MADISON – Former Supreme Court Justice Michael Gableman could face discipline from state officials who oversee the conduct of attorneys after he berated a Dane County judge and a female attorney in a Friday court hearing while refusing to answer their questions about his handling of public records requests.
Dane County Circuit Judge Frank Remington on Wednesday issued a scathing rebuke of Gableman's behavior in his order to fine Gableman $2,000 per day until he proves to the court and attorneys representing liberal group American Oversight that he has produced all records the group has requested related to his taxpayer-funded review of the 2020 election.
Remington also ordered a transcript of remarks Gableman made in the courtroom to another attorney that were caught on a live microphone that will be sent to the Wisconsin Office of Lawyer Regulation, which could hand down discipline based on the comments.
In a series of statements to an attorney representing Assembly Speaker Robin Vos in the lawsuit, Gableman said Remington was American Oversight attorney Christa Westerberg "with a beard" and impersonated Remington suggesting Westerberg come back to his chambers — comments Remington characterized as "sophomoric innuendo" and "misogynistic."
Anybody else notice Gableman got caught on a hot mic today?
He does a creepy little improv sketch about Judge Remington & his opposing counsel.@StateBarofWI- Is this OK for an officer of the court?
cc: @weareoversight @MollyBeck #wipolitics pic.twitter.com/ipKgrsjHKn
— bundtclaw🦡🏳️🌈🇵🇸🇺🇦 (@bundtclaw) June 11, 2022
"Gableman's conduct was an affront to the judicial process and an insult to Atty. Westerberg, by their very suggestion that she is not capable of litigating without the help of the judge," Remington wrote.
"The sophomoric innuendo about Atty. Westerberg coming back to chambers is a sad reminder that in 2022, woman lawyers still have to do more than be excellent at their job."
Gableman has received heavy criticism for his comments about women before. In April, he took a shot at how the female leader of the Wisconsin Elections Commission dresses.
"Black dress, white pearls — I’ve seen the act, I’ve seen the show," Gableman said on WTAQ-AM of Meagan Wolfe, director of the state Elections Commission.
When radio host Joe Giganti said he recently saw Wolfe wearing a gold locket rather than pearls, Gableman responded, "Oh, Hillary Clinton."
The off-script comment in April came as Gableman made the case that the Elections Commission should be dissolved and voting rules overhauled.
"I'm a professional who takes my job seriously," Wolfe said at the time in a written statement. "Comments directed at my appearance are a far cry from being serious, and are beneath anybody who purports to be undertaking a review of subject matter as important as election integrity."
The comments caught on a live microphone on Friday came as Gableman refused to answer any questions in a hearing scheduled to receive his testimony about his handling of records requests, compelled by one of three lawsuits brought by American Oversight since 2021 related to Gableman's review that has cost taxpayers nearly $1 million.
On the stand, Gableman called Remington a partisan advocate and claimed he was being railroaded because Remington had previously suggested a staffer for Gableman get a personal attorney because of the possibility of jail time, depending on how the lawsuit was resolved.
Remington chided Gableman in his Wednesday order for acting defiant in the courtroom, raising his voice, pointing his finger at Remington and making baseless accusations against the judge, comments that Remington said are barred by Wisconsin Supreme Court rules.
"The circus Gableman created in the courtroom destroyed any sense of decorum and irreparably damaged the public's perception of the judicial process," Remington wrote.
"This strategy might work elsewhere, but it has no place in a courtroom," he wrote. "It was readily apparent that Gableman intended to use his appearance to distract from OSC’s failure to follow the Court’s order, and perhaps to direct attention away from his office’s illegal records practices. The Court will ignore the personal insult," Remington wrote.
"However, the Court cannot ignore Gableman’s disruptive conduct and misogynistic comments about a fellow lawyer. All lawyers are obligated to report this form of professional misconduct."
In a footnote to his order, Remington also referenced the recent execution-style murder of a Juneau County judge in explaining his view of the potential consequences for Gableman's allegations about Remington.
"Unfortunately, the Court has observed firsthand the effect of Gableman’s unfounded accusation that I am biased and that I am an advocate for American Oversight. I have been made aware of threats, for example, that I had 'better watch my back,' or 'I hope the judge has a gun,'" Remington wrote.
Gableman did not immediately respond to a request for an interview. In an email to a Milwaukee Journal Sentinel reporter, he said he had not seen the order yet.
Taxpayers often cover fines associated with legal disputes over public records involving state lawmakers. A spokeswoman for Vos did not say whether taxpayers would cover the $2,000-per-day fine but Gableman's contract protects him from personal liability in lawsuits over the review.
Dan Schwager, American Oversight's chief counsel, said the group hopes Remington's order "will finally compel Mr. Gableman and the Office of Special Counsel to comply with Wisconsin law and the court’s orders, stop blocking transparency, and release all the records of their biased work to the public
Remington ordered Gableman to testify Friday to help determine whether Gableman and the Assembly's Office of Special Counsel created to examine the 2020 election were violating Remington's orders to preserve public records and release them to requesters.
But Gableman refused to answer anything beyond his name and occupation.
The dramatic episode took place two days after Remington suggested one of Gableman's staffers who had been put in charge of requests for records might need to think about getting his own attorney because of the possibility of jail time for disobeying court orders.
Gableman's attorney, Michael Dean, said Remington's suggestion terrified the staff member, Zakory Niemierowicz, and prompted Dean to advise Niemierowicz and Gableman to obtain their own counsel if jail time is possible.
"You don't have a right to act as an advocate for one party over the other. I want personal counsel. If you are putting jail on the table, I want a personal attorney to represent me. I will not answer any more questions," Gableman said on the stand. "You want to put me in jail, Judge Remington ... I'm not going to be railroaded."
Remington said attorneys should have researched the potential remedies for violating such a court order, which includes jail time.
"At no time did I say it was a sanction I intended to impose," he said Friday.
Under pressure from former President Donald Trump to further litigate President Joe Biden's victory in Wisconsin, Vos hired Gableman in June of 2021 to conduct a review of the 2020 election with a taxpayer-funded salary of $11,000 per month.
Biden defeated Trump in Wisconsin by about 21,000 votes — an election outcome confirmed by judges, recounts and state audits. But Trump has worked to sow doubt in his 2020 loss, pushing false claims of widespread voter fraud and urging Republican lawmakers in battleground states to embrace his distortions.
Remington on Friday ultimately held Gableman in contempt for failing to provide evidence through his testimony that showed Gableman did not intentionally violate Remington's court order. Remington said he would determine sanctions in a written order that will be issued at a later date.
Gableman has released hundreds of records under pressure from the legal challenges, but American Oversight attorneys contend more records could exist that have not been provided.
Earlier this year, a separate attorney representing Gableman in the case before Remington said Gableman was routinely deleting emails, text messages and other documents gathered and produced by the taxpayer-funded review.
Gableman and his staff in the Office of Special Counsel are destroying records deemed "irrelevant or useless," the attorney said in a memo to American Oversight, the lawsuit's plaintiff.
The practice is a violation of state law, according to the Legislature's own attorneys.
Speaking to reporters after the hearing, Gableman acknowledged he deleted emails and text messages related to the review that he didn't consider relevant and dismissed the notion that he should have erred on the side of transparency in a taxpayer-funded review.
"If I had to keep every scrap of paper, I would do nothing else. I would need a warehouse," he said.
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This article originally appeared on Milwaukee Journal Sentinel: Gableman's 'misogynistic' comments should be penalized, judge says