Thursday, March 25, 2010

More Developments at the Wisconsin Supreme Court

I have to say that I was surprised by Justice Gableman's decision to file a motion asking Justice Pat Crooks to recuse himself from his pending disciplinary case. I understand the rationale. Justice Crooks did make remarks pertaining to some of the issues in the disciplinary proceeding in the course of his writings in Allen v. State. Because he had not had the benefit of full briefing and oral argument, these comments might raise concern that he had prejudged the issue. His reference to the comments of Justice Gableman's attorney and Justice Gableman's failure to repudiate them might be seen as importing an extraneous matter into the disciplinary proceeding. What Jim Bopp said in the course of that proceeding and whether or not Justice Gableman denounces his comments has nothing to do with the issues in that proceeding which are limited to whether the Reuben Mitchell ad violated SCR 60.06(3)(c).

It would, I think, have been more judicious for Justice Crooks to refrain from - or temper - these comments. Justice Crooks declined to reach the merits of the recusal motion, so one might reasonably ask why it was necessary to comment at all on the merits - particularly given the pending disciplinary matter.

But do they reflect actual bias - or create an appearance of bias - such that he must recuse himself? The comments were not extensive and to identify a matter as "troubling" is not necessarily to prejudge it. Attorney Bopp's comments are irrelevant to the disciplinary proceeding, but one could argue that they were relevant on the matter of recusal. Although I do not feel that the recusal motions were particularly strong, the appearance of bias could stem from any number of sources. .

Some may perceive a bit of an atmospheric problem here. Justice Gableman is fighting off recusal motions in criminal cases and may be now be seen to be arguing for an aggressive recusal standard in asking Justice Crooks to step down. Of course, there is an answer to that. In Allen, the writings of Justices Roggensack, Prosser and Ziegler emphasized that recusal - at least constitutionally mandated recusal - must be based on bias for or against a particular party (save for bias based on an immutable category such as race). Justice Gableman is alleging that type of bias here. The Allen motion did not. As I argue in an upcoming paper, there is good reason to limit Caperton recusal to that more narrow form of bias.

Of course, given the outcome in Allen, this is likely to be Justice Crooks' decision without review by the full Court. Apart from the merits, it would seem to create real institutional problems if the three Justices who felt there was not power to recuse a peer Justice in Allen were to conclude that there is here and then order Justice Crooks' recusal. I don't see anyway that happens.

We can speculate about the strategic considerations behind the motion as well. Conventional wisdom is that you seek recusal only when you are pretty sure that the judge will step down or when you feel that you have little chance of getting him or her to vote with you. This is reflected in the advice of Ralph Waldo Emerson (“When you strike at a king, you must kill him”)or, if you prefer (and I do), The Wire's Omar White. ("Ayo. Bey. You come at the king, you best miss.")

Is this a gambit to avoid a deadlocked court? Deadlocked over what? The three judge panel recommended dismissal of the complaint against Justice Gableman but on different grounds. Two judges wanted to construe the canon narrowly to impose a mandatory prohibition only on literally false statements and would not extend it to meanings that are (however strongly) implied. Judge Fine did not read the rule in that way, concluding that the message communicated by the ad was false but expressed the view that a prohibition of false statements in political campaigns is unconstitutional. In his view, the only judges of campaign discourse are the voters. (It should be noted that the two judges who would construe the statute narrowly did so to avoid constitutional concerns.)

Resolution of these issues have ramifications beyond the question of discipline. Not only does 60.06(3)(c) prohibit false statements in judicial campaigns, but sec. 12.o5 of the statutes prohibits false statements "affecting an election" in general.

To make this even more interesting, any decision that construes the canon to apply to the Mitchell ad and finds that application to be constitutional raises a federal question. Could this matter ultimately wind up in the United States Supreme Court?

Only Justice Crooks knows what he will do. My strong suspicion is that he stays on the case although I am not sure that I would want to blame any of the justices who seized an opportunity to remove themselves from this.

Bonus: Commenting on the motion, former Justice William Bablitch says that the recusal motion is "not a good way to win friends and influence people," and that "[i]t exacerbates an already tenuous group of relationships."

I can't disagree, but there is a certain irony here. Justice Bablitch's support of a candidate challenging one of his colleagues, Chief Justice Shirley Abramhamson (support that was joined by three other members of the Court), probably made for a few frosty decision conferences as well. The fact of "tenuous relationships" on the Court is not new.

