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High court to hear dispute between judge, crime victims board

By: Erika Strebel, [email protected]//February 14, 2017//

High court to hear dispute between judge, crime victims board

By: Erika Strebel, [email protected]//February 14, 2017//

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Can a government agency that reviews crime-victim complaints sanction a judge over the timing of a sentencing in a sex assault case?

That’s one of the questions the Wisconsin Supreme Court is considering in a case that will be up for oral argument Friday.

The case, Gabler v. Crime Victims Rights Board, stems from a dispute between Eau Claire County Circuit Court Judge William Gabler and the board over Gabler’s decision to delay a sentencing in the criminal case of Leigh Beebe, who had been charged with sexually assaulting K.L. and K.H. in 2011.

The Crime Victims Rights Board is a five-member body that includes a district attorney, a local law enforcement representative, a county victim services provider and a two citizen members.

Beebe pleaded not guilty, and the counts involving two victims were tried separately, with those against K.L. tried first.

After a jury trial in January 2012, Beebe was found guilty of sexually assaulting K.L. During a scheduling conference afterward, Gabler scheduled a trial on the remaining charges for August 2012. The prosecutor requested that Beebe be sentenced for the crime against K.L. before he was tried on the charges against K.H.

Next on the hot seat

The Wisconsin Supreme Court will also hear oral arguments in two other cases on Friday in the Supreme Court Hearing Room in the state Capitol:

State v. Keimonte Wilson, which will be argued at 9:45 a.m., involves whether a witness in a criminal case was properly served and whether Wilson’s trial counsel was ineffective for either failing to argue that a key witness had been properly subpoenaed or for failing to properly subpoena that witness. At issue is a state statute that applies to criminal cases and provides only that a subpoena can be served by “leaving such a copy at a witness’s abode.”

State v. Gary Lemberger, which the justices will hear at 10:45 a.m., is a drunken driving case in which the justices will consider whether it should overrule holdings from state Supreme Court and Appeals Court cases in the 1980s finding that refusal to take a breathalyzer test is admissible as evidence of a “guilty mind” because there is no constitutional right to refuse such a test. Since those cases were decided, the U.S. Supreme Court and the state Supreme Court have held that drivers do have a constitutional right not to refuse to take a breathalyzer test.

Gabler denied the request for reasons including that the time it would take to generate a presentencing report and the cost of having two sentencing hearings.

The case will be argued at 1:30 p.m. in the Supreme Court Hearing Room in the state Capitol.

K.L. submitted in April 2012 an informal complaint to the DOJ, which asked Gabler to sentence Beebe as soon as possible. Gabler declined to do so, and K.L. later submitted a formal complaint to the Crime Victims Rights Board contending that Gabler had violated her right to a speedy disposition.

The board can issue remedies such as public or private reprimands, seek equitable relief or refer an issue to the Judicial Commission. The board in 2013 found that there was probable cause that K.L.’s rights had been violated and requested both parties to identify any issues of material fact. Gabler moved to dismiss the complaint and made a request for an evidentiary hearing. The board denied the motion and in July 2013, the board issued a final decision concluding that Gabler’s decision to delay the sentencing violated K.L.’s right to a speedy trial. The board also instructed Gabler to sentence criminals promptly in the future.

Gabler filed in 2013 a petition for review of the board’s decision in Eau Claire County Circuit Court, asking that the board’s decision be vacated and that some of the board’s actions be declared unconstitutional. Gabler also sought a declaratory judgment against the DOJ.

Eau Claire County Circuit Court Judge James Duvall sided with Gabler in 2015. Duvall’s holdings included that the statute only the state Supreme Court has the power to sanction judges, that the board had violated Gabler’s due process rights and that the board’s decision was not supported by substantial evidence in the record.

The board, represented by the state Department of Justice, appealed, and Gabler petitioned the Wisconsin Supreme Court for a bypass of the Court of Appeals. The justices granted the petition in October last year.

The DOJ is arguing that the board may sanction judges because when the state constitution was amended in 1993 to include a provision giving certain rights to crime victims, that amendment created limits on the court’s discretion in cases involving crime victims.

It is also arguing that only allowing the board to refer a complaint involving a judge to the Judicial Commission would leave many victims without recourse because the judicial code does not protect crime victim rights.

Gabler, on the other hand, is contending, among other things, that the board cannot constitutionally sanction a judge for making a discretionary scheduling decision and when the board examines complaints against judges, all it can do is refer the matter to the Judicial Commission, which is an independent body that  oversees all state judges, reserve and municipal judges and court commissioners.

Gabler is also arguing that the board’s decision was not supported by substantial evidence and that the board did not have jurisdiction to consider K.L.’s complaint because Crime Victim Services never attempted to mediate the matter with Gabler. Crime Victim Services administers state and federal laws relating to crime victims.

Gabler is represented by Patrick Fiedler of Madison-based Hurley, Burish & Stanton, and Timothy Barber of Madison-based Axley Brynelson. The state Department of Justice is representing the Crime Victims Board.


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