Wisconsin Supreme Court Rules Executive Branch Cannot Sanction Judges for Decisions

July 7, 2017

In a recent decision, the Wisconsin Supreme Court ruled that the Crime Victims Rights Board (CVRB)—an executive branch agency—violated the separation of powers doctrine by attempting to enforce a provision in Wisconsin’s Crime Victims Rights Act against The Honorable William M. Gabler, Sr., an Eau Claire County Circuit Court judge. In doing so, the Wisconsin Supreme Court re-affirmed two basic principles of constitutional law: 1) it is the province of courts to declare what the law is; and 2) members of the judiciary cannot be sanctioned by other branches of government for their decisions. Thus, the Court held the Crime Victims Rights Act is unconstitutional to the extent it gives an executive branch agency the authority to review judicial decisions and sanction judges.

The case arose from a 2011 multi-count sexual assault case involving two victims. At the request of the defendant, Judge Gabler severed the counts for trial. The defendant was found guilty on the charges relating to the first victim, K.L., who requested Judge Gabler immediately sentence the defendant. Judge Gabler declined to do so, citing a variety of factors, including the administrative difficulties and delays with two separate sentencing hearings, the defendant’s access to counsel while in prison, and his desire to see what happened at the second trial before issuing a sentence. The defendant later pleaded guilty to the charges involving the second victim and was sentenced on all counts.

K.L. filed a complaint with the CVRB, alleging that Judge Gabler had violated her constitutional and statutory rights to a “timely disposition” and “speedy disposition” of her case. The CVRB is an executive branch agency attached to the Department of Justice charged with enforcing the Crime Victims Rights Law against public officials. Its powers include the ability to issue public or private reprimands, seek financial penalties and equitable relief, and refer complaints against judges to the Judicial Commission—the arm of the judiciary responsible for adjudicating ethical complaints against judges. Judge Gabler objected that the CVRB did not have authority to investigate or sanction a judge due to the separation of powers doctrine. He also requested a hearing to explain his decision to the CVRB. The CVRB asserted it had jurisdiction to hear the complaint and denied Judge Gabler’s request for a hearing. The CVRB issued a lengthy opinion and “public report and recommendation,” concluding that Judge Gabler had misinterpreted the law and violated K.L.’s constitutional and statutory rights as a crime victim by delaying the sentencing of her attacker for approximately six months until the entire case was adjudicated.

Judge Gabler appealed the CVRB’s decision, and Pepin County Circuit Court Judge James Duvall reversed and vacated the CVRB’s decision. He agreed with Judge Gabler that the CVRB overstepped its bounds by attempting to sanction a circuit court judge for a discretionary scheduling decision. Judge Duvall further found the CVRB violated Judge Gabler’s right to due process and its own regulations and internal rules in the manner in which it handled and investigated K.L.’s complaint. The CVRB appealed, and Judge Gabler filed a petition to bypass, seeking immediate review in the Wisconsin Supreme Court.

The Wisconsin Supreme Court framed the issue before it as: “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?” The Court answered with a resounding “no.”

In a strongly-worded decision authored by Justice Rebecca Bradley, the Court rejected the CVRB’s assertion that it possessed the “power to authoritatively decide whether a judge’s official act comported with Wisconsin law, including the Wisconsin Constitution.” The Court reasoned that the CVRB’s position contravened the basic principle of separation of powers enshrined in the state and federal constitutions: “This assertion of power contravenes the principle . . . respected for over two hundred years, that it is the province of the judiciary, not the executive, to say what the law is.”

The Court also ruled the CVRB attempted to usurp the Wisconsin Supreme Court’s exclusive authority to discipline judges by attempting to sanction a sitting judge because it disagreed with how he handled a case. The Court stated that while the legislature and other public officials had the right to criticize judges, the legislature could not empower an executive branch agency to issue proclamations against judges that amount to an official reprimand. The Court explained that allowing an executive branch agency to reprimand and potentially fine a sitting judge would destroy the independence of the judiciary and allow prosecutors to exert undue influence on an independent branch of government.

The Wisconsin Supreme Court also took issue with the CVRB’s assertion at oral argument that it had the authority to sanction the justices on the Court if it did not issue an opinion soon enough. The Court noted the absurdity that would follow—a supreme court justice would need to seek review in the circuit court, which would then need to pass judgment on a discretionary decision of the Wisconsin Supreme Court, which would then be subject to review by the Wisconsin Supreme Court on appeal. The Court held: “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.”

Finally, the Court explained its decision did not leave crime victims without a remedy if they believe a judge violates their rights. The Court noted a specific statutory provision that allows crime victims to seek review of a judge’s decision affecting their rights in court.

The bottom line is that the Wisconsin Supreme Court’s decision was a harsh rebuke to the legislature and executive branch and a reminder of a fundamental principle underlying our system of government—the judicial branch decides what the law means and must be free from interference from the other branches. It is unclear how the Court’s decision will impact pending legislation that attempts to further expand the constitutional rights of crime victims.

Note: Attorney Timothy Barber, along with Attorney Patrick Fiedler from Hurley, Burish, and Stanton, represented Judge Gabler in this case.

For more information about "Wisconsin Supreme Court Rules Executive Branch Cannot Sanction Judges for Decisions," contact Timothy M. Barber at tbarber@axley.com or 608.283.6740.