Gableman Agonistes

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. 

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Marriage Amendment Was Validly Enacted

The Wisconsin Supreme Court has held that the amendment to Wisconsin’s constitution defining marriage as the union of one man and one woman and prohibiting the recognition of any substantially similar status (Art XIII, sec. 13) was properly enacted. Justice Michael Gableman wrote for a unanimous Court.

The question before the Court was whether the amendment complied with a requirement in the state constitution that voters must be able to vote separately on separate amendments.

Justice Michael Gableman wrote that the legislature may “submit several distinct propositions as one amendment if they relate to the same subject matter and are designed to accomplish one general purpose.” The marriage amendment, in the view of the Court, had one general purpose:

“The first sentence preserves the one man-one woman character of marriage by so limiting marriages entered into or recognized in Wisconsin. The second sentence, by its plain terms, ensures that no legislature, court, or any other government entity can get around the first sentence by creating or recognizing “a legal status identical or substantially similar to that of marriage.”

By way of full disclosure, I (along with Michael Dean L’85) filed an amicus brief supporting the state’s position.

Having said that, the decision seems fully consistent with the (admittedly few) prior cases that have addressed the issue and with our constitutional practice. Our state consitution is full of amendments that consist of multiple propositions aimed at accomplishing a general purposes. That a voter may agree with some, but not all, of these propositions has not rendered these amendments improper.

It is important to keep in mind, however, that this was a decision about the procedure by which the amendment was passed. It did not address the consistency or inconsistency of the Amendment with the federal constitution (McConkey lacked standing to bring such a claim) and did not address the proper interpretation of the amendment.

Cross posted at Shark and Shepherd.

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The Wisconsin Supreme Court: It’s June Madness!

Yesterday, I had the privilege to join retired Judge David Deininger (a current member of the Government Accountability Board) and host Steven Walters (former chief of the Journal Sentinel’s Madison Bureau) on Legally Speaking, a production of Wisconsin Eye. We discussed the division on the Wisconsin Supreme Court and related issues, including recusal and the disciplinary proceeding involving Justice Gableman. You can watch it here.

We can expect to see a lot from the court in the coming weeks. It generally tries to wrap up its term by the end of June or the first part of July and generally will decide all cases argued during the term.

There are over forty cases that have been argued this term and have yet to be decided. While they are all important in their own way, some address major unresolved legal and policy questions, including the validity of the Wisconsin marriage amendment, Milwaukee’s sick pay ordinance, and the legislature’s $ 200 million dollar “raid” on the Patients Compensation Fund. It will address the Gableman case and a number of interesting criminal cases.

I expect to be busy.

Cross posted at Shark and Shepherd.

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