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Justices skeptical of board’s authority to sanction judge

Wisconsin Supreme Court justices appeared skeptical Friday of arguments that an agency charged with reviewing crime victims’ rights could sanction a judge for holding off on sentencing a defendant in a sex-assault case.

The case before the state’s high court last week stemmed from a dispute between Eau Claire County Circuit Court Judge William Gabler and the Crime Victims Rights Board over Gabler’s decision to delay the sentencing of a man accused of assaulting two girls. Gabler had chosen to hold off until the jury in the case had issued a verdict for all the charges filed against the suspect, Leigh Beebe.

The Crime Victims Rights Board later declared that the delay had violated the right of one of the victims to a speedy trial. Gabler responded to that decision in 2013 by filing a petition for review.

Eau Claire County Circuit Court Judge James Duvall sided with Gabler two years later, prompting the board to file its own appeal. Gabler then sought to take the dispute straight to the Wisconsin Supreme Court, which agreed in October to take up the case.

Appearing on Gabler’s behalf on Friday was Pat Fiedler, a lawyer at Hurley, Burish & Stanton. State Solicitor General Misha Tseytlin argued on behalf of the crime victims board.

Chief Justice Pat Roggensack was the first justice to question Tseytlin. (Justice Ann Walsh Bradley did not participate.)

“Why do you say that the court determined (the victim) had no rights?” she asked. “Was there any attempt to intervene by the Crime Victim Rights Board or the victim?”

Many of the justices, including Justice Rebecca Bradley, hammered Tseytlin with questions about the board’s authority to sanction a judge.

“Is this court subject to the Crime Victims Rights Board?” asked Bradley.

When Tseytlin replied “yes,” she followed with another question.

“Does the state have a recommendation for how long it should take for this court to write a decision so it does not offend the rights of a crime victim?” asked Bradley.

She prefaced her next question with a quotation about judicial independence from the U.S. Supreme Court’s decision in the case of Bradley v. Fisher, which dates to 1871.

“How can the judiciary preserve its independence if the Legislature and executive branch can collude to punish a judge for executing his constitutional duties?” she asked.

Justice Dan Kelly also seemed skeptical of attempts to argue that the board had not imposed a sanction. Kelly pointed out that a document put together by the Crime Victims Rights Board had been labeled a final decision, even though nothing in state statute gives it authority to issue decisions. He said the document contained an order and several paragraphs detailing Gabler’s findings of fact and conclusions of the law.

At least one justice, meanwhile, reserved her tough questions for Fiedler. Justice Shirley Abrahamson asked whether the court should be concentrating not on the state Constitution but rather the state statute governing procedures for disciplining judges.

She noted that Fiedler had been hired by the Director of State Courts to represent Gabler and that taxpayers would foot the bill for his fees. State law, though, requires judges to hire their own counsel in disciplinary matters.

Abrahamson also asked if the victim in this case really had a means of challenging Gabler’s decision to delay the sentencing.

“Could the victim have intervened in this case before Judge Gabler and say, ‘Sentence him now?’” she asked.

When Fiedler said that the victim could ask for a writ of mandamus, Abrahamson pointed out that such requests are rarely granted in discretionary matters.

About Erika Strebel,

Erika Strebel is the law beat reporter for the Wisconsin Law Journal and a law school student at UW-Madison. She can be reached at 414-225-1825.

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