Over the the Journal Sentinel, there’s a story about Justice Gableman’s deciding votes on cases in which the Michael Best & Friedrich firm represented the victorious party, despite his receipt of free legal services from that firm:
State Supreme Court Justice Michael Gableman in two cases cast the deciding vote in favor of parties represented by a law firm that gave him tens of thousands of dollars of free legal services, a review of state records shows.
One of those was a high-stakes case this June that allowed Gov. Scott Walker to implement a law that all but eliminates collective bargaining for most public workers. Gableman was in the 4-3 majority that allowed Walker to prevail. Michael Best & Friedrich – the firm that defended Gableman for free in an ethics case – worked for the state and Walker’s administration in the collective bargaining case.
In addition to the collective bargaining case, Gableman supplied the deciding vote in an opinion he wrote this March that sided with a Michael Best client against the City of Milwaukee over tax assessments.
The Wisconsin Democracy campaign has filed a complaint against Gableman with the state Judicial Commission over the receipt of these free services.
That’s the part of the story about Gableman, but there’s a funny part of the story that’s a story, itself: the use of Rick Esenberg as one of Marley’s sources on the ethics of Gableman’s acceptance of these free services:
Rick Esenberg, president of the Wisconsin Institute for Law and Liberty, a conservative public interest law firm, said that determining whether a judge must recuse after receiving legal service depends on several factors, including whether he had recused himself from some past cases, how long ago the law firm had represented him and what the work involved.
“That’s a judgment call,” Esenberg said.
Esenberg’s being evasive when he refers to recusal as a judgment call. Broadly, any decision under these circumstances is — one hopes — an exercise of judgment. If by judgment call Esenberg means that in Gableman’s circumstances there’s no ethically preferable decision between recusal and participation, he should say as much, plainly.
(Two prominent ethicists do say as much: “But two well-known legal ethics experts contacted last week – New York University law professor Stephen Gillers and Indiana University law professor Charles Geyh – said they believed Gableman should not be participating in cases involving Michael Best.”)
Unlike the two legal ethicists who question Gableman’s conduct, Esenberg’s hardly an arms-length evaluator of judicial politics in Wisconsin. He’s an advocate and polemicist. Capable, but not so much as he might think, or want others to think. (I’ve yet to see, for example, someone like the very solid Edward Fallone not get the better of Esenberg.)