Wisconsin Supreme Court quote of the day

Justice N. Patrick Crooks, 08/05/10:

I don't think that the Gableman decision provided a final resolution of the charges that were brought by the [Wisconsin Judicial Commission] and that are pending against Justice Gableman. Why do I say that? Well, I say that because, if you look closely — and I'm sure you have — at what the Judicial Commission did, they did not dismiss the charges against Justice Gableman. They did not do what several of us suggested was appropriate and request a jury trial in regard to those issues. Rather, what they did was suspend the prosecution. And I think that that provides an opportunity for the legislature to act in regard to the appropriate procedure. I certainly think that the allegations against Justice Ziegler led to a final resolution. But I don't see a final resolution with regard to the situation with Justice Gableman. And I think I have to bring that to the committee and that's where Justice Roggensack and I disagree.

What happened is that in front of the panel, the three-judge panel, Justice Gableman through his attorney brought a motion for summary judgment, basically asking that the charges against Justice Gableman be dismissed. The three-judge panel held oral arguments in regard to that motion for summary judgment. And their recommendation to the court was that we should grant that motion for summary judgment. So what comes to us, in my view and the view of the colleagues that have sided with me was pure and simply, we're looking again now at that recommendation for a grant of summary judgment. Summary judgment was not granted. As you know, we split 3-3. The division, in my opinion, caused a deadlock. Summary judgment was not granted. It certainly therefore failed, in terms of the request that summary judgment be granted.

Now, what normally happens — and bear with me for a minute — normally what happens if you're in a civil court situation — and by the way as you know the Judicial Commission, the rules and the statutes in regard to the Judicial Commission talk about operating under the civil rules. But what happens in a normal situation where someone brings a motion for summary judgment and the summary judgment motion is not granted, or [is] denied, or fails, is there's a trial. And three of us, looking at the statutes, looking at the interplay of the statutes, felt that it was appropriate for the Judicial Commission to go back to the point where they'd made a determination of probable cause, which I think they made probably about a year-and-a-half ago, and at that point, take the other route.

The route that they took at the time was the three-judge panel. The three-judge panel approach didn't resolve this issue. And so the other approach that's available, in our opinion, under the statutes, was the jury trial. And we suggested strongly to the Judicial Commission that they take that route. Now, the Judicial Commission, in the statement that they issued saying that they were suspending prosecution of the matter, indicated they felt there was a need for clarification in regard to the statutes. In other words, they didn't think that the procedure was as clear-cut as they would have liked it to have been.

And I will just tell you, speaking not only for myself but I think clearly for the Chief Justice and for Justice Bradley, we certainly would have no objection if this committee, and ultimately the legislature, were to attempt to clarify to the extent desired by the Judicial Commission. I don't think that's necessary, but I certainly don't object to it.

Sounds familiar.

I wonder if our friend professor of law Richard Esenberg took the opportunity to also instruct Justice Crooks, who has been a trial and appellate judge for 34 years, that his and the two other Justices' view of the case's procedural posture is informed merely by "a reference to horn book Civil Procedure" which "does not cut it here." I doubt it.