postcrescent.com Staff and wire reports
(MADISON) Wisconsin Supreme Court Justice David Prosser has recused himself from the two cases on the docket this session that involve the Catholic Church and allegations of sexual abuse of minors.
The quiet withdrawals this month followed reports that he declined to prosecute a priest accused of child molestation while serving as district attorney in Outagamie County in 1977-78.
The priest was convicted of the charges almost 30 years later.
Prosser, 65, formerly lived in Appleton. A Republican, he represented the area in the state Assembly from 1978-96. He was the Assembly minority leader from 1989-94 and Assembly speaker from 1995-96.
He was appointed to the Supreme Court in 1998 and elected to a 10-year term in 2001.
Prosser was on the bench to hear the first case scheduled for oral arguments Thursday but his seat was empty when justices gathered to hear the second case, Hornback v. Archdiocese of Milwaukee and Diocese of Madison.
Chief Justice Shirley Abrahamson told the court that Prosser would not be participating in the case. She made a similar announcement on March 4 regarding the case of State v. MacArthur. Lawyers for Bruce Mac-Arthur 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.
The Associated Press was unable to contact Prosser for comment on Saturday. He did not respond to requests for comment by The Capital Times of Madison following his absence from the bench last week.
A court spokesman confirmed Thursday that Prosser was recusing himself from both cases. The justice had no further comment.
Documents released in February showed that Prosser told a mother in 1979 when he was Outagamie County district attorney that he did not want to prosecute a priest accused of abusing her sons because “it would be too hard on the boys.”
In that case, the priest, John Patrick Feeney, who is now 81, eventually was convicted in 2004 on three counts of sexual assault of a minor and one count of attempted sexual assault of a minor.
Two brothers, Todd and Troy Merryfield of Freedom, testified to convict the defrocked priest.
A special report in The Post-Crescent, published in May 2001, detailed how Feeney was moved 14 times in 14 years during his stint with the Green Bay Diocese. In all, he served at 18 parishes in the diocese between his June 1952 ordination and before moving to California in 1983.
After the Merryfields came forward, word about Prosser’s refusal to prosecute Feeney began to spread.
The advocacy group Survivors Network for Those Abused by Priests gathered evidence of his connection to the Feeney case or potential conflicts of interest in other cases.
Peter Isely, Midwest coordinator of SNAP, said Thursday that Prosser’s recusal in these two latest cases involving the Catholic Church and sexual abuse of children “raises a lot of questions.”
Isely said he wondered at the decision now because Prosser ruled on two previous cases.
In 2005, Prosser wrote a majority decision that barred a lawsuit against the Archdiocese of Milwaukee because the statute 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.
He 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 case heard Thursday involved Gary Kazmarek, a lay teacher who worked for 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 other alleged 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.