March 26, 2010

Quote of the day II: Gableman edition

"Attorney Bopp's comments are irrelevant to the disciplinary proceeding ... " — Marquette professor of law Rick Esenberg
This is a unique perspective, considering the Attorney Bopp comments at issue were delivered before three appeals court judges last September during the disciplinary proceeding.

That is, they're part of the record of the disciplinary proceeding, which is slated to go before the Wisconsin Supreme Court on April 16 and they go directly to the question of Gableman's willfulness to violate the Wisconsin code of judicial conduct, precisely the manner of behavior the Wisconsin Judicial Commission alleges.*

In fact Bopp's mini-jeremiad issued forth in response to questions from the panel of judges requesting Bopp, the legal agent of Gableman, to explain the rationale behind Gableman's teevee advertisement, the very object of the disciplinary proceeding.

Perhaps Prof. Esenberg is distinguishing between Bopp's presentation on the record and his presentation to reporters after the hearing.

But not even Gableman, in his motion to recuse another Supreme Court justice from hearing oral arguments in the disciplinary proceeding, distinguishes between the two sets of commentary:
In [his separately authored concurrence], Justice Crooks condemned statements made by Attorney James Bopp, Jr. ... during oral argument before the Judicial Conduct Panel and to the press afterward.
Gableman seems to think they're mighty relevant indeed, as he's clearly out to protect his own bacon from the ill-advised public declarations of own attorney.

More specifically, he's looking to insulate himself from the perception Attorney Bopp's commentary created in a member of the tribunal before whom Gableman is to be judged, which is certainly one of the broader ironies to have emerged pursuant to this whole escapade.

Here, by the way, is a useful quote from Liteky v. United States, the sole case Gableman cites in his motion to recuse Justice Crooks:
The judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and are indeed sometimes (as in a bench trial) necessary to completion of the judge's task.
That's Justice Scalia, writing for a majority of the Court, supposedly in support of Gableman's efforts to un-preside Patrick Crooks.

Gableman's disciplinary proceeding is currently in its third year.

* The WJC has said repeatedly that Gableman "lied."


William Tyroler said...

I disagree with Rick's assessment that Bopp's comments are irrelevant to the disciplinary proceeding. And the pending recusal motion agrees with me -- in fact, that's the very premise for the motion. Thus, the motion asserts:

... Justice Crooks condemned statements made by Attorney James Bopp, Jr., in this case .... Justice Crooks' separate statements in Allen constitute personal criticisms of the arguments made by Justice Gableman's attorney in this case....

(Recusal Motion, Paras. 4, 7; emphases in original)

This stance, however, causes something of a dilemma: the source of disqualifying bias must be "extrajudicial," yet the motion concedes in effect that the source arises from within the very case at hand (the disciplinary proceeding). This doesn't mean that you can't possibly have extrajudicially-sourced bias arising within the case itself, but it does make an already daunting burden more severe still.

illusory tenant said...

You really are the master of understatement.

Rick Esenberg said...

Clever use of the ellipsis. What I wrote is "Attorney Bopp's comments are irrelevant to the disciplinary proceeding, but one could argue that they were relevant on the matter of recusal." In other words, I was suggesting that Justice Crooks had reason to make the comments that he did, even though I think it would have been a better course not to make them.

The reason they are irrelevant (as I was using the term) on the question of discipline is that the only issue in the disciplinary proceeding is whether or not the Mitchell ad violates 60.06(3)(c). Bopp's comments cannot be the basis for discipline against Gableman. They will, of course, be considered in the disciplinary proceeding as arguments of counsel, but they have no independent evidentiary value.

Now, you might say, Esenberg shouldn't use the term "relevant" in that narrow way - a point that might be useful but of little interest to your readers. Instead you take a portion of a sentence, provide no context and pick a fight that doesn't exist since I assume that you believe that the Gableman motion should be denied.

