Wisconsin Judicial Commission v. Kenneth W. Gorski ( 2020 )

2020 WI 5
SUPREME COURT OF WISCONSIN
CASE NO.: 19AP199-J
COMPLETE TITLE: In the Matter of Judicial Disciplinary
Proceedings Against the Honorable Kenneth W.
Gorski:
Wisconsin Judicial Commission,
Complainant,
v.
the Honorable Kenneth W. Gorski,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST GORSKI
OPINION FILED: January 30, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
NOT PARTICIPATING:
HAGEDORN, J.
ATTORNEYS:
2020 WI 5
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2019AP199-J
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Judicial Disciplinary
Proceedings Against the Honorable
Kenneth W. Gorski:
Wisconsin Judicial Commission,
FILED
Complainant, JAN 30, 2020
v. Sheila T. Reiff
Clerk of Supreme Court
The Honorable Kenneth W. Gorski,
Respondent.
JUDICIAL disciplinary proceeding. Public reprimand
imposed.
¶1 PER CURIAM. We review, pursuant to Wis. Stat. § 757.911
1 Wisconsin Statute § 757.91 (2017-18) provides:
The supreme court shall review the findings of
fact, conclusions of law and recommendations under s.
757.89 and determine appropriate discipline in cases of
misconduct and appropriate action in cases of permanent
disability. The rules of the supreme court applicable
to civil cases in the supreme court govern the review
proceedings under this section.
No. 2019AP199-J
(2017-18),2 a Judicial Conduct Panel's3 findings of fact,
conclusions of law, and recommendation for discipline for the
Honorable Kenneth W. Gorski, a part-time court commissioner for
the Wood County circuit court. Based on Commissioner Gorski's
answer, the Judicial Conduct Panel found that the facts alleged in
the complaint filed by the Wisconsin Judicial Commission were
established as true and determined that those facts supported the
legal conclusion that Commissioner Gorski had willfully violated
several rules of the Code of Judicial Conduct, which constitutes
judicial misconduct under Wis. Stat. § 757.81(4)(a).4 The Judicial
Conduct Panel recommends that Commissioner Gorski be publicly
reprimanded for his judicial misconduct. We adopt the Judicial
Conduct Panel's findings of fact, we agree that those facts
demonstrate that Commissioner Gorski committed judicial
misconduct, and we publicly reprimand him for that misconduct.
¶2 Commissioner Gorski has been a part-time circuit court
commissioner in Wood County since 2014. In that role, he works
approximately two afternoons per month. As a circuit court
commissioner, Commissioner Gorski was subject to the Code of
2 All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
3 Pursuant to Wis. Stat. § 757.87(3), Judges Paul F. Reilly,
Kitty K. Brennan, and Thomas M. Hruz of the court of appeals were
appointed to serve as the Judicial Conduct Panel, with Judge Reilly
acting as the presiding judge.
4 Wisconsin Stat. § 757.81(4)(a) states that judicial
misconduct includes "[w]illful violation of a rule of the code of
judicial ethics."
2
No. 2019AP199-J
Judicial Conduct found in Chapter 60 of the Supreme Court Rules
(SCRs) and subject to the imposition of discipline for judicial
misconduct, as provided in Wis. Stat. §§ 757.001, 757.81-757.99.
¶3 The Judicial Commission's complaint alleged that
Commissioner Gorski had violated five subsections of the Code of
Judicial Conduct based on allegations that he had presided over a
small claims case when he should have recused himself and that he
had made inappropriate comments to a self-represented defendant in
the trial of that same small claims case. The facts will be set
forth in more detail below. In his answer, Commissioner Gorski
admitted all of the factual allegations and alleged judicial
conduct violations set forth in the Judicial Commission's
complaint. As there were no disputed factual issues that required
an evidentiary hearing, the Judicial Conduct Panel subsequently
ordered the parties to file memoranda regarding the appropriate
level of discipline that should be recommended. The Judicial
Commission filed a brief stating that the most appropriate sanction
for the misconduct in this matter would be a public reprimand.
Commissioner Gorski subsequently submitted a letter stating that
he would not be filing a responsive memorandum, indicating his
acquiescence to the Judicial Commission's request for a public
reprimand.
¶4 Given Commissioner Gorski's admissions in his answer,
the Judicial Conduct Panel found the following facts.
¶5 At all times relevant to this proceeding, Commissioner
Gorski has had a close personal friendship with Attorney Timothy
Gebert. Commissioner Gorski has known Attorney Gebert for
3
No. 2019AP199-J
approximately 20 years, and the two men socialize at least once a
month. Between 2015 and 2018, Commissioner Gorski and Attorney
Gebert, along with other individuals, went on four overseas
vacation trips together. They also have taken frequent overnight
golfing trips together, both locally in northern Wisconsin and in
other parts of the United States.
¶6 In September 2015 Commissioner Gorski presided over a
pretrial conference in a small claims case, Accurate Remodeling
LLC v. Meyer, Wood County Case No. 2015SC630 ("the Meyer case").
A small claims trial was scheduled to occur in the case on November
18, 2015. Attorney Gebert represented the plaintiff in the case.
