My op-ed on the ethics allegations against Mike Gableman in last Thursday's Journal Sentinel is here.
I want to follow up because the editorial board and I missed each other. I did not know that what I wrote was going to be published as "Another View" or that the topic was recusal and not the ethics issue. All I knew is that they wanted to publish an edited version of a post on Shark and Shepherd. They offered to do the editing but also gave me the opportunity to do it myself. I chose the latter. Because of the difficulty in covering this stuff in 500-600 words, I decided to focus on the ethics question.
This isn't a criticism of the paper. This just came up at the last minute and I probably should have asked what the context was going to be. But since I didn't, I want to say a few things in response to what the paper wrote.
First, it is not true that all nine of the cases in which Gableman participated and MBF had a client came before the Court during the period in which MBF represented the Justice. Some, including the Act 10, arose after the representation had ended.
Second, it continues to astonish me that neither the media nor commentators acknowledge the fact that this type of contingency arrangement is not uncommon. In fact, it is, from time to time, extended to public officials. For example, John Siefert, a Democrat and circuit court judge, appears to have had such an arrangement in an action challenging certain restrictions in the judicial code on speech and campaign activities by sitting judges and judicial candidates. When he won, his lawyers (Jim Bopp and Mike Dean) asked the court to award fees.
I recall representing American Family Insurance in a redlining case in which one of the plaintiffs was then alderman Marvin Pratt. The case was both a civil rights suit and a class action - two areas where contingency arrangements are ubiquitous. I don't know, but I would be surprised if Alderman Pratt's relationship with his lawyers was not similar. I do know that, when the case was settled, there was a negotiated fee award.
Third, in response to this, none of Gableman's critics engage the issue. They continually refer to the somewhat - but not completely - differing nature of a contingency in a personal injury case (which no one seems to thing an injured judge could not enter into) or just say "well, he didn't pay." But, as I and others have pointed out in painstaking detail, that doesn't answer the question of whether the relationship was a gift.
Because lawyers enter into these on a regular basis, it is reasonable to assume that the opportunity to recover fees is adequate consideration for the provision of representation. If that's so, then the arrangement is not a gift by the very terms of the Judicial Code.
While a lawyer who wants fees under sec. 757.99 may have had to get them approved by the legislature, this is also not unheard of . I've represented clients on claims that required such approval and they are considered by the legislature on a regular basis. It's another hoop to jump through, but it hardly precludes recovery in an appropriate case.
All of this, it seems to me bears on the issue of recusal. In a (relatively) recent piece in the Wake Forest Law Review, I argued that recusal in a court like the Wisconsin Supreme Court is different. That court is a law developing court of last resort that acts collegially, i.e., the justices hear cases and vote on the outcome. When a justice steps down, he or she is not replaced.
These facts suggest that aggressive recusal standards are inappropriate. While there are cases in which recusal is proper, it is not correct that a Supreme Court justice should "err" on the side of recusal or step aside whenever some one might think that his or her judgment might be affected.
Having published this view long before this controversy arose, I am fairly confident that it was not developed in order to defend Justice Gableman and I have argued for its applicability to more liberal members of the Court who sat on cases in which significant campaign contributors had an interest.
And keeping that view in mind, I am fairly confident in arguing that Justice Gableman was not required to recuse himself in the Ozanne case just as those justices whose campaigns had been handsomely supported by public employee unions or who stood to lose significant income if Act 10 were to become law (this would be all of them) were not so required.
His relationship with MBF had ended and neither party had any further obligation to the other.
My view is bolstered by the fact that a contrary view would make it very difficult for any sitting justice to obtain counsel. If there were a duty of recusal that "lingered" even after a representation had ended, few good lawyers would want to harm their practice in that way.