The Honorable William M. Gabler, Sr. v. Crime Victims Rights Board ( 2017 )

2017 WI 67SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP275
COMPLETE TITLE: The Honorable William M. Gabler, Sr.,
Petitioner-Respondent,
v.
Crime Victims Rights Board,
Respondent-Appellant,
Wisconsin Department of Justice,
Respondent.
ON BYPASS FROM THE COURT OF APPEALS
OPINION FILED: June 27, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 17, 2017
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Eau Claire
JUDGE: James J. Duvall
JUSTICES:
CONCURRED:
CONCURRED/DISSENTED: ABRAHAMSON, J. concurs and dissents (opinion
filed).
DISSENTED:
NOT PARTICIPATING: A.W. BRADLEY, J. did not participate.
ATTORNEYS:
For the respondent-appellant there were briefs (in court of
appeals) by Thomas C. Bellavia, assistant attorney general, and
Brad D. Schimel, attorney general, and oral argument by Misha
Tseytlin.
For the petitioner-respondent, there was a brief (in court
of appeals) by Timothy M. Barber and Axley Brynelson, LLP,
Madison, with whom on the brief was Patrick J. Fielder and
Hurley, Burish & Stanton, SC, Madison. Oral argument by Patrick
J. Fiedler.
2017 WI 67NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP275
(L.C. No. 2013CV473)
STATE OF WISCONSIN : IN SUPREME COURT
The Honorable William M. Gabler, Sr.,
Petitioner-Respondent,
v.
FILED
Crime Victims Rights Board, JUN 27, 2017
Respondent-Appellant, Diane M. Fremgen
Clerk of Supreme Court
Wisconsin Department of Justice,
Respondent.
APPEAL from an order of the Circuit Court for Eau Claire
County, James J. Duvall, Judge. Affirmed.
¶1 REBECCA GRASSL BRADLEY, J. In creating an executive
branch entity with authority to pass judgment and impose
discipline on a judge's exercise of core judicial powers, the
Wisconsin legislature violates the Wisconsin Constitution's
structural separation of powers and invades a domain recognized
for over two hundred years as the exclusive province of the
judiciary. Neither the executive branch nor the legislature may
reprimand or otherwise discipline a Wisconsin judge. The
No. 2016AP275
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.
¶2 Encroachment on judicial power degrades the judicial
independence that serves as a bulwark protecting the people
against tyranny. By statutorily authorizing executive action
against the judiciary, the legislature unconstitutionally
conferred power on an executive board to impair, improperly
influence, and regulate the judiciary's exercise of its
constitutional duties. Specifically, the legislature
transgressed the constitutional boundaries of its powers by
authorizing the Crime Victims Rights Board (the "Board") to
investigate and adjudicate complaints against judges, issue
reprimands against judges, and seek equitable relief and
forfeitures through civil actions against judges. We therefore
affirm the decision of the circuit court and hold that Wis.
Stat. §§ 950.09(2)(a), (2)(c)-(d) and (3) and 950.11 (2015-16)1
are unconstitutional with respect to judges; accordingly, the
Board's actions against Judge William M. Gabler are void.
I. AN INDEPENDENT JUDICIARY
¶3 Any student of American government can recite the
fundamental principle that both our state and the federal
1
All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
2
No. 2016AP275
Republic separate governmental powers between independent
legislative, executive, and judicial branches. In a 1796 speech
to his colleagues in the Fourth Congress, then-Representative
James Madison deftly summarized the dispersal of power he helped
to engineer:
The powers given up by the people for the purposes of
Government, had been divided into two great classes.
One of these formed the State Governments; the other,
the Federal Government. The powers of the Government
had been further divided into three great departments;
and the Legislative department again subdivided into
two independent branches. Around each of these
portions of power were seen also exceptions and
qualifications, as additional guards against the
abuses to which power is liable.
5 Annals of Cong. 493 (1796). Joseph Story later "deemed [it] a
maxim of vital importance" that "the three great powers of
government . . . should for ever be kept separate and distinct."
2 Joseph Story, Commentaries on the Constitution of the United
States § 519, at 2-3 (Boston, Hilliard, Gray, & Co., 1833).
After more than two hundred years of constitutional governance,
that tripartite separation of independent governmental power
remains the bedrock of the structure by which we secure liberty
in both Wisconsin and the United States.
¶4 To the Framers of the United States Constitution, the
concentration of governmental power presented an extraordinary
threat to individual liberty: "The accumulation of all powers,
legislative, executive, and judiciary, in the same hands,
whether of one, a few, or many, . . . may justly be pronounced
the very definition of tyranny." The Federalist No. 47, at 298
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(James Madison) (Clinton Rossiter ed., 1961) [hereinafter
Federalist]. As Madison explained when advocating for the
Constitution's adoption, neither the legislature nor the
executive nor the judiciary "ought to possess, directly or
indirectly, an overruling influence over the others in the
administration of their respective powers." Federalist No. 48
(James Madison), id. at 305.
¶5 The Framers' fear of concentrated power reflected the
thinking of seventeenth and eighteenth century political
philosophers, who warned of the ramifications of unchecked
governmental power. John Locke, for example, observed that "it
may be too great a temptation to human frailty, apt to grasp at
power, for the same persons who have the power of making laws to
have also in their hands the power to execute them." John
Locke, The Second Treatise of Civil Government § 143 (1764),
reprinted in Two Treatises of Government 119, 194 (Thomas I.
Cook ed., 1947). Absent separation, those who make the laws
"may exempt themselves from obedience," or they might "suit the
law, both in its making and execution, to their own private
advantage." Id. Montesquieu2 shared Locke's concern about the
threat to liberty from accumulated power, expressing
apprehension that a government with shared legislative and
executive power could first "enact tyrannical laws" then
"execute them in a tyrannical manner." 1 Montesquieu, The
2
The philosopher Charles Louis de Secondat, Baron de
Montesquieu, is generally known simply by his title.
4
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Spirit of the Laws 151-52 (Oskar Piest et al. eds., Thomas
Nugent trans., 1949) (1748). Similar concern marked
Montesquieu's assessment of the judicial power, which could
impinge on liberty through "arbitrary control," if fused with
the legislature, or by "violence and oppression," if mixed with
the executive. Id. at 152.3
¶6 "[T]he Constitution of the United States divides all
power conferred upon the Federal Government into 'legislative
Powers,' Art. I, § 1, '[t]he executive Power,' Art. II, § 1, and
'[t]he judicial Power,' Art. III, § 1 . . . ." Lujan v.
Defenders of Wildlife, 504 U.S. 555, 559 (1992) (second and
third alterations in original). Unlike some state
constitutions, however, the federal Constitution does not
include a clause expressly adopting the separation of powers.
Instead, because "[t]he Constitution enumerates and separates
the powers of the three branches of Government in Articles I,
II, and III, . . . it is this 'very structure' of the
Constitution that exemplifies the concept of separation of
powers." Miller v. French, 530 U.S. 327, 341 (2000) (quoting
INS v. Chadha, 462 U.S. 919, 946 (1983)); see also Humphrey's
Ex'r v. United States, 295 U.S. 602, 629-30 (1935) ("So much is
3
For additional discussion of the philosophical bases for
the separation of powers, as well as the doctrine's utility for
achieving "the interconnected goals of preventing tyranny and
protecting liberty," see generally Rebecca L. Brown, Separated
Powers and Ordered Liberty, 139 U. Pa. L. Rev. 1513, 1531-40
(1991).
5
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implied in the very fact of the separation the powers of these
departments by the Constitution . . . .").4
¶7 The Constitution's structure advances separation
through deliberate calibration of incentives and control between
the branches. To attain a lasting separation, the Framers did
not place their trust in mere "parchment barriers against the
encroaching spirit of power." Federalist No. 48, supra, at 305.
Rather, they "built into the tripartite Federal
Government . . . a self-executing safeguard against the
encroachment or aggrandizement of one branch at the expense of
the other." Clinton v. Jones, 520 U.S. 681, 699 (1997)
(alteration in original) (quoting Buckley v. Valeo, 424 U.S. 1,
122 (1976)).5 Specifically, the Constitution gives "to those who
administer each department the necessary constitutional means
and personal motives to resist encroachments of the others,"
therefore guaranteeing "security against a gradual concentration
4
"Obviously, then, the Constitution's central mechanism of
separation of powers depends largely upon common understanding
of what activities are appropriate to legislatures, to
executives, and to courts." Lujan v. Defenders of Wildlife, 504
U.S. 555, 559-60 (1992).
5
See United States v. Klein, 80 U.S. (13 Wall.) 128, 147
(1872) ("It is the intention of the Constitution that each of
the great co-ordinate departments of the government——the
Legislative, the Executive, and the Judicial——shall be, in its
sphere, independent of the others."); see also Loving v. United
States, 517 U.S. 748, 757 (1996) ("Even when a branch does not
arrogate power to itself, moreover, the separation-of-powers
doctrine requires that a branch not impair another in the
performance of its constitutional duties." (citing Mistretta v.
United States, 488 U.S. 361, 397-408 (1989)).
6
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of the several powers in the same department." Federalist
No. 51 (James Madison), supra, at 318-19.6
¶8 When structuring the federal judiciary, the Framers
knew from experience the perils of adopting a separation of
powers in name without paying appropriate attention to the
incentives affecting individual judges. By the time of the
Constitutional Convention, "[t]he Framers of our Constitution
lived among the ruins of a system of intermingled legislative
and judicial powers, which had been prevalent in the colonies
long before the Revolution." Plaut v. Spendthrift Farm, Inc.,
514 U.S. 211, 219 (1995). Several colonial legislative bodies
not only reviewed judicial decisions but also "correct[ed] the
judicial process through special bills or other enacted
legislation." Id.7 Some early state legislatures——Virginia, for
example——possessed and employed substantial control over
judicial salaries and tenure, rivaling the British government's
6
See also Victoria Nourse, Toward a "Due Foundation" for
the Separation of Powers: The Federalist Papers as Political
Narrative, 74 Tex. L. Rev. 447, 473-74 (1996) ("[T]o protect the
institution, one must protect the persons within the
institution. Private interest must not dictate public interest.
Thus, individual officers should be as independent as possible
from influence by other branches when it comes to matters in
which their personal interest may obscure their public duties.
And that means security for persons——the security from fear that
one's livelihood will be at risk if one pursues the obligations
of office." (footnote omitted)).
7
For additional discussion of special legislation in
colonial America, see generally Evan C. Zoldan, Reviving
Legislative Generality, 98 Marq. L. Rev. 625, 660-79 (2014).
7
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absolute authority that helped spark the Revolution. Federalist
No. 48, supra, at 307-08 (citing Thomas Jefferson, Notes on the
State of Virginia (1781)); see also The Declaration of
Independence (U.S. 1776) ("[The King of Great Britain] has made
Judges dependent on his Will alone, for the tenure of their
offices, and the amount and payment of their salaries.").
¶9 As a reaction to the Framers' experiences with
compromised judicial independence, Article III of the federal
Constitution "protects liberty" and "implement[s] the separation
of powers" in part "by specifying the defining characteristics
of Article III judges." Stern v. Marshall, 564 U.S. 462, 483
(2011). Article III provides that federal judges "shall hold
their Offices during good Behaviour" and, "at stated Times,
receive . . . Compensation, which shall not be diminished during
their Continuance in Office." U.S. Const. art. III, § 1. Both
provisions evince a recognition that "a power over a man's
subsistence amounts to a power over his will." Federalist
No. 79 (Alexander Hamilton), supra, at 471 (emphasis omitted);
see United States v. Hatter, 532 U.S. 557, 568 (2001) (observing
that the Constitution "help[s] to secure an independence of mind
and spirit necessary if judges are 'to maintain that nice
adjustment between individual rights and governmental powers
which constitutes political liberty" (quoting Woodrow Wilson,
Constitutional Government in the United States 143 (1911)));
United States v. Will, 449 U.S. 200, 218 (1980); cf. Bradley v.
Fisher, 80 U.S. (13 Wall.) 335, 347 (1872) ("[I]t is a general
principle of the highest importance to the proper administration
8
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of justice that a judicial officer, in exercising the authority
vested in him, shall be free to act upon his own convictions,
without apprehension of personal consequences to himself."). By
insulating individual federal judges from manipulation by
Congress or the Executive, the Framers assured that the
Judiciary as a whole could exercise genuinely independent
judgment.
¶10 Over time, the Supreme Court has both defended the
independence of judges and protected the judicial power from
encroachment. Thus, the Court has held that even marginal
changes in judicial salaries violate the constitutional
prohibition on diminishment of compensation. See Hatter, 532
U.S. at 578 (imposition of Social Security taxes on sitting
judges); Will, 449 U.S. at 230 (revocation of scheduled pay
increase). The Court has also held that the other branches may
not "confer the Government's 'judicial Power' on entities
outside Article III." Stern, 564 U.S. at 484. Accordingly,
"Congress cannot vest review of the decisions of Article III
courts in officials of the Executive Branch." Plaut, 514 U.S.
at 218 (citing Hayburn's Case, 2 U.S. (2 Dall.) 409 (1792)).
Neither may Congress "prescribe rules of decision to the
Judicial Department of the government in cases pending before
it." Id. (internal quotation mark omitted) (quoting United
States v. Klein, 80 U.S. (13 Wall.) 128, 146 (1872)). Such
decisions show clear adherence to the precept that "[a]
Judiciary free from control by the Executive and Legislature is
essential if there is a right to have claims decided by judges
9
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who are free from potential domination by other branches of
government." N. Pipeline Constr. Co. v. Marathon Pipe Line Co.,
458 U.S. 50, 58 (1982) (plurality) (quoting Will, 449 U.S. at
217-18).8
¶11 These separation of powers principles, established at
the founding of our nation and enshrined in the structure of the
United States Constitution, inform our understanding of the
separation of powers under the Wisconsin Constitution. Like its
federal counterpart, "[o]ur state constitution . . . created
three branches of government, each with distinct functions and
powers," and "[t]he separation of powers doctrine is implicit in
this tripartite division." Panzer v. Doyle, 2004 WI 52, ¶48,
271 Wis. 2d 295, 680 N.W.2d 666, overruled on other grounds by
Dairyland Greyhound Park, Inc. v. Doyle, 2006 WI 107, 295
Wis. 2d 1, 719 N.W.2d 408. Three clauses of the Wisconsin
Constitution embody this separation: Article IV, Section 1
("[t]he legislative power shall be vested in a senate and
assembly"); Article V, Section 1 ("[t]he executive power shall
be vested in a governor"); and Article VII, Section 2 ("[t]he
8
See also The Federalist No. 78, at 465 (Alexander
Hamilton) (Clinton Rossiter ed., 1961) ("The complete
independence of the courts of justice is peculiarly essential in
a limited Constitution."); cf. 1 William Blackstone,
Commentaries on the Laws of England 269 (Philadelphia 1771)
(noting that, if the legislature subsumes the judiciary, "the
life, liberty, and property of the subject would be in the hands
of arbitrary judges, whose decisions would be then regulated
only by their own opinions, and not by any fundamental
principles of law; which though legislators may depart from, yet
judges are bound to observe").
10
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judicial power . . . shall be vested in a unified court
system"). See State v. Washington, 83 Wis. 2d 808, 816, 266
N.W.2d 597 (1978). Before discussing in greater detail
Wisconsin's law of separated powers and judicial independence,
we will first describe the collision between branches in the
present case: the Board's disciplinary review of Judge Gabler's
decision to postpone a criminal defendant's sentencing.
II. BACKGROUND
¶12 At the outset, it is important to understand the
context in which Judge Gabler made the challenged January 2012
decision. The Eau Claire District Attorney's office filed a
criminal complaint in late July 2011 alleging that Leigh M.
Beebe sexually assaulted K.L., a minor. An amended complaint
filed in early August added charges against Beebe for allegedly
sexually assaulting K.H., also a minor. Initially, Judge Gabler
set a January 2012 trial for all charges in the amended
complaint, but in December 2011 he granted Beebe's severance
motion and ordered separate trials for the charges involving
each victim. At the January trial, a jury convicted Beebe of
sexually assaulting K.L.
¶13 At a subsequent scheduling conference on January 18,
2012, Judge Gabler scheduled Beebe's trial on the charges
involving K.H. for August 7-8, 2012. The State then asked Judge
Gabler to sentence Beebe immediately for the January conviction.
Invoking the victims rights statute to argue that K.L. was
"entitled to some finality," the assistant district attorney
suggested that the court should not "delay [sentencing Beebe]
11
No. 2016AP275
for seven, eight or longer months to resolve . . . other
matters."
¶14 After considering the State's arguments, Judge Gabler
exercised his discretion and denied the State's request to
sentence Beebe for the January conviction before the August
trial. He began by considering K.L.'s rights as a victim.
Referring to Wis. Stat. § 950.04(1v)(k), which assures victims a
"speedy disposition" of cases to "minimize the length of time
they must endure the stress of their responsibilities" in a
criminal matter, Judge Gabler observed that because K.L. had
already testified at trial "her active participation in the
matter, other than giving a . . . victim statement at the
sentencing, [was] concluded." He also noted that the terms of
Beebe's bond would continue to keep K.L. safe from her
assailant. Turning to Beebe's rights as a defendant, Judge
Gabler acknowledged that sentencing him to prison could leave
him with inadequate access to his attorney as they prepared for
a complicated second trial. Finally, Judge Gabler considered
the efficient administration of justice. Allowing time for the
Department of Corrections (DOC) to prepare a presentence
investigation report would delay sentencing on the January
conviction until at least early April, and sentencing Beebe to
prison would "impose[] a huge burden on the court and on the
county to retrieve him" for an August trial.
¶15 K.L. contacted the Department of Justice's Office of
Crime Victim Services (CVS) in April 2012 to express concern
about Judge Gabler's decision to postpone Beebe's sentencing.