Cross posted at the Marquette University Law School Faculty Blog


Anonymous said...

Pope Benedict stopped the canonical trial of a priest accused of molesting 200 deaf boys in St Francis.
I hope the church isn't sued because it needs it's money
to get rid of samesex marriage

Anonymous said...

let me understand this; a former gay archbishop of milwaukee had the moral sense to not let a priest who molested 200 deaf boys yet the future pope thought otherwise

would a nurse who did such a thing die as a nurse
would a lawyer who did such a thing die as a lawyer
would a doctor who did such a thing die as a doctor

I was in the seminary during the seventies and there already were rumors about this case

Brett said...

Did we read the same Allen opinion? Justice Crooks did temper his words. He explained his basis to concur on the need for briefing and oral argument, since the defendant had brought to the forefront the issue of Bopp/Gableman's comments. How can that even raise an inference that Justice Crooks "prejudged" the matter? He was saying he needed more information before he could judge the matter.

The "troubling" comment is not injudicious in any way. This Gableman fellow, in "imperfect and shorthand ways," opted to crucify a segment of the bar because it was politically adventageous to do so. Justice Crooks was emphasizing that there may be something to review here and noted that the State Bar of Wisconsin's Board of Governor's unanimously condemned Bopp/Gableman's statement.

But here's the real irony: in their opinion in Allen, Justices Roggensack, Ziegler, and Prosser actually defended Gableman's silence on Bopp's comments on the grounds that the disciplinary action is still pending. Because they ventured into the foray, are they now "prejudiced" against the Judicial Commission?

Brett said...

And you better believe this is a "gambit to avoid a deadlocked court." With Justice Crooks off the panel, the court's previous deadlock of 3-3 in Allen on judicial recusal will become a 3-2 majority opinion. That's an equally important an issue right now as the decision of what to do about Gableman. See Justice Prosser's comments to the tea partiers for proof of that.

Rick Esenberg said...


He said more than that but, as my post indicates, it's hard to see them as creating a "potential for bias" in the Caperton sense.

Your comments about Allen are puzzling. Justice Crooks has not been asked to recuse himself from Allen, but from the Gableman disciplinary proceeding. Maybe that does result in a 3-2 Court, but not on the issues in Allen. Judicial recusal is not an issue in the disciplinary proceeding.

Brett said...

Justice Crooks didn't say more than that. If I knew how to hyperlink to his opinion, I would, but see paragraph 189: "Those statements dramatically misrepresent the role of attorneys in the criminal justice system and, as the most recent filing by Allen, dated December 11, 2009, indicates, the statements have drawn a response from the Wisconsin State Bar Board of Governors. The Board unanimously adopted, by a vote of 43-0, a public policy position originally proposed by the Criminal Law Section of the State Bar, composed of both prosecutors and defense counsel, as well as judges, that reiterates the necessity of "vigorous representation for all criminal defendants," in order to maintain the integrity of the justice system."

But otherwise, I think you're misunderstanding me. Allen deadlocked 3-3. In the ethics case, after Crooks denies Gableman's motion, the other 5 members of the court will decide whether it has the power to boot Justice Crooks off the case. The previous Allen 3-3 deadlock will become a 3-2 majority opinion in the ethics case. The new rule of law in this State will come out of the ethics case, and that rule of law will be decided without the benefits of briefs or argument. There's a prime example of conservative activism.

Rick Esenberg said...


You would be right if the three justices who found no power to recuse a peer Justice in Allen found such a power to recuse a peer Justice in Gableman.

Now, I can see an argument that the two cases are different. Gableman involves an allegation of bias against a particular party that was not present in Allen.

In fact, were I on the Court, I might have concluded that Caperton does mean that a state Supreme Court has the power to recuse a peer Justice but that the Allen motions did not state a case for doing so. (This is, more or less, what I argue in a forthcoming academic paper on the matter.)

So - if it were me - I might deny the Allen motion without commiting to any result in Gableman. But, although I can see arguments for reconciling the result in Allen (but perhaps not its language) with an order from the Court directing Justice Crooks to recuse himself*, I think that, were it to happen, it would create a real institutional problem. I don't think we'll see it.

* I am assuming, for these purposes, that one might conclude that Justice Crooks has a due process obligation to recuse himself. As my post on the matter suggests, this is unlikely.