I am on deadline for a column in the Journal Sentinel so I can only make a few preliminary comments on the Wisconsin Supreme Court's actions in Wisconsin Judicial Commission v. Gableman. One group of Justices (Justices Prosser, Roggensack and Ziegler) would have accepted the recommendation of the three judge panel and dismiss the complaint. Another group (Chief Justice Abrahamson and Justices Bradley and Crooks)would have rejected it and found that Justice Gableman violated SCR 60.06(3)(c).
There is much to be said about that (and I will later), but it gets even more interesting. Normally, when the Court deadlocks, the decision below stands. But the opinion of the three judge panel is a recommendation. What happens when it is not accepted.
The Abrahamson group wants to treat review of the recommendation as review of a motion for summary judgement, i.e., a request that the Court decide the matter without trial because there are no material issues of fact. In proceeding before the three judge panel, both the Commission and Justice Gableman agreed that this was the proper way to proceed, i.e., they agreed that there was nothing to be tried because no facts were disputed. The result was a recommendation that the complaint be dismissed.
The Abrahamson group now argues that failure to accept the recommendation is tantamount to a denial of summary judgment. When summary judgment is denied, the matter normally proceeds to trial. Thus, they want to remand the matter for a jury trial.
But there are problems with that. First, the statute governing these proceedings seems to require that a jury trial be requested before the complaint is filed. That did not happen. If there is a trial, it would have to be before the three judge panel.
But, in the view of the three judge panel, there are no issues to be tried. They concluded that the complaint, either as a matter of statutory construction (for two of the judges) or as a matter of constitutional law (for Judge Fine), must be dismissed as a matter of law. Neither the Judicial Commission nor Justice Gableman believes that there any new facts that bear on the matter. If the thing that happens here is that the proceeding below continues before the three judge panel, it would presumably reach the same decision.
In saying that the Wisconsin Judicial Commission "needs" to request a jury trial, the Abrahamson group essentially wants the Commission to start all over again and do what it did not do the first time around.It is telling the Commission, "look, you lost before the three judge panel. Now that you know that, try a jury." But the rules don't seem to permit that.
Beyond that, as a practical matter, replacing the three judge panel with a jury will do not break the impasse. No member of the Court believes that the there are any material facts in dispute, so there would seem to be no reason for a jury verdict to change any one's mind. It is quite clear that three members of the Court (those in the Prosser group) believe that the complaint should be dismissed as a matter of law. A jury verdict in the Commission's favor won't change that. Conversely, there are three members of the Court who believe, as a matter of law, that the Mitchell ad violates SCR 60.06(3)(c). A jury verdict in Justice Gableman's favor won't change that.
The only way that the impasse might be broken is if the composition of the Court changes. Is it appropriate to keep the matter alive in the hope that this might happen? Is there any point in conducting a jury trial that might prolong the controversy but has little or no chance to resolve it?
More to come.
Cross posted at Marquette University Law School Faculty Blog.