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The Victim Resource Center Coordinator brought this concern to
Judge Gabler's attention in a June 2012 letter, explaining that
K.L "want[ed] closure in her case as soon as possible" and that
"[t]he long delay between the jury trial and sentencing [was]
causing [K.L.] extreme stress and anxiety." Citing Article I,
Section 9m of the Wisconsin Constitution and Wis. Stat.
§ 950.04(1v)(k), the letter requested that Judge Gabler
"consider sentencing Mr. Beebe as soon as possible."
¶16 In a responsive letter to CVS two weeks later, Judge
Gabler expanded on the reasoning articulated at the January
scheduling conference. The letter began and ended by
recognizing K.L's rights as a victim and placing those rights in
the context of his entire decision:
[K.L.'s] stress and anxiety and her rights as a victim
are but one aspect of a variety of factors that I must
consider in resolving this entire case.
. . . .
. . . I understand and acknowledge the stress and
anxiety that [K.L.] feels. I understand and
acknowledge that the long delay between Mr. Beebe's
January 11, 2012 conviction and his sentencing is not
ideal. In my 13 years as a circuit court judge I have
never had a case such as this where sentencing takes
place more than two or three months after the
conviction, but . . . this is an unusual case with
unusual circumstances that are beyond my control. I
have, to the best of my ability, taken into
consideration all relevant factors based upon the
timing of sentencing.
After describing the discretion that circuit courts possess to
manage their busy dockets, Judge Gabler offered five detailed
reasons for postponing sentencing: (1) if sentenced to prison,
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Beebe's "absence from the community would have a significant
deleterious effect upon his attorney's ability to adequately
prepare for trial"; (2) the DOC could not complete a
sufficiently comprehensive presentence investigation until after
the August trial because "Beebe . . . constitutionally [could
not] be compelled to discuss any facts or circumstances relating
to the alleged sexual assault of [K.H.]" before the trial; (3)
whether a jury convicted Beebe at the August trial would affect
the appropriate sentence for the January conviction; (4)
conducting two sentencings would "cause other governmental
agencies or departments to spend money unnecessarily" because it
"would require the Sheriff to [retrieve] him [for the August
trial] and would require the [DOC] to conduct two separate
presentence investigations"; and (5) Beebe's likely appeal from
the sentence would seriously hamper proceedings in the second
trial "because the entire court file [would be] physically
shipped . . . to the [c]ourt of [a]ppeals."
¶17 Judge Gabler therefore declined to accelerate Beebe's
sentencing in response to the letter.9 Beebe pled no contest to
9
Testifying before the circuit court in the present case,
Judge Gabler provided additional facts about his response to the
letter, which he immediately thought might be an "impermissible
ex parte communication involving a pending case." After
considering the rules governing ex parte communications and
consulting with a member of the judicial commission, Judge
Gabler remained resolute in his decision not to adjust Beebe's
sentencing date in response to the letter. He determined that
any change might be the product of improper influence, and he
observed that, if he notified the parties' attorneys that he was
acting in response to the letter, he would violate the Wis.
Stat. § 950.095 requirement that he keep the letter
(continued)
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all remaining charges against him on August 6, 2012, and on
October 18, 2012, Judge Gabler imposed sentence with respect to
both the January and August convictions.
¶18 K.L. submitted a formal complaint to the Board on
August 2, 2012. The complaint alleged that Judge Gabler's
decision to postpone sentencing abridged her speedy disposition
right under Wis. Stat. § 950.04(1v)(k) and her rights to timely
disposition and protection from the accused under Article I,
Section 9m of the Wisconsin Constitution. Judge Gabler received
notice of the complaint on October 23, 2012, and he and his
attorney submitted responses the following month.
¶19 The Board issued a probable cause determination in
February 2013. Under the heading "Conclusions of Law," the
Board asserted——without analysis——its authority to review Judge
Gabler's decision:
Respondent Gabler is a "public employee" and a "public
official" within the meaning of Wis. Stat.
§ 950.09(2)(a) . . . . Gabler is also a "judge"
within the meaning of Wis. Stat. § 950.09(2)(b).
Gabler is therefore subject to the Board's statutory
authority to determine whether there is probable cause
to believe that he violated any of the crime victim
rights alleged by K.L.
confidential. As the circuit court observed in its review of
the Board's Decision, "the type of communication involved here
was specifically directed to gain a procedural advantage, that
is one party's desire to change the sentencing date without
notice to any other parties to the criminal case."
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Based on the evidence in its possession,10 the Board did not find
probable cause to conclude that Judge Gabler violated K.L's
right to protection from Beebe during the criminal proceedings.
It did, however, find probable cause to conclude that Judge
Gabler violated K.L's statutory and constitutional rights to a
timely disposition of the criminal matter by postponing Beebe's
sentencing on the January 2012 conviction. An order
accompanying the probable cause determination offered both K.L.
and Judge Gabler the opportunity to request an evidentiary
hearing and challenge any of the Board's preliminary findings of
fact.
¶20 Judge Gabler responded in early March 2013 with a
motion seeking dismissal of both the complaint and the probable
cause determination. Among other bases for dismissal, he
insisted that "the Board's review of [his] decisions intrude[d]
upon the judiciary's core constitutional powers and violate[d]
the separation of powers doctrine." As alternative relief in
the event the Board denied his motion to dismiss, he also
requested an evidentiary hearing to develop the factual record
underlying his discretionary decisions.
10
The propriety of the means by which the Board obtained
the records underlying its probable cause determination, as well
as its eventual Decision, was the subject of extensive
discussion in the parties' briefs. Because we do not reach the
due process, procedural irregularity, jurisdictional, or
substantial evidence issues argued by the parties, we have not
included a lengthy recitation of the facts related to those
claims.
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¶21 The Board denied his motion on July 24, 2013, and, two
days later, issued its Final Decision and Order (the "Decision")
on K.L.'s complaint. Once again, the Board determined, without
analysis, that Judge Gabler met the definition of "public
employee" and "public official" in Wis. Stat. § 950.09(2)(a) and
was "therefore subject to the Board's statutory authority to
determine whether he violated the rights of a crime victim under
Wis. Stat. ch. 950, Wis. Stat. ch. 938, or [A]rticle I,
[S]ection 9m of the Wisconsin Constitution, and to impose a
remedy for any rights violation found."11 Following a discussion
that mirrored its probable cause analysis, the Board stated its
conclusion regarding K.L.'s speedy disposition right:
[T]he four factors identified at the January 18, 2012,
scheduling conference as the basis for delaying
Beebe's sentencing until after the August 7-8, 2012,
trial, singly or in combination, lacked a factual
basis, a legal basis, or both; unreasonably delayed
Beebe's sentencing; and therefore violated K.L.'s
crime victim right under Wis. Stat. § 950.04(1v)(k) to
a speedy disposition of the case in which K.L. was
involved.
Based on this conclusion, "the Board also determine[d] that
Gabler violated K.L.'s constitutional right to timely
disposition of the case as to which K.L. was a crime victim."
The Board identified no difference between the statutory and
11
Unlike in its probable cause determination, the Board
apparently declined to exercise authority over Judge Gabler as a
"judge" under Wis. Stat. § 950.09(2)(b), which permits the Board
to refer judges to the judicial commission for alleged ethical
violations.
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constitutional rights: "Although a crime victim's right to
timely or speedy disposition of the case has both a
constitutional and a statutory foundation, the different
foundations have no practical effect on the proceedings in this
case."
¶22 As a remedy for Judge Gabler's actions that the Board
determined violated K.L.'s statutory and constitutional rights,
the Board chose to "issue a Report and Recommendation directed
to Gabler consistent with [its] Final Decision and Order."12
Attached to its Decision, the Board included a formal notice of
each party's right to file an appeal in the circuit court.
¶23 Judge Gabler initiated this review of the Board's
Decision under Chapter 227 of the Wisconsin Statutes. In a
thorough opinion, the Eau Claire County Circuit Court reversed
the Board's Decision and remanded the matter to the Board with
instructions to dismiss with prejudice the complaint against
Judge Gabler. The Board appealed, and we granted Judge Gabler's
petition to bypass the court of appeals.
12
The Board's Report and Recommendation, which remains
publicly available on its website, includes the Board's
conclusion that "the court violated [K.L.'s] statutory right to
a speedy disposition and constitutional right to a timely
disposition." Because we now hold that the Board's Decision is
void, so is the Board's remedy. We adopt the circuit court's
judgment setting aside the Report and Recommendation in its
entirety.
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III. STANDARD OF REVIEW
A. Chapter 227 Review
¶24 "When a party appeals to the court of appeals or seeks
review in this court 'from a circuit court order reviewing an
agency decision,' the appellate court reviews the decision of
the agency, not the decision of the circuit court." Rock-
Koshkonong Lake Dist. v. DNR, 2013 WI 74, ¶53, 350 Wis. 2d 45,
833 N.W.2d 800 (quoting Lake Beulah Mgmt. Dist. v. DNR, 2011 WI
54, ¶25, 335 Wis. 2d 47, 799 N.W.2d 73). Accordingly, we review
the Board's Decision rather than the circuit court's reversal of
that Decision, although we benefit from the circuit court's
analysis. Adams v. State Livestock Facilities Siting Review
Bd., 2012 WI 85, ¶24, 342 Wis. 2d 444, 820 N.W.2d 404.
¶25 "Administrative decisions which adversely affect the
substantial interests of any person, whether by action or
inaction, whether affirmative or negative in form, are subject
to review as provided in" Chapter 227. Wis. Stat. § 227.52. A
court conducting a Chapter 227 review "shall set aside or modify
the agency action if it finds that the agency has erroneously
interpreted a provision of law and a correct interpretation
compels a particular action." Wis. Stat. § 227.57(5). The
reviewing court shall, however, accord "due weight" to the
"experience, technical competence, and specialized knowledge of
the agency involved, as well as discretionary authority
conferred upon it." Wis. Stat. § 227.57(10).
¶26 Emphasizing its experience exercising its
legislatively delegated authority to review crime victim rights
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complaints, the Board argues that this court should give "great
weight" deference to its Decision. Wisconsin's case law states
that, "[w]hile statutory interpretation is normally a question
of law determined independently by a court, a court may give an
agency's interpretation of a statute great weight deference, or
due weight deference, or no deference." Rock-Koshkonong, 350
Wis. 2d 45, ¶59 (footnotes omitted). The deference framework,
however, is inapposite in this case because we must determine
whether an executive agency's review of a circuit court's
decision comports with the separation of powers under the
Wisconsin Constitution. We review that question of
constitutional law de novo. Schilling v. CVRB, 2005 WI 17, ¶12,
278 Wis. 2d 216, 692 N.W.2d 623; see also Coulee Catholic Sch.
v. LIRC, 2009 WI 88, ¶31, 320 Wis. 2d 275, 768 N.W.2d 868.
B. The Constitutionality of a Statute
¶27 The parties also dispute the appropriate scope of this
court's constitutional review of the Board's actions. Judge
Gabler explains that "[h]e is arguing that ch. 950 is
unconstitutional as applied by the [Board] in this case to a
judge." But the Board counters that, because Judge Gabler
challenges Wis. Stat. § 950.09(2)(a), (2)(c)-(d), and (3) to the
extent those portions of the statute affect judges, his claim,
to succeed, must satisfy the requirements for a facial
challenge.
¶28 The Board directs our attention to Doe v. Reed, 561
U.S. 186 (2010), in which the Supreme Court considered whether,
under a state public records law, disclosure of petitions in
20
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support of a statewide referendum would violate the First
Amendment rights of people who signed the petitions. Although
the parties disagreed whether to treat the claim as a facial or
an as-applied challenge, the Court observed that "[i]t obviously
ha[d] characteristics of both":
The claim is "as applied" in the sense that it does
not seek to strike the [public records law] in all its
applications, but only to the extent it covers
referendum petitions. The claim is "facial" in that
it is not limited to plaintiffs' particular case, but
challenges application of the law more broadly to all
referendum petitions.
Id. at 194. Explaining that "[t]he label is not what matters,"13
the Court identified an essential attribute of the hybrid
challenge: "plaintiffs' claim and the relief that would
follow . . . reach beyond the particular circumstances of these
plaintiffs." Id. Consequently, the Court determined that the
plaintiffs could prevail only if they met the standards for a
facial challenge. Id.¶29 We agree with the Board that Judge Gabler's challenge
parallels the Supreme Court's characterization of the challenge
in Reed:
Gabler's claim is as-applied in that it does not seek
to invalidate Wis. Stat. § 950.09[2](a), (c)-(d), and
(3) in all applications, but only to the extent they
cover the activities of judges. Gabler's claim is
13
See also Citizens United v. FEC, 558 U.S. 310, 331 (2010)
("[T]he distinction between facial and as-applied challenges is
not so well defined that it has some automatic effect or that it
must always control the pleadings and disposition in every case
involving a constitutional challenge.").
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nonetheless facial in that it is not limited to
Gabler's specific circumstances, but more broadly
challenges all applications of those provisions to
judges.
Judge Gabler by no means seeks to invalidate the entirety of
Chapter 950 as contrary to the Wisconsin Constitution. But he
does contend that the Board can never constitutionally take
action against a judge under Wis. Stat. § 950.09(2)(a), (2)(c)-
(d), or (3). To prevail, Judge Gabler therefore must meet the
standard for a facial challenge and demonstrate that the
disputed portions of Wis. Stat. § 950.09 "cannot be
constitutionally enforced" by the Board against judges "under
any circumstances." Tammy W-G. v. Jacob T., 2011 WI 30, ¶46,
333 Wis. 2d 273, 797 N.W.2d 854 (quoting Soc'y Ins. v. LIRC,
2010 WI 68, ¶26, 326 Wis. 2d 444, 786 N.W.2d 385).
IV. ANALYSIS
¶30 When delineating the Wisconsin Constitution's lines of
demarcation separating governmental powers, this court has
observed that "[t]he constitutional powers of each branch of
government fall into two categories: exclusive powers and
shared powers. Each branch has exclusive core constitutional
powers into which other branches may not intrude." State v.
Horn, 226 Wis. 2d 637, 643, 594 N.W.2d 772 (1999) (citing State
ex rel. Friedrich v. Cir. Ct. for Dane Cty., 192 Wis. 2d 1, 13,
531 N.W.2d 32 (1995)). "This court is highly mindful of the
separation of powers. It does not engage in direct
confrontation with another branch of government unless the
confrontation is necessary and unavoidable." State v. Moore,
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2015 WI 54, ¶91, 363 Wis. 2d 376, 864 N.W.2d 827; see also
Integration of Bar Case, 244 Wis. 8, 48, 11 N.W.2d 604 (1943)
("The state suffers essentially by every . . . assault of one
branch of the government upon another; and it is the duty of all
the co-ordinate branches scrupulously to avoid even all seeming
of such." (quoting In re Goodell, 39 Wis. 232, 240 (1875)).
¶31 Confronting this attack on judicial independence is
both necessary and unavoidable. "[P]ower is of an encroaching
nature and . . . it ought to be effectually restrained from
passing the limits assigned to it." Federalist No. 48, supra,
at 305. The preservation of liberty in Wisconsin turns in part
upon the assurance that each branch will defend itself from
encroachments by the others. "[C]ore zones of authority are to
be 'jealously guarded' by each branch of government," Barland v.
Eau Claire Cty., 216 Wis. 2d 560, 573, 575 N.W.2d 691 (1998)
(citing Friedrich, 192 Wis. 2d at 14), meaning "[t]he co-
ordinate branches of the government . . . should not abdicate or
permit others to infringe upon such powers as are exclusively
committed to them by the constitution," Rules of Court Case, 204
Wis. 501, 514, 236 N.W. 717 (1931). Each branch's core powers
reflect "zones of authority constitutionally established for
each branch of government upon which any other branch of
government is prohibited from intruding. As to these areas of
authority, . . . any exercise of authority by another branch of
government is unconstitutional." State ex rel. Fiedler v. Wis.
Senate, 155 Wis. 2d 94, 100, 454 N.W.2d 770 (1990) (citing In re
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Complaint Against Grady, 118 Wis. 2d 762, 776, 348 N.W.2d 559(1984)).14
¶32 Consequently, "one branch of the government has no
authority to compel a co-ordinate branch to perform functions of
judgment and discretion that are lawfully delegated to it by the
constitution." Outagamie Cty. v. Smith, 38 Wis. 2d 24, 39-40,
155 N.W.2d 639 (1968). To ensure that each branch will act on
its own behalf and free from improper influence by the others,
the Wisconsin Constitution parallels Article III of the federal
Constitution and insulates individual governmental actors from
personal manipulation. See Wis. Const. art. IV, § 26(2)
("Except as provided in this subsection, the compensation of a
public officer may not be increased or diminished during the
term of office . . . .").
¶33 The Board contends this case does not implicate
exclusive judicial power. Because Article I, Section 9m of the
Wisconsin Constitution states that "[t]he legislature shall
provide remedies for the violation of this section," the Board
insists that the power to remedy violations of crime victim
rights is, at most, shared between the judiciary and the
legislature, which delegated its authority to an executive
14
See also In re. Cannon, 206 Wis. 374, 382, 240 N.W. 441(1932) ("Under our constitution the judicial and legislative
departments are distinct, independent, and co-ordinate branches
of the government. Neither branch enjoys all the powers of
sovereignty, but each is supreme in that branch of sovereignty
which properly belongs to its department.").
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entity. The Board therefore contends that its review of Judge
Gabler's decision neither unduly burdened nor substantially
interfered with the judiciary's constitutional authority.
¶34 "Shared powers lie at the intersections of the[]
exclusive core constitutional powers." Horn, 226 Wis. 2d at
643. The separation of powers doctrine "envisions a system of
separate branches sharing many powers while jealously guarding
certain others, a system of 'separateness but interdependence,
autonomy but reciprocity.'" Friedrich, 192 Wis. 2d at 14(quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,
635 (1952) (Jackson, J., concurring)). Like the federal
Constitution,15 the Wisconsin Constitution enumerates a
calibrated structure of powers shared between the branches.
