WisBar News: Deadlocked supreme court issues two separate opinions in Judicial Commission v. Gableman:

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  • Deadlocked supreme court issues two separate opinions in Judicial Commission v. Gableman

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    July 1, 2010 – A deadlocked Wisconsin Supreme Court issued two separate opinions late Wednesday, each signed by three members of the court, in the judicial disciplinary proceedings against supreme court Justice Michael J. Gableman.

    The matter was initiated by the Wisconsin Judicial Commission, which alleged a violation of Supreme Court Rule 60.06(3)(c). At issue is a 2008 television advertisement aired by then-candidate Gableman. 

    Wisconsin has a two-tiered judicial disciplinary system that divides the investigative and adjudicative functions between separate agencies. The judicial commission investigates and determines whether there is probable cause of possible misconduct.

    If it determines such probable cause exists, the commission initiates and prosecutes through proceedings in the supreme court. A judicial conduct panel composed of three appeals court judges is named to hear the matter and file with the supreme court findings of fact, conclusions of law and a recommendation regarding disposition.

    The judicial commission filed its complaint on Oct. 7, 2008, and the findings of fact, conclusions of law, and a recommendation of the judicial conduct panel was filed on Nov. 12, 2009.

    The panel concluded that the facts alleged in the complaint did not constitute a violation of SCR 60.06(3)(c) under which discipline may be imposed.

    Accordingly, the panel recommended that a motion by Justice Gableman for summary judgment be granted and that the judicial commission's complaint be dismissed. The matter was then sent to the supreme court for review of the panel's report and final disposition.

    In the ordinary course of events, the supreme court reviews the panel's report, adopts findings and conclusions, and determines the appropriate disposition. Justice Gableman did not participate in this case. Thus, the supreme court’s 3-3 split opinions create uncertainty regarding the ultimate disposition of the matter.

    • To read the opinion of Chief Justice Shirley Abrahamson and Justices Ann Walsh Bradley and N. Patrick Crooks, see 2010 WI 61.
    • To read the opinion of Justices David T. Prosser, Patience Drake Roggensack and Annette Ziegler, see 2010 WI 62.