Wisconsin Supreme Court Justice Susan Crawford issued an order Thursday recusing herself from former Justice Michael Gableman’s disciplinary case with the state Office of Lawyer Regulation.
Gableman faces a suspension of his law license for his conduct during his widely derided review of the 2020 presidential election. The Supreme Court is responsible for delivering the length of his suspension and determining any monetary penalties he’s responsible for paying.
Crawford’s recusal comes after Gableman had filed a motion requesting that she not participate in the case because of comments she made about him on the campaign trail earlier this year. However, Crawford isn’t recusing at Gableman’s request.
Instead, Crawford wrote, she is stepping aside from weighing in on the case because part of the allegations against Gableman are his actions during an open records lawsuit against him in the circuit court of Dane County Judge Frank Remington. Crawford, formerly a judge in that circuit, said that because of her proximity to Remington’s court, she learned facts about that case that are not considered part of the official record in the disciplinary matter.
“I believe it is likely I was exposed to information and impressions related to Attorney Gableman’s conduct and demeanor in the circuit court that fall outside of the record before this court,” she wrote. “Because I may have been exposed to factual allegations beyond those Attorney Gableman has chosen not to contest, I may have ‘personal knowledge of disputed evidentiary facts concerning the proceeding.’”
Because she recused herself for another reason, Crawford dismissed Gableman’s request as moot.
Gableman had also requested the recusal of Justice Rebecca Dallet, arguing that comments she made about his judicial record when she announced her campaign for the Court in 2017 meant she couldn’t impartially assess his case. In an order, Dallet denied the request, writing that her comments about him in 2017 have nothing to do with how she assesses actions he took in 2021.
“Although Gableman tries to characterize my comments as reflecting a view of ‘Gableman’s moral turpitude,’ and his ‘professional judgment and character,’ no objective reasonable observer would understand them as such,” she wrote. “Simply put, I expressed my disagreement with Gableman’s actions as a candidate and justice between 2008 and 2018. That disagreement is irrelevant to whether he engaged in attorney misconduct in 2021 and 2022, and whether I can impartially adjudicate claims that he did so now.”
With Crawford recusing, the Court is divided 3-3 between liberals and conservatives — though conservative Justice Brian Hagedorn has previously sided with the Court’s liberals in cases relating to the 2020 presidential election.
Michael Gableman in Dane County Circuit Court on Thursday, June 23 | Screenshot via Wisconsin Eye
Former Wisconsin Supreme Court Justice Michael Gableman could be forced to pay $48,192 to cover the costs of the state Office of Lawyer Regulation’s investigation into him for his conduct during his widely derided review of the 2020 presidential election.
That review of the election, which did not turn up any proof of wrongdoing, has resulted in 10 counts of misconduct being filed against the former judge. Late last month, he agreed to have his law license suspended for three years because of the charges.
Last week the OLR filed a statement arguing that the case against Gableman should follow Supreme Court precedent, which would mean the costs incurred by the OLR investigator and independent referee overseeing the case should be paid by the lawyer under investigation. The referee issued a recommendation stating that there was no reason the case shouldn’t follow the existing precedent.
Both the responsibility for paying the bill and the ultimate punishment will be decided by the state Supreme Court.
Also last week, Gableman filed a motion in his case last week seeking the recusal of liberal justices Susan Crawford and Rebecca Dallet.
Gableman’s filing notes that Crawford called him a “disgraced election conspiracy theorist” and accused him of leading a “sham” investigation of the 2020 election during her campaign earlier this year.
His filing notes comments Dallet made in 2017 after she had announced her campaign for the Court but before Gableman had decided not to run for another term. Dallet accused Gableman of not recusing himself from cases in which he had a conflict of interest, called his 2008 campaign “one of the most unethical” in state history and said he was a “rubber stamp for his political allies.”
Gableman argues that these comments create the appearance of bias and that the justices shouldn’t weigh in on his punishment. If they were to recuse, the Court’s conservatives would hold a 3-2 majority — though Justice Brian Hagedorn sided with the Court’s liberals in the 2020 election cases it decided.
A formal recommendation of punishment for Michael Gableman, whose career rise and fall set him apart in Wisconsin legal and political history, signals the end of a case that has been humiliating for the former state Supreme Court justice and the court itself.
In a report issued Friday, a referee in a state Office of Lawyer Regulation case found that Gableman committed 10 lawyer misconduct violations in his probe of the 2020 presidential election in Wisconsin.
The partisan probe was authorized at the behest of then-citizen Donald Trump, who lost that election to Joe Biden.
The referee, Milwaukee attorney James Winiarski, recommended that the state Supreme Court suspend Gableman’s law license for three years.