Brother Tyroler's point - and your use of Litkey - might be stronger if the briefing had been closed and argument had been held or if Justice Crooks' comments had been limited to the record before the Court in the disciplinary proceeding. But I do agree that it is relevant in assessing the constitutional merits of the Gableman recusal motion. Howeer, as you know, recusal is not reserved for those situations in which the failure to recuse would violate the due process clause.

illusory tenant said...

There's nothing wrong with the ellipsis, nobody took you out of context, and nobody is picking a fight. "But" is an operator that separates two propositions.

Now you are saying Bopp's comments are irrelevant "on the question of discipline," which is a very different thing. That remains to be seen, of course.

Still, in the unlikely event the court finds Gableman violated the "shall not" provision of 60.06(3)(c), Bopp's explicatory remarks might well indeed be relevant to the question of discipline, since they indicate the degree of aggression underlying the respondent's intent.

He wasn't simply trying to illuminate the "stark contrast" between his and his opponent's professional experience, he was trying to make associations between the character of Mitchell and Mitchell's counsel:

"This is not about Mitchell, this is about Butler: What he is [sic] willing to do."

Where there's a range of available discipline, it seems to me that's an aggravating factor.

William Tyroler said...

I appreciate Rick's distinction between disciplinary proceeding and recusal motion. If I may, I think he bases the distinction on the idea that Justice Gableman isn't bound by his attorney's statements made in the course of representation. It's a fair point, to be sure. I happen to disagree. I should put it differently: at a minimum, the matter should have been briefed. Justice Crooks, it seems, thinks so too. And after fuller argument, Rick's point (again: I hope I've construed it correctly) might well prevail. Or might have, had the issue been briefed; alas, 3 Justices in the Allen case didn't see the need, and that was the end of that.

The larger point remains, though: the Gableman recusal motion is thinly supported, legally and factually. Rick's done a much better job here, and at his own site, positing rationales for recusal than the motion itself. The motion might have asserted, for example, that Bopp's statements were literally "extrajudicial"-- they were made outside of court. But the motion asserts just the contrary, that they were made "in the case." The motion might have asserted that Justice Crooks' opinion in Allen evinced prejudgment, the quintessentially disqualifying form of bias, State v. Brian K. Goodson, 2009 WI App 107, ¶17 (“But ‘when a judge has prejudged … the outcome,’ the decision maker cannot render a decision that comports with due process.”), quoting Franklin v. McCaughtry, 398 F.3d 955 (7th Cir. 2005), but it does not. Instead, it claims that Justice Crooks has a disqualifying bias against Bopp that somehow, some way amounts to bias against Justice Gableman. There are scattered reported instances of bias against counsel establishing disqualification of the judge, but the motion doesn't bother to cite any.

These, and other, eschewed arguments ultimately don't hold water, but that's because there's no basis for recusal anyway. Instead of developing some remotely plausible contention with relevant principles pinned to the concrete facts, the motion relies entirely on abstract boilerplate. Unless there is some reason to think that Justice Crooks is just waiting for someone to heckle him off this particular stage, it's hard to see why the motion was filed. Not as drafted, anyway.

Last: I greatly appreciate the efforts of both Tom and Rick to continue the discussion. An amazing situation, really, that persists in bedeviling the court, and Tom and Rick are among the very few trying to explicate it.

illusory tenant said...

All lawyering boils down to an argument over what things should be distinguished and which should be conflated, doesn't it.

William Tyroler said...

One last thought. One possible strategy behind the recusal motion is to lock the Judicial Commission (and Justice Crooks) into a position that inures to Justice Gableman's benefit. That is, denial of the motion may well commit the commission or the Justice or both to the idea that you can't ascribe the comments of counsel to client. If so, then Bopp's ill-considered remarks will be neutralized. Or, denial might be based on the idea that improper bias against counsel is simply too attenuated to assume such bias against client; and that would immediately remove whatever wind remains in the sails of the other recusal motions, those against Justice Gableman.

If that's correct, then credit to Rick for seeing what I didn't, that the disciplinary and recusal issues could be severed, at least pragmatically. I still think they are connected, by Bopp. But once the Commission or Justice Crooks says otherwise, then that particular game is over.