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:

DISSENTED:

ABRAHAMSON, J. concurs and dissents (opinion 

filed).

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.

Crime Victims Rights Board,

 Respondent-Appellant,

Wisconsin Department of Justice,

 Respondent.

FILED

JUN 27, 2017

Diane M. Fremgen

Clerk of Supreme Court

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 

2

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.
No. 2016AP275 

3

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 
No. 2016AP275 

4

(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.
No. 2016AP275 

5

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).
No. 2016AP275 

6

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)).
No. 2016AP275 

7

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).
No. 2016AP275 

8

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 
No. 2016AP275 

9

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 
No. 2016AP275 

10

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").
No. 2016AP275 

11

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] 
No. 2016AP275 

12

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. 
No. 2016AP275 

13

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, 
No. 2016AP275 

14

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)
No. 2016AP275 

15

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."
No. 2016AP275 

16

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.
No. 2016AP275 

17

¶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.
No. 2016AP275 

18

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.
No. 2016AP275 

19

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." RockKoshkonong 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 
No. 2016AP275 

20

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 
No. 2016AP275 

21

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.").
No. 2016AP275 

22

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, 
No. 2016AP275 

23

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 coordinate 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 
No. 2016AP275 

24

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.").
No. 2016AP275 

25

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.").
No. 2016AP275 

26

¶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.").
No. 2016AP275 

27

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 decisionmaking 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, 
No. 2016AP275 

28

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).
No. 2016AP275 

29

¶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 
No. 2016AP275 

30

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 
No. 2016AP275 

31

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.
No. 2016AP275 

32

¶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 
No. 2016AP275 

33

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 
No. 2016AP275 

34

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.
No. 2016AP275 

35

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 
No. 2016AP275 

36

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 
No. 2016AP275 

37

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.
No. 2016AP275 

38

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 
No. 2016AP275 

39

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)).
No. 2016AP275 

40

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 
No. 2016AP275 

41

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, 
No. 2016AP275 

42

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)).
No. 2016AP275 

43

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)
No. 2016AP275 

44

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.
No. 2016AP275 

45

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.
No. 2016AP275.ssa

1

¶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). 
No. 2016AP275.ssa

2

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)
No. 2016AP275.ssa

3

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. 
No. 2016AP275.ssa

4

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). 
No. 2016AP275.ssa

5

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 
No. 2016AP275.ssa

6

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.)
No. 2016AP275.ssa

7

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 
No. 2016AP275.ssa

8

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 

judge. 

• 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 
No. 2016AP275.ssa

9

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)). 
No. 2016AP275.ssa

10

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.
No. 2016AP275.ssa

11

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."). 
No. 2016AP275.ssa

12

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). 
No. 2016AP275.ssa

13

(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 . . . ."). 
No. 2016AP275.ssa

14

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.").
No. 2016AP275.ssa

15

(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)
No. 2016AP275.ssa

16

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)).
No. 2016AP275.ssa

17

¶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).
No. 2016AP275.ssa

18

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-bystate?.

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. 
No. 2016AP275.ssa

19

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. 
No. 2016AP275.ssa

20

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."
No. 2016AP275.ssa

21

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"). 
No. 2016AP275.ssa

22

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.").
No. 2016AP275.ssa

23

¶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)
No. 2016AP275.ssa

24

¶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. 
No. 2016AP275.ssa

25

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)
No. 2016AP275.ssa

26

¶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. 
No. 2016AP275.ssa

27

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)
No. 2016AP275.ssa

28

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).
No. 2016AP275.ssa

29

¶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. 
No. 2016AP275.ssa

30

¶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.)
No. 2016AP275.ssa

31

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 
No. 2016AP275.ssa

32

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.").
No. 2016AP275.ssa

33

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."
No. 2016AP275.ssa

34

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. 
No. 2016AP275.ssa

35

¶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.").
No. 2016AP275.ssa

36

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. 
No. 2016AP275.ssa

37

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.
No. 2016AP275.ssa

38

¶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 decisionmaking 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 

a judge.

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 
No. 2016AP275.ssa

39

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. 
No. 2016AP275.ssa

40

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).
No. 2016AP275.ssa

41

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.
No. 2016AP275.ssa

42

¶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.
No. 2016AP275.ssa

43

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. 
No. 2016AP275.ssa

44

¶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)). 
No. 2016AP275.ssa

45

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, 
No. 2016AP275.ssa

46

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 

judge.

¶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.
No. 2016AP275.ssa

47

¶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.
No. 2016AP275.ssa

48

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.
No. 2016AP275.ssa

49

¶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.
No. 2016AP275.ssa

50

¶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:
No. 2016AP275.ssa

51

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). 
No. 2016AP275.ssa

52

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. 

* * * *
No. 2016AP275.ssa

53

¶193 As properly interpreted, the challenged sections 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 

judge. 

• 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 

judge: A judge enjoys absolute immunity for actions 

taken in his or her official capacity. 

• 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. 
No. 2016AP275.ssa

54

• The Department of Justice and the Crime Victims Rights 

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, evenhanded 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.
No. 2016AP275.ssa

1