The defendant, Mr. Meyer, a non-lawyer, represented himself.
¶7 In October 2015, between the date of the pretrial
conference and the trial, while the case was still pending before
him, Commissioner Gorski went on one of the four overseas trips
with Attorney Gebert. They, Commissioner Gorski's son, and a
fourth individual went on a week-long golfing trip to Ireland.
¶8 Commissioner Gorski continued to preside over the Meyer
case. He did not disclose to Mr. Meyer the trip to Ireland or his
friendship with Attorney Gebert.
¶9 Commissioner Gorski presided over the small claims trial
on November 18, 2015. During that trial, he lost his temper with
the self-represented Mr. Meyer on two occasions. On the first
occasion, he said, "Stop, now, just stop with that! Jesus . . .
Come on. That's getting old, that's getting really old." On the
second occasion, Commissioner Gorski audibly groaned in response
4
No. 2019AP199-J
to something Mr. Meyer said and then asked, "Why can't you just be
quiet when other people are talking?"
¶10 At another point after the verdict had been rendered by
Commissioner Gorski, Mr. Meyer made an assertion that the verdict
was an example of corruption. Commissioner Gorski again audibly
groaned and then responded, "That's my middle name . . .
corruption." Commissioner Gorski admitted that his comments to
Mr. Meyer had been said in anger and with sarcasm.
¶11 When Commissioner Gorski appeared before the Judicial
Commission in October 2018 during its investigation of this matter,
he stated that Attorney Gebert had appeared before him on six or
seven occasions. Indeed, just prior to that meeting with the
Judicial Commission and after having been notified that it was
investigating his failure to recuse himself in a case in which
Attorney Gebert had appeared before him, Commissioner Gorski had
presided over a pretrial conference in another case in which
Attorney Gebert represented one party and the other party was self-
represented. While this other case was pending before Commissioner
Gorski, he took a trip with Attorney Gebert and others to Vietnam.
¶12 Based on these findings of fact, the Judicial Conduct
Panel concluded that Commissioner Gorski had violated the
following provisions of the Code of Judicial Conduct:
 By failing to recuse himself in the Meyer case when he
had a personal bias or prejudice concerning a party or
a party's lawyer, he violated SCR 60.04(4)(a);5
5 SCR 60.04(4)(a) provides:
5
No. 2019AP199-J
 By failing to recuse himself in the Meyer case or to
disclose his close friendship with Attorney Gebert to
the self-represented defendant when reasonable, well-
informed persons knowledgeable about judicial ethics and
the judicial system and aware of the facts that
Commissioner Gorski knew or reasonably should have known
would have reasonably questioned his ability to be
impartial and when the recusal was not waived by the
parties after full disclosure, he violated SCR 60.04(4);
 By making comments to Mr. Meyer that failed to treat
those with whom he dealt in performing his adjudicative
duties with patience, dignity, and courtesy, he violated
SCR 60.04(1)(d);6
(4) Except as provided in sub. (6) for waiver, a
judge shall recuse himself or herself in a proceeding
when the facts and circumstances the judge knows or
reasonably should know establish one of the following or
when reasonable, well-informed persons knowledgeable
about 241 judicial ethics standards and the justice
system and aware of the facts and circumstances the judge
knows or reasonably should know would reasonably
question the judge's ability to be impartial:
(a) The judge has a personal bias or prejudice
concerning a party or a party's lawyer or personal
knowledge of disputed evidentiary facts concerning the
proceeding.
6 SCR 60.04(1)(d) provides:
(1) In the performance of the duties under this
section, the following apply to adjudicative
responsibilities:
(footnote continued)
(d) A judge shall be patient, dignified and
courteous to litigants, jurors, witnesses, lawyers and
others with whom the judge deals in an official capacity
and shall require similar conduct of lawyers, staff,
court officials and others subject to the judge's
direction and control. During trials and hearings, a
6
No. 2019AP199-J
 By failing to recuse himself and by the comments he made
during the November 18, 2015 trial in the Meyer case,
thereby failing to comply with the law and to act at all
times in a manner that promotes public confidence in the
integrity and impartiality of the judiciary, he violated
SCR 60.03(1);7 and
 By failing to recuse himself and by the comments he made
during the November 18, 2015 trial in the Meyer case,
thereby failing to participate in establishing,
maintaining, and enforcing high standards of conduct and
failing to personally observe those standards in order
to preserve the integrity and independence of the
judiciary, he violated SCR 60.02.8
¶13 Violations of mandatory provisions of the Code of
Judicial Conduct constitute judicial misconduct under Wis. Stat.
§ 757.81(4)(a) when those violations are determined to be
"willful." Violations are "willful" when the judicial officer's
judge shall act so that the judge's attitude, manner or
tone toward counsel or witnesses does not prevent the
proper presentation of the cause or the ascertainment of
the truth. A judge may properly intervene if the judge
considers it necessary to clarify a point or expedite
the proceedings.
7 SCR 60.03(1) provides: "A judge shall respect and comply
with the law and shall act at all times in a manner that promotes
public confidence in the integrity and impartiality of the
judiciary.
