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.