                                                             2020 WI 5

                  SUPREME COURT           OF   WISCONSIN
CASE NO.:              19AP199-J


COMPLETE TITLE:        In the Matter of Judicial Disciplinary
                       Proceedings Against The Honorable Kenneth W.
                       Gorski:

                       Wisconsin Judicial Commission,
                                 Complainant,
                            v.
                       the Honorable Kenneth W. Gorski,
                                 Respondent.

                           DISCIPLINARY PROCEEDINGS AGAINST GORSKI

OPINION FILED:         January 30, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:

NOT PARTICIPATING:
HAGEDORN, J.

ATTORNEYS:
                                                                         2020 WI 5
                                                               NOTICE
                                                 This opinion is subject to further
                                                 editing and modification.   The final
                                                 version will appear in the bound
                                                 volume of the official reports.
No.       2019AP199-J


STATE OF WISCONSIN                           :              IN SUPREME COURT

In the Matter of Judicial Disciplinary
Proceedings Against the Honorable
Kenneth W. Gorski:

Wisconsin Judicial Commission,
                                                                     FILED
               Complainant,                                     JAN 30, 2020

          v.                                                        Sheila T. Reiff
                                                                Clerk of Supreme Court

The Honorable Kenneth W. Gorski,

               Respondent.




      JUDICIAL       disciplinary     proceeding.         Public        reprimand

imposed.



      ¶1       PER CURIAM.    We review, pursuant to Wis. Stat. § 757.911




      1   Wisconsin Statute § 757.91 (2017-18) provides:

           The supreme court shall review the findings of
      fact, conclusions of law and recommendations under s.
      757.89 and determine appropriate discipline in cases of
      misconduct and appropriate action in cases of permanent
      disability. The rules of the supreme court applicable
      to civil cases in the supreme court govern the review
      proceedings under this section.
                                                            No.   2019AP199-J



(2017-18),2   a     Judicial   Conduct    Panel's3     findings   of   fact,

conclusions of law, and recommendation for discipline for the

Honorable Kenneth W. Gorski, a part-time court commissioner for

the Wood County circuit court.           Based on Commissioner Gorski's

answer, the Judicial Conduct Panel found that the facts alleged in

the complaint filed by the Wisconsin Judicial Commission were

established as true and determined that those facts supported the

legal conclusion that Commissioner Gorski had willfully violated

several rules of the Code of Judicial Conduct, which constitutes

judicial misconduct under Wis. Stat. § 757.81(4)(a).4 The Judicial

Conduct Panel recommends that Commissioner Gorski be publicly

reprimanded for his judicial misconduct.             We adopt the Judicial

Conduct Panel's findings of fact, we agree that those facts

demonstrate       that   Commissioner     Gorski      committed    judicial

misconduct, and we publicly reprimand him for that misconduct.

     ¶2   Commissioner Gorski has been a part-time circuit court

commissioner in Wood County since 2014.            In that role, he works

approximately two afternoons per month.               As a circuit court
commissioner, Commissioner Gorski was subject to the Code of


     2 All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
     3 Pursuant to Wis. Stat. § 757.87(3), Judges Paul F. Reilly,
Kitty K. Brennan, and Thomas M. Hruz of the court of appeals were
appointed to serve as the Judicial Conduct Panel, with Judge Reilly
acting as the presiding judge.
     4 Wisconsin Stat. § 757.81(4)(a) states that judicial
misconduct includes "[w]illful violation of a rule of the code of
judicial ethics."

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Judicial Conduct found in Chapter 60 of the Supreme Court Rules

(SCRs) and subject to the imposition of discipline for judicial

misconduct, as provided in Wis. Stat. §§ 757.001, 757.81-757.99.

     ¶3   The    Judicial     Commission's       complaint        alleged    that

Commissioner Gorski had violated five subsections of the Code of

Judicial Conduct based on allegations that he had presided over a

small claims case when he should have recused himself and that he

had made inappropriate comments to a self-represented defendant in

the trial of that same small claims case.              The facts will be set

forth in more detail below.       In his answer, Commissioner Gorski

admitted all of the factual allegations and alleged judicial

conduct   violations   