Wis. justice sees no need to recuse self

Jessica M. Karmasek Jan. 25, 2012, 3:14pm


MADISON, Wis. (Legal Newsline) - Wisconsin Supreme Court Justice Michael Gableman says he will not recuse himself from any cases in which a law firm that represented him in the past is involved.

Gableman filed his four-page response with the state's high court Friday.

"Respondent (Ismael R.) Ozanne (District Attorney for Dane County) brings this motion because he states he believes that my participation in these cases presents the appearance of impropriety," the justice wrote.

"He states this conclusion based on the fact that the Michael Best and Friedrich firm was involved in the cases and had previously represented me."

The firm and its lawyer, Eric McLeod, represented Gableman from July 2008 to July 2010 in a judicial ethics complaint that accused the justice of lying about an opponent in a 2008 campaign ad.

Gableman, who defeated former Justice Louis Butler for a 10-year seat on the bench, was not found in violation of the judicial ethics code because the state Supreme Court came to a deadlock in the case.

The law firm has said a deal was made with Gableman that required him to pay his bill only if he won his case and was reimbursed his attorney fees by the state.

Ozanne, state Senate Minority Leader Mark Miller and a lawyer for a recall election group in the state all have called for Gableman's recusal in various cases.

In his response, the justice points to U.S. Supreme Court Chief Justice John Roberts' 2011 report on the judiciary, which addressed the issue of judicial recusal.

Roberts said justices and lower federal court judges contemplating recusal should look to the principles set forth in Canon 14 of the original 1924 Canons of Judicial Ethics. That canon addresses judicial independence.

"It provides that a judge 'should not be swayed by partisan demands, public clamor or considerations of personal popularity or notoriety, nor be apprehensive of unjust criticism.' Such concerns have no role to play in deciding a question of recusal," the chief justice wrote.

And although a justice's process for considering recusal is similar to that of lower court judges, the justice must consider an "important factor" that is not present in the lower courts, Roberts said.

That is, that there is no one to take the place of a recusing justice.

"As with the U.S. Supreme Court, there is no one to replace a justice on our court who recuses himself or herself from a case. A justice simply should not withdraw from a case because of 'partisan demands, public clamor or considerations of personal popularity or notoriety,'" Gableman wrote.

"I therefore agree with Chief Justice Roberts' reasoning, and find it consistent with our own precedent and with sound principles of judicial ethics and administration.

"Accordingly, having carefully considered the circumstances of these cases, the law and reasoning set forth above, and the submissions of the parties, I have determined that recusal is neither justified nor warranted."

Ozanne asked the Court to reopen the case on Gov. Scott Walker's controversial collective bargaining bill and rehear it without Gableman. The justice was part of the majority that voted 4-3 in favor of the bill. Michael Best and Friedrich represented the Walker administration in the case.

The other two cases the justice was asked to recuse himself from were pending, one of which was over what legislative maps should be used in recall elections of four Republican state senators.

They include Senate Majority Leader Scott Fitzgerald, R-Juneau; Sen. Pam Galloway, R-Wausau; Sen. Terry Moulton, R-Chippewa Falls; and Sen. Van Wanggaard, R-Racine.

Fitzgerald has been a Senate member since 1994. The others were first elected in 2010.

Attorney Jeremy P. Levinson, who represents the state Democratic Party and United Wisconsin, said in a filing last week that Gableman should recuse himself from the legislative maps case.

Michael Best and Friedrich helped GOP lawmakers redraw the legislative boundaries and initially represented Republicans in the lawsuit. The firm has since stepped aside.

"These very proceedings triggered the revelations of Justice Gableman's previously concealed financial relationship with Michael Best and Friedrich, the law firm that initiated these proceedings and provided counsel to Republican officials and interests throughout the events from which these proceedings arise, e.g., drafting the legislation at the center of these proceedings," Levinson wrote in his reply brief.

"Any suggestion that the existence, nature and concealment of the relationship between Justice Gableman and MBF does not present very unusual, profound and troubling issues in this and related proceedings would be both baseless and would demean the Court and all stakeholders in these proceedings."

The Republicans' new attorney, Michael Dean, had filed a response arguing that the justice's arrangement with the firm was proper.

Others, including those in state government, also are seeking action against Gableman for his arrangement with the law firm.

Earlier this month, state Rep. Kelda Helen Roys, D-Madison, began proceedings to remove the justice from the state's high court due to his alleged ethical and legal misconduct.

Under the Wisconsin Constitution, the state Legislature may remove judges by a two-thirds vote in both houses.

In addition, the Wisconsin Democracy Campaign last month filed a complaint with the state's Government Accountability Board against Gableman. The board enforces state campaign finance, ethics and lobbying laws.

The WDC also asked the Wisconsin Judicial Commission, which enforces ethics and other rules governing the conduct of judges, to investigate Gableman.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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