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

• Court: Wisconsin Supreme Court
• Decided: June 27, 2017
• Docket: 2016AP000275
• Status: Published

Opinion

2017 WI 67

SUPREME 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 67 NOTICE 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.

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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.

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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).

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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)).

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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).

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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 No. 2016AP275

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 No. 2016AP275

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").

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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. 12 No. 2016AP275

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,

13 No. 2016AP275

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) 14 No. 2016AP275

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 19 No. 2016AP275

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 No. 2016AP275

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.").

21 No. 2016AP275

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,

22 No. 2016AP275

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

23 No. 2016AP275

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.").

24 No. 2016AP275

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.").

25 No. 2016AP275

¶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.").

26 No. 2016AP275

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 No. 2016AP275

¶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 29 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 30 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.

31 No. 2016AP275

¶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 36 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 38 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

• 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.

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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.

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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.

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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.

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¶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

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

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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.

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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).

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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.

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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.

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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. § 751.12 governing 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.

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¶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)).

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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,

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

¶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.

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¶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.

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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.

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¶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.

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¶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

• Wisconsin Stat. § 950.09(2)(a) does not authorize the

Crime Victims Rights Board to "reprimand" a judge.

• Wisconsin Stat. § 950.09(2)(d) does not authorize the Crime Victims Rights Board to impose a forfeiture on a

• 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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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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