State Supreme Court Justice David Prosser recused himself from the two cases on the docket this session involving the Catholic Church and allegations of sexual abuse of minors. His quiet withdrawal followed media reports that while District Attorney in Outagamie County in the 1970s, he declined to prosecute a priest accused of child molestation. The priest was convicted of the charges almost 30 years later.
Prosser was on the bench to hear the first case scheduled for oral arguments before the court Thursday. When justices assembled to hear the second case, Hornback v. Archdiocese of Milwaukee and Diocese of Madison, Prosser's high-backed leather chair in the court's ornate chamber was empty.
"Justice Prosser will not be participating in this case," Chief Justice Shirley Abrahamson told court spectators.
Abrahamson made a similar announcement on March 4, when Prosser's seat sat empty while the court heard arguments in State v. MacArthur, where lawyers for Bruce MacArthur argued that the statute of limitations had expired when the former priest was charged in 2006 for sexual misconduct with children in the late 1960s and early 1970s.
Prosser did not respond to requests for comment by The Capital Times following his absence from the bench last week. A court spokesman confirmed Thursday that Prosser was recusing himself from the MacArthur and Hornback cases. The justice had no further comment.
Questions about Prosser's connection to clergy sex abuse cases came to light early this year through the work of the advocacy group Survivors Network for Those Abused by Priests. After two brothers, Todd and Troy Merryfield, testified to convict defrocked priest John Patrick Feeney in Outagamie County Circuit Court in 2004 of molesting them in 1978, word about Prosser's refusal to prosecute Feeney at that time began to spread.
The Capital Times reported on the possible conflict of interest on Feb. 4, when Prosser declined to comment on the evidence gathered by SNAP of his connection to the Feeney case or potential conflicts of interest in participating in priest sexual abuse cases before the court.
Peter Isely, Midwest coordinator of SNAP, said outside the high court's chamber Thursday that Prosser's recusal in these two latest cases involving the Catholic Church and sexual abuse of children "raises a lot of questions."
Why recuse himself now? Isely wondered. "He ruled on two previous cases."
In 2005 Prosser wrote a majority decision that barred a lawsuit against the Archdiocese of Milwaukee because the statue of limitations had expired. But he joined with the majority last year in a case that opened the door to lawsuits against churches by means of alleging fraud in covering up past sex abuse by clergy members.
Appointed to the Supreme Court in 1998 and elected to a 10-year term in 2001, Prosser joined the court after a series of landmark decisions that erected a barrier to lawsuits against the Catholic Church by adult victims of childhood sexual assault by clergy. Plaintiffs face steeper obstacles to such suits in Wisconsin than in any other state.
The Hornback case heard by the court Thursday involved Gary Kazmarek, a lay teacher who worked for both the Milwaukee Archdiocese and Madison Diocese before teaching in Catholic schools in Kentucky. He returned to teach in public schools in Madison, where he was convicted in 1983 of sexually molesting a boy at Cherokee Middle School.
Kenneth Hornback and Kazmarek's other Kentucky victims were seeking to revive a lawsuit that had been dismissed by the Milwaukee County Circuit Court. Issues before the court include whether employers have a duty to warn future, prospective employers about a worker's potential to harm anyone.
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