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Craig Mastantuono Nov. 30, 2012

Recusal issue may return after Tuesday’s electionApril 1, 2011By David Ziemer, Wisconsin Law Journal

Defense attorneys may renew their campaign to recuse Justice Michael Gableman from criminal cases should attorney JoAnne Kloppenburg defeat Incumbent Justice David Prosser in Tuesday’s Wisconsin Supreme Court election.

With Prosser on the court, the six state Supreme Court justices outside Gableman deadlocked on a previous motion regarding whether the court has power to consider motions for Gableman to recuse himself in criminal cases.

After Gableman’s election in 2008, several Wisconsin attorneys filed motions asking the justice not to participate in criminal cases, saying he is biased against criminal defendants. When those motions were denied, some attorneys directed motions to the entire court to review Gableman’s decision not to recuse himself.

Although a 3-3 stalemate in February 2010 (State v. Allen, 2010 WI 10) brought an end to the recusal motions, they could return if Kloppenburg were to replace Prosser.

In her campaign for the high court, the candidate has been vocal in her criticism of how the court handled the disciplinary complaint against Gableman.

“Reading (Kloppenburg’s) campaign rhetoric, it appears she would be more favorably inclined to the motions than Justice Prosser, and there might not be a deadlock,” said Craig Mastantuono, an attorney with Mastantuono Law Office SC who previously filed a motion for recusal against Gableman.

Attorney Robert Henak, who moved for Gableman’s recusal in the Allen case, said the basis for such motions still exists.

“In almost three years on the court, (Gableman) has never voted to reverse a conviction,” Henak said. “I thought that, by now, he would do something to nullify the basis for such motions, but he hasn’t.”

Henak acknowledged Gableman has ruled in favor of a defendant in one case involving sentence credit, and in another case, he voted in favor of a defendant’s resentencing. But he has not voted to overturn any convictions.

Eileen Hirsch, an attorney with the State Public Defender’s Appellate Division who also has filed motions requesting Gableman’s recusal, said she’s waiting to see what happens.

“At the very least, I expect the issue will receive renewed interest,” said Henry Schultz, president of the Wisconsin Association of Criminal Defense Lawyers. “I don’t see how it would not. But how they would turn out, I don’t know.”

In the 2010 vote, Prosser, joined by Justices Patience Drake Roggensack and Annette Kingsland Ziegler, concluded they had no authority to compel a sitting justice to recuse himself.

Chief Justice Shirley Abrahamson and Justices Ann Walsh Bradley and N. Patrick Crooks concluded the court should order briefing and argument on the issue.

If Kloppenburg is elected, she may provide the fourth vote needed to require briefing and argument when recusal motions are filed against a justice.

But if such motions were to succeed, Kloppenburg herself could become a target, said Rick Esenberg, a professor at Marquette University Law School. Esenberg said the candidate should have to recuse herself from any case involving the budget repair bill.

Special interest groups have spent millions of dollars to elect Kloppenburg, knowing the issue of the budget repair bill could eventually go before the court.

“They are making the campaign about the bill,” Esenberg said of Kloppenburg supporters.

“In an added twist,” he continued, “it was the conservatives on the court who said they don’t have the authority to review another justice’s decision not to recuse himself.”

So, if Kloppenburg were not to recuse herself from a case involving the budget bill, those justices are on record saying they have no authority to review that decision.

But, Esenberg acknowledged, if a majority of the court were to hold that it could review a recusal motion against Gableman in a criminal case, that would become precedent, and nothing would preclude the other justices from reviewing a recusal motion against Kloppenburg.