Gableman and the Office of Lawyer Regulation, seeking to settle the case, had stipulated to the three-year suspension.
“A high level of discipline is needed to protect the public, the courts and the legal system from repetition” of Gableman’s conduct, by him or other attorneys, the referee wrote.
Former state Supreme Court Justice Janine Geske, who was appointed to the court by Republican Gov. Tommy Thompson, said before the report was issued that Gableman’s behavior in the investigation “was so outrageous and damaging to the image of the Supreme Court.
“But he has been on the outskirts or around ethical violations his whole Supreme Court career.”
Gableman, 58, a Waukesha County resident who has largely receded from public view, did not reply to requests for comment.
The conservative Gableman, a former small-county judge with close ties to the Republican Party, made history by defeating an incumbent justice in the 2008 election. He served one 10-year term before his career began to unravel.
As Wisconsin Watch detailed in April, Gableman attended the 2016 Republican National Convention, in possible violation of the state judicial code, and had to be escorted out of two gatherings there after causing disturbances. After deciding not to seek re-election in 2018, he worked for the first Trump administration before leading the election investigation, a probe that found no fraud but cost taxpayers $2.8 million — four times the budgeted amount.
Gableman now finds himself facing punishment from the very court he served on.
Winiarski has practiced law for more than 40 years and has previously served as referee in lawyer discipline cases. He invoiced the Supreme Court $8,208 for nearly 109 hours on the case at $75.51 per hour. He recommended Gableman be responsible for all costs associated with the disciplinary matter.
The suspension recommendation essentially codifies a stipulation Gableman made in April with the Office of Lawyer Regulation in which he stated he could not successfully mount a legal defense against the misconduct allegations.
The liberal-majority Supreme Court, which began its current session in September, must still approve the punishment.
Geske, who was a justice from 1993 to 1998, said the suspension would be fair punishment in part because Gableman’s conduct in the investigation, including threatening to jail elected officials, helped solidify the public perception that Wisconsin judges have become partisan actors.
“I think people wonder what’s happening in the court and what’s happening with the individual justices,” she said. “So I think he did great harm to the court in engaging in that behavior.”
The Office of Lawyer Regulation case against Gableman alleged that during the election investigation Gableman violated 10 counts of Supreme Court rules of professional conduct for attorneys. He was accused of making false statements about a judge, an opposing attorney and two mayors; making false statements to the Office of Lawyer Regulation; disobeying a court order; and violating the state open records law and confidentiality rules.
University of Wisconsin-Madison political science professor Howard Schweber, who is affiliated with UW’s law school, said a three-year license suspension verges on lenient because of the seriousness of the misconduct and because Gableman was acting in a public capacity, not as a private attorney.
Wausau attorney Dean Dietrich, a former Wisconsin Bar Association president and expert on lawyers’ professional responsibility, said “it is unfortunate” that a former justice is facing a law license suspension, but that “the actions of one person do not reflect the actions of others.”
Judicial offices in Wisconsin technically are nonpartisan, but state Supreme Court races have drawn heavy participation and money from the Republican and Democratic parties.
Marquette University law professor Chad Oldfather, author of a recent book on the importance of selecting judges with good character, said a three-year suspension would be typical for the type of misconduct alleged against Gableman.
“Ultimately, we want people of the highest character in judicial roles,” Oldfather said. “Somehow we have to find a way to get the legal profession and the broader culture to buy into that as the top priority, which seems like an awfully heavy lift these days.”
There are also calls for tougher action on lawyer misconduct.
Madison lawyer Jeffrey Mandell, head of a law firm that filed a misconduct complaint against Gableman with the Office of Lawyer Regulation, noted that Gableman previously was investigated for ethics violations involving an ad he ran in his Supreme Court campaign and for hearing cases while a justice that involved a law firm that gave him free legal services.
Gableman was not sanctioned in those cases.
Mandell said the state needs to act more quickly and more decisively on lawyer misconduct. He noted Wisconsin lawyers are not subject to permanent disbarment. Those who receive the most severe punishment, a five-year license revocation, can petition after five years to get their license back.
The vast majority of states allow disbarred attorneys to apply for license reinstatement.
“Some conduct is simply beyond the pale, deserving of a permanent ban from the public trust of legal practice,” Mandell said. “It’s past time for Wisconsin to recognize this.”
After the report was issued, Mandell called for the Supreme Court to revoke Gableman’s law license, saying: “Anything less minimizes the gravity of his offensive behavior and lacks deterrent effect. Wisconsin attorneys must understand that engaging in unethical conduct to overturn the will of voters will not be tolerated, regardless of who the actor is.”
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