See, e.g., Wis. Const. art. V, § 10(1)(a)-(b) (providing that
"[e]very bill which shall have passed the legislature shall,
before it becomes a law, be presented to the governor" and,
"[i]f the governor approves and signs the bill, the bill shall
become law"). For the Wisconsin judiciary, this means that the
legislature retains the power to remove justices and judges
through impeachment or address. See Wis. Const. art. VII, §§ 1,
11, 13.
15
Cf. Mistretta, 488 U.S. at 426 (Scalia, J., dissenting)
("The Constitution . . . is a prescribed structure, a framework,
for the conduct of government. In designing that structure, the
Framers themselves considered how much commingling was, in the
generality of things, acceptable, and set forth their
conclusions in the document.").
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¶35 In its shared powers decisions, this court has
acknowledged that some legislative actions affecting the courts
do not contravene the separation of powers.16 But "the
legislature is prohibited from unduly burdening or substantially
interfering with the judicial branch." State v. Holmes, 106
Wis. 2d 31, 68, 315 N.W.2d 703 (1982). Thus, "[w]hen 'the
exercise of administrative and legislative power ha[s] so far
invaded the judicial field as to embarrass the court and impair
its proper functioning,' the court will be 'compelled to
maintain its integrity as a constitutional institution.'" Id.
at 69 (second alteration in original) (quoting Integration of
Bar, 244 Wis. at 49).
¶36 We disagree with the Board's characterization of this
case as presenting a question of shared powers. Regardless of
any responsibility shared between the legislature and judiciary
for remedying violations of victims' rights, this case raises a
more fundamental constitutional question: May an executive
agency, acting pursuant to authority delegated by the
legislature, review a Wisconsin court's exercise of discretion,
declare its application of the law to be in error, and then
sanction the judge for making a decision the agency disfavors?
16
See John F. Jelke Co. v. Beck, 208 Wis. 650, 660, 242
N.W. 576 (1932) ("In Wisconsin the jurisdiction and power of the
courts is conferred not by act of the legislature but by the
constitution itself. While the legislature may regulate in the
public interest the exercise of the judicial power, it cannot,
under the guise of regulation, withdraw that power or so limit
and circumscribe it as to defeat the constitutional purpose.").
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Applying separation of powers principles, we conclude that the
answer to this question is unequivocally no. Any other response
would unconstitutionally permit an executive entity to
substitute its judgment for that of the judge——effectively
imposing an executive veto over discretionary judicial decision-
making and incentivizing judges to make decisions not in
accordance with the law but in accordance with the demands of
the executive branch in order to avoid a public rebuke
reinforced with the imprimatur of a quasi-judicial board.
A. Invasion of Core Judicial Powers
¶37 No aspect of the judicial power is more fundamental
than the judiciary's exclusive responsibility to exercise
judgment in cases and controversies arising under the law. "It
is emphatically the province and duty of the judicial department
to say what the law is." Marbury v. Madison, 5 U.S. (1 Cranch)
137, 177 (1803). As Alexander Hamilton famously explained,
"[t]he judiciary . . . has no influence over either the sword or
the purse; . . . [i]t may truly be said to have neither force
nor will but merely judgment." Federalist No. 78 (Alexander
Hamilton), supra, at 464 (emphasis added; capitalization
omitted). By vesting the judicial power in a unified court
system, the Wisconsin Constitution entrusts the judiciary with
the duty of interpreting and applying laws made and enforced by
coordinate branches of state government. The constitution's
grant of judicial power therefore encompasses "the ultimate
adjudicative authority of courts to finally decide rights and
responsibilities as between individuals." State v. Williams,
27
No. 2016AP275
2012 WI 59, ¶36, 341 Wis. 2d 191, 814 N.W.2d 460 (citing State
v. Van Brocklin, 194 Wis. 441, 443, 217 N.W. 277 (1927)).
¶38 "For more than a century, this court has been called
upon to resist attempts by other branches of government to
exercise authority in an exclusively judicial area." Grady, 118
Wis. 2d at 778.17 When navigating inter-branch disputes, this
court preserves a place of paramount importance for the
principle that "a truly independent judiciary must be free from
control by the other branches of government." Grady, 118
Wis. 2d at 782 (citing Will, 449 U.S. at 217-19). To protect
that independence, this court has consistently rejected any
attempt "to coerce judges in their exercise of the essential
case-deciding function of the judiciary." Id. Permitting an
executive agency to review judges' official actions for
compliance with the victims' rights laws would upend the
constitutional structure of separated powers, which allocates
independent judicial power to the courts.
17
See Barland v. Eau Claire Cty., 216 Wis. 2d 560, 575
N.W.2d 691 (1998) (circuit court's authority to remove judicial
assistant despite collective bargaining agreement); In re
Complaint Against Grady, 118 Wis. 2d 762, 348 N.W.2d 559 (1984)
(time limits for judges to resolve cases); Integration of Bar
Case, 244 Wis. 8, 11 N.W.2d 604 (1943) (regulation of
attorneys); Cannon, 206 Wis. 374 (admission to the bar); Rules
of Court Case, 204 Wis. 501, 236 N.W. 717 (1931) (statute
requiring court to promulgate rules of practice and procedure);
Thoe v. Chi., Milwaukee & St. Paul Ry. Co., 181 Wis. 456, 195
N.W. 407 (1923) (legislation defining the legal sufficiency of
evidence); In re Court Room, 148 Wis. 109, 134 N.W. 490 (1912)
(county regulation of courtroom facilities); In re Janitor of
the Supreme Court, 35 Wis. 410 (1874) (interference with
appointment of supreme court employee).
28
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¶39 Resolute resistance to intrusions across the
constitutionally constructed judicial perimeter does not
represent a power play by one branch vis-à-vis another. "The
purpose of the separation and equilibration of powers in
general . . . was not merely to assure effective government but
to preserve individual freedom." Morrison v. Olson, 487 U.S.
654, 727 (1988) (Scalia, J., dissenting). If the judiciary
passively permits another branch to arrogate judicial power unto
itself, however estimable the professed purpose for asserting
this prerogative, the people inevitably suffer. If the power to
perform judicial duties is subject to formal penalties imposed
under color of law by another branch of government, the people
lose their independent arbiters of the law, the balance of
powers tips, and the republican form of government is lost.
¶40 Decades ago, this court recognized the peril presented
by seemingly sensible legislative acts designed to compel proper
performance of judicial duties. In re Complaint Against Grady,
118 Wis. 2d 762, 348 N.W.2d 559 (1984), considered the
constitutionality of a "statute requiring the withholding [of] a
judge's salary for failure to decide cases within a specified
time." Id. at 782. Checking legislative drift into the
judicial domain, this court held that "[t]he setting and
enforcement of time periods for judges to decide cases lies
within an area of authority exclusively reposed in the judicial
branch of government." Id. at 783. The court recognized that
allowing the legislature to mandate deadlines for judges to
resolve cases would threaten the judiciary's "independen[ce] in
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No. 2016AP275
the fulfillment of its constitutional responsibilities." Id. at
782.
¶41 By issuing a Decision concluding that Judge Gabler
violated a victim's constitutional and statutory rights to
prompt disposition of cases, the Board encroached on the
exclusive judicial authority identified in Grady. The Grady
court rebuffed the legislature's imposition of time limits not
because the court opposed the timely administration of justice
but because the legislature mandated particular judicial action.
In the present case, the Board claims that the executive now
possesses authority to influence the timeline for judicial
decision-making in matters involving victims' rights. Like the
Grady court rejecting legislative control of judicial dockets,
we refuse to countenance executive interference with matters
pending before the courts. The judicial power vested in
Wisconsin's unified court system presumes that courts balance
the legal rights of all interested parties when exercising
discretion in pending matters, and our constitution and statutes
make clear that courts must consider victims as part of that
evaluation. But important legal protections for victims do not
vest the executive branch with newfound authority to contravene
bedrock principles of judicial independence.
¶42 Indeed, the Board's Decision, as well as its Report
and Recommendation directed at Judge Gabler under Wis. Stat.
§ 950.09(3), seem mild in comparison to other means by which the
Board asserts authority to influence judicial decision-making.
Most significantly, the Board could financially penalize a judge
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No. 2016AP275
for exercising legal judgment by pursuing a civil action to
assess a forfeiture under Wis. Stat. §§ 950.09(2)(d) and
§ 950.11. As the United States Supreme Court has observed in
the judicial immunity context, personal "[l]iability to answer
to every one who might feel himself aggrieved by the action of
the judge . . . would destroy that independence without which no
judiciary can be either respectable or useful." Bradley, 80
U.S. (13 Wall.) at 347. A possible financial penalty levied on
a judge if an executive board disagrees with the judge's
decision conjures thoughts of the ruinous commingling of
governmental powers that preceded adoption of the federal
Constitution.
¶43 In observing that the Board stopped short of imposing
the full panoply of statutorily available penalties against
Judge Gabler, we do not mean to imply that the remedies elected
by the Board are inconsequential. It is one thing for citizens,
politicians, or the media to criticize or second-guess judges, a
cherished right that our constitutions, and this court, shield
from infringement. It is a different matter entirely for the
legislature to usurp constitutionally vested judicial power,
adorn an executive department with all the trappings of a court,
and empower that body to declare a judge's decisions in
violation of a victim's constitutional and statutory rights.
The disciplinary sting of the Board's actions was no less
deleterious to Judge Gabler than if imposed by this court——the
only body constitutionally permitted to prescribe it.
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¶44 Availability of Chapter 227 review of the Board's
decisions does not, as the Board suggests, cure a separation of
powers violation because judicial review of the Board's
decisions does not eliminate the external interference with
official judicial action. If a judge must account for the
possibility that an executive body will administer sanctions in
response to the judge's discretionary decision in an official
capacity, eventual Chapter 227 review does not abate the
executive branch's encroachment on judicial independence. A
judge cannot fulfill the constitutional duty to interpret the
law in a truly neutral and impartial manner if the threat of
personal legal consequences lurks in the background of every
case. As Judge Gabler observes in his brief, an appellate court
might affirm a judge's legal determination, but the Board could
nevertheless sanction that judge for the same decision——creating
an incentive for judges to decide cases in a manner inconsistent
with prevailing law. Regardless of whether a court ultimately
reviews the Board's decisions, allowing a coordinate branch of
government to exert influence over judicial decision-making
would contravene the Wisconsin Constitution's careful allocation
of governmental powers, which prevents competition between a
judge's personal interests and constitutional responsibilities.
¶45 An exchange during oral argument in this case
highlights the untenable scenarios that could arise if we accept
the Board's characterization of the scope of its authority. The
Solicitor General conceded that the Board's broad understanding
of its own authority under Wis. Stat. § 950.09 could allow it to
32
No. 2016AP275
take action on a complaint against the Wisconsin Supreme Court.
If the Board determined that the justices of this court violated
a victim's right to prompt disposition of a case, for example,
it might publicly reprimand the members of this court under Wis.
Stat. § 950.09(2)(a) or even pursue a forfeiture under
§ 950.09(2)(d). To challenge the Board's determination, the
members of this court would need to initiate a Chapter 227
action. But that Chapter 227 action would place a circuit
court——and perhaps the intermediate court of appeals——in the
absurd, not to mention unconstitutional, position of reviewing
the Wisconsin Supreme Court's interpretation of the law.
Subjecting this court's decisions to review by a circuit court
would obviously interfere with our duties and responsibilities
as Wisconsin's court of last resort. See Wis. Const. art. VII,
§ 3(2) ("The supreme court has appellate jurisdiction over all
courts . . . ."); see also Williams, 341 Wis. 2d 191, ¶36 & n.13
(citing Marbury, 5 U.S. (1 Cranch) at 177).
¶46 The Board ultimately fails to recognize that its
Decision constituted quasi-judicial review of a judge's legal
judgment. In essence, the Board asserts the power to
authoritatively decide whether a judge's official act comported
with Wisconsin law, including the Wisconsin Constitution. This
assertion of power contravenes the principle, judicially
acknowledged in Marbury and respected for over two hundred
years, that it is the province of the judiciary, not the
executive, to say what the law is. Consistent with this
venerable principle, our constitution vests the judicial power
33
No. 2016AP275
in Wisconsin's unified court system, and that judicial power
confers on judges an exclusive responsibility to exercise
independent judgment in cases over which they preside. Because
an executive board cannot interfere with the legal
determinations judges make in an official capacity——much less
declare them in violation of the constitution——the Board's
claimed authority violates Wisconsin's structural separation of
governmental powers.
B. Infringement on This Court's Disciplinary Authority
¶47 Accepting the Board's expansive conception of its own
power would also infringe on this court's exclusive authority to
discipline judges. Article VII, Section 11 of the Wisconsin
Constitution provides that "[e]ach justice or judge shall be
subject to reprimand, censure, suspension, removal for cause or
for disability, by the supreme court pursuant to procedures
established by the legislature." (Emphasis added.)18 Wisconsin
Stat. § 757.83(1)(a) establishes the judicial commission, which
investigates and prosecutes allegations of judicial misconduct.
See Wis. Stat. §§ 757.85, 757.89. Importantly, if the judicial
commission's prosecution of alleged misconduct results in a
recommendation that a judge be disciplined, this court
"review[s] the findings of fact, conclusions of law and
recommendations . . . and determine[s] appropriate discipline in
18
As noted above, this court shares the removal power with
the legislature. See Wis. Const. art. VII, §§ 1, 11, 13. The
people of Wisconsin also retain a portion of removal power
through the recall process. See Wis. Const. art. XIII, § 12.
34
No. 2016AP275
cases of misconduct." Wis. Stat. § 757.91. By assigning
exclusive responsibility for judicial discipline to this court,
the Wisconsin Constitution precludes the legislative and
executive branches from compromising independent adjudication in
Wisconsin courts.
¶48 Allowing the Board to take disciplinary action against
judges under Wis. Stat. § 950.09(2)(a), (c), and (d) would
clearly contradict the constitution. "The Wisconsin
Constitution provides four disciplinary alternatives for
judicial misconduct: reprimand, censure, suspension and
removal." In re Judicial Disciplinary Proceedings Against
Aulik, 146 Wis. 2d 57, 77, 429 N.W.2d 759 (1988) (citing Wis.
Const. art. VII, § 11). By its plain text, a "reprimand" of a
judge under § 950.09(2)(a) would usurp this court's authority to
"reprimand" under the Wisconsin Constitution by declaring a
judge's conduct improper through a formal adjudicatory process.
Cf. Reprimand, Black's Law Dictionary 1495 (10th ed. 2014) ("In
professional legal responsibility, a form of disciplinary action
that is imposed after trial or formal charges and declares the
lawyer's conduct to be improper but does not limit his or her
right to practice law . . . ."). And while this court's
constitutional judicial discipline power does not expressly
include the authority to assess a forfeiture or impose an
equitable remedy, as § 950.09(2)(c) and (d) permit, allowing the
legislature to create an executive board with the power to
penalize or enjoin official judicial action would be anathema to
the judicial independence preserved by the separation of
35
No. 2016AP275
governmental powers under the Wisconsin Constitution. We cannot
sustain an arrangement that sabotages the judiciary's structural
independence.
¶49 Nor will we permit an executive board to arrogate
reprimand authority to itself by cloaking its action in other
terms. Cf. Wisconsin Carry, Inc. v. City of Madison, 2017 WI
19, ¶19, 373 Wis. 2d 543, 892 N.W.2d 233 ("We are not merely
arbiters of word choice."). Here, the Board gave Judge Gabler
notice of K.L.'s complaint, issued a probable cause
determination, provided an opportunity to object, offered (but
declined to hold) an evidentiary hearing, and issued its formal
Decision. The Board determined that Judge Gabler violated
K.L.'s statutory and constitutional rights, indicated that it
would issue a public Report and Recommendation confidentially
"directed to" Judge Gabler, and notified him of his right to
appeal. These procedures resemble the judicial commission's
procedures for investigating and prosecuting a judicial
misconduct complaint. See Wis. Stat. §§ 757.85, 757.89. By
subjecting Judge Gabler to these quasi-judicial proceedings,
issuing a Decision that bore the imprimatur of disciplinary
authority, and concluding that Judge Gabler violated a victim's
statutory and constitutional rights as a matter of law, the
Board intruded on this court's exclusive authority to reprimand
judges, regardless of the label affixed to its action.
¶50 We therefore conclude that Wis. Stat. §§ 950.09(2)(a),
(2)(c)-(d), and (3) and 950.11 cannot constitutionally apply to
judges because they invade two exclusive aspects of judicial
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No. 2016AP275
authority: the judicial power vested in the unified court
system and the disciplinary function vested in this court.19
This strict conservation of the judiciary's structural
independence blocks the other branches from interfering with
individual rights by manipulating judicial outcomes.
V. ADDITIONAL CONSIDERATIONS
A. Constitutional Avoidance
¶51 Alongside the separation of powers issue, the Board
argues that we should reverse the circuit court's decision
because the Board did not violate Judge Gabler's right to
procedural due process, any procedural errors the Board
committed did not impair the fairness of its actions, the Board
had jurisdiction over K.L.'s complaint, and substantial evidence
supported the Board's Decision. "This court does not normally
decide constitutional questions if the case can be resolved on
other grounds." Adams Outdoor Advertising, Ltd. v. City of
Madison, 2006 WI 104, ¶91, 294 Wis. 2d 441, 717 N.W.2d 803(quoting Labor & Farm Party v. Elections Bd., 117 Wis. 2d 351,
354, 344 N.W.2d 177 (1984)). This case is incapable of
19
Under Wis. Stat. § 950.09(2)(b), the Board may, however,
refer a complaint alleging ethical violations against a judge to
the judicial commission for proceedings, potentially culminating
in review and disposition by this court. In this capacity, the
Board has no greater authority than any other complainant filing
a claim with the judicial commission. Interpretations of the
law with which the Board may disagree do not belong before the
judicial commission and are subject solely to appellate review.
