Approaching Abuse Cases, Capital Times, March 17, 2008

Approaching Abuse Cases

Capital Times
March 17, 2008

http://www.madison.com/tct/opinion/277415

State Supreme Court Justice David Prosser needed to recuse himself from two cases involving the Catholic Church and allegations of sexual abuse of minors.

At issue was the fact that, when serving as Outagamie County district attorney in the 1970s, Prosser declined to prosecute a priest accused of child molestation.

State Supreme Court Justice David Prosser needed to recuse himself from two cases involving the Catholic Church and allegations of sexual abuse of minors.

Almost three decades later, the priest who was given a pass by Prosser was convicted on the charges.

After reports in The Capital Times detailed his decision not to prosecute the priest in the 1970s and raised questions about whether it was appropriate for him to decide similar cases, Prosser quietly sat out oral arguments in two cases involving church-related molestation cases that are currently before the court: Hornback v. Archdiocese of Milwaukee, and Diocese of Madison and State of Wisconsin v. MacArthur.

A court spokesman has confirmed that Prosser is recusing himself from the MacArthur and Hornback cases, but gave no precise explanation for why the justice had withdrawn from the deliberations.

It is disappointing that Prosser has failed to clarify the standard that he is now applying. But, in truth, we all know

why

the justice has recused himself. He's got a troubling track record on these issues that would call into doubt the legitimacy of any verdict he might render.

At issue now is a deeper question: Did Prosser act inappropriately when he joined deliberations on previous cases involving the alleged abuse of children by priests?

Peter Isely, who serves as Midwest coordinator for the advocacy group Survivors Network for Those Abused by Priests, asks why Prosser is recusing himself after "(the justice) ruled on two previous cases."

Isely's got a point.

Prosser penned a 2005 court ruling that blocked a lawsuit against the Archdiocese of Milwaukee because the justices decided that the statue of limitations had expired. That ruling was particularly troubling, as the court has erected the nation's steepest barrier to lawsuits against the Catholic Church by adult victims of childhood sexual assault by priests.

Of less consequence, but still significant, is the fact that Prosser also joined with fellow justices in supporting a 2007 decision that opened the door to lawsuits against churches that stand accused of fraudulently covering up past sex abuse by clergymen.

Prosser's recusal from the current cases opens the way for reconsideration of the two previous cases in which he chose to participate.

Prosser is an able jurist, for whom this newspaper has a good measure of regard. His choices in this matter do not begin to resemble the atrocious and consistently unethical behavior of Justice Annette Ziegler.

But a court that has been so embarrassed by Ziegler must strive to set high standards. And a good way to begin doing so is by acknowledging that it was wrong for Prosser to participate in those previous cases and that -- should the parties involved so choose -- they will need to be reconsidered.