July 5, 2017 – The Declaration of Independence, signed yesterday 241 years ago, set the stage for the U.S. Constitution, which established three branches of government and a system of checks and balances on the concentration of power between them.
Recently, the Wisconsin Supreme Court revisited the role of the judiciary as an independent branch of government and showed its teeth in a separation of powers case involving a circuit court judge’s discretionary decision-making in a criminal case.
The Crime Victims Rights Board (CVRB), an executive entity delegated by the Wisconsin Legislature to review victims’ rights complaints, concluded that Eau Claire County Circuit Court Judge William Gabler Sr. violated a victim’s constitutional and statutory rights by postponing the sentencing of a man convicted of sexual assault.
In Gabler v. Crime Victims Rights Board, 2017 WI 67 (June 27, 2017), the supreme court ruled (5-1) that the Wisconsin Legislature, in creating an executive branch entity with authority to pass judgment and impose discipline on a judge’s exercise of core judicial powers, “violates Wisconsin’s structural separation of powers and invades a domain recognized for over 200 years as the executive province of the judiciary.”
The Judge’s Decision
In 2012, Judge Gabler postponed a criminal defendant’s sentencing. The Eau Claire County district attorney had filed criminal complaints against Leigh Beebe for the sexual assault of two different minors. Judge Gabler ordered separate trials.
org jforward wisbar Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by org jforward wisbar email or by phone at (608) 250-6161.
In January 2012, Beebe was convicted in the first case. At a subsequent scheduling hearing for the second case, Gabler set the trial date. The prosecutor asked Gabler to sentence Beebe on the first conviction, invoking the first victim’s right to finality.
But Gabler exercised discretion and denied the state’s request, concluding that he would sentence Beebe after the conclusion of the second trial, which was months away.
Judge Gabler acknowledged that under the Wisconsin Constitution and Wis. Stat. section 950.04(1v)(k), victims are entitled to a “speedy disposition” of cases to “minimize the length of time they must endure the stress of their responsibilities.”
But Judge Gabler noted that the victim’s participation in the first case had concluded, since she already testified, and the terms of Beebe’s bond would keep her safe.
He also noted various other factors in his decision to postpone a prison sentence: Beebe would not have full access to his attorney for the second case; a pre-sentence investigation report would be incomplete; the second case would impact the first sentence; and sentencing him to prison would impose administrative burdens on the court and the county, which would be required to arrange for Beebe’s transport.
The victim contacted Crime Victim Services (CVS), with the Wisconsin Department of Justice, to complain about Judge Gabler’s decision to postpone Beebe’s sentencing.
The CVRB’s Action
CVS sent a letter to Judge Gabler, requesting that he sentence Beebe as soon as possible to minimize the stress and anxiety the first victim was experiencing.
Gabler acknowledged the victim’s concerns but noted the victim was just one aspect he was required to consider in resolving the case. He denied the request, again noting the various burdens associated with sentencing Beebe before the second trial.
Beebe pleaded no contest to the second charge in August 2012. In October, nine months after the first conviction, Judge Gabler sentenced Beebe on both convictions.
By that time, the first victim had filed a formal complaint to the CVRB, alleging Gabler violated the victim’s right to “speedy disposition” under the victim bill of rights.
The complaint also invoked the provisions of the Wisconsin Constitution (Art. 1, section 9m) that ensure privileges and protections for crime victims, including “timely disposition of the case” and “reasonable protection from the accused.” Section 9m requires the Wisconsin Legislature to provide remedies for violations of provisions protecting victims.
The CVRB asserted its authority to review Judge Gabler’s decision under Wis. Stat. 950.09(2), which allows the CVRB to determine if a crime victim's rights were violated and issue private or public reprimands, refer violations to the Judicial Commission, seek equitable relief, or issue reports and recommendations concerning the victim's rights.
Ultimately, the CVRB determined that Judge Gabler violated the victim's constitutional and statutory rights in postponing the sentence with factors that “lacked a factual basis.”
As a remedy, the CVRB issued a public report of the facts and decision with a recommendation concerning the timing of sentencing decisions after conviction.
The report did not mention Judge Gabler’s name specifically, but as his counsel later pointed out, the judge was not entitled to appeal as an anonymous party. Judge Gabler felt that a “report and recommendation” amounted to a public reprimand.
Judge Gabler initiated a review of the CVRB’s decision. The Eau Claire County Circuit Court reversed and remanded with instructions to dismiss the case. The CVRB appealed, and the supreme court accepted a petition to bypass the appeals court.
Separation of Powers
Solicitor General Misha Tseytlin argued that Wis. Stat. sections 950.09 and 950.11, which give the CVRB authority to review victims’ rights complaints and issue reprimands against public officials (including a $1,000 fine), apply to judges, and the power to remedy violations of victims’ rights does not intrude upon the powers of the judicial branch.