37
No. 2016AP275
resolution without deciding the constitutional conflict
presented by the Board's exercise of its statutory powers.
¶52 Constitutional avoidance is "a matter of judicial
prudence" and does not apply where the constitutionality of a
statute is "essential to the determination of the case."
Kollasch v. Adamany, 104 Wis. 2d 552, 561, 313 N.W.2d 47 (1981);
see Clay v. Sun Ins. Office Ltd., 363 U.S. 207, 223-24 (1960)
(Black, J., dissenting) ("[T]here is a judicial
practice . . . under which courts do not ordinarily decide
constitutional questions unless essential to a decision of the
case. . . . But even the greatest of our judges have not always
followed it as a rigid rule. Perhaps had they done so the great
opinion of Chief Justice Marshall in Marbury v. Madison would
never have been written."); Fleeman v. Case, 342 So. 2d 815, 818
(Fla. 1976); Hammond v. Bingham, 362 P.2d 1078, 1079 (Idaho
1961). Courts in other jurisdictions have also recognized that
the principle of constitutional avoidance gives way where the
constitutional question is of great public importance. See,
e.g., State ex rel. Bland v. St. John, 13 So. 2d 161, 170 (Ala.
1943); Buckingham v. State ex rel. Killoran, 35 A.2d 903, 904-05
(Del. 1944).
¶53 Even if we agreed with the Board's non-constitutional
arguments, we would nevertheless need to decide the essential
question of whether the Wisconsin Constitution permits the Board
to pursue disciplinary action against Judge Gabler, a separation
of powers issue of great public importance. Neither party
suggests any pertinent portion of Chapter 950 is ambiguous, and
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No. 2016AP275
there is no saving construction of the statute that would cure
its constitutional infirmity.20 Since Chapter 950 is clear, the
fundamental question presented is whether application of Chapter
950 to judges violates the structural separation of powers.21
Because we affirm the circuit court's decision on that essential
constitutional question, we need not address the Board's other
arguments.
20
The dissent would interpret the term "public officials"
in Wis. Stat. §§ 950.08-.09 to exclude judges. See, e.g.,
dissent, ¶133. But the statutes' plain language does not
support this reading, nor did either party advance such a
baseless argument. The search for a saving construction of a
patently unconstitutional statute does not compel a court to
adopt an absurd one. Although Chapter 950 does not define the
term "public officials," the term's ordinary meaning undoubtedly
encompasses judges. See State ex rel. Kalal v. Cir. Ct. for
Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110("Statutory language is given its common, ordinary, and accepted
meaning . . . ."). In Black's Law Dictionary, the definition of
"public official" redirects to the first definition of
"official," which means "[s]omeone who holds or is invested with
a public office; a person elected or appointed to carry out some
portion of a government's sovereign powers." Official, Black's
Law Dictionary 1259 (10th ed. 2014). We have already
established that Article VII, § 2 of the Wisconsin Constitution
vests the judicial power in the unified court system, and there
is no dispute that all Wisconsin judges are either appointed or
elected to exercise that portion of the sovereign power. See
Wis. Const. art. VII, §§ 4(1), 5(2), 7, 9. Nothing in the text
of Chapter 950 supports a deviation from this plain meaning,
thus setting up the inevitable constitutional conflict at issue
in this case.
21
See Bond v. United States, 134 S. Ct. 2077, 2098 (2014)
(Scalia, J., concurring in the judgment) ("Since the Act is
clear, the real question this case presents is whether the Act
is constitutional as applied to petitioner." (emphasis
omitted)).
39
No. 2016AP275
B. First Amendment Right to Criticize Courts
¶54 Nothing in this opinion should be read as abridging
political speech protected by the First Amendment to the United
States Constitution. For all of the weight we assign to
preserving the judiciary's independence from interference by the
legislative and executive branches, we also recognize that
public speech criticizing judges implicates different
constitutional interests. The United States Supreme Court has
held the "essential right of the courts to be free of
intimidation and coercion . . . to be consonant with a
recognition that freedom of the press must be allowed in the
broadest scope compatible with the supremacy of order."
Pennekamp v. Florida, 328 U.S. 331, 334 (1946) (citing Bridges
v. California, 314 U.S. 252, 263, 265-66 (1941)). Although
judges, particularly elected judges, must always guard against
allowing popular pressures to influence their judgment, public
speech criticizing judges does not endanger judicial
independence in the same manner as legislative or executive
action seeking to exert control over judges.
¶55 This court has long recognized the value of open
public discussion regarding the judiciary:
[C]ourts will not seek immunity from criticism by
restraining the citizen or threatening the exercise of
the right of free speech. In a democracy the best
interest of society is promoted by according to the
citizen the greatest freedom in the matter of
discussing the relative qualifications of candidates
for public office and of freely criticising any
governmental department. He has a right to express
his views upon the question of whether any
40
No. 2016AP275
governmental department is functioning in a manner to
promote the general welfare. This freedom of
discussion is important in order that the citizen may
be advised concerning the affairs of his government
and placed in the possession of facts which will
enable him, with such discrimination as he may
possess, to form intelligent conclusions.
In re. Cannon, 206 Wis. 374, 406, 240 N.W. 441 (1932).
¶56 Consistent with this longstanding reverence for
political speech, we emphasize that our holding does not
constrain individuals or groups from criticizing judges. As
the Supreme Court recently reaffirmed, the First Amendment
protects not only individual speech but also speech by
individuals acting in concert through a collective body. See
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2768
(2014); Citizens United v. FEC, 558 U.S. 310, 342 (2010). 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. Ultimately, because the people elect their judges in
Wisconsin, they retain the strongest voice of all to approve or
disapprove of judges and their decisions.
¶57 We caution, however, that reckless criticism of the
courts risks undermining their role as a check on the
legislative and executive branches.
The members of society have become content to accept
the decisions of courts in their controversies with
their fellows, and they will remain content so long as
they have confidence in their courts. Restlessness,
discontent, and anarchy, however, will result with the
passing of confidence in the integrity of the courts,
41
No. 2016AP275
and stable government will totter upon its
foundations. It is for this reason that high-minded
citizens refrain from impetuous and ill-founded
criticism of the courts.
Cannon, 206 Wis. at 406-07. We by no means implore silence from
our fellow citizens;22 rather, we 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.
C. Respect for Victims' Rights
¶58 We close by reaffirming this court's commitment to
upholding the crime victims' rights enshrined in our statutes
and constitution. No less than we did a decade ago, "we believe
that justice requires that all who are engaged in the
prosecution of crimes make every effort to minimize further
suffering by crime victims." Schilling, 278 Wis. 2d 216, ¶26.
Earlier this term, a concern about possible re-traumatization of
victims influenced our decision permitting the Department of
Justice to withhold requested public records——notwithstanding
22
Bridges v. California, 314 U.S. 252, 270-71 (1941) ("The
assumption that respect for the judiciary can be won by
shielding judges from published criticism wrongly appraises the
character of American public opinion. For it is a prized
American privilege to speak one's mind, although not always with
prefect good taste, on all public institutions. And an enforced
silence, however limited, solely in the name of preserving the
dignity of the bench, would probably engender resentment,
suspicion, and contempt much more than it would enhance
respect." (footnote omitted)).
42
No. 2016AP275
the strong public policy otherwise favoring disclosure. See
Dem. Party of Wis. v. DOJ, 2016 WI 100, ¶¶14, 28-33, 372
Wis. 2d 460, 888 N.W.2d 584. Our decision today does not signal
a departure from our consistent protection of victims' rights.
¶59 Although we prohibit the Board from disciplining
judges because executive review of judicial decisions violates
fundamental separation of powers principles, crime victims
nonetheless have recourse for their grievances against judges.
Wisconsin Stat. § 950.105 assures victims a mechanism for
directly asserting their own rights in court. We reserve for
future cases more comprehensive discussion of the interplay
between victims' rights and procedural tools, such as
intervention, writs of mandamus, and supervisory writs. Because
victims may assert their rights in court, these procedural
mechanisms could offer alternative remedies for victims seeking
to vindicate their rights. And because these procedural means
could offer recourse for victims within the unified court
system, they would not pose a threat to the judiciary's
independence.23
23
Availability of standing for victims under Wis. Stat.
§ 950.105 also undermines the Board's argument that referral to
the judicial commission under Wis. Stat. § 950.09(2)(b) leaves
victims without an adequate remedy. Specifically,
§ 950.09(2)(b) permits the Board to "[r]efer to the judicial
commission a violation or alleged violation by a judge of the
rights of crime victims." The Board expresses concern that a
judge's alleged violations of a victim's rights might not
satisfy the definition of misconduct necessary for the
imposition of judicial discipline. Under Wis. Stat.
§ 757.81(4), an allegation of "misconduct" charges a judge with
(continued)
43
No. 2016AP275
VI. CONCLUSION
¶60 The people bestowed much power on the legislature,
comprised of their representatives whom the people elect to make
the laws. 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 independent judiciary. These powers
may not be claimed by another branch. Just as the people of the
United States at the founding of the Republic vested all federal
judicial power in the Judiciary, the people of Wisconsin vested
the Wisconsin judiciary with the power to exclude the coordinate
branches of government from the judicial domain in order to
safeguard judicial independence. The significance of preserving
clear boundaries between the branches has been understood since
the founding of our nation, with the role of the judiciary
committing a "[w]illful violation of a rule of the code of
judicial ethics"——a serious ethical allegation.
We agree with the Board that Wis. Stat. § 757.81(4)(a) sets
a high bar for proof of judicial misconduct, but we disagree
that it leaves victims without a remedy. The Board
misapprehends the proper role of the judicial commission, which
does not exist to review judges' discretionary decisions. In
Wisconsin, crime victims' rights are a matter of constitutional
and statutory law, and Wis. Stat. § 950.105 confirms that
victims may assert those rights in court. Accordingly, a victim
who disagrees with a judge's legal determination may challenge
that decision through existing procedural means within the court
system. Contested discretionary decisions are not ethical
transgressions and therefore do not belong before the judicial
commission.
44
No. 2016AP275
plainly recognized: "This independence of the judges is equally
requisite to guard the Constitution and the rights of
individuals . . . ." Federalist No. 78, supra, at 468. By
conferring on an executive board the power to review and
discipline judges, the legislature contradicts the Wisconsin
Constitution, violates the structural separation of powers, and
threatens judicial independence. We therefore hold that Wis.
Stat. §§ 950.09(2)(a), (2)(c)-(d), and (3) and 950.11 are
unconstitutional as applied to judges and declare the Board's
Decision against Judge Gabler void.
By the Court.—The order of the circuit court is affirmed.
¶61 ANN WALSH BRADLEY, J., did not participate.
45
No. 2016AP275.ssa
¶62 SHIRLEY S. ABRAHAMSON, J. (concurring in part and
dissenting in part). I cannot join the majority opinion, which
casts aside the cardinal principle of statutory interpretation:
Save. Do not destroy.1
¶63 This court ordinarily follows the principle of
constitutional avoidance. This court generally does not "decide
constitutional questions if the case can be resolved on other
grounds."2
¶64 Nevertheless, in the instant case, the majority
opinion rushes headlong into determining the constitutionality
of the statutes at issue without interpreting the statutes.
¶65 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 legislative and executive
branches of government.
¶66 In its constitutional analysis, the majority opinion
overzealously and unnecessarily forces head-on collisions
between:
• Article I, Section 9m of the Wisconsin Constitution, a
1993 constitutional amendment (hereinafter sometimes
referred to as the Crime Victims Amendment) ensuring
1
"The cardinal principle of statutory construction is to
save and not to destroy." N.L.R.B. v. Jones & Laughlin Steel
Corp., 301 U.S. 1, 30 (1937).
2
Labor & Farm Party of Wis. v. Elections Bd., 117
Wis. 2d 351, 354, 344 N.W.2d 177 (1984).
1
No. 2016AP275.ssa
crime victims' rights3 (including "timely disposition
of the case") and vesting the legislature with the
responsibility to "provide remedies for the violation
of this section,"4 and Article VII, Section 2 of the
Wisconsin Constitution vesting judicial power in the
unified court system.5 When interpreting a
3
The history of the Crime Victims Amendment demonstrates
that the amendment uses the phrase "privileges and protections"
rather than the word "rights" but that this phrase was viewed as
synonymous with the word "rights." Memorandum from Racine
County District Attorney Lennie Weber to Senator Barbara
Ulichny, Feb. 24, 1992 (available in the drafting file for 1991
S.J.R. 41).
4
Article I, Section 9m of the Wisconsin Constitution
provides:
Victims of crime. SECTION 9m. [As created April 1993]
This state shall treat crime victims, as defined by
law, with fairness, dignity and respect for their
privacy. This state shall ensure that crime victims
have all of the following privileges and protections
as provided by law: timely disposition of the case;
the opportunity to attend court proceedings unless the
trial court finds sequestration is necessary to a fair
trial for the defendant; reasonable protection from
the accused throughout the criminal justice process;
notification of court proceedings; the opportunity to
confer with the prosecution; the opportunity to make a
statement to the court at disposition; restitution;
compensation; and information about the outcome of the
case and the release of the accused. The legislature
shall provide remedies for the violation of this
section. Nothing in this section, or in any statute
enacted pursuant to this section, shall limit any
right of the accused which may be provided by law.
(Emphasis added.)
5
Article VII, Section 2 of the Wisconsin Constitution
provides:
(continued)
2
No. 2016AP275.ssa
constitutional provision, a court seeks "to give
effect to the intent of the framers and of the people
who adopted it."6
• Article VII, Section 2 of the Wisconsin Constitution
vesting judicial power in the unified court system and
Wis. Stat. ch. 950 (2015-16)7 entitled Rights of
Victims and Witnesses of Crime, especially §§ 950.09
and 950.11,8 and the powers and duties of the
Department of Justice and the Crime Victims Rights
Board.9
• Victims and judges.
• The judicial branch and the legislative branch. The
Wisconsin Constitution vests the legislative power in
Court system. SECTION 2. [As amended April 1966 and
April 1977] The judicial power of this state shall be
vested in a unified court system consisting of one
supreme court, a court of appeals, a circuit court,
such trial courts of general uniform statewide
jurisdiction as the legislature may create by law, and
a municipal court if authorized by the legislature
under section 14.
6
Schilling v. Crime Victims Rights Bd., 2005 WI 17, ¶13,
278 Wis. 2d 216, 692 N.W.2d 623 (citation omitted).
7
All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
8
For the text and discussion of relevant provisions of Wis.
Stat. ch. 950, see ¶¶136-185, infra.
9
The statute creating the Crime Victims Rights Board is
quoted at ¶118 n.42, infra.
3
No. 2016AP275.ssa
a senate and assembly,10 and Article I, Section 9m of
the Wisconsin Constitution (the Crime Victims
Amendment) states that "the legislature shall provide
remedies for the violation of the section."11 (Emphasis
added.)
• The judicial branch and the executive branch. The
Crime Victims Rights Board, created by the
legislature, is an executive branch agency attached to
the Department of Justice.
¶67 The majority opinion declares judges and the judicial
branch the "hands down" winner of these confrontations. The
majority opinion's failure to analyze the Crime Victims
Amendment and Chapter 950; its declaration that Wis. Stat.
§ 950.09(2)(a), § 950.09(2)(c)-(d), § 950.09(3), and § 950.11
are unconstitutional with respect to judges on the basis of the
separation of powers doctrine; and its voiding the actions of
the Crime Victims Rights Board relating to Judge Gabler
unnecessarily aggrandize judicial powers at the expense of
victims and the legislative and executive branches. See
10
Article III, Section 1 provides: "The legislative power
is vested in a senate and assembly."
11
The drafting record explains that advocates supported the
constitutional amendment because it provided victims with a
mechanism for enforcement. See Schilling, 278 Wis. 2d 216, ¶22.
See also Gary Watchke, Wis. Legis. Reference Bureau Brief 93-4,
Constitutional Amendments and Advisory Referenda to be
Considered by Wisconsin Voters April 6, 1993 at 4 (Mar. 1993)
(available on the Legislative Reference Bureau's website,
http://lrbdigital.legis.wisconsin.gov/digital/collection/p16831c
oll2/id/592/rec/5).
4
No. 2016AP275.ssa
majority op., ¶¶2, 46, 53, 56, 60. Moreover, the majority
opinion dismally fails to provide any guidance on the
interpretation of the constitutional and statutory provisions
relating to crime victims.
¶68 Accordingly, I write separately.
¶69 Before I further discuss the majority opinion's veneer
of constitutional analysis, it is important to discuss Eau
Claire County Circuit Court Judge William M. Gabler, Sr.'s role
as the sentencing judge in the instant case.
¶70 When the crime victim asserted a claim against him,
Judge Gabler had been considering a sentence in the pending
criminal case. His task was to adhere to the statutes and
federal and state constitutions in deciding the sentence. He
had to consider the victim. He also had to consider the
criminal defendant's constitutional and statutory rights to a
fair trial and a fair sentencing. Notably, the Crime Victims
Amendment unequivocally protects the rights of the accused. It
states that nothing in the Crime Victims Amendment, "or in any
statute enacted pursuant to this section, shall limit any right
of the accused which may be provided by law."
¶71 Judge Gabler exercised his discretion in scheduling
sentencing on the basis of his analysis of the facts and law.
While the sentencing proceeding was pending, the Office of Crime
5
No. 2016AP275.ssa
Victim Services in the Department of Justice communicated with
the Judge about scheduling the sentencing.12
¶72 While being questioned by this executive branch agency
during the pending judicial proceedings, Judge Gabler displayed
a steadfast commitment——as all judges and justices should——to
being neutral, fair, impartial, and nonpartisan in performing
judicial duties. The Judge was careful, however, to avoid ex
parte communications (which raise serious issues of judicial
ethics).13 The Judge made it clear that he would listen to and
address the concerns presented, but that he would not be a
slender reed easily buffeted by winds of pressure about
sentencing.