8 SCR 60.02 provides:
An independent and honorable judiciary is
indispensable to justice in our society. A judge should
participate in establishing, maintaining and enforcing
high standards of conduct and shall personally observe
those standards so that the integrity and independence
of the judiciary will be preserved. This chapter applies
to every aspect of judicial behavior except purely legal
decisions. Legal decisions made in the course of
judicial duty on the record are subject solely to
judicial review.
7
No. 2019AP199-J
conduct was not the result of duress and when the judicial officer
knew or should have known that the conduct was prohibited by the
Code of Judicial Conduct. In re Judicial Disciplinary Proceedings
Against Tesmer, 219 Wis. 2d 708, 729, 580 N.W.2d 307 (1998). Here,
the Judicial Conduct Panel concluded that Commissioner Gorski had
committed these violations of the Code of Judicial Conduct
willfully.
¶14 The Judicial Conduct Panel concluded that a public
reprimand was a necessary and sufficient level of discipline, given
the violations set forth above. It noted that all of Commissioner
Gorski's misconduct had occurred while he was acting in his
official capacity.
¶15 The Judicial Conduct Panel pointed to the fact that
Commissioner Gorski had admitted having presided over six or seven
proceedings in which Attorney Gebert had appeared, including a
pretrial conference after he had learned of the misconduct
allegations in this case, which suggested that Commissioner Gorski
had not recognized or acknowledged the misconduct related to
Attorney Gebert's appearances before him. The panel acknowledged,
however, that there was no suggestion that Commissioner Gorski's
failure to recuse himself had affected the outcome of the case or
that it had occurred in order to advance his personal desires.
¶16 With respect to the second type of misconduct,
Commissioner Gorski's improper comments to Mr. Meyer during the
small claims trial, the Judicial Conduct Panel found that those
comments appeared to have been an isolated incident, and that the
8
No. 2019AP199-J
comments had not been made to advance his personal objectives or
to achieve personal gain.
¶17 Ultimately, the Judicial Conduct Panel stated that
Commissioner Gorski's failure to recuse himself or to disclose his
close friendship with Attorney Gebert and his impertinent comments
during the small claims trial in the Meyer case had caused a
substantial negative impact on the integrity of the judiciary and
on the public's perception of the independence of the judiciary.
Weighing the factors described above, it concluded that a public
reprimand would be sufficient to impress upon Commissioner Gorski
the need to recuse himself or to obtain a waiver in future cases
in which a good friend would appear as counsel and to be
circumspect in his comments to and dealings with self-represented
individuals.
¶18 Given Commissioner Gorski's admission of the allegations
against him in his answer to the Judicial Commission's complaint,
there is no dispute about the Judicial Conduct Panel's findings of
fact. Accordingly, we adopt the panel's findings of fact based on
the allegations in the complaint. We also agree with the panel's
conclusion that those factual findings demonstrate that
Commissioner Gorski willfully violated the specified provisions of
the Code of Judicial Conduct, thereby committing judicial
misconduct as defined in Wis. Stat. § 757.81(4)(a).
¶19 We now turn to the issue of the appropriate level of
discipline. We agree that Commissioner Gorski's failure to recuse
himself or even to disclose his close friendship with Attorney
Gebert and his angry and sarcastic comments to a pro se litigant
9
No. 2019AP199-J
appearing before him undermined, rather than promoted, the
public's confidence in the integrity and impartiality of the
judiciary. A sanction is necessary to impress upon him the damage
that such conduct does to the judicial system and the rule of law
and to ensure that he does not repeat such conduct.
¶20 In its sanction memorandum, the Judicial Commission
stated that the prior judicial disciplinary case that is most
similar to the facts of this case is In re Judicial Disciplinary
Proceedings Against Laatsch, 2007 WI 20, 299 Wis. 2d 144, 727
N.W.2d 488. Like Commissioner Gorski, Judge Laatsch was a part-
time judicial official (a municipal judge), who presided over three
cases in which he should have recused himself because one of the
parties appearing before him was a relative or a current client of
his law practice. Also like Commissioner Gorski, Judge Laatsch
was found to have engaged in another type of misconduct in addition
to the failure to recuse (in that case misusing the prestige of
his judicial office in an advertisement for his law firm). This
court concluded that the proper level of discipline for Judge
Laatsch was a public reprimand, and we agree that the same level
of discipline should be imposed on Commissioner Gorski.
¶21 Our comment in the Laatsch decision is equally
applicable to Commissioner Gorski and the resolution of this
disciplinary proceeding:
A fair and impartial judge is the cornerstone of the
integrity of the judicial system. Even the appearance
of partiality can erode the public's confidence in the
integrity of the judiciary.
10
No. 2019AP199-J
Laatsch, 299 Wis. 2d 144, ¶13. We trust that the reprimand we
impose today will cause Commissioner Gorski to avoid any future
conduct that gives even the appearance of partiality and to treat
those who come before him with patience, dignity, and courtesy.
¶22 IT IS ORDERED that the Honorable Kenneth W. Gorski is
reprimanded for judicial misconduct established in this
proceeding.
¶23 BRIAN HAGEDORN, J., did not participate.
11
No. 2019AP199-J
1