This is an area of shared powers, Tseytlin argued, because the Wisconsin Constitution (Art. 1, section 9m) grants victims’ rights and requires the legislature to provide remedies for any violations. The legislature provided remedies by statute, he argued.
But attorney Patrick Fiedler, a former judge and lead counsel for Judge Gabler, argued that those statutes are unconstitutional as applied to judges because the judicial branch has exclusive powers of judicial review, docket control, and judicial discipline.
“Judge Gabler has not argued that the judiciary has the exclusive power to remedy a violation of crime victim rights,” Fiedler wrote in his brief. “Rather, he has consistently argued that the manner in which CVRB exercised its powers under ch. 950 in this case unconstitutionally intruded upon the judiciary’s core, exclusive powers to review legal determinations made by courts, to manage court dockets, and discipline judges.”
The supreme court, siding with Judge Gabler, reiterated that under the Wisconsin Constitution, the judicial branch alone is vested with power to reprimand or discipline judges and so the disciplinary powers of the CVRB cannot apply to judges.
“Neither the executive branch nor the legislature may reprimand or otherwise discipline a Wisconsin judge,” Justice R. Bradley wrote for the majority. “The Wisconsin Constitution reserves such disciplinary powers for the supreme court alone. Nor may the legislature empower the executive branch to threaten any judicial officer with repercussions for exercising constitutional power vested exclusively in the judiciary.”
Holding otherwise would allow the judicial branch to relinquish judicial power that is essential to the checks-and-balances system of government, the majority noted. “Encroachment on judicial power degrades the judicial independence that serves as a bulwark protecting the people against tyranny,” Justice R. Bradley wrote.
The majority forcefully asserted that the legislature “transgressed the constitutional boundaries of its powers” in giving the CVRB authority to investigate and adjudicate crime victims’ complaints against judges, the province of the judiciary.
Voiding the CVRB’s actions against Judge Gabler, the majority declared provisions of sections 950.09 and 950.11 unconstitutional as applied to judges, because they encroach on powers exclusive to the judiciary. And Justice R. Bradley reiterated the importance of that decision as fundamental to the tripartite system of government.
“The people bestowed much power on the legislature, comprised of their representatives whom the people elect to make the laws,” she wrote. “However, ever vigilant in averting the accumulation of power by one body – a grave threat to liberty – the people devised a diffusion of governmental powers, placing judicial power, along with the authority to discipline judges, within the exclusive province of the judiciary.”
She noted that crime victims still have the right to assert grievances against judges under Wis. Stat. section 950.105, the mechanism for judicial review.
A Note on Free Speech
The opinion and decision should not be construed to place any restriction on free speech rights in the First Amendment to the U.S. Constitution, the majority noted.
“This opinion prohibits the legislature and the executive branch from transgressing the separation of powers by formally disciplining judges for exercising judgment, but the people may of course, individually or collectively, express opinions about judicial matters,” Justice R. Bradley wrote. But she cautioned against “reckless criticism.”
“[W]e caution those who impugn the integrity of judicial decision-making that while the courts remain fervent guardians of speech, particularly political expression, the right to speak, when exercised irresponsibly, is not without cost to the stability of our republican form of government.”
Abrahamson Dissents, Concurs
In a 53-page opinion, Justice Shirley Abrahamson concurred in part and dissented in part. She said the majority opinion “rushes headlong into determining the constitutionality of the statutes at issue without interpreting the statutes.”
“Disregard of bedrock, well-established principles of statutory interpretation in the instant case leads, in my opinion, to a lack of appropriate respect and constitutional concern for crime victims and the legislature and executive branches of government.”
Justice Abrahamson said the majority failed to address the principle of constitutional avoidance, which says a court should resolve cases on non-constitutional grounds if possible and interpret statutes so as to avoid constitutional infirmities if possible.
Despite what the state argues and what the majority suggests, the statutes do not give the CVRB the authority to adjudicate complaints against judges and reprimand them, and a court must work towards “saving rather than destroying a statute’s constitutionality,” Justice Abrahamson noted.
Justice Abrahamson explained that under section 950.09(2), referring a case to the Judicial Commission is one of the four actions that CVRB may take if it finds probable cause to believe a judge has violated the rights of a crime victim.
But other provisions that apply to “public officials” accused of violating victims’ rights – including provisions that subject a party to public reprimand and/or forfeitures up to $1,000 – do not apply to judges, Abrahamson argued, based on statutory interpretation.
Abrahamson also concluded that the CVRB’s power to issue reports and recommendations, under 950.09(3), is constitutional as applied to judges. That is what happened in this case, and Abrahamson found no statutory or constitutional violation.
“The court should not silence legislatively authorized evaluations of the judicial system by an executive agency composed of criminal justice professionals and public members,” Justice Abrahamson wrote. “The institutions composing the criminal justice system, including the courts, should welcome all the help we can get.”
Justice Ann Walsh Bradley did not participate in the case.