¶73 Not all victims, circuit court or appellate judges or
justices, lawyers, court observers, legislators, members of the
executive branch, or the public would necessarily agree with
Judge Gabler's discretionary decision regarding sentencing.
Neither the majority nor I need decide whether we agree with the
Judge's decision on the timing of the sentencing. That's not
the issue before this court. Court procedures exist for
12
See majority op., ¶16 (quoting Judge Gabler's response to
the initial letter from the Crime Victims Services explaining
his reasons for the date he chose for sentencing).
13
See majority op., ¶¶12-17. The provision in the
Wisconsin Code of Judicial Conduct regarding ex parte
communications is SCR 60.04(1)(g): "A judge may not initiate,
permit, engage in or consider ex parte communications concerning
a pending or impending action or proceeding . . . . " (The
exceptions stated are not relevant in the instant case.)
6
No. 2016AP275.ssa
deciding the validity of a circuit court judge's sentencing
decisions in a criminal case.
¶74 Judge Gabler raises substantive legal issues before
this court, namely the constitutionality of the challenged
statutory provisions in Chapter 950 of the statutes. I address
them.
¶75 In Part I, I set forth the applicable rules of
statutory interpretation, a task the majority opinion never
performs.
¶76 In Part II, I apply the rules applicable to
interpreting the Wisconsin Constitution. I analyze the
historical background and text of the Crime Victims Amendment, a
task the majority opinion never performs. The constitutional
debates and the general history of the adoption of the Amendment
are also informative in interpreting the challenged statutory
provisions.
¶77 In Part III, with the Crime Victims Amendment in mind,
I apply the applicable statutory interpretive rules to the
challenged statutory provisions. I conclude that the majority
opinion's declaration of statutory unconstitutionality on the
basis of the doctrine of separation of powers is not tethered to
the constitutional or statutory texts. The texts of the
challenged statutory provisions have a constitutional
interpretation that this court should adopt. I do so.
¶78 In Part IV, I assess the conduct of the Department of
Justice and the Crime Victims Rights Board in the instant case
7
No. 2016AP275.ssa
to determine whether each has kept within or exceeded its
statutory powers or violated the constitution.
¶79 For the reasons set forth, I conclude that the correct
interpretation of the applicability of the challenged statutory
provisions to judges depends on the text of the Crime Victims
Amendment, the interpretation of the challenged statutory
provisions, and the effect of other statutory provisions and the
common law.
¶80 As properly interpreted, the challenged provisions of
Chapter 950 are constitutional with respect to judges.
• Wisconsin Stat. § 950.08(3) does not authorize the
Department of Justice to mediate a complaint against a
judge.
• Wisconsin Stat. § 950.09(2) does not authorize the
Crime Victims Rights Board to determine probable cause
or investigate a crime victim's complaint against a
judge.
• Wisconsin Stat. § 950.09(2)(a) does not authorize the
Crime Victims Rights Board to "reprimand" a judge.
• Wisconsin Stat. § 950.09(2)(b) authorizes the Crime
Victims Rights Board to refer a complaint about a
judge to the Judicial Commission.
• Wisconsin Stat. § 950.09(2)(c) does not authorize the
Crime Victims Rights Board to seek equitable relief
against a judge.
• Wisconsin Stat. § 950.09(2)(d) does not authorize the
Crime Victims Rights Board to impose a forfeiture on a
8
No. 2016AP275.ssa
judge: A judge enjoys absolute immunity for actions
taken in his or her official capacity.
• Wis. Stat. § 950.09(3) authorizes the Crime Victims
Rights Board to issue a non-binding Report and
Recommendation concerning crime victims rights and
services. This court should not silence critiques of
the judicial system authorized by the legislature.
• The Department of Justice and the Crime Victims Rights
Board did not, in several instances, correctly
interpret and apply the challenged statutes.
I
¶81 I first consider the rules of statutory interpretation
to be applied when a challenge is made to the constitutionality
of a statute. The majority opinion jumps right over this basic
first step.
¶82 When the constitutionality of a statute is in
question, "[t]he rule oft stated in our cases is that statutes
are presumed to be constitutional . . . ."14 In its haste to
reach its declaration of unconstitutionality, the majority
opinion does not even pay lip service to this rule.
¶83 "Because of the strong presumption in favor of
constitutionality, a party bringing a constitutional challenge
to a statute bears a 'heavy burden'" to prove that the statute
14
Demmith v. Wis. Judicial Conference, 166 Wis. 2d 649, 662
n.9, 480 N.W.2d 502 (1992) (citing State v. Holmes, 106
Wis. 2d 31, 41, 315 N.W.2d 703 (1982)).
9
No. 2016AP275.ssa
is unconstitutional.15 The challenger has to prove, and the
court has to be persuaded, that the statute is unconstitutional
"beyond a reasonable doubt."16
¶84 In its haste to reach its declaration of
unconstitutionality, the majority opinion does not even pay lip
service to this rule either.
¶85 Because "courts have a duty to uphold statutes when
they reasonably can," State v. Zarnke, 224 Wis. 2d 116, 142, 589
N.W.2d 370 (1999) (Prosser, J., dissenting); see also Zarnke,
224 Wis. 2d at 142-43 (Prosser, J., dissenting) (collecting
cases), this court has an obligation to "search [] for a means
of sustaining the act, not for reasons which might require its
condemnation." State ex rel. Harvey v. Morgan, 30 Wis. 2d 1,
13, 139 N.W.2d 585 (1966).
¶86 The presumption of constitutionality of a statute and
a court's obligation to search for reasons to sustain a statute
necessarily inform this court's interpretation of a statute.
¶87 The parties' briefs address statutory interpretation,
including legislative history, in their focus on issues of
constitutionality. Clearly the parties followed a litigation
strategy: Both Judge Gabler and the Crime Victims Rights Board
have sought a ruling on the constitutionality of the statutory
15
Wis. Med. Soc'y, Inc. v. Morgan, 2010 WI 94, ¶37, 328
Wis. 2d 469, 787 N.W.2d 22 (quoting State v. Carpenter, 197
Wis. 2d 252, 276, 541 N.W.2d 105 (1995)).
16
State v. Scruggs, 2017 WI 15, ¶13, 373 Wis. 2d 312, 891
N.W.2d 786; State v. Smith, 2010 WI 16, ¶8, 323 Wis. 2d 377, 780
N.W.2d 90.
10
No. 2016AP275.ssa
provisions at issue. Judge Gabler wants the statutes declared
unconstitutional as to judges. The Crime Victims Rights Board,
by its counsel the Wisconsin Department of Justice, wants the
statutes declared constitutional as to judges.
¶88 Adopting the parties' litigation strategy "hook, line
and sinker," the majority opinion centers on the parties'
constitutional arguments.
¶89 I would have preferred to ask the parties to brief
selected statutory interpretation issues. As I have written
numerous times, this court benefits from briefs. Briefing and
the adversarial process are more apt to lead a court to the
right conclusion and are a fairer process for the litigants.17
Fortunately, in the instant case, no further facts need to be
developed to write on the issue of statutory interpretation.
¶90 In any event, principles governing constitutional
avoidance and a court's decision making function do not rest on
the parties' litigation strategy. "The parties may prefer a
decision on constitutional grounds; but we, of course, are not
17
"The rule of law is generally best developed when issues
are raised by the parties and then tested by the fire of
adversarial briefs and oral arguments." State v. Howes, 2017 WI
18, ¶104 n.7, 373 Wis. 2d 468, 893 N.W.2d 812 (Abrahamson, J.,
dissenting) (quoting City of Janesville v. CC Midwest, Inc.,
2007 WI 93, ¶68, 302 Wis. 2d 599, 734 N.W.2d 428 (Ann Walsh
Bradley, J., dissenting)).
See also Dairyland Greyhound Park, Inc., v. Doyle, 2006 WI
107, ¶335, 295 Wis. 2d 1, 719 N.W.2d 408 (Roggensack, J.,
concurring in part & dissenting in part) ("As various members of
this court have said, we should not 'reach out and decide
issues' that were not presented to the court by the parties.").
11
No. 2016AP275.ssa
bound by their litigation strategies." Wyman v. James, 400 U.S.
309, 345 n.7 (1971) (Marshall, J., dissenting).
¶91 The constitutionally protected rights of crime victims
and the independence and interdependence of the three branches of
government give the issue of statutory interpretation added
significance.
¶92 Accordingly, I address the interpretation of the
challenged statutes.
¶93 The presumption of constitutionality underlies three
prevailing rules of statutory interpretation, sometimes referred
to collectively as the canon of constitutional avoidance.18
These rules govern the instant case and were not systematically
applied by the majority opinion:
18
The canon of constitutional avoidance was most famously
restated in Justice Brandeis's concurrence in Ashwander v.
Tennessee Valley Auth., 297 U.S. 288 (1936), in which he
extolled a "series of rules under which [the Court] has avoided
passing upon a large part of all the constitutional questions
pressed upon it for decision." Ashwander, 297 U.S. at 346(Brandeis, J., concurring).
12
No. 2016AP275.ssa
(1) A court should resolve a case on non-constitutional
grounds if possible.19
(2) A court should interpret a statutory provision at
issue in a manner that renders the statute
constitutional by construing the statute to avoid a
19
Ordinarily a court "will not decide a constitutional
question if there is some other ground upon which to dispose of
the case." Escambia Cty. v. McMillan, 466 U.S. 48, 51 (1984)
per curiam ). Accord Kollasch v. Adamany, 104 Wis. 2d 552, 561,
313 N.W.2d 47, 51 (1981) ("As a matter of judicial prudence, a
court should not decide the constitutionality of a statute
unless it is essential to the determination of the case before
it."); Labor & Farm Party of Wis. v. Elections Bd., 117
Wis. 2d 351, 354, 344 N.W.2d 177 (1984) ("We need not reach
these various constitutional issues because we conclude the case
can be resolved on statutory construction grounds alone. This
court does not normally decide constitutional questions if the
case can be resolved on other grounds"); DeBruin v. St. Patrick
Congregation, 2012 WI 94, ¶42, 343 Wis. 2d 83, 816 N.W.2d 878(Crooks, J., concurring) ("[W]e do not normally reach
constitutional issues in cases that are resolvable on other
grounds . . . .").
13
No. 2016AP275.ssa
constitutional problem,20 or, when facing equally
plausible interpretations of a statute, choosing the
constitutional one.21
20
See, e.g., Kenosha Cty. DHS v. Jodie W., 2006 WI 93, ¶20,
293 Wis. 2d 530, 716 N.W.2d 845 ("Where the constitutionality of
a statute is at issue, courts [should] attempt to avoid an
interpretation that creates constitutional infirmities."); Am.
Family Mut. Ins. v. DOR, 222 Wis. 2d 650, 667, 586 N.W.2d 872(1998) ("A court should avoid interpreting a statute in such a
way that would render it unconstitutional when a reasonable
interpretation exists that would render the legislation
constitutional."); Norquist v. Zeuske, 211 Wis. 2d 241, 250, 564
N.W.2d 748, 752 (1997) (A court "must not construe a statute to
violate the constitution if it can possibly be construed
consistent with the constitution.") (emphasis added); Demmith v.
Wis. Judicial Conference, 166 Wis. 2d 649, 664 n.13, 480
N.W.2d 502 (1992) (A court applies a saving interpretation "if
at all possible, in a manner that will preserve the statute as a
constitutional enactment."); Baird v. La Follette, 72 Wis. 2d 1,
5, 239 N.W.2d 536, 538 (1976) ("Where there is serious doubt of
constitutionality, we must look to see whether there is a
construction of the statute which is reasonably possible which
will avoid the constitutional question."); Ashwander, 297 U.S.
at 348 (Brandeis, J., concurring) ("When the validity of an act
of the Congress is drawn in question, and even if a serious
doubt of constitutionality is raised, it is a cardinal principle
that this Court will first ascertain whether a construction of
the statute is fairly possible by which the question may be
avoided.").
14
No. 2016AP275.ssa
(3) If a saving interpretation is not possible, a court
should sever unavoidably unconstitutional provisions
or applications of the statute and leave the remainder
intact.22 It "is axiomatic that a 'statute may be
21
See, e.g., Adams v. Northland Equip. Co., Inc., 2014 WI
79, ¶46, 356 Wis. 2d 529, 850 N.W.2d 272 ("[W]hen given
alternative statutory interpretations, we will select the
interpretation that results in a constitutionally sufficient
statute."); State ex rel. Strykowski v. Wilkie, 81 Wis. 2d 491,
526, 261 N.W.2d 434 (1978) ("Given a choice of reasonable
interpretations of a statute, this court must select the
construction which results in constitutionality."); Clark v.
Martinez, 543 U.S. 371, 381 (2005) (If there are multiple
"competing plausible interpretations" of a statute, the canon of
constitutional avoidance instructs a court to choose the
constitutional application based on the "reasonable presumption
that Congress did not intend the alternative which raises
serious doubts."); Edward J. DeBartolo Corp. v. Fla. Gulf Coast
Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988)
("[W]here an otherwise acceptable construction of a statute
would raise serious constitutional problems, the Court will
construe the statute to avoid such problems unless such
construction is plainly contrary to the intent of Congress.").
22
See Wis. Stat. § 990.001(11), which provides for
severability as follows:
SEVERABILTIY. The provisions of the statutes are
severable. The provisions of any session law are
severable. If any provision of the statutes or of a
session law is invalid, or if the application of
either to any person or circumstance is invalid, such
invalidity shall not affect other provisions or
applications which can be given effect without the
invalid provision or application.
See also Adrian Vermeule, Saving Constructions, 85 Geo L.J.
1945, 1950-51 (1997) ("[A]ll forms of severability are triggered
only by a ruling on the merits of a constitutional
question . . . . "); Kevin C. Walsh, Partial
Unconstitutionality, 85 N.Y.U. L. Rev. 738, 746–47 (2010) ("[I]f
the statute has unconstitutional applications, they are
severable from the constitutional applications.") (citations
omitted).
(continued)
15
No. 2016AP275.ssa
invalid as applied to one state of facts and yet valid
as applied to another.'"23
¶94 In sum, my analysis of the issues presented follows
these established rules of statutory interpretation.
¶95 The majority opinion does not. Its defense: "This
case is incapable of resolution without deciding the
constitutional conflict presented by the Board's exercise of its
statutory powers." Majority op., ¶51. I disagree. The court
should examine the statutes to decide the Board's powers before
deciding the constitutionality of the statutes.
II
¶96 Before I analyze the applicability of the challenged
(and presumably constitutional) statutory provisions to judges,
I consider the state constitution Crime Victims Amendment. The
challenged statutory provisions were created or amended
subsequent to the adoption of the constitution's Crime Victims
Amendment and are to be interpreted in light of the Amendment.
Severability is not without limits. Thus, "[a]scertaining
the severability of an unconstitutional provision from the
remainder of a statute requires a determination of legislative
intent" and "the viability of the severed portion standing
alone." Burlington N., Inc. v. City of Superior, 131
Wis. 2d 564, 580-81, 388 N.W.2d 916 (1986); Ayotte, 546 U.S. at
330 ("[T]he touchstone for any decision about [a severability]
remedy is legislative intent, for a court cannot 'use its
remedial powers to circumvent the intent of the legislature.'")
(quoting Califano v. Westcott, 443 U.S. 76, 94 (1979) (Powell,
J., concurring in part and dissenting in part)).
23
Ayotte v. Planned Parenthood of N. New England, 546 U.S.
320, 329 (2006) (quoting Dahnke–Walker Milling Co. v. Bondurant,
257 U.S. 282, 289 (1921)).
16
No. 2016AP275.ssa
¶97 The Amendment, Article I, Section 9m of the Wisconsin
Constitution, provides as follows:
Victims of crime. SECTION 9m. [As created April 1993]
This state shall treat crime victims, as defined by
law, with fairness, dignity and respect for their
privacy. This state shall ensure that crime victims
have all of the following privileges and protections
as provided by law: timely disposition of the case;
the opportunity to attend court proceedings unless the
trial court finds sequestration is necessary to a fair
trial for the defendant; reasonable protection from
the accused throughout the criminal justice process;
notification of court proceedings; the opportunity to
confer with the prosecution; the opportunity to make a
statement to the court at disposition; restitution;
compensation; and information about the outcome of the
case and the release of the accused. The legislature
shall provide remedies for the violation of this
section. Nothing in this section, or in any statute
enacted pursuant to this section, shall limit any
right of the accused which may be provided by law.
(Emphasis added.)
¶98 The court has set forth the method for interpreting a
Wisconsin constitutional provision and has used this method in
interpreting the Crime Victims Amendment. See Schilling v.
Crime Victims Rights Bd., 2005 WI 17, ¶16, 278 Wis. 2d 216, 692
N.W.2d 623)(citations omitted).24
¶99 The court examines the constitutional debates and
practices at the time of the drafting of the provision
(including the general history relating to the constitutional
amendment and the legislative history of the amendment), the
text of the constitutional provision, and the earliest
24
See also Polk Cty. v. State Public Defender, 188
Wis. 2d 665, 674, 524 N.W.2d 389 (1994); State v. Beno, 116
Wis. 2d 122, 136-37, 341 N.W.2d 668 (1984).
17
No. 2016AP275.ssa
interpretation of the provision by the legislature as manifested
in the first law enacted after the ratification of the
constitutional provision. Naturally, judicial precedent
interpreting the Amendment also matters.
¶100 The Amendment was obviously designed with crime
victims in mind. Following a national trend of
"constitutionalizing" victims' rights,25 Wisconsin citizens voted
to adopt the Crime Victims Amendment in 1993.26 Although crime
victims were already protected by statute in Wisconsin,27 the
proponents of the Crime Victims Amendment sought to
"constitutionalize" victims' rights. Proponents contended that
25
When the Crime Victims Amendment was adopted, 12 other
states' constitutions recognized victims rights. Currently, 32
states have amended their constitutions to include a provision
relating to crime victims. The remaining 18 states, the Federal
government, and the District of Columbia have statutes that
recognize victims' rights.
