Recusal and the individual Justice.

The Wisconsin Supreme Court is in the news again, splitting evenly in its review of an order by Justice Michael Gableman declining to recuse himself in a case in which a law firm (but not the individual lawyers) which represented him in a disciplinary proceeding represented one of the parties. He also declined to recuse in another case in which his individual lawyer was involved but which arose well after the representation concluded.
In both cases, the argument for recusal was based, at least in part, on the fact that the firm provided its services on a contingency basis. It did not charge Justice Gableman and could be paid only if it prevailed and was awarded fees pursuant to a seldom used fee shifting statute. It is likely that the fee award would have required legislative approval.

So what did the Court split over? I think its fair to say that the division was over one serious issue - albeit one that was resolved prior to this case - and one that is not as serious.

Let's start with the latter first. In cases such as this, an individual Justice must  decide whether he  believes that he can decide the case impartially. Everyone agrees that the full Court can review that determination for the limited purpose of determining that it happened, i.e., that the Justice involved  considered the issues and decided he could proceed. In this review, however, the full Court does not "second guess" the Justice, i.e., it does not decide whether or not his decision was right, only that it was made.


Three Justices decided that Justice Gableman did so. The other three said, essentially, that they could not tell. With all due respect, their argument isn't very persuasive. It rests on the following.

The motion to recuse Justice Gableman was based, as I wrote, on the nature of his fee arrangement with the firm representing him. In his order denying the motion to recuse, Justice Gableman, in reciting the basis for the motion,  characterizes it as an predicated upon the fact that "Michael Best &
Friedrich firm was involved in the cases and had previously represented me.”

Chief Justice Abrahamson, writing for Justices Bradley and Crooks, thinks this a fatal flaw because the actual basis for the motion was that Justice Gableman " received allegedly free legal
services from Michael Best." Thus, according to this group, Justice Gableman "deliberately or accidentally" mischaracterized the basis for the motion and may not have considered the actual arguments made by the party seeking recusal.

One might say that "free legal services' is - deliberately or accidentally - not a complete and accurate description of the free arrangement at issue. But I am sure  that no omission was intended. I am also confident that Justice Gableman understood the nature of the arguments being made for his recusal and, in fact, made clear that he based his decision on "the circumstances of the case ... and the submissions of the parties."

To be sure, he did not expressly address the particulars of the fee arrangement, but no one thinks he was obligated to do so. In fact, the Chief Justice herself writes that "somewhat ironically, Justice Gableman’s Order might have passed muster had he referred to Adams’s allegations generically as “the allegations stated by the petitioner.”

In other words, he would have been OK had he not said anything about why he was asked to recuse himself and simply said that he had considered the request and denied it.

And that's just what he did.

To my eye, reading Justice Gableman's broad and generic description of the basis for the party's recusal motion as reflecting - or even suggesting - a failure to understand them or to consider the party's arguments is cutting the loaf too thin. I think he got the point. He just didn't think he ought to recuse.

Should the Court have decided whether he was he right? This gets us to the second - and more serious, albeit settled - issue. A majority of our state Supreme Court is committed to the position taken by the United States Supreme Court. They do not believe that a majority of the Court has the power to order a brother or sister Justice to recuse. On this view, it does not matter whether he was right - only that he made a subjective determination of whether he should or should not proceed.

There are strong arguments in favor of such a position. I think it is right about 99%of the time. I may, however, disagree with the majority when there is an argument that the failure to recuse amounts to a violation of litigants' due process rights. But that is, as the United States Supreme Court recently made clear, a very rare circumstance - one that was certainly not involved here.

Cross posted at Purple Wisconsin