Why Gableman Courts Controversy

They were both appointed Circuit Court judges by Republican governors. But that’s where the similarities ended.

One of the two was former Supreme Court Justice Michael Gableman, who had been appointed a Burnett County Circuit Court Judge by Republican Gov. Scott McCallum in 2002, and had a bad day on June 10. Gableman’s tantrum was in public, in response to a subpoena requiring him to be in the courtroom of Dane County Circuit Court Judge Frank Remington, a 2011 appointee of Republican Gov. Scott Walker,

Gableman was a witness in an Open Records case, but he refused to answer questions. He cited his Fifth Amendment right against self-incrimination and then accused Remington of bias. “This judge has abandoned his role as a neutral magistrate and is acting as an advocate,” Gableman said. “All of a sudden, I somehow think that my personal rights are at stake here.”

Remington, son of a revered UW-Madison Law School professor and an assistant attorney general for 24 years before Walker named him a judge, admonished Gableman. “You had a courtroom in Burnett County. You had a courtroom in the East Wing of the state Capitol. I do not need to tell you how I expect you to control yourself and your behavior that I expect of a witness on this stand,” Remington said. “No question has been asked of you. You are not given the opportunity to make a speech.”

Gableman said he was frustrated by how the case was being handled, and accused Remingon of favoring Christa Westerberg, the lawyer for the liberal watchdog group, American Oversight, which had sued Gableman to make public records compiled as part of his investigation into how the 2020 presidential election in Wisconsin was conducted. Gableman was hired by Republican Assembly Speaker Robin Vos to conduct the investigation.

“You want to put me in jail, Judge Remington. I’m not going to be railroaded,” Gableman added. “I thought the only issue at play in this whole thing was 97 documents we were late getting over to Ms. Westerberg … Now I find out your intent is to let her do a fishing expedition.”

But Remington had the gavel this time. Last week, he fined the Gableman-led Office of Special Counsel $2,000 per day for contempt and said in his written order: “The [courtroom] transcript … does now tell the whole story. It does not show Gableman’s raised voice, his accusatory tone and his twisted facial expression. It does not show that as he spoke, he pointed and shook his finger at the judge.

“If Gableman’s behavior on the witness stand was not enough, during a short recess, he made clear what he thought of the judge and opposing counsel,” referring to comments by Gableman picked up by a courtroom microphone in which he said Remington would let Westerberg decide his decision.

Remington also said he would refer Gableman’s conduct to the Office of Lawyer Regulation, which is overseen by the Supreme Court he served on for 10 years.

Remington said Gableman’s comments about Westerberg were “misogynistic” and unprofessional. And, a section of the Supreme Court’s code of conduct for attorneys says: “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.”

That courtroom drama — a Circuit Court judge publicly lecturing a former state Supreme Court justice on protocols — is rare.

But Gableman has been controversial going back two decades, since his 2002 appointment by McCallum, which came after Gableman made fund-raising calls for the GOP governor who lost his election bid that year. When Gableman ran for the Supreme Court in 2008, he approved a racial-themed ad against Justice Louis Butler – the first African-American justice – that prompted a formal misconduct complaint that the ads were false and misleading. The other six justices split, leaving the complaint unresolved. Gableman was seen by many conservatives as too controversial to win a second term and decided to not seek re-election in 2018.

As to Gableman’s blow-up in Remington’s court, here’s a theory on that: Gableman’s courtroom outrage came less than 48 hours after Vos appointed Don Millis as the speaker’s designee on the Wisconsin Elections Commission (WEC), which will oversee the Aug. 9 primary and Nov. 8 general elections. Attorney Millis is a respected former Capitol aide, ex-lobbyist, former Tax Appeals Commission member (GOP Gov. Tommy Thompson appointee) and an original member of the WEC. There were some Republicans who backed Gableman for the WEC appointment, but once again he was rejected.

Was Gableman’s picque prompted by Vos picking Millis – and not Gableman – for the state elections commission?

Steven Walters started covering the Capitol in 1988. Contact him at stevenscotwalters@gmail.com