For a compendium containing each jurisdiction's laws
relating to the rights of crime victims, see
https://law.lclark.edu/live/news/23544-victims-rights-law-by-
state?.
For a discussion of the victims' rights movement and the
issues presented, see Shirley S. Abrahamson, Redefining Roles:
The Victims' Rights Movement, 1985 Utah L. Rev. 517.
26
The Crime Victims Amendment was adopted by two
consecutive Wisconsin legislatures. See 1991 S.J.R. 41, 1993
S.J.R. 3. Not all legislators favored it.
27
See Chapter 219, Laws of 1979 (creating Chapter 950 of
the Wisconsin Statutes, which established a statutory bill of
rights for victims and witnesses of crimes). Chapter 950,
including the bill of rights, was substantially amended by 1997
Act 181 after the ratification of the state constitution Crime
Victims Amendment.
18
No. 2016AP275.ssa
a constitutional guarantee was "necessary to give weight to the
statutory language and to ensure that all crime victims have
access to the same services."28
¶101 The drafting record of the Crime Victims Amendment
explains that advocates supported the Amendment because it
provided victims with a mechanism for enforcement.29 See
Schilling, 278 Wis. 2d 216, ¶22; Gary Watchke, Wis. Legis.
Reference Bureau Brief 93-4, Constitutional Amendments and
Advisory Referenda to be Considered by Wisconsin Voters April 6,
1993, at 4 (Mar. 1993) (available on the Legislative Reference
Bureau's website, http://lrbdigital.legis.wisconsin.gov/digital/
collection/p16831coll2/id/592/rec/5).
¶102 Three observations should be made regarding the Crime
Victims Amendment. First, the constitution's Amendment is
written in terms of the "privileges and protections" of crime
victims, not "rights." Second, and relatedly, the Amendment
unequivocally protects the rights of the accused. Third, the
Amendment declares that the legislature "shall provide remedies
for the violation of this section."
¶103 First, the text of the Crime Victims Amendment is
framed in terms of the "privileges and protections" of crime
28
Gary Watchke, Wis. Legis. Reference Bureau Brief 93-4,
Constitutional Amendments and Advisory Referenda to be
Considered by Wisconsin Voters April 6, 1993, at 3 (Mar. 1993)
(available on the Legislative Reference Bureau's website,
http://lrbdigital.legis.wisconsin.gov/digital/collection/p16831c
oll2/id/592/rec/5).
29
See Brief of Respondent-Appellant Crime Victims Rights
Board at 20-21.
19
No. 2016AP275.ssa
victims, not "rights." A letter in the drafting file explains
the genesis of the terminology "privileges and protections" and
suggests that it is due little weight as an interpretive matter:
Sen. Adelman objected to the use of the term "right"
in SJR 41. It became apparent that his objection was
based more on the symbolism attached to the notion of
"crime victims rights" than to any genuine legal or
substantive meaning of the "rights" afforded.... We
have, therefore, agreed to substitute the phrase
"privileges and protections" for "rights" in the
introduction to the enumerated provisions.30
¶104 Second, and relatedly, it appears that a central theme
threading through the passage of the Crime Victims Amendment was
to protect the rights of an accused. State Senator Lynn Adelman
persuaded the Joint Resolution's principal author, Senator
Barbara Ulichny, to add the following language to the Amendment:
"Nothing in this section, or in any statute enacted pursuant to
this section, shall limit any right of the accused which may be
provided by law." This language reflects the understanding of
the drafters and leaders in the State Senate that "enactment of
the amendment will not lead to a balancing of a defendant's
30
Memorandum from Racine County District Attorney Lennie
Weber to Senator Barbara Ulichny, Feb. 24, 1992 (available in
the drafting file for 1991 S.J.R. 41). Senator Ulichny was the
Joint Resolution's principal author and requested District
Attorney Lennie Weber to negotiate certain terms of the bill
with the State Public Defender's Office and Senator Lynn
Adelman.
A proposed constitutional amendment, 2017 A.J.R. 47,
currently pending before the Wisconsin State Assembly, would
replace the phrase "privileges and protections" with the word
"rights."
20
No. 2016AP275.ssa
legal rights against those of a crime victim"31 and that a
defendant's rights "would in no way be limited" by the
privileges and protections granted crime victims.32
¶105 In fact, the importance placed on the Amendment's
protection of the rights of the accused is demonstrated in the
ballot question asking voters whether they wished to adopt the
Amendment. The voters were asked:
"Rights of victims of crime." Shall section 9m of
article I of the constitution be created requiring
fair and dignified treatment of crime victims with
respect for their privacy and to ensuring that the
guaranteed privileges and protections of crime victims
31
Gary Watchke, Wis. Legis. Reference Bureau Brief 93-4,
Constitutional Amendments and Advisory Referenda to be
Considered by Wisconsin Voters April 6, 1993, at 4 (Mar. 1993)
(available on the Legislative Reference Bureau's website,
http://lrbdigital.legis.wisconsin.gov/digital/collection/p16831c
oll2/id/592/rec/5). See Letter from Senator Adelman to Dr.
Rupert Theobold, head of the Legislative Reference Bureau, Mar.
12, 1992 (available in the drafting file for 1991 S.J.R. 41);
Memorandum from Racine County District Attorney Lennie Weber to
Senator Barbara Ulichny, Feb. 24, 1992 (available in the
drafting file to 1991 S.J.R. 41); Ken Eikenberry, Victims of
Crime/Victims of Justice, 34 Wayne L. Rev. 29, 46 (1987-1988)
(this law review article is part of the drafting file and was
apparently influential in the drafting of the Amendment: "A
victims' rights amendment could not, without expressly doing so,
curtail any rights granted to defendants.").
32
See Letter from Senator Adelman to Dr. Rupert Theobold,
head of the Legislative Reference Bureau, Mar. 12, 1992
(available in the drafting file for 1991 S.J.R. 41).
Some other states' constitutional provisions guaranteeing
certain rights to crime victims also expressly dispel the notion
that protection of a victim's rights would diminish the
constitutional rights of the accused. See, e.g., Ind. Const.
Art. 1, § 13(b) (grants rights to victims "to the extent that
exercising these rights does not infringe upon the
constitutional rights of the accused").
21
No. 2016AP275.ssa
are protected by appropriate remedies in law without
limiting any legal rights of the accused?"33 (Emphasis
added.)
¶106 Third, the Crime Victims Amendment tasks the
legislature with effectuating the Amendment.34 The second
sentence of the Amendment provides that the State "shall ensure
that crime victims have all of the following privileges and
protections as provided by law . . . . " (Emphasis added.) The
phrase "as provided by law" was used "in order to ensure[ ] that
the legislature has great flexibility in devising a reasonable
and workable means to implement the specific provisions of the
amendment."35 Furthermore, the second-to-last sentence of the
Amendment states that the legislature "shall provide remedies
for violation of this section."36
33
Gary Watchke, Wis. Legis. Reference Bureau Brief 93-4,
Constitutional Amendments and Advisory Referenda to be
Considered by Wisconsin Voters April 6, 1993, at 2 (Mar. 1993)
(available on the Legislative Reference Bureau's website,
http://lrbdigital.legis.wisconsin.gov/digital/collection/p16831c
oll2/id/592/rec/5).
34
See Brief of Respondent-Appellant Crime Victims Rights
Board at 18 ("[T]he people of Wisconsin have amended the
Wisconsin Constitution in a way that restricted how judges may
treat crime victims in court proceedings and that expressly
empowered the Legislature to provide remedies for violations of
victims' rights.").
35
Memorandum from Racine County District Attorney Lennie
Weber to Senator Barbara Ulichny, Feb. 24, 1992 (available in
the drafting file for 1991 S.J.R. 41).
36
See Legislative Reference Bureau Analysis to 1993 S.J.R.
3 ("The legislature must provide remedies for the violation of
the new section.").
22
No. 2016AP275.ssa
¶107 Previous judicial interpretations of a constitutional
provision are also informative in interpreting and applying the
Amendment. This court has had only one occasion to interpret
the Crime Victims Amendment.
¶108 The court interpreted the first sentence of the Crime
Victims Amendment (stating that "this state shall treat crime
victims . . . with fairness, dignity and respect for their
privacy") in Schilling v. Crime Victims Rights Board, 2005 WI
17, 278 Wis. 2d 216, 692 N.W.2d 623. The Schilling court
declared that this first sentence is a statement of purpose that
does not provide enforceable, self-executing crime victims'
rights. It merely guides interpretation of the remaining
sentences of the constitutional provision and the statutory
provisions enacted relating to crime victims' rights.37
Accordingly, the court determined that a district attorney could
not be privately reprimanded by the Crime Victims Rights Board
under that provision.38
37
Schilling v. Crime Victims Rights Bd., 2005 WI 17, ¶¶1,
27, 278 Wis. 2d 216, 692 N.W.2d 623.
38
The legislature responded to the Schilling decision by
enacting 2011 Wis. Act 283, § 2, creating Wis. Stat.
§ 950.04(1v)(ag) and statutorily recognizing a victim's right to
be treated with fairness, dignity, and respect for privacy by
public officials. See drafting file for 2001 A.B. 232, 2011
Wis. Act 283. Section 2 of the Act provides as follows:
Section 2. 950.04(1v)(ag) of the statutes is created
to read:
950.04(1v)(ag) To be treated with fairness, dignity,
and respect for his or her privacy by public
officials, employees, or agencies. This paragraph
does not impair the right or duty of a public official
(continued)
23
No. 2016AP275.ssa
¶109 The constitution's Crime Victims Amendment has not
otherwise been judicially interpreted.39
¶110 In sum, the text and history of the Crime Victims
Amendment reflects the legislature's and the voters' concern for
both crime victims and accuseds.
III
¶111 The first legislative enactment interpreting Article
I, Section 9m of the Wisconsin Constitution after ratification
was 1997 Wis. Act 181. Among other matters, it repealed and
recreated Wis. Stat. § 950.04, the crime victims bill of rights,
and created the Crime Victims Rights Board. The challenge in
the instant case is to provisions of the 1997 Act as amended
through the 2015-16 biennium. I proceed to examine the
statutory provisions.
¶112 The majority opinion's dissertation and reliance on
the separation of powers doctrine to strike down challenged
statutory provisions in Chapter 950 as applicable to judges is
untethered to the text of the Crime Victims Amendment and the
challenged statutes. Indeed, textual analysis is conspicuously
absent from the majority opinion.
¶113 The majority opinion defends its rush to
constitutional decision without textual analysis by asserting
or employee to conduct his or her official duties
reasonably and in good faith.
39
For a discussion of the Crime Victims Amendment and the
open records law, see Democratic Party of Wis. v. DOJ, 2016 WI
100, ¶¶4, 14, 29, 372 Wis. 2d 460, 888 N.W.2d 584.
24
No. 2016AP275.ssa
that resolution of the constitutional separation of powers issue
is "essential." Majority op., ¶¶52-53 (citing Kollasch v.
Adamany, 104 Wis. 2d 552, 561, 313 N.W.2d 47, 51 (1981)).
¶114 Putting the cart before the horse, so to speak, the
majority opinion makes the separation of powers issue seem
"essential" by framing the issue presented as follows:
May an executive agency, acting pursuant to authority
delegated by the legislature, review a Wisconsin
court's exercise of discretion, declare its
application of the law to be in error, and then
sanction the judge for making a decision the agency
disfavors?
Majority op., ¶36.
¶115 The majority opinion frames the issue to engender the
response that a statute enabling an executive branch agency to
so act is unconstitutional. The majority opinion asserts,
without analysis of the text of the statutes, that the Board has
authority "to investigate and adjudicate complaints against
judges, issue reprimands against judges, and seek equitable
relief and forfeitures through civil actions against judges."
Majority op., ¶2. The majority opinion should, in my opinion,
frame the issues in a more neutral fashion. The issues to be
considered are what authority did the legislature grant an
executive agency relative to crime victim complaints against
judges and is this grant of authority constitutional?40
40
The Crime Victims Rights Board offers four main arguments
supporting the constitutionality of the challenged statutes:
(continued)
25
No. 2016AP275.ssa
¶116 A careful analysis of the Crime Victims Amendment
(Article I, Section 9m of the Wisconsin Constitution), and
Chapter 950 (the statutes relating to victims and witnesses of
crime), demonstrates that the legislature did not confer
"unconstitutional" powers on an executive agency relating to a
crime victim's complaint against a judge. A court must presume
(1) The Board does not review the correctness of a judge's
exercise of discretion in scheduling when a complaint is filed.
Rather the Board determines whether the judge's exercise of
scheduling discretion was consistent with the constitutional
rights of a crime victim and the limitations on judicial
discretion created by the Crime Victims Amendment and Chapter
950.
(2) Because the Board's report and recommendations are
reviewable by a court under Wis. Stat. Chapter 227, the
legislative and executive branches do not exercise unfettered
power over a member of the judiciary.
(3) A court's restricting the Board's power to provide a
remedy for a judge's violation of a crime victim's rights beyond
referral to the Judicial Commission is contrary to the Crime
Victims Amendment. Such a restriction deprives crime victims of
any remedy in a case in which violation of a crime victim's
right does not rise to the level of a violation in the
jurisdiction of the Judicial Commission. Supreme Court Rule
60.04(1)(h) requires a judge to "dispose of all judicial matters
promptly and efficiently." The Board acknowledges that delay
that violates the right of a crime victim under the Constitution
and Wis. Stat. § 950.04(1v) may not violate the Code of Judicial
Conduct, which requires willful violation. The Board asserts
that § 950.04(1v) provides broader protections for victims than
the Code of Judicial Conduct.
(4) The Board's issuance of a Report and Recommendation
pursuant to Wis. Stat. § 950.09(3) setting forth best practices
for protecting a victim's right to speedy disposition in the
instant case is a remedy the legislature is authorized to adopt
under the Crime Victims Amendment. This remedy does not deprive
the judge of any right or alter his or her legal status or
interfere with his or her functioning as a judge.
26
No. 2016AP275.ssa
that the legislature intended a statute to comply with the
legislature's constitutional powers and duties. A court must
follow the cardinal principle of saving rather than destroying a
statute's constitutionality.
A
¶117 I begin with the legislature's first enactment after
voters adopted the Crime Victims Amendment, namely 1997 Wis. Act
181, as amended through the 2015-16 biennium. The Act was
apparently enacted in response to the directive in the Crime
Victims Amendment that "[t]he legislature shall provide remedies
for the violation of this section."41 The Act created a Crime
Victims Rights Board and delegated functions relating to crime
victims to the Department of Justice.
¶118 Act 181 created a five-member Crime Victims Rights
Board. Wis. Stat. § 15.255(2).42 The Board is an executive
41
See Brief of Respondent-Appellant Crime Victims Rights
Board at 20-22.
42
Wisconsin Stat. § 15.255(2)(a)-(c) creating the Crime
Victims Rights Board provides, inter alia, as follows:
(2) Crime victims rights board. (a) There is created a
crime victims rights board which is attached to the
department of justice under s. 15.03.
(b) The crime victims rights board shall be
composed of 5 members as follows:
1. One district attorney holding office in this
state.
2. One representative of local law enforcement in
this state.
(continued)
27
No. 2016AP275.ssa
agency that is "attached" to the Wisconsin Department of Justice
for limited administrative purposes.43 The Act provides that the
Board "shall promulgate rules establishing procedures for the
exercise of its powers under this section." Wis. Stat.
§ 950.09(5).44
3. One person who is employed or contracted by a
county board of supervisors under s. 950.06 to provide
services for victims and witnesses of crimes.
4. Two members, not employed in law enforcement,
by a district attorney or as specified in subd. 3.,
who are citizens of this state.
(c) The members of the crime victims rights board
specified in par. (b)2. and 3. shall be appointed by
the attorney general. One of the members specified in
par. (b)4. shall be appointed by the crime victims
council and the other member shall be appointed by the
governor. The member specified in par. (b)1. shall be
appointed by the Wisconsin District Attorneys
Association.
43
Wisconsin Stat. § 15.03 describes the Board's limited
attachment to the Department of Justice as follows:
Any . . . board attached . . . to a
department . . . shall be a distinct unit of that
department . . . [and] shall exercise its powers,
duties and functions prescribed by
law . . . . independently of the head of the
department . . . , but budgeting, program coordination
and related management functions shall be performed
under the direction and supervision of the head of the
department . . . .
"Actions of the board are not subject to approval or review
by the attorney general." Wis. Stat. § 950.09(4).
44
For the rules promulgated by the Board, see Wis. Admin.
Code § CVRB Ch. 1 (June 2000).
28
No. 2016AP275.ssa
¶119 Despite the creation of the Board as a distinct
agency, the Department of Justice retains statutory authority
and duties regarding crime victims under the Act. The
Department's authority and duties are intertwined with the
functioning of the Board. The Board may act on a victim's
complaint after the Department has completed its actions with
regard to a victim's complaint.45
¶120 Most importantly for purposes of the instant case is
the Department of Justice's mediation function regarding crime
victim complaints. The Department's mediation function is set
forth in Wis. Stat. § 950.08(3) as follows:
The department may receive complaints, seek to mediate
complaints and, with the consent of the involved
parties, actually mediate complaints regarding the
treatment of crime victims and witnesses by public
officials[46]. . . . The department may act as a
liaison between crime victims or witnesses and others
when seeking to mediate these complaints and may
request a written response regarding the complaint
from the subject of a complaint. If asked by the
department to provide a written response regarding a
complaint, the subject of a complaint shall respond to
the department's request within a reasonable time.
(Emphasis added.)
45
See Wis. Stat. 950.09(2) ("A party may not request the
board to review a complaint under this subsection until the
department has completed its action on the complaint under s.
950.08(3)."); Wis. Adm. Code § CVRB 1.04(2) ("All complaints [to
the Board] shall be prepared on a complaint form obtained from
the mediator."
