December 20, 2009

Gableman admits to conflict

Casts deciding vote in defamation case against Milwaukee Magazine

The result is that the lower court's decision, ordering the dismissal of Bradley DeBraska's complaint against the publication, stands.

Gableman is very familiar with the expression, "deciding vote."


William Tyroler said...

Justice Prosser weighed in with an opinion (available here). Fairly remarkable document, I'd say.

Anonymous said...

"Recently, this court has been bombarded with external motions asking a majority of justices to remove other justices involuntarily, thereby seeking to nullify elections, alter the composition of the court and potentially change the outcome of individual cases," Prosser wrote. "These motions represent a frontal assault on the integrity of the Wisconsin judicial system, and they, too, could have serious and profound consequences for parties, citizens and the court."

Sorry, Judge, the assault already happened. You just seem to be noticing its serious and profound consequences.

illusory tenant said...

an opinion available here

Concurring ... concurring in what?

illusory tenant said...

Sorry, Judge, the assault already happened.

Now I definitely concur in that. And it's continuing.

You just seem to be noticing its serious and profound consequences.

I've thought about that, and I hope it's not true. But there's much to be said for it.

Clutch said...

Anon 2:46 was me -- I misfired on the Publish button. I hope it was clear that I was addressing Justice Prosser, not you.

illusory tenant said...

Yep. It's also interesting to speculate how much Prosser's possibly evolving views of this entire escapade (the post-Gableman court, including -- necessarily -- all of its nefarious Gablemanian baggage) are affected by his own impending election. He referred to himself as a "guinea pig" during the December 7 conference.

William Tyroler said...

Justice Prosser's concurring opinion ought to be read with Justice Roggensack's Henley memorandum decision in mind, though they deal with entirely different cases and issues. There, Justice Roggensack observed:

¶31 Motions to disqualify a justice of this court from participation in pending cases have become motions de jour. Currently, nine such motions are pending before the court, directed at various justices. While the attorneys practicing before the court assist us in the development of the law when they bring interesting legal issues to us for review, care must be taken by attorneys to thoroughly research the law that underlies any motion. This is no less true when it is a motion for disqualification/recusal of a justice. Such motions raise serious concerns for the justice and institutional concerns for the court.

Yet, the concrete issue -- whether Justice Roggensack had, while a court of appeals judge, "handled" Henley's prior appeal -- has nothing whatsoever to do with the referenced recusal motions (a transparent reference to efforts to remove Justice Gableman from criminal appeals). Why, then, bother mentioning them? Though the rhetoric is mildly different, the import is much the same as Justice Prosser's: any recusal or disqualification effort will be taken as an affront.

Given the heated rhetoric, there's been surprisingly little coverage. The Gableman bloc (for want of a better term) plainly has the votes to prevent recusal. And, their rationale is at least defensible: recusal in criminal cases would thwart the will of the electorate. That, however, is an argument that ought to be hashed out in the correct context. Again: why import it into entirely distinct contexts?

Quite possibly, Justice Gableman's election campaign (representing, many would say, an assault on the criminal defense bar, thus the adversarial system) and its aftermath, has caused a real crisis in legitimacy, something Justices Prosser and Roggensack implicitly perceive, even if they misplace blame.

Justice Roggensack elsewhere has warned against policy-driven jurisprudence, by which she means a “less than clear separation between the executive and judicial branches.” It is precisely that concern -- a campaign in favor of the prosecution (executive branch) -- that underlies the recusal efforts. The sooner that concern is addressed, by which I simply mean a resolution of those motions one way or the other, the better.

illusory tenant said...

I mentioned earlier that Justice Roggensack indicated on December 7 that a per curiam response to at least one of the recusal motions was being circulated in a third draft.

Ironically, she made the revelation during the course of chastising the Chief Justice for making public private conference discussions.

illusory tenant said...

There's been surprisingly little coverage.

I agree, considering the importance. "Co-equal branches of government" is evidently a foreign concept to local news editors.

Which is why the Capital Times piece the other day was a welcome anomaly.

Speaking of it, I found this amusing, which complains that the Cap Times -- "Your Progressive Voice," one indicator of the paper's inclination to focus on the "conservative majority" which apparently eluded the blog post's author -- didn't interview anybody who supports the adoption of the WMC and WRA ethics rules.

Maybe they couldn't find anybody outside of Godfrey & Kahn, and its denizens are unlikely to comment, given the status of its November letter to the court, the impetus for Prosser rescinding his vote in favor of the rules' adoption.

Less amusing is the faculty blog's failure to identify the author, who sits in Washington, D.C. as the Federalist Society's deputy director, student division, and was an enthusiastically disingenuous Gableman surrogate.

As an apologetic, however, it pales in comparison to those of the author's mentor and (surprise!) faculty blog editor, Prof. Esenberg.

Terrence Berres said...

Weren't you a "deciding vote" denier?

illusory tenant said...

Absolutely, hence the facetiousness in my characterization of the JSOnline story.

Terrence Berres said...

After James Sample used the phrase numerous times in his presentation, I noted your objection in the Q&A. He couldn't see the problem you see with it.

illusory tenant said...

Really? Which brownies was he into that day?