Gableman recusal motion falls short

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Justice Michael Gableman will not have to recuse himself from pending criminal cases. A motion to the Wisconsin Supreme Court failed to garner four votes to order oral argument and briefs on whether the court has the power to disqualify a fellow justice from hearing a case.

A per curiam order provides, "Because the members of the court disagree as to the disposition of Allen's motions as set forth above, the motions are not granted. No four justices have agreed to grant the motions."

But the motions produced five separate opinions noteworthy for the acrimony manifested between the justices.

Chief Justice Shirley S. Abrahamson and Justices Ann Walsh Bradley and N. Patrick Crooks would have ordered briefs and oral arguments.

Justices David T. Prosser, Patience Drake Roggensack, and Annette Kingsland Ziegler would have issued an order denying the motion.

Justice Gableman did not participate.

The motion was filed in the case of State of Wisconsin v. Aaron Antonio Allen, No. 2007AP795, although similar motions have been filed by other petitioners with criminal cases before the court.

Allen moved Justice Gableman to recuse himself, citing the Fourteenth Amendment of the U.S. Constitution, the due process clause of the Wisconsin Constitution and sec. 757.19(2)(g).

Gableman initially denied a recusal motion addressed to him personally; Allen then filed a supplemental motion to the court, requesting it to review that decision. Gableman then recused himself from consideration of that motion.

As noted, the six remaining justices divided evenly on whether to hear oral arguments and briefs on the motion, or whether to deny it.

The justices were divided on both the applicable law, and the implications for the court's integrity.

Case Law

One issue that divided the court was the significance of the Supreme Court's opinion in Case v. Hoffman, 100 Ws. 314, 72 N.W. 390 (1897), reh'g. granted, 74 N.W. 220 (1898).

In Case, the losing party asked the court to decide whether one of the justices (who died after the decision was released) should have been disqualified, because he had previously decided the matter as a trial judge.

The court vacated the judgment, and the case was reargued.

From this, Justices Abrahamson, Bradley, and Crooks concluded that a majority of the court has the power to disqualify a fellow justice.

But Justices Roggensack, Prosser and Ziegler rejected that interpretation, because of the unique context — the justice at issue had died. "[T]he remaining justices had to decide it, as Justice Newman obviously could not," Roggensack wrote. "Accordingly, Case is not support for this court to determine that a majority of the justices have the power to disqualify a justice from participating in a proceeding before the court."

Similarly, in Donohoo v. Action Wisconsin, Inc., 2008 WI 110, 314 Wis.2d 510, 754 N.W.2d 480, the losing party asserted, after the case was decided, that then-Justice Butler should have recused himself.

Justices Abrahamson, Bradley, and Crooks found that the entire court reviewed he merits, and thus, the case supported the entire court exercising jurisdiction over the motion.

But, Justice Roggensack's opinion noted that the court's review was limited to objectively deciding whether Justice Butler made a subjective determination whether he was impartial or not, but that the court did not review the merits of Butler's determination.

Roggensack also cited In re Disciplinary Proceedings Against Crosetto, 160 Wis.2d 581, 466 N.W.2d 879 (1991), in which an attorney moved all seven justices to recuse themselves. Roggensack noted, "Six justices on this court did not convene to decide whether a seventh justice could participate in the decision in Crosetto. Instead, each justice of the court decided Crosetto's due process motion for himself or herself."

Abrahamson's opinion concluded, "Brief are needed on whether the court has jurisdiction (power) over Allen's recusal motions under the court's express, inherent, implied, and incidental powers, and superintending and administrative authority, or whether the constitutional provisions on removal from office are exclusive, preempting the court's power to review a challenged justice's decision to participate in a case."

Policy Implications

The justices also divided on how its decision would affect the court as an institution.

Justice Roggensack opined, "This is a deeply divided court, at a very philosophical level concerning how a state supreme court should function. The public perception of this court is also deeply divided. Therefore, four justices forcing another justice off the court is just as apt to be perceived as a biased act resulting in a biased tribunal, as is the justice remaining on the case."

Justice Prosser added, "Although one may posit a limited power [to force recusal] that the court could employ in a truly extreme and egregious situation, that power — once recognized — could not be contained. It would grow like a cancer, and gravely damage the institution."

But Abrahamson posited that the court would be stronger. "Would it not command greater public respect and confidence if the court read briefs and heard arguments on Allen's recusal motions, analyzed the facts and applied the law in a full opinion, as we would in review of allegations asserted against any judge of any another court in the state?" she asked.

Justices Crooks and Ziegler also wrote separate opinions. Justice Crooks wrote that he was initially inclined to deny the motions, but changed his mind based on the arguments of Justice Gableman's attorney in his disciplinary action.

Justice Ziegler wrote separately to address the due process issue, asserting that the allegations in the motion fall far short of any violation.

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