More Developments at the Wisconsin Supreme Court

I have to say that I was surprised by Justice Gableman’s decision to file a motion asking Justice Pat Crooks to recuse himself from his pending disciplinary case. I understand the rationale. Justice Crooks did make remarks pertaining to some of the issues in the disciplinary proceeding in the course of his writings in Allen v. State. Because he had not had the benefit of full briefing and oral argument, these comments might raise concern that he had prejudged the issue. His reference to the comments of Justice Gableman’s attorney and Justice Gableman’s failure to repudiate them might be seen as importing an extraneous matter into the disciplinary proceeding. What Jim Bopp said in the course of that proceeding and whether or not Justice Gableman denounces his comments has nothing to do with the issues in that proceeding which are limited to whether the Reuben Mitchell ad violated SCR 60.06(3)(c).
It would, I think, have been more judicious for Justice Crooks to refrain from — or temper — these comments. Justice Crooks declined to reach the merits of the recusal motion, so one might reasonably ask why it was necessary to comment at all on the merits — particularly given the pending disciplinary matter.

But do they reflect actual bias — or create an appearance of bias — such that he must recuse himself? The comments were not extensive and to identify a matter as “troubling” is not necessarily to prejudge it. Attorney Bopp’s comments are irrelevant to the disciplinary proceeding, but one could argue that they were relevant on the matter of recusal. Although I do not feel that the recusal motions were particularly strong, the appearance of bias could stem from any number of sources.

Some may perceive a bit of an atmospheric problem here. Justice Gableman is fighting off recusal motions in criminal cases and may be now be seen to be arguing for an aggressive recusal standard in asking Justice Crooks to step down. Of course, there is an answer to that. In Allen, the writings of Justices Roggensack, Prosser and Ziegler emphasized that recusal — at least constitutionally mandated recusal — must be based on bias for or against a particular party (save for bias based on an immutable category such as race). Justice Gableman is alleging that type of bias here. The Allen motion did not. As I argue in an upcoming paper, there is good reason to limit Caperton recusal to that more narrow form of bias.

Of course, given the outcome in Allen, this is likely to be Justice Crooks’ decision without review by the full Court. Apart from the merits, it would seem to create real institutional problems if the three Justices who felt there was not power to recuse a peer Justice in Allen were to conclude that there is here and then order Justice Crooks’ recusal. I don’t see anyway that happens.

We can speculate about the strategic considerations behind the motion as well. Conventional wisdom is that you seek recusal only when you are pretty sure that the judge will step down or when you feel that you have little chance of getting him or her to vote with you. This is reflected in the advice of Ralph Waldo Emerson (“When you strike at a king, you must kill him”)or, if you prefer (and I do), The Wire‘s Omar White. (“Ayo. Bey. You come at the king, you best not miss.”)

Is this a gambit to avoid a deadlocked court? Deadlocked over what? The three judge panel recommended dismissal of the complaint against Justice Gableman but on different grounds. Two judges wanted to construe the canon narrowly to impose a mandatory prohibition only on literally false statements and would not extend it to meanings that are (however strongly) implied. Judge Fine did not read the rule in that way, concluding that the message communicated by the ad was false but expressed the view that a prohibition of false statements in political campaigns is unconstitutional. In his view, the only judges of campaign discourse are the voters. (It should be noted that the two judges who would construe the statute narrowly did so to avoid constitutional concerns.)

Resolution of these issues have ramifications beyond the question of discipline. Not only does 60.06(3)(c) prohibit false statements in judicial campaigns, but sec. 12.o5 of the statutes prohibits false statements “affecting an election” in general.

To make this even more interesting, any decision that construes the canon to apply to the Mitchell ad and finds that application to be constitutional raises a federal question. Could this matter ultimately wind up in the United States Supreme Court?

Only Justice Crooks knows what he will do. My strong suspicion is that he stays on the case although I am not sure that I would want to blame any of the justices who seized an opportunity to remove themselves from this.

Cross posted at Shark and Shepherd.

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