience Roggensack, who was elected to the court. Vos has said former conservative justice Michael Gableman is not on the panel.

Remington asked if the group was going to meet again in the near future.

“I will say this. That the people that I had lunch with had the same view of what we might say and that we would do it individually,” Prosser said.

Attorney Matthew Fernholz, who represented Vos at the hearing, also declined to name the other justices involved.

“There is no secret panel,” Fernholz said.

Westerberg argued that the group is akin to committees or panels a school district or municipality forms to advise on issues. Those groups, she said, are subject to the open meeting law. Consideration of the impeachment of a Supreme Court justice, she said, is of critical importance to the public.

“It just boggles my mind that all of this could be done in secret to the point that we don’t even know who is advising the Speaker on these issues,” Westerberg said.

The 20-day period during which Ozanne’s office is investigating the open meetings complaint ends on Oct. 9. Remington scheduled another court hearing for Oct. 19.