Gabler v. Crime Victims Rights Bd., 2016AP275

CourtUnited States State Supreme Court of Wisconsin
Citation897 N.W.2d 384,376 Wis.2d 147,2017 WI 67
Docket NumberNo. 2016AP275,2016AP275
Parties The Honorable William M. GABLER, Sr., Petitioner-Respondent, v. CRIME VICTIMS RIGHTS BOARD, Respondent-Appellant, Wisconsin Department of Justice, Respondent.
Decision Date27 June 2017

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.


¶1 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 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.


¶3 Any student of American government can recite the fundamental principle that both our state and the federal 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 (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, id. at 305 (James Madison).

¶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 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, 112 S.Ct. 2130, 119 L.Ed.2d 351 (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, 120 S.Ct. 2246, 147 L.Ed.2d 326 (2000) (quoting INS v. Chadha , 462 U.S. 919, 946, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) ); see also Humphrey's Ex'r v. United States , 295 U.S. 602, 629-30, 55 S.Ct. 869, 79 L.Ed. 1611 (1935) ("So much is 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, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997) (alteration in original) (quoting Buckley v. Valeo , 424 U.S. 1, 122, 96 S.Ct. 612, 46 L.Ed.2d 659 (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 of the several powers in the same department." Federalist No. 51, supra , at 318-19 (James Madison).6


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, 115 S.Ct. 1447, 131 L.Ed.2d 328 (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 S ome early state legislatures—Virginia, for example—possessed and employed substantial control over judicial salaries and tenure, rivaling the British government's absolute authority that helped spark the Revolution. Federalist No. 48, su pra , 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, 131 S.Ct. 2594, 180 L.Ed.2d 475 (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...

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