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Legal Ethics

Split Wis. Supreme Court Refuses to Kick Justice from Case Litigated by His Pro Bono Law Firm

Posted Jul 6, 2012 6:59 AM CDT
By Debra Cassens Weiss

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Michael Gableman

In a 3-3 vote, the Wisconsin Supreme Court has rejected a rehearing in a recusal dispute involving one of its justices who received free legal help from a law firm.

At issue was whether Justice Michael Gableman should have stepped aside in a dispute involving the location of a livestock facility because one of the law firms litigating the case had given him free legal services in a prior ethics investigation, report the Milwaukee Journal Sentinel and the Associated Press.

Challengers had asked the court to rehear the livestock case, this time without the participation of Gableman. The court's 3-3 split—Gableman did not participate—amounted to a rejection of the rehearing request.

Gableman had decided in January that he could be impartial in three cases involving Michael Best & Friedrich, the firm that gave him pro bono services. The cases included the livestock case and a challenge to the state’s anti-union law. Three justices said in the order (PDF) issued Thursday that the court does not go beyond a justice's subjective review of recusal decisions and does not involuntarily remove justices from pending cases.

Chief Justice Shirley Abrahamson disagreed in a dissent joined by two other justices. She said the U.S. Supreme Court’s 2009 decision in Caperton v. A.T. Massey Coal Co. requires courts to make a due process determination whether the litigants had a fair hearing when a justice’s participation in a case is challenged.

The firm’s representation agreement with Gableman in the ethics case over a campaign ad had said it would be paid if the justice prevailed and a state claims board paid his attorney fees. The state supreme court split 3-3 in the ethics case, meaning there was no finding of an ethics violation and no payment for the law firm.

Related coverage:

ABA Journal: “Show Me the Money: States, ABA Try to Figure Out When Campaign Cash Leads to a Judge’s Recusal”

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