Judge offers scathing review of Michael Gableman's courtroom behavior, fines former justice $2,000 a day for contempt

In a scathing rebuke of Michael Gableman’s behavior in court last week, a Dane County judge has ordered the former state Supreme Court justice conducting a Republican review of Wisconsin’s 2020 election be fined $2,000 a day until he complies with ongoing public records requests.

Dane County Circuit Judge Frank Remington on Wednesday also directed Gableman’s “sneering” conduct in Remington’s courtroom to the office that regulates attorneys and judges in Wisconsin to take possible action against Gableman’s license to practice law.

“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 of Gableman’s refusal to answer questions under oath on Friday about whether the Office of Special Counsel he heads had violated a court order to stop deleting requested documents.

Gableman refused to provide testimony in the case, but instead lashed out at Remington, accusing the judge of being a partisan “advocate.”

“Neither facts nor law supported Gableman’s conduct on June 10, 2022,” Remington wrote in the order. “He chose to raise his voice, point his finger, accuse the judge of bias, proclaim he would not be ‘railroaded,’ and refuse to answer any questions. This strategy might work elsewhere, but it has no place in a courtroom.”

“Wisconsin demands more from its attorneys,” Remington added. “Gableman’s demeaning conduct has discredited the profession and every other person sworn ‘to commit themselves to live by the constitutional processes of our system.’”

Gableman’s office and attorney did not respond to a request for comment Wednesday.

In his order, Remington also noted comments Gableman made about Christa Westerberg, an attorney for the liberal watchdog group American Oversight, the organization suing to get the records. Gableman’s comments were made after the former justice was informed that the courtroom microphone was on and capturing audio.

“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’s comments Friday came two months after he criticized in a radio interview the apparel of Wisconsin Elections Commission administrator Meagan Wolfe.

“Black dress, white pearls, I’ve seen the act, I’ve seen the show,” Gableman told WTAQ-AM host Joe Giganti in April.

When Giganti responded that he recently saw Wolfe wearing a gold locket, rather than pearls, Gableman responded with, “Oh, Hillary Clinton.”

Gableman’s refusal to testify came two days after Remington cautioned the former justice’s staffer Zakory Niemierowicz, whom Gableman’s attorneys have described as the sole legal custodian for the requested records, to consider seeking legal counsel, noting that remedial sanctions for contempt could include jail time.

Attorneys for Gableman unsuccessfully tried to quash the subpoena issued to the former justice by American Oversight.

In his order, Remington also referenced online threats he has received since Friday’s court hearing, which come just weeks after retired Juneau County Judge John Roemer was killed in his New Lisbon home.

“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 noted. “One online suggestion has been for a group to protest at my home as has been reported at the home of United States Supreme Court Justice (Brett Kavanaugh). That these threats originate with the statements of a retired judge is the saddest part of this whole experience.”

Complaint filed

At Remington’s order, the Dane County Clerk of Courts on Wednesday forwarded his decision and the transcript of the Friday hearing to the Office of Lawyer Regulation, which may be the first such referral for a former state Supreme Court justice who is practicing law after leaving the high court.

There are limits to the public availability of complaints filed against lawyers, which are confidential until the Office of Lawyer Regulation, which investigates the complaints, asks the state Supreme Court to act, and the court later issues some form of discipline.

Discipline can be anything from a private reprimand to revocation of a lawyer’s license to practice.

A search Wednesday by the Wisconsin State Law Library of Wisconsin’s 30 most recent Supreme Court justices found that none of the recent justices were ever issued any form of discipline, according to state court system records.

Gableman, while he was serving as a state Supreme Court justice, was the subject of complaints filed with the Office of Lawyer Regulation and the state Judicial Commission.

In 2008, liberal group One Wisconsin Now filed a complaint alleging that Gableman, while he was district attorney in Ashland County, had made phone calls from his office related to a 2002 fundraiser he hosted for then-Gov. Scott McCallum. McCallum appointed Gableman as Burnett County circuit judge less than two months after the fundraiser. No discipline was issued as a result of the complaint, records show.

The Wisconsin Judicial Commission, responding to an initial complaint by Wisconsin Citizen Action, filed a complaint in October 2008 alleging Gableman had violated the state’s code of judicial conduct by paying for a TV ad during his Supreme Court campaign which implied then-Justice Louis Butler, Gableman’s opponent, had used a “loophole” while he was a defense attorney to gain release for a sex offender, who later attacked a young girl.

That case ended with a 3-3 split by the state Supreme Court, with Gableman recusing himself. The Judicial Commission, seeing no path forward, then dropped the case.

Records cases

The case Remington oversees is one of three filed by American Oversight against Gableman, Assembly Speaker Robin Vos, R-Rochester, and the Assembly seeking public records related to Gableman’s review of the 2020 election.

Gableman was hired a year ago by Vos, under pressure from Donald Trump to investigate the former president’s loss to President Joe Biden by just under 21,000 votes in Wisconsin. While originally allocated $676,000 in taxpayer funds, invoices have shown that ongoing court battles surrounding the review have pushed the cost to nearly $900,000.

A recount, court decisions and multiple reviews have affirmed that President Joe Biden defeated Trump in Wisconsin by almost 21,000 votes. Only 24 people out of nearly 3.3 million who cast ballots have been charged with election fraud in Wisconsin.

Gableman has issued two interim reports, but his work has been the target of bipartisan criticism. Vos paused the review this spring pending the outcome of lawsuits challenging Gableman’s ability to subpoena elected officials and others who worked on elections.

Both Gableman and American Oversight have posted hundreds of pages of records online, but American Oversight attorneys have contended that more records likely exist and have not been provided. Primarily, the organization has sought any documents — including those that may have been deleted — between Gableman and his staff, which American Oversight attorneys say constitute contractor records that are subject to the state’s open records law.

In his order, Remington cited testimony provided by Niemierowicz in a recent deposition, in which Gableman’s staffer noted that the office employed a “classified person,” whose records cannot and have not been released. Niemierowicz also alluded to the belief that a records custodian may evade state public records law by immediately destroying a record, Remington noted.

“These shortcomings are overshadowed by Niemierowicz’ lack of any authority to ensure compliance with the Court’s order by procuring records,” Remington wrote. “This too, is evidence of a pattern of intentional disobedience by (the Office of Special Counsel), and Niemierowicz’ good faith ignorance is not a barrier to the imposition of contempt.”

American Oversight chief counsel Dan Schwager said in a statement he hopes Remington’s order will compel Gableman’s office to fully comply with the records requests.

“It is increasingly clear that this unprofessional ‘investigation’ is little more than a charade intended to prop up former President Trump’s dangerously false claims of election fraud, and after spending nearly a million dollars of taxpayer money, the people of Wisconsin deserve all the facts,” Schwager added.

Both Remington and Dane County Circuit Judge Valerie Bailey-Rihn have previously ordered Gableman to stop deleting records that may be responsive to American Oversight’s requests.

Attorneys for Gableman have said the former justice is exempt from retaining records, and his office regularly destroys documents deemed “irrelevant or useless.” An analysis by the nonpartisan Legislative Council in October determined that deleting such records, even by a state contractor like Gableman, violates state law.

State Journal reporter Ed Treleven and The Associated Press contributed to this report.