Gableman Alleges Justices’ Actions Infringe on Amendment Rights

Former Wisconsin Supreme Court Justice Michael Gableman alleges his due process rights have been denied during the ongoing proceedings related to his investigation of the 2020 presidential election. This claim stems from a dispute over whether two liberal justices on the Wisconsin Supreme Court should have recused themselves from hearing the case that will determine whether Gableman retains his law license.

In a letter dated December 29, Gableman’s attorney asserted that the justices’ refusal to recuse raises concerns about due process, a constitutional right guaranteed by the 14th Amendment. Legal experts suggest this situation could lead to an effort to appeal the Wisconsin Supreme Court’s decision to a federal court.

Background of the Investigation and Ethics Complaints

Michael Gableman was hired by Assembly Speaker Robin Vos, R-Rochester, in 2021 to investigate alleged wrongdoing in Wisconsin following the 2020 presidential election, which Donald Trump narrowly lost to Joe Biden. Gableman was fired from this role in 2022 after his investigation found no evidence of widespread fraud and incurred a multimillion-dollar cost. Subsequent legal challenges related to Gableman’s investigation, alleging violations of state record request laws, resulted in a series of ethics complaints filed by the Office of Lawyer Regulation (OLR).

Following an investigation into ten allegations of professional misconduct, including allegations of lying, disrespecting a judge, and making demeaning comments about a female attorney, the OLR recommended in April that Gableman lose his license for three years. A court-appointed referee concurred with this recommendation in September. This recommendation prompted the matter to be brought before the Wisconsin Supreme Court.

Recusal Attempts and Justice Responses

Gableman’s legal team has attempted to have three liberal justices—Janet Protasiewicz and Rebecca Dallet—recuse themselves from the case. Dallet declined to recuse, stating that comments she made about Gableman in 2018 were unrelated to the post-2020 investigation. Protasiewicz also declined, asserting that her campaign materials criticizing the investigation were about judicial independence, not a prejudgment of the case against Gableman. Justice Susan Crawford has recused herself, citing her prior service on the Dane County Circuit Court with the judge Gableman is accused of disrespecting.

Potential Federal Court Challenge and Precedent

Gableman’s attorney cited a U.S. Supreme Court case, Caperton v. A.T. Massey Coal Co., in support of the due process claim. In that 2009 case, the U.S. Supreme Court found that a West Virginia Supreme Court justice should have recused himself due to significant campaign contributions from a party involved in a lawsuit. However, legal experts note that the high court’s ruling in Caperton is narrow, and the current situation involving Gableman differs significantly, focusing on statements made during a judicial campaign rather than campaign spending.

While the U.S. Supreme Court rarely intervenes in state lawyer regulation matters, the due process concerns raised could potentially open a path for federal court involvement. The court’s decision will hinge on whether the justices’ prior statements demonstrate a bias that violates Gableman’s due process rights.

Wisconsin Recusal Standards and the Next Steps

Wisconsin’s recusal standards, established by a previous conservative majority on the Supreme Court, do not automatically require recusal based on campaign spending. Instead, justices are expected to determine for themselves whether they can be impartial. The Wisconsin Supreme Court will now decide whether to accept the OLR’s recommendation of a three-year license suspension or impose a different penalty.