46
The statute uses the phrase "public officials, employees,
or agencies." Because I conclude that judges are not
"employees" or "agencies," I consider only whether judges are
"public officials" under the statute.
29
No. 2016AP275.ssa
¶121 The phrase "public officials" is not defined in Wis.
Stat. § 950.08(3) or elsewhere in Chapter 950, although it is
used several times in the chapter.47
¶122 In giving meaning to the phrase "public officials" in
Wis. Stat. § 950.08(3), I must consider the context in which the
phrase is used. A phrase that ordinarily has a particular
meaning may not have that meaning in certain circumstances as it
interacts "with and relate[s] to other provisions in the statute
and to other statutes."48 Ordinarily the phrase would include
judges. A question arises, however, whether the phrase in
§ 950.08(3) includes judges.
¶123 Participation in mediation is not required under Wis.
Stat. § 950.08(3). I conclude, however, that the phrase "public
officials" in § 950.08(3) relating to the Department's mediation
function does not include judges for four interrelated reasons:
the Crime Victims Amendment, the nature of the mediation
47
I could find no definition of "public officials" that
applies in all statutes. For definitions of "state public
office" and "state public official" for purposes of the Code of
Ethics for Public Officials and Employees, see Wis. Stat.
§ 19.42(13) and (14).
48
Dep't of Corrections v. Schwarz, 2005 WI 34, ¶14, 279
Wis. 2d 223, 693 N.W.2d 703 (internal quotation marks and
citations omitted); see also Teschendorf v. State Farm Ins.
Cos., 2006 WI 89, ¶74, 293 Wis. 2d 123, 717 N.W.2d 258 (Prosser,
J., concurring) ("Ambiguity in an insurance policy may arise in
different ways. First, the language of the disputed provision
may be ambiguous because the import of the words is uncertain or
the impact of the words is uncertain with respect to unusual
facts. Second, a provision that is unambiguous when viewed in
isolation may become ambiguous when considered in the context of
the entire policy.") (Emphasis added.)
30
No. 2016AP275.ssa
process, the prohibition on questioning a judge outside a
judicial proceeding about the judge's thought processes
regarding an act taken in the judge's official capacity, and the
many conflicting roles that the Department plays in the
administration of the criminal justice system.
¶124 The Crime Victims Amendment unequivocally provides
that neither it nor the legislature limits the rights of the
accused. An accused has the right to a judge's exercise of
discretion regarding sentencing. "[S]entencing is a
discretionary judicial act . . . ." McCleary v. State, 49
Wis. 2d 263, 277, 182 N.W.2d 512 (1971). See also State v.
Gallion, 2004 WI 42, ¶68, 270 Wis. 2d 535, 678 N.W.2d 197 ("The
circuit court possesses wide discretion in determining what
factors are relevant to its sentencing decision.").
¶125 In the instant case, the victim complained to the
Department of Justice while the sentencing proceeding was
pending before Judge Gabler. The Department never mediated the
matter. Had it attempted to do so (either before or after the
completion of sentencing), the mediation would have interfered
with the defendant's rights.
¶126 The nature of the mediation process also points to the
conclusion that the Department does not have statutory authority
to mediate a crime victim's complaint against a judge under Wis.
Stat. § 950.08(3). Mediation is a form of dispute resolution in
which people in conflict are assisted by a neutral third person
31
No. 2016AP275.ssa
to reach a voluntary agreement.49 Mediation between the victim
and the judge would have taken place outside the presence of the
parties in the criminal case——namely, the defendant and the
State as prosecutor——and thus would have constituted ex parte
communications.50
¶127 Another problem with classifying judges as "public
officials" subject to mediation by the Department of Justice is
that mediation appears to bear the imprimatur of revealing a
judge's thought processes outside a judicial proceeding
regarding an act taken in the judge's official capacity. Such a
process is problematic. "The overwhelming authority concludes
that a judge may not be compelled to testify concerning mental
49
American Bar Association, How Courts Work: What is
Mediation?,
http://www.americanbar.org/groups/public_education/resources/law
_related_education_network/how_courts_work/mediation_whatis.html
50
See Brief of Respondent-Appellant Crime Victims Rights
Board at 38 (Noting that the circuit court identified as an
issue requiring an evidentiary hearing the "impact on Judge
Gabler's communications with [the Department] and the [Crime
Victims Rights board] of the Code of Judicial Conduct's
restrictions on ex parte communications.").
32
No. 2016AP275.ssa
processes used in formulating official judgments or the reasons
that motivated him in the performance of his official duties."51
¶128 Furthermore, when the Department acts as mediator, it
is wearing only one of many hats it wears in the criminal
justice system. For example, the Department consults with and
advises district attorneys in all matters pertaining to their
duties;52 appears for the State and prosecutes or defends all
actions and proceedings, civil or criminal, in this court and in
51
United States v. Roebuck, 271 F. Supp. 2d 712, 718 (D.
V.I. 2003) (citing United States v. Morgan, 313 U.S. 409, 422
(1941); Fayerweather v. Ritch, 195 U.S. 276, 306–07 (1904));
see also State ex rel. Kaufman v. Zakaib, 535 S.E.2d 727, 734-
737 (W. Va. 2000); In re Enforcement of Subpoena, 972
N.E.2d 1022, 1027-34 (Mass. 2012) (recognizing a judicial
deliberative privilege to refuse to be a witness based on
concerns for finality, quality and integrity of decision-making,
and the independence and impartiality of the judiciary); United
States v. Cross, 516 F. Supp. 700, 707 (M.D. Ga. 1981) , aff'd,
742 F.2d 1279 (11th Cir. 1984), vacated on other grounds for
further consideration, 468 U.S. 1212 (1984) (because "judges are
under no obligation to divulge the reasons that motivated them
in their official acts[,] the mental processes employed in
formulating the decision may not be probed").
Allowing such probing could undermine the integrity of the
judicial system. Roebuck, 271 F. Supp. 2d at 722 (citing
Terrazas v. Slagle, 142 F.R.D. 136, 139 (W.D. Tex. 1992); accord
United States v. Dowdy, 440 F. Supp. 894, 896 (W. Va. 1977)
("Should a judge be vulnerable to subpoena as to the basis of
every action taken by him, the judiciary would be open to
frivolous attacks upon its dignity and integrity, and
interruption of its ordinary and proper functioning.") (internal
quotation marks & quoted source omitted).
52
Wisconsin Stat. § 165.25(3) provides that the Department
of Justice shall "[c]onsult and advise with the district
attorneys when requested by them in all matters pertaining to
the duties of their office."
33
No. 2016AP275.ssa
the court of appeals;53 and appears for judges in any civil
action or other matter brought before a court or administrative
agency growing out of the judge's duties.54 The Department's
multiple roles raise a Gordian knot of conflict-of-interest
questions.
¶129 Interpreting "public officials" in Wis. Stat.
§ 950.08(3) to include a judge for purposes of mediation by the
Department of Justice would entangle judges in this web of
conflicts.
¶130 These considerations cast significant doubt on
interpreting the phrase "public officials" in Wis. Stat.
§ 950.08(3) to include a judge and to enable the Department of
Justice to mediate a crime victim's complaint against a judge.
¶131 In sum, mediation would have interfered with an
accused's rights guaranteed by the federal and state
constitutions to a fair, impartial, neutral, nonpartisan judge
exercising his or her discretion in sentencing; interfered with
ongoing proceedings in the circuit court; involved ex parte
communications; involved the judge in explaining his or her
thought processes; and entangled the judge in a web of the
Department's conflicts.
53
See Wis. Stat. § 165.25(1).
54
See Wis. Stat. § 165.25(6). In the instant case,
however, the Department represents the Crime Victims Rights
Board before this court against a judge in a lawsuit involving a
crime victim's complaint against the judge; the Department does
not represent the judge.
34
No. 2016AP275.ssa
¶132 When there are multiple "competing plausible
interpretations" of a statute, the canon of constitutional
avoidance instructs a court to choose the constitutional
interpretation based on the "reasonable presumption that [the
legislature] did not intend the alternative which raises serious
constitutional doubts." Clark v. Martinez, 543 U.S. 371, 381
(2005).55
¶133 Accordingly, applying the rules of statutory
interpretation, I conclude that the phrase "public officials" in
Wis. Stat. § 950.08(3) for purposes of mediation by the
Department of Justice does not include judges. Judges are not
subject to the Department's mediation of a crime victim's
complaint under § 950.08(3).
B
¶134 Having decided that Wis. Stat. § 950.08(3) does not
grant the Department of Justice authority to mediate a crime
victim's complaint against a judge, I turn to the power of the
Crime Victims Rights Board over a crime victim's complaint
55
See also Clark v. Martinez, 543 U.S. 371, 385 (2005)
("The canon of constitutional avoidance comes into play only
when, after the application of ordinary textual analysis, the
statute is found to be susceptible of more than one
construction; and the canon functions as a means of choosing
between them. See, e.g., Almendarez–Torres v. United States,
523 U.S. 224, 237–238 (1998); United States ex rel. Attorney
General v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909).").
See also Chicago & N.W. Ry. Co. v. Pub. Serv. Comm'n, 43
Wis. 2d 570, 577–78, 169 N.W.2d 65, 68 (1969) ("[I]f a statute
is open to more than one reasonable construction, the
construction which will accomplish the legislative purpose and
avoid unconstitutionality must be adopted.").
35
No. 2016AP275.ssa
against a judge. The Board takes the position in the instant
case that it has authority over a crime victim's complaint
against a judge even though no mediation takes place. According
to the Board, the Department of Justice need not mediate a
matter for the Board to attain power over a crime victim's
complaint against a judge; for the Board to act on a complaint,
the Department need confirm only that it has completed its
action under Wis. Stat. § 950.08(3).56
¶135 Although the statutes and Board rules might be
interpreted to require mediation by the Department of Justice as
a prerequisite to the Board's functioning,57 I agree that
mediation is discretionary with a party and is not a necessary
prerequisite for the Board to function.
¶136 The Crime Victims Rights Board's functions are
described in Wis. Stat. § 950.09(2)(a)-(d).
Wis. Stat. § 950.09(2)
¶137 The introductory language in § 950.09(2) (quoted
below) requires the Board to determine, before it begins any
investigation or takes any action, that there is probable cause
to believe that the subject of the complaint violated the rights
of a crime victim.
Wis. Stat. § 950.09(2) At the request of one of the
involved parties, the board may review a complaint
56
See Brief of Respondent-Appellant Crime Victims Rights
Board at 41-42.
57
Judge Gabler takes this position as a matter of statutory
interpretation. See Brief of Petitioner-Respondent The
Honorable William M. Gabler, Sr. at 22-24.
36
No. 2016AP275.ssa
made to the department under s. 950.08(3) regarding a
violation of the rights of a crime victim. A party
may not request the board to review a complaint under
this subsection until the department has completed its
action on the complaint under s. 950.08(3). In
reviewing a complaint under this subsection, the board
may not begin any investigation or take any action
specified in pars. (a) to (d) until the board first
determines that there is probable cause to believe
that the subject of the complaint violated the rights
of a crime victim. . . .
¶138 To determine whether there is probable cause, the
Board requests the subject of the complaint to submit an answer.
Wis. Admin. Code § CVRB 1.05(4), (5) (June 2000). The Board
determines probable cause based on the complaint, answer, and
any information provided by the mediator. Wis. Admin. Code
§ CVRB 1.05(6), (7) (June 2000). If the Board finds probable
cause, it may commence an investigation. Wis. Admin. Code
§ CVRB 1.05(8) (June 2000).58
¶139 The Board's rules provide that it may, as an
investigatory body, "request responses [from the subject of a
complaint] to written questions, participation in a personal or
telephone interview with the Board, and written documentation."
Wis. Admin. Code § CVRB 1.06 (June 2000). A hearing may be
held. Wis. Admin. Code § CVRB 1.07 (June 2000).
58
Judge Gabler interprets Wis. Stat. § 950.09(2) and Wis.
Admin. Code § CVRB 1.06(1) as prohibiting the Board from
investigating a crime victim complaint until after there has
been a finding of probable cause and argues that the Board
violated the confidentiality of Judge Gabler's file contrary to
§ 950.095(1)(a). See Brief of Petitioner-Respondent The
Honorable William M. Gabler, Sr. at 30-32.
37
No. 2016AP275.ssa
¶140 A party's participation in the Board's finding of
probable cause, investigation, and hearing is not required. For
substantially similar reasons for my conclusion that the
statute, properly interpreted, does not authorize the Department
of Justice to mediate a crime victim's complaint against a
judge, I conclude that the Board is not authorized to determine
probable cause or investigate a crime victim's complaint against
a judge.
¶141 The Board's probable cause determination and
investigation of a crime victim's complaint would, in violation
of the Crime Victims Amendment, limit the judge's decision-
making ability and the rights of the accused, would require the
judge to engage in ex parte communications, and would require
the judge to explain, outside the judicial proceeding, the
judge's thought processes regarding an act taken in the judge's
official capacity. See ¶126 & n.50, supra.
¶142 Accordingly I conclude that Wis. Stat. § 950.09(2)
does not authorize the Crime Victims Rights Board to determine
probable cause or investigate a crime victim's complaint against
a judge.
Wis. Stat. § 950.09(2)(a),(c), & (d)
¶143 After a determination of probable cause and
investigation under Wis. Stat. § 950.09(2), the Board "may do
any of the following":
(a) Issue private and public reprimands of public
officials, employees or agencies that violate the
rights of crime victims provided under this chapter,
ch. 938 and article I, section 9m, of the Wisconsin
38
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constitution. [DECLARED UNCONSTITUTIONAL by MAJORITY
OPINION as to JUDGES.]
(b) Refer to the judicial commission a violation or
alleged violation by a judge of the rights of crime
victims provided under this chapter, ch. 938[59] and
article I, section 9m, of the Wisconsin constitution.
[NOT CHALLENGED.]
(c) Seek appropriate equitable relief on behalf of a
victim if such relief is necessary to protect the
rights of the victim. The board may not seek to
appeal, reverse or modify a judgment of conviction or
a sentence in a criminal case. [DECLARED
UNCONSTITUTIONAL by MAJORITY OPINION as to JUDGES.]
(d) Bring civil actions to assess a forfeiture under
s. 950.11. Notwithstanding s. 778.06, an action or
proposed action authorized under this paragraph may be
settled for such sum as may be agreed upon between the
parties. In settling actions or proposed actions, the
board shall treat comparable situations in a
comparable manner and shall assure that any settlement
bears a reasonable relationship to the severity of the
offense or alleged offense. Forfeiture actions
brought by the board shall be brought in the circuit
court for the county in which the violation is alleged
to have occurred. (Emphasis added.) [DECLARED
UNCONSTITUTIONAL by MAJORITY OPINION as to JUDGES.]
¶144 Although the Board cannot determine probable cause or
investigate a crime victim's complaint against a judge, I
address Wis. Stat. § 950.09(2)(a), (c), and (d) to determine
their applicability to judges.
¶145 I approach each challenged paragraph (that is, (a),
(c), and (d)) of Wis. Stat. § 950.09(2) in turn with the rules
of statutory interpretation in mind. I conclude that these
59
Chapter 938 of the Wisconsin Statutes is entitled the
Juvenile Justice Code. Section 938.01(2)(g) explains that the
victim of a criminal act perpetrated by a juvenile is afforded
the same rights as if the actor were an adult.
39
No. 2016AP275.ssa
three paragraphs do not empower the Board to act on a crime
victim's complaint against a judge.
¶146 Wis. Stat. § 950.09(2)(a). Paragraph (a) of Wis.
Stat. § 950.09(2) refers to "public officials." As in Wis.
Stat. § 950.08(3), the phrase "public officials" is undefined.
The majority opinion assumes, without analysis, that the phrase
includes judges. I do not. This assumption is unreasonable for
several reasons.
¶147 First, as I explained above, the phrase "public
officials" used in Wis. Stat. § 950.08(3) cannot be interpreted
as referring to judges. See ¶¶121-131, supra. If the phrase in
§ 950.08(3) does not include judges, the phrase in § 950.09(2)
probably does not refer to judges. Why? Because § 950.08(3)
and § 950.09(2) are tied together, and it is only logical that
the phrase would have the same meaning in both places.60
¶148 Second, Wis. Stat. § 950.09(2)(a)'s use of the word
"reprimand" along with the phrase "public officials" leads a
reader to conclude that the phrase "public officials" does not
include a judge. The word "reprimand" is a word used in the
Wisconsin Constitution and statutes referring to discipline of
judges. Discipline of judges is governed by Article VII,
60
See State ex rel. Gebarski v. Circuit Court, 80
Wis. 2d 489, 495, 259 N.W.2d 531 (1977) (citing Atl. Cleaners &
Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932) (a
natural presumption exists that an identical term used multiple
times in different parts of a legislative act is intended to
have the same meaning, but the presumption is not rigid).
40
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Section 11 of the Wisconsin Constitution,61 Wis. Stat. §§ 757.71-
.99, and Supreme Court Rules Chapter 60.62 To interpret the
phrase "public official" in § 950.09(2)(a) to mean that the
Board may reprimand a judge renders this provision
constitutionally problematic because other constitutional and
statutory provisions explicitly govern judicial discipline,
including reprimand.
¶149 Interpreting the phrase "public official" in Wis.
Stat. § 950.09(2)(a) as not including a judge or justice renders
the phrase "public official" used in § 950.09(2)(a) consistent
with the use of the phrase in § 950.08(3) and avoids a
constitutional challenge to § 950.09(2)(a).
¶150 Third, the statutes state that the Board has authority
to refer a violation or alleged violation by a judge of the
rights of a crime victim to the Judicial Commission. This
statement appears not once but twice in Chapter 950. See Wis.
Stat. §§ 950.09(2)(b), 950.095(2)(b).
