Richard M. Esenberg – Page 10 – Marquette University Law School Faculty Blog

More Contention on the Wisconsin Supreme Court

Post author:Richard M. Esenberg
Post published:July 10, 2010
Post category:First Amendment Judges & Judicial Process Wisconsin Supreme Court

Last Thursday, the Wisconsin Supreme Court finally issued opinions on recusal rules that it adopted earlier in the term and which essentially say that a duty to recuse cannot be be based solely on the receipt of a lawful campaign contribution or a lawful independent expenditure made on a judge’s behalf. The Court also amended a preexisting rule to permit a judicial candidate’s campaign committee from soliciting funds from persons involved in proceedings in which the candidate, if elected or reelected, is likely to participate.

The majority opinion and dissent continue to reflect the sharp and bitted divisons on the Court. I wish that would get better.

I have an article on judicial recusal coming out in the Wake Forest Law Review, so it’s a subject that I have been thinking about. I have the following quick observations on the Court’s decision.

Gableman Complaint is Dismissed

Post author:Richard M. Esenberg
Post published:July 8, 2010
Post category:Constitutional Interpretation First Amendment Political Processes & Rhetoric Wisconsin Supreme Court

The Judicial Commission announced today that it is discontinuing prosecution of its complaint against Justice Michael Gableman. Quite apart from the merits of the complaint, this seems like the right thing to do given the deadlock on the Court and the particular positions taken by the Abrahamson and Prosser groups. As I explained here and here, there seems to be no way that further proceedings could be expected to break the impasse.

An interesting constitutional question was embedded within the writings of the Prosser and Abrahamson groups.

Gableman Agonistes

Post author:Richard M. Esenberg
Post published:July 1, 2010
Post category:Wisconsin Supreme Court

I am on deadline for a column in the Journal Sentinel, so I can only make a few preliminary comments on the Wisconsin Supreme Court’s actions in Wisconsin Judicial Commission v. Gableman. One group of Justices (Justices Prosser, Roggensack, and Ziegler) would have accepted the recommendation of the three-judge panel and dismissed the complaint. Another group (Chief Justice Abrahamson and Justices Bradley and Crooks) would have rejected it and found that Justice Gableman violated SCR 60.06(3)(c).

There is much to be said about that (and I will later), but it gets even more interesting. Normally, when the Court deadlocks, the decision below stands. But the opinion of the three-judge panel is a recommendation. What happens when it is not accepted?

The Abrahamson group wants to treat review of the recommendation as review of a motion for summary judgement, i.e., a request that the Court decide the matter without trial because there are no material issues of fact. In proceeding before the three-judge panel, both the Commission and Justice Gableman agreed that this was the proper way to proceed, i.e., they agreed that there was nothing to be tried because no facts were disputed. The result was a recommendation that the complaint be dismissed.

The Abrahamson group now argues that failure to accept the recommendation is tantamount to a denial of summary judgment. When summary judgment is denied, the matter normally proceeds to trial. Thus, they want to remand the matter back to the three-judge panel for a jury trial.

But there are problems with that.