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SCOW: Unconstitutional for victims rights board to issue report criticizing judge

Honorable William Gabler v. Crime Victims Rights Board, 2017 WI 67, 6/27/2017, affirming circuit court on bypass; case activity (including briefs)

The legislature created the Crime Victims Rights Board and tasked it with, among other things, issuing “private and public reprimands of public officials” who violate victims’ rights as defined by our state Constitution and statutes. Wis. Stat. 950.09(2)(a). The supreme court now declares this mission contrary to the state Constitution when those “public officials” are judges. 

Judge Gabler was presiding over a multi-count sexual assault case involving a single defendant but two different victims, both minors. The charges were severed and a jury convicted the defendant of assaulting one of the victims. Another trial was scheduled for the charges involving the other victim. The state asked that the defendant be sentenced immediately for the assault of which he had already been convicted, but Judge Gabler, after considering a number of factors, decided it would be preferable to wait until after the second trial and then sentence as to all convictions.

The victim of the assault for which conviction had occurred contacted the DOJ’s Office of Crime Victim Services, which wrote a letter to Judge Gabler urging him to reconsider. He did not change his mind, in part because he was concerned that the letter was an impermissible ex parte communication and that any action he took in response would be the product of improper influence. The victim then complained to the Board, which initiated a sort of quasi-judicial investigation of Judge Gabler’s decision. The Board concluded that Judge Gabler’s reasons for delaying sentencing “lacked a factual basis, a legal basis, or both,” that the delay was unreasonable, and that Judge Gabler had thereby violated the victim’s constitutional rights. Judge Gabler filed a Wis. Stat. ch. 227 action for circuit court review of the Board’s administrative decision, and the circuit court reversed the board. The board appealed, and Judge Gabler moved the supreme court to bypass the court of appeals, which it did.

The Board’s conclusion is, well, something. Read the judge’s stated reasons for his scheduling decision yourself and see whether they strike you as unreasonable or instead an utterly sensible (and ordinary) exercise of what is, after all, his discretion. Moreover, as Judge Gabler argues, the Board has promulgated no standards for determining “reasonableness,” leaving the determination “entirety to the subjective opinions of the Board members—none of whom had any judicial experience” (and some of whom are not lawyers). For a question of law. Constitutional law.

Consider further that the board is administratively “attached” to the Department of Justice and is composed of seats for law enforcement, district attorneys, victim/witness professionals and “citizen” members, and you may begin to wonder about the ethical implications of giving such a group the authority to declare unconstitutional the decisions of judges sitting on criminal cases. And now the DOJ is representing the Board as it appeals a judicial determination that its decision was unlawful. It all just seems like a pretty messy arrangement, right?

But is it unconstitutional? To answer that question one would typically look at the constitutional provisions involved, but the court doesn’t. It acknowledges the Board’s argument that the 1993 victim’s rights amendment, which added article I, § 9m, empowered the legislature to discipline judges in this way, but then drops the matter completely without explaining why it’s not correct. Instead it provides a lengthy discussion of the federalist papers, Montesquieu, etc., on the importance of judicial independence. But such independence, of course, is founded on the notion that the courts merely interpret what the people (sometimes through their legislatures) have written and declared to be the law. It’s thus disorienting for the court to write a paean to an ideal of judicial independence that seems to override the founding document, rather than being derived from it. And to toss in a claim that those who “impugn the integrity of judicial decision-making” are undermining the republic. (¶57).

Justice Abrahamson concurs, arguing that the statutes, properly read, do not permit the Board to sanction judges and are thus constitutional.

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