61
Article VII, Section 11 of the Wisconsin Constitution
provides:
Each justice or judge shall be subject to reprimand,
censure, suspension, removal for cause or for
disability, by the supreme court pursuant to
procedures established by the legislature by law. No
justice or judge removed for cause shall be eligible
for reappointment or temporary service. This section
is alternative to, and cumulative with, the methods of
removal provided in sections 1 and 13 of this article
and section 12 of article XIII. (Emphasis added.)
62
Supreme Court Rules are printed in volume 6 of the
Wisconsin Statutes.
41
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¶151 These provisions specifically referring to a judge and
the Judicial Commission imply that the legislature excluded
judges from the phrase "public officials"; the legislature chose
to single out judges and not treat judges as "public officials."
¶152 There is no constitutional or statutory problem with
the Board's forwarding complaints against a judge to the
Judicial Commission.
¶153 Fourth, Wis. Stat. § 950.105 gives a crime victim the
right to assert, in the circuit court in which the alleged
violation has occurred, his or her rights as a crime victim
under the statutes or under Article I, Section 9m of the
Wisconsin Constitution. The inference to be drawn is that the
crime victim has a remedy for a complaint against a judge and
need not rely on the Board to resolve the complaint.
¶154 Fifth, during enactment of Wis. Stat. § 950.09 the
legislature rejected an amendment to the bill that would have
prevented the Board from reviewing a complaint made against a
judge.63 The Crime Victims Rights Board argues in this court
that the rejected amendment means the legislature intended the
Board to oversee a crime victim's complaint against a judge
under § 950.09.64 Another more plausible interpretation is that
the amendment was not necessary in light of the other provisions
63
Compare S. Amend. 1 to 1997 A.B. 342 with 1997 Wis. Act
181.
64
See Brief of Respondent-Appellant Crime Victims Rights
Board at 22.
42
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in subsection 950.09(2) expressing the legislative intent that
certain provisions in § 950.09(2) do not govern judges.
¶155 Sixth, Wis. Stat. § 950.04(1v)(ag), a provision in the
crime victims bill of rights, includes the phrase "public
officials": A crime victim has the right "to be treated with
fairness, dignity and respect for his or her privacy by public
officials, employees or agencies."65 The phrase "public
officials" is not defined here either.
¶156 Even if the phrase includes judges, the next sentence
provides: "This paragraph does not impair the right or duty of
a public official or employee to conduct his or official duties
reasonably and in good faith." These two sentences read
together demonstrate that the legislature was careful not to
allow this provision referring to public officials to include
judges and interfere with a judge's core function of deciding
cases.
65
The phrase "public official" also appears in Wis. Stat.
§ 950.04(1v)(dr), the crime victims bill of rights, relating to
a public official's duty to protect a victim's personal
identity. A victim's personal identity is protected in judicial
records.
This court has adopted rules under Wis. Stat. § 751.12governing the protection of the personal identity of crime
victims. In appellate procedure, the protection of personal
identity is governed by Wis. Stat. § (Rule) 809.86. In the
circuit courts, attorneys may file a motion to seal information,
including crime victim information. See Wis. Stat. § 801.21;
Gerald P. Ptacek & Marcia Vandercook, Court Filings: New Rules
to Protect Confidential Information in Court Records, Wis.
Lawyer, May 2016, at 12.
43
No. 2016AP275.ssa
¶157 Seventh and last (and perhaps most importantly), Wis.
Stat. § 950.09(2)(c) explicitly and significantly limits the
Board's powers over a judge or a judge's decision in a criminal
case, stating: "The board may not seek to appeal, reverse or
modify a judgment of conviction or a sentence in a criminal
case."66
¶158 A similar limitation on a crime victim's sway over a
circuit court's decision-making powers appears in Wis. Stat.
§ 950.10(2). This subsection provides that a court's failure to
comply with Chapter 950 or Article I, Section 9m of the
Wisconsin Constitution, the Crime Victims Amendment, is not
grounds for an appeal of a judgment of conviction and is not
grounds to reverse or modify a judgment of conviction or a
sentence.67
¶159 Applying the rules of statutory interpretation to Wis.
Stat. § 950.09(2)(a), I conclude that Wis. Stat. § 950.09(2)(a)
66
See Brief of Respondent-Appellant Crime Victims Rights
Board at 22.
67
Wisconsin Stat. § 950.10(2) provides as follows:
A failure to provide a right, service or notice to a
victim under this chapter or ch. 938 or under Article
I, section 9m, of the Wisconsin constitution is not
ground for an appeal of a judgment of a conviction and
is not grounds for any court to reverse or modify a
judgment of conviction or sentence.
See State v. Grindemann, 2002 WI App 106, ¶19 n.5, 255
Wis. 2d 632, 648 N.W.2d 507 (State conceded that failure to
conform to statutory provisions governing crime victim rights is
not grounds for an appeal of a sentence, citing Wis. Stat.
§ 950.10(2)).
44
No. 2016AP275.ssa
does not apply to judges. If the Board has no statutory power
to reprimand judges, no constitutional issue arises by virtue of
§ 950.09(2)(a).
¶160 Wis. Stat. § 950.09(2)(c). Wisconsin Stat.
§ 950.09(2)(c) empowers the Crime Victims Rights Board to seek
appropriate equitable relief as follows:
Wis. Stat. § 950.09(2)(c) Seek appropriate equitable
relief on behalf of a victim if such relief is
necessary to protect the rights of the victim. The
board may not seek to appeal, reverse or modify a
judgment of conviction or a sentence in a criminal
case.
¶161 This provision does not explicitly allow the Board to
seek equitable judicial relief against a court or judge.
Interpreting the provision to allow such equitable relief would
negate the second sentence, which significantly limits the
Board's power over courts and judges.
¶162 Furthermore, the Crime Victims Amendment explicitly
states that neither the Amendment nor any statute enacted
pursuant thereto shall limit any right of the accused which may
be provided by law. An accused has the right to a fair,
neutral, impartial, and nonpartisan judicial proceeding
conducted according to law, including a judge's exercise of
discretion.
¶163 If the Board were able to seek equitable relief to
enjoin a court or judge from scheduling sentencing, for example,
45
No. 2016AP275.ssa
that action would limit the accused's rights in contravention of
the Crime Victims Amendment.68
¶164 In sum, as a matter of statutory interpretation I
conclude that Wis. Stat. § 950.09(2)(c) does not confer power on
the Board to seek equitable relief against a judge or court.
¶165 Wis. Stat. § 950.09(2)(d). Wisconsin Stat.
§ 950.09(2)(d) provides that the Crime Victims Rights Board may
[b]ring civil actions to assess a forfeiture under s.
950.11. . . . Forfeiture actions brought by the board
shall be brought in the circuit court for the county
in which the violation is alleged to have occurred.
¶166 Section 950.09(2)(d) does not explicitly grant the
Board the authority to bring a forfeiture action against a
judge.
¶167 Another provision, Wis. Stat. § 950.11, to which
§ 950.09(2)(d) refers, explains that a civil action to assess a
forfeiture under § 950.09(2)(d) may be brought against "public
official." Wisconsin Stat. § 950.11 provides:
Penalties. A public official, employee or agency that
intentionally fails to provide a right specified under
s. 950.04(1v) to a victim of a crime may be subject to
a forfeiture of not more than $1,000.
Again the phrase "public official" is not defined.
¶168 The majority opinion declares that Wis. Stat.
§ 950.09(2)(d) is unconstitutional as applied to judges on the
ground that it allows the Board to "financially penalize" a
judge. Majority op., ¶42. The majority opinion errs.
68
See Reply Brief of Respondent-Appellant Crime Victims
Rights Board at 9.
46
No. 2016AP275.ssa
¶169 As a matter of statutory interpretation, the phrase
"public official" used in Wis. Stat. § 950.11 and applicable to
§ 950.09(2)(d) does not include judges. The phrase "public
officials" is used in the same way in § 950.11 as it is used in
§§ 950.08(3), 950.09(2)(a), 950.04(1v)(ag), and 950.04(1v)(dr),
and does not include a judge.
¶170 Even if judges were "public officials" under Wis.
Stat. § 950.09(11), a forfeiture action cannot be brought
against a judge under § 950.09(2)(d). Judges have absolute
judicial immunity as a matter of statutory and common law in
Wisconsin.69 Although this absolute immunity is limited to acts
taken within the jurisdiction of the court, a judge's decision
on scheduling sentencing, for example, is without a doubt an act
taken within the jurisdiction of the court.
¶171 I thus conclude as a matter of statutory
interpretation and the doctrine of judicial immunity that Wis.
Stat. § 950.09(2)(d) does not authorize the imposition of a
forfeiture on judges as a matter of statutory and common law.70
69
See, e.g., Ford v. Kenosha Cty, 160 Wis. 2d 485, 498, 466
N.W.2d 646 (1991); Scarpaci v. Milwaukee Cty., 96 Wis. 2d 663,
694-95, 292 N.W.2d 816 (1980); Stump v. Sparkman, 435 U.S. 349(1978); Pierson v. Ray, 386 U.S. 547 (1967); Wis. Stat.
§ 893.80(4).
70
The Capital Times explained that prior to the adoption of
the Crime Victims Amendment, then-Assembly Minority Leader David
Prosser worried that "[i]f crime victims who are given specific
constitutional rights believe the system has failed to protect
them adequately, district attorneys, judges and other criminal
justice officers could be sued . . . ." Victim Rights on
Crowded Ballot, The Capital Times, Mar. 8, 1993.
47
No. 2016AP275.ssa
Wis. Stat. § 950.09(3)
¶172 I turn now to Wis. Stat. § 950.09(3) authorizing the
Crime Victims Rights Board to issue Reports and Recommendations
"concerning the securing and provision of crime victims rights
and services." The text of § 950.09(3) applies to judges and
judicial proceedings, inter alia, and provides as follows:
Wis. Stat. § 950.09(3) In addition to its powers under
sub. (2), the board may issue reports and
recommendations concerning the securing and provision
of crime victims rights and services. (Emphasis
added.)
¶173 The Crime Victims Amendment entrusts the legislature,
as I have stated previously, with the responsibility to "provide
remedies for the violation of this section." The Report and
Recommendation is one remedy the legislature has provided under
the Crime Victims Amendment.71
¶174 The majority opinion declares Wis. Stat. § 950.09(3)
unconstitutional as applied to judges under the separation of
powers doctrine on the ground that "the Board encroached on
exclusive judicial authority . . . ." Majority op., ¶41. The
majority opinion feigns that the Board's Report and
Recommendation invades judicial decision-making in the instant
case by recommending the timing for scheduling a sentencing
proceeding. Majority op., ¶41. The Report and Recommendation
relating to the instant case does no such thing.
71
See Brief of Respondent-Appellant Crime Victims Rights
Board at 22.
48
No. 2016AP275.ssa
¶175 The majority opinion ignores the statutory language
and the Board's interpretation and application thereof.
¶176 The Board's Reports and Recommendations recommend best
practices for "securing . . . crime victims rights." The
Reports often begin with a statement that "the Board has become
aware of a situation that provides the Board with an opportunity
to" comment on the situation and recommend best practices for
assisting victims. The Report describes the factual background
of the situation, as the Board understands it. After stating
the facts, often taken from a transcript of the court
proceedings, the Report generally sets forth the applicable
statutes, the issues, and the recommendations. None of the
Reports reveals names, the county in which the situation arose,
or other identifying indicators. No report reprimands a judge
or interferes with any of the judiciary's core powers.
¶177 The Board has issued at least six Reports and
Recommendations relating to a crime victim in a judicial
proceeding. Each of the Reports and Recommendations is public
and can be found on the Board's website. See
https://www.doj.state.wi.us/ocvs/cvrb-documents.72
¶178 Neither the statute nor the Report and Recommendation
itself provides a means for enforcing the Board's Report and
Recommendation. In other words, the Report and Recommendation
does not bind anyone. The Report and Recommendation is just
what its title denotes——no more, no less.
72
See Brief of Respondent-Appellant Crime Victims Rights
Board at 14-15.
49
No. 2016AP275.ssa
¶179 The majority opinion recognizes it should not use its
judicial power to stifle criticism of judicial decisions,
judicial practices, judges, or the judicial system. But stifle
it does. The majority opinion declares that the Board's Report
and Recommendation generally describing a situation involving a
crime victim and proposing best practices for judges is
unconstitutional. Majority op., ¶¶54-57.
¶180 Section § 950.09(3) does not present even a close call
for me: The court should not silence legislatively authorized
evaluations of the judicial system by an executive agency
composed of criminal justice professionals and public members.
The institutions composing the criminal justice system,
including the courts, should welcome all the help we can get.
¶181 I conclude that the Board's authority to issue a
Report and Recommendation set forth in Wis. Stat. § 950.09(3) is
a legislative remedy authorized by the Crime Victims Amendment
that helps secure crime victims rights and services and does not
limit the rights of an accused or violate any constitutional
provision. The Board's power to issue Reports and
Recommendations pursuant to § 950.09(3) is constitutional as
applied to judges.
Wis. Stat. § 950.11¶182 Finally, I address Wis. Stat. § 950.11 imposing
penalties on public officials. Section 950.11 states that a
public official who intentionally fails to provide a right
specified under the crime victims bill of rights may be subject
to forfeiture as follows:
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Wis. Stat. § 950.11. Penalties A public official,
employee or agency that intentionally fails to provide
a right specified under s. 950.04 (1v) to a victim of
a crime may be subject to a forfeiture of not more
than $1,000. [DECLARED UNCONSTITUTIONAL by MAJORITY
OPINION as to JUDGES]
¶183 Again, this statute does not define the phrase "public
official." The majority opinion declares this provision
unconstitutional as applied to judges on the ground that the
Board "could financially penalize a judge for exercising legal
judgment . . . ." Majority op., ¶42.
¶184 I conclude this provision does not apply to judges.
The phrase "public official" does not include a judge, as I have
explained previously.
¶185 Moreover, a judge has absolute judicial immunity from
personal liability under statute and common law if the judge
acts within the jurisdiction of the court. See ¶170 & n.69,
supra.
IV
¶186 I now turn from the statutory provisions to assess the
conduct of the Department of Justice and the Crime Victims
Rights Board in the instant case. I must determine whether
either or both exceeded their statutory powers or violated the
federal or state constitution in the instant case.
¶187 The Department of Justice does not have the statutory
power to mediate a complaint by a crime victim against a judge;
it did not attempt to perform mediation in the instant case.
¶188 The Crime Victim Rights Board, however, sought to
determine probable cause and to investigate the crime victim's
complaint against Judge Gabler under Wis. Stat. § 950.09(2).
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The statute, properly interpreted, does not authorize the Board
to undertake these pursuits in relation to a crime victim's
complaint against a judge. To the extent that the Board did so,
the Board exceeded its statutory powers.
¶189 The Board does not have the authority to reprimand
Judge Gabler or to interfere with the Judge's discretion in
scheduling sentencing. To the extent that the Board undertook
to reprimand the judge or interfere with the judge's discretion,
it exceeded its statutory authority.
¶190 The statutes do not authorize the Board to seek
equitable relief or to bring a civil action against a judge to
assess a forfeiture. The Board did not do so in the instant
case.
¶191 The Board issued a Report and Recommendation based on
the facts of the instant case. The Report did not identify the
Judge, the crime victim, or the county and did not include any
identifying factors. The legislature has the responsibility to
"provide remedies for the violation" of the Crime Victims
Amendment. One of a crime victim's privileges and protections
under the Crime Victims Amendment and the crime victims bill of
rights is the "timely disposition of the case." One remedy the
legislature has provided is the Board's issuance of Reports and
Recommendations. Wis. Stat. § 950.09(3).
¶192 I conclude that the Board's power to issue Reports and
Recommendations is constitutional when applied to a judge and
does not interfere with the judiciary's core powers.
* * * *
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¶193 As properly interpreted, the challenged sections of
Chapter 950 are constitutional with respect to judges.
• Wisconsin Stat. § 950.08(3) does not authorize the
Department of Justice to mediate a complaint against a
judge.
• Wisconsin Stat. § 950.09(2) does not authorize the
Crime Victims Rights Board to determine probable cause
or investigate a crime victim's complaint against a
judge.
• Wisconsin Stat. § 950.09(2)(a) does not authorize the
Crime Victims Rights Board to "reprimand" a judge.
• Wisconsin Stat. § 950.09(2)(b) authorizes the Crime
Victims Rights Board to refer a complaint about a
judge to the Judicial Commission.
• Wisconsin Stat. § 950.09(2)(c) does not authorize the
Crime Victims Rights Board to seek equitable relief
against a judge.
• Wisconsin Stat. § 950.09(2)(d) does not authorize the
Crime Victims Rights Board to impose a forfeiture on a
judge: A judge enjoys absolute immunity for actions
taken in his or her official capacity.
• Wisconsin Stat. § 950.09(3) authorizes the Crime
Victims Rights Board to issue a non-binding Report and
Recommendation concerning the securing of crime
victims' rights and services. This court should not
silence critiques of the judicial system as authorized
by the legislature.
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• The Department of Justice and the Crime Victims Rights
Board, however, did not correctly interpret and apply
the challenged statutes.
¶194 The majority opinion contravenes basic principles of
statutory and constitutional interpretation. Applying the canon
of constitutional avoidance, I conclude that the challenged
statutory provisions are easily amenable to a constitutional
interpretation. The majority opinion's lengthy foray into the
separation of powers analysis is unnecessary and inappropriate.
¶195 When a court addresses the scope of the judicial
branch's power and the powers of the other branches of
government, it must avoid an overzealous defense of the
judiciary's power and must avoid appropriation of unchecked
power in the judiciary.
¶196 The Crime Victims Amendment and the statutes
demonstrate the legislature's attempt at a thoughtful, even-
handed approach to crime victims, accuseds, and judicial and
executive branch functions. Is the drafting perfect? No. But
perfect drafting is rarely the hallmark of any state or federal
statute (or opinion of a court).
¶197 For the reasons set forth, I write separately.
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