SHARE David Prosser Ann Walsh Bradley

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Madison - Neither Supreme Court Justice David Prosser nor fellow Justice Ann Walsh Bradley will face criminal charges for a June altercation that broke out as the judges were considering Gov. Scott Walker's union bargaining law, a special prosecutor has determined.

But the incident still could have far-reaching effects - possibly even opening the doors of the court to the public as justices debate how to decide cases.

Breaking her silence about the altercation in a written statement Thursday, Chief Justice Shirley Abrahamson said she would propose "the presumption will be that court conferences are open to the public," as a way to lead the fractious court back toward civility.

Abrahamson was not available for an interview, and a court spokeswoman said she could not confirm whether the chief justice was referring to deliberations on individual cases. But meetings on the court's rules and finances are usually open to the public already, unlike the justices' deliberations.

No other appellate court in the nation opens its deliberations to public scrutiny, former state Supreme Court Justice Janine Geske said. If Wisconsin's high court did so, "that does create huge problems in decision-making," as citizens see for the first time how the justices' reasoning and even rulings can shift in the months between the time a case is argued and time a decision is handed down, warned Geske, a Marquette University law professor.

In an interview, Sauk County District Attorney Patricia Barrett steered clear of specifics about her reasons not to issue charges.

"The totality of the facts and the circumstances and all of the evidence that I reviewed did not support my filing criminal charges," Barrett said Thursday.

She did note, however, that varying accounts were given by witnesses - a group that would have included most of the justices and colleagues - and said that was common in cases with multiple witnesses. Barrett offered no commentary on the merits of the accusations against the two judges or on whether their conduct was fitting for justices in the state's highest court.

"It's not my job to determine what's becoming," Barrett said.

Differing versions

Bradley has said Prosser put her in a "chokehold" during a June argument over a case in her chambers. Others have said Bradley came at Prosser with fists raised and he put up his hands to block her or push her back.

The incident occurred June 13, a day before the deeply divided court issued a 4-3 ruling upholding Republican Gov. Scott Walker's legislation curtailing collective bargaining for public employees.

In a written statement, Prosser praised the prosecutor and slammed Bradley.

"Justice Ann Walsh Bradley made the decision to sensationalize an incident that occurred at the Supreme Court . . . ," Prosser said. "I was confident the truth would come out and it did. I am gratified that the prosecutor found these scurrilous charges were without merit.

"I have always maintained that once the facts of this incident were examined I would be cleared. I look forward to the details becoming public record."

In her own statement, Bradley said the case "is and remains an issue of workplace safety."

"My focus from the outset has not been one of criminal prosecution, but rather addressing workplace safety. I contacted law enforcement the very night the incident happened but did not request criminal prosecution. Rather I sought law enforcement's assistance to try to have the entire court address informally this workplace safety issue that has progressed over the years," Bradley said. "To that end, chief of (Capitol Police Charles) Tubbs promptly met with the entire court, but the efforts to address workplace safety concerns were rebuffed. Law enforcement then referred the matter for a formal investigation and I cooperated fully with the investigation."

Civility promised

Abrahamson's statement called for Barrett's decision to be respected, vowing to restore civility on the court. Justices have been deeply split between a three-member liberal minority, led by Abrahamson and including Bradley, and the four-member conservative majority that includes Prosser.

Prosser has accused Abrahamson and Bradley of contributing to incivility on the court by baiting him and other conservative justices.

"Media sources have reported that the issues presented by these events are of longer standing and larger than the question of a criminal violation," Abrahamson wrote. "The Wisconsin Supreme Court has a long history and a reputation for excellence, a reputation that all justices must uphold. As chief justice, I remain committed - as ever - that the court be maintained as a place where disputes are resolved, not created. Each justice owes the others and the people of the state civility and personal control in our language, demeanor, and temperament in the conference room and on and off the bench."

Open conferences would help advance those goals, Abrahamson said.

But Geske said she doubted a court majority would back the move. Under current procedures, she said, justices discuss a case, take a preliminary vote and start writing opinions. In the process, however, some justices can change their rationale for a decision or even switch sides as they research a case and read each other's drafts of majority and dissenting opinions, she said.

Opening that process to the public could lead to more outside pressure on justices seen as swing votes, while raising more questions about rulings in the public's mind, Geske said.

Both Geske and former Court of Appeals Judge Neal Nettesheim agreed the court needs to restore civility among its members. Nettesheim said the U.S. Supreme Court is also sharply divided along ideological lines, but it doesn't break down into public sniping and name-calling.

Wisconsin's high court "really was considered one of the most respected appellate courts in the United States, and all that has been lost, and that's a real tragedy," Nettesheim said. He urged justices to "put aside their personal agreements and disagreements" to rebuild respect.

The collective bargaining case leading to the incident began when Dane County District Attorney Ismael Ozanne brought a lawsuit claiming a legislative committee violated the state's open meetings law in March in forwarding the legislation to the state Senate. Ozanne sought to invalidate the law, and implementing it was delayed for months while the case was pending.

The high court ultimately ruled key parts of the meetings law do not apply to lawmakers.

Investigation conducted

Once news of the altercation between Prosser and Bradley surfaced, the Dane County Sheriff's Department launched an investigation. The office gave its findings to Ozanne this month but made no recommendations on whether anyone should be charged.

Ozanne, a Democrat, then asked Dane County Circuit Chief Judge William Foust to name a special prosecutor because Ozanne had brought the case the two justices were arguing about when the incident occurred.

Earlier this month, Foust selected Barrett to take the case. Barrett sent the fax to Foust Thursday saying she wouldn't file charges.

In the fax, Barrett said she had reviewed 70 pages of transcribed reports along with more attachments, photos and an audiotape of an interview with Prosser, who was the only subject with an interview that was taped by Dane County detectives.

Barrett declined to say whether she had rejected charges because no criminal conduct had occurred or because no crime could be proven to a jury. She would say only that a case must meet both those standards before a prosecutor could bring charges.

"You can review (the investigation records). You can decide whether I made the right decision," Barrett said.

Barrett said in her interview she could not release the records and referred a reporter to the Dane County Sheriff's Department.

A spokeswoman, Elise Schaffer, said that the department would release the records on Friday morning. Schaffer said she couldn't say why only the interview with Prosser was taped.

Geske said she was disappointed that Barrett did not elaborate on her legal reasoning, leaving a cloud of uncertainty over the incident.

"Part of the role of elected officials, be they judges or prosecutors, is not only to make the tough decisions but to explain how they got there," Geske said.

Barrett was elected as a Republican but said earlier this month that she has long advocated making district attorneys' positions nonpartisan.

"Politics should play no role in what we do," she said.

Barrett, 62, has also said she plans on retiring when her term is up in fall 2012.

The Sheriff's Department has also provided its reports to the Wisconsin Judicial Commission, which oversees the state's ethics code for judges and is separately investigating the case. Jim Alexander, director of the commission, said Thursday that its investigation is ongoing but that he couldn't comment further or provide a timeline for when it would be done.

If the commission found any wrongdoing, it would have to submit its findings to the Supreme Court to consider. Four of the other five justices were nearby when the incident occurred in Bradley's suite of offices in the Capitol, and the four all apparently saw or heard what happened.

Jason Stein reported from Madison and Larry Sandler reported from Milwaukee.