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Tough Editorial Against Justice Michael Gableman, Behavior Was Unacceptable

January 7, 2012

There is no way to spin or defend the actions that Wisconsin Supreme Court Justice Michael Gableman took once elected.  As the Milwaukee  Journal pointed out in a strongly worded editorial the behavior by Gableman was “unacceptable”.

But whether the justice did anything illegal is not the only measure citizens should use to judge Gableman’s actions and whether he should have recused himself from cases involving clients represented by the law firm. Those cases include a challenge to Act 10 last spring, the politically charged law that rolled back collective bargaining for most public workers in Wisconsin.

By recusing himself from those cases, Gableman could have avoided any appearance of a conflict of interest and any perception that he received a gift from Michael Best, which was appearing before the court.

Instead, by accepting what his current lawyer calls a “contingency fee agreement” with the law firm, he opened the door to accusations of unethical behavior. That’s unacceptable.

In brief: Gableman was accused of an ethics violation in 2008 and was defended by McLeod. Under the arrangement with McLeod, the lawyer’s legal fees would be paid only if Gableman prevailed in his case and then persuaded the state to cover the costs. The Supreme Court deadlocked on the case, Gableman did not have the chance to seek his legal fees from the state and the law firm did not receive its fees.

While he was being represented by the firm and in the year and a half since, Gableman participated in nine cases involving Michael Best & Friedrich clients. He recused himself from a 10th case, in which the firm itself was being sued. In the nine, he ruled in favor of Michael Best five times. In two of the cases, he was in a 4-3 majority; in another, his vote led to a tie. In the four cases in which he voted against Michael Best clients, the votes weren’t close.

3 Comments leave one →
  1. Thomas Atkinson permalink
    January 11, 2012 9:48 PM

    I have struggled with merit vs. elections and like freedom of speech I have to side with an electoral process. If we don’t like a judge WE the people can toss them out at the end of their terms. Federal judges are for most purposes merit selected. However they serve for LIFE.

    I truly believe that the WI Supreme Court has become dysfunctional at times in part to the Chief Justice Shirley Abrahamson who has been there for far too long and in charge for nearly 2 decades. Even some of her current supporters like Justice Crooks tried to topple her a few years back.

    I believe that if she were to retire and the position of chief were rotated, the court would work much, much better.

  2. January 11, 2012 9:34 PM

    Thomas,

    There is more than ample reason for you to join with me and urge our state to address the concerns we both have raised regarding the court. I know merit selection is the path forward. Mnay agree, including the Wisconsin State Journal. I have long advocated for merit selection on this blog. I look forward to having your support too.

    The reputation of Wisconsin’s top court has been soiled in recent years by nasty judicial campaigns, ethics investigations and demands for justices to recuse themselves from big cases involving their campaign backers.

    Merit selection — a system of appointing, rather then electing, top justices — would help bring back trust in the state Supreme Court. A panel of citizens insulated from politics would pick finalists for the Wisconsin Supreme Court when vacancies occurred. The governor or some other appointing authority would then pick a new justice from the list. Some states also allow voters to decide whether sitting justices keep their seats at the ends of their terms.

  3. Thomas Atkinson permalink
    January 11, 2012 8:44 PM

    Where was your editorial when your papers beloved Chief Justice Abrahamson accepted substantial contributions from attorneys with cases pending before the Wisconsin Supreme Court. (http://www.law.com/jsp/pa/PubArticleFriendlyPA.jsp?id=1202428264821&slreturn=1). She then declined to return the money or recusr or call for judicial investigation?

    2. The Wisconsin Education Association Council (WEAC) has also donated substantial sums to Chief Justice Abrahamson’s campaigns for the Wisconsin Supreme Court. (http://www.wisdc.org/index.php?module=wisdc.websiteforms&cmd=SearchCandidateSummaryPac&id=500189). WEAC continues to appear in front of the court and Chief Justice Abrahamson continues to participate in those cases. In three of the four appearances WEAC has made since 2000, Chief Justice Abrahamson has voted in its favor. Since 1990 Chief Justice Abrahamson has consistently voted on behalf of WEAC whether as a direct party or in response to Amicus Briefs the vast majority of the time. Again, where were the calls for recusal or investigation.

    3. Attorney James Bopp, Jr. represented Milwaukee County Circuit Court Judge John Siefert in a federal lawsuit against the Wisconsin Judicial Commission; yes the very party now investigating Justice Gableman. Siefert v. Alexander, 597 F. Supp. 860 (W.D. Wis. 2009). Bopp moved for attorney’s fees from the court pursuant to federal law and the district court granted the motion. (Docket Entry 104). No complaint was filed against Judge Siefert. In fact, the WI Judicial Commission awarded attorney fees to Bopp under a retainer agreement that was was probably very similar to the one between Justice Gableman and MB&F.

    4. Let’s turn to former Justice Louis Butler, another friend of the liberal press. Friebert, Finerty & St. John provided “volunteer” campaign services to former Wisconsin Supreme Court Justice Louis Butler. (http://www.jsonline.com/news/statepolitics/29544424.html). Despite either a direct conflict or appearance of conflict, the firm continued to appear before the court and Justice Butler continued to participate in cases they were involved in. Where were the editorials calling for recusal in your articles?

    5. Finally, Wisconsin circuit court judges Sheedy and Henderson received legal services from attorneys Thomas L. Shriner, Jr., Richard M. Esenberg, and Michael J. Aprahamian of Foley & Lardner for a federal lawsuit in which they participated in their personal capacities. Milwaukee Branch of NAACP v. Thompson, 935 F. Supp. 1419, 1436. (http://wi.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19960801_0000055.EWI.htm/qx). A number of other circuit judges received legal services in the same case. Who paid for those services? The record may show that these judges may have continued to decide cases in which Shriner and Foley were involved.

    These incidents and other similar examples from around the country raise questions as to whether the complaint filed against Justice Gableman was motivated by politics rather than genuine legal and ethical concerns. Your paper has an obligation to the readers to either cover the news with journalistic integrity or simply fold up shop and leave the new breed of reporters; investigative bloggers.

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