MADISON - State Supreme Court Justice Michael Gableman will remain on a criminal case after the six other justices couldn't agree whether they have the power to remove him over comments that some argue show bias against criminal defendants.
The decision - or. more accurately, non-decision -- included five opinions that totaled 147 pages, some of them rancorous. It highlighted how divided the court is on how to determine when judges must step aside in cases and signaled the justices are likely to deadlock in seven other cases where defendants have asked that Gableman be removed.
It also raised the prospect that the justices could be divided evenly on an ethics complaint against Gableman.
Chief Justice Shirley Abrahamson and Justices Ann Walsh Bradley and N. Patrick Crooks wanted lawyers to fully brief and argue the issue of whether Gableman should stay on the case of Aaron Antonio Allen. Justices David T. Prosser, Patience Roggensack and Annette K. Ziegler wanted to deny the motions outright and allow Gableman to participate in the case.
Gableman did not vote on the issue. He will remain on the case because there were not enough votes to grant any of Allen's motions.
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The five opinions included sniping among the justices. Abrahamson and her supporters wrote the other justices' arguments were "inconsistent and incoherent" and that the three "appear totally insensitive to the due process rights of litigants and the interests of the people of Wisconsin in a fair, impartial Wisconsin Supreme Court."
Prosser shot back that some justices were tarnishing the image of the court as it faces requests to force Gableman from criminal cases.
"The number and savagery of these motions is unprecedented and amounts to a frontal assault on the court," Prosser wrote. "The court should have denied Allen's motion quickly, without comment. This would have avoided exposing controversy within the court. Several justices rejected this course, preferring to take the controversy public."
Prosser, Roggensack and Ziegler said a majority of justices doesn't have the power to remove a colleague from a case and allowing that practice would lead to litigants manipulating the court.
Crooks wrote he initially was inclined to deny the motion to push Gableman off the case, but said he could not go along with the idea that justices never have the power to remove colleagues. Crooks wrote that comments by Gableman's attorney "changed this case drastically."
Gableman hired attorney James Bopp Jr. to defend him against allegations that he lied in a campaign ad that defense attorneys say disparaged their profession. In defending Gableman, Bopp said defense attorneys show a "willingness to subvert our system of . . . bringing criminals into account."
Crooks said those statements -- which prompted an outcry by the Wisconsin State Bar -- misrepresent the role of attorneys, and he noted Gableman has not repudiated Bopp's comments.
Allen asked Gableman in April to step aside in his case because of comments Gableman made, including a 2008 campaign promise not to "look for loopholes to put criminals back on our streets." That attitude showed bias against defendants, Allen argued.
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Allen was sentenced to 37 years in prison after being convicted in 1999 of armed robbery and possessing a firearm as a felon in Milwaukee County. His appeal before the Supreme Court contends he had ineffective counsel.
Gableman refused to step aside, saying he had not prejudged the case. Allen then asked the other justices on the court to force Gableman from the case, but the court in its decision Thursday said he would stay on it because they couldn't agree on the matter.
Removal power debated
Abrahamson, Bradley and Crooks wrote they believed they had the power to remove a fellow justice from a case but said they believed Allen and the state should have been allowed to present detailed arguments on the case. Abrahamson and the others did not say whether they believed Gableman should be taken off of Allen's case, only that more arguments should be held on the matter.
"Without briefs, Justices Prosser, Roggensack, and Ziegler have reached the extraordinary conclusion that this court never has power to guarantee that all members are impartial," they wrote.
By not fully considering the matter, the court's reputation would suffer, they argued. But Roggensack, Prosser and Ziegler said the public likely was to be divided in its view of the court no matter what.
"Four justices forcing another justice off the court is just as apt to be perceived as a biased act resulting in a biased tribunal, as is the justice remaining on the case and participating in it after he or she has considered the disqualification motion," they wrote.
Allowing a majority of justices to force a colleague off a case would lead to dire consequences, they wrote.
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"Although one may posit a limited power that the court could employ in a truly extreme and egregious situation, that power -- once recognized -- could not be contained," Prosser wrote. "It would grow like a cancer, and gravely damage the institution."
Gableman participated in some of the court's deliberations on whether justices have the power to remove one another from cases, but he withdrew from those debates Feb. 4 and decided not to file a written opinion.
Prosser, Roggensack and Ziegler wrote that Gableman should have had a say in the decision on whether the court wields that power.
The U.S. Supreme Court ruled in June that judges must step aside in some cases to ensure people get fair trials. The Wisconsin justices were divided over the relevance of that case, which centered on campaign donations. Prosser, Roggensack and Ziegler said it had no bearing on Allen's case.
The issue of when justices must step aside, known as recusal, has exposed rifts in the court in recent months. Last month, the court voted 4-3 to adopt a rule that said campaign donations from people and groups with cases before the court are not by themselves enough to force judges off cases. Supporting the rule were Prosser, Roggensack, Ziegler and Gableman; opposing it were Abrahamson, Bradley and Crooks.
Meanwhile, the justices must wrestle with Gableman's ethics case, in which he is accused of lying in a 2008 campaign ad about then-Justice Louis Butler's role as a public defender in a sex offender case.
The ad said Butler "found a loophole" for an offender who "went on to molest another child."
It did not mention that Butler was unsuccessful in getting the offender out of prison early and that he committed the subsequent crime after serving his sentence.
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The state Judicial Commission filed the allegations against Gableman in 2008, and a panel of three judges recommended last year the case be dismissed.
Gableman's colleagues on the high court are now deciding the case. If they find he violated ethics rules, they could reprimand him, censure him, suspend him without pay or remove him from the court.
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