Thursday, February 11, 2010

Judicial Warfare In Wisconsin

A bitterly divided Wisconsin Supreme Court today issued aper curiam opinion that dealt with a recusal motion directed at a fellow justice in a criminal appeal in the following manner:

The members of the court disagree as to the disposition of petitioner Aaron Antonio Allen's motions for the recusal of Justice Michael J. Gableman citing the Fourteenth Amendment of the United States Constitution; Article I, Sections 1 and 8 of the Wisconsin Constitution; and Wis. Stat. ยง 757.19(2)(g).

On February 4, 2010, Justice Michael J. Gableman informed the members of the court that he was withdrawing from participation in the court's consideration of Allen's recusal motions and was withdrawing his separate written opinion.  Only six justices are therefore participating.

Three justices, Chief Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley, and Justice N. Patrick Crooks, would order briefs and oral argument, as the parties have requested. 

Three justices, Justice David T. Prosser, Justice Patience Drake Roggensack, and Justice Annette Kingsland Ziegler, would issue an order denying the motions. 

Chief Justice Abrahamson and Justices Bradley and Crooks write in support of their proposed disposition.

Justice Roggensack, joined by Justices Prosser and Ziegler, writes in support of their proposed disposition.

Individual writings by Justices Crooks, Prosser, and Ziegler are also filed.

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.

The views of the three justices who would order briefing suggests that the other justices have made "false accusations and stretch, misconstrue, or omit relevant law. Even with such an effort, the writings are inconsistent and incoherent."

The opinions are worth a close read. Another excerpt from the per curiam opinion:

Recusal motions against a colleague and proposed rules about recusal pose significant personal and legal difficulties for all the justices.  These difficulties are exacerbated in the present case by the Judicial Commission's pending action against Justice Gableman for violation of the Code of Judicial Conduct.  The allegations in that matter share some factual basis with Allen's allegations for disqualification in the present order.

Words cannot and do not fully capture our feelings of disquiet when we are asked to sit in judgment of a peer, knowing that we have worked with that justice and will continue to work with that justice for years to come.  We shall see the justice at every oral argument, court opinion decision conference, petition for review conference, ceremony to admit lawyers, rules hearing, open administrative conference, judicial conference, educational seminar, and other court and non-court functions.

Despite the disquiet that a motion challenging a justice's disqualification causes, this court has stated that when a "movant has questioned the integrity of a justice of this court and hence the integrity of a decision of the court . . . [i]t behooves the court in the defense of its own legitimacy and of its integrity to consider such claims."

Additional information concerning the underlying recusal motion with links to the pleadings may be found in this post on the Henak Law Office S. C. web page. This post from Pundit Nation has a link to a television campaign ad on behalf of now-Justice Gableman.

Clarification: The per curiam order summarized on the court's web page is not a part of the separate opinions of the justices that are quoted above. (Mike Frisch)

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A quick clarification: Only the opening block quote is the per curiam opinion. The second and third quotes are from the opinion (technically, "writing") of Chief Justice Abrahamson, joined by Justices Bradley and Crooks. They are not part of the per curiam opinion.

Posted by: Daniel Suhr | Feb 12, 2010 10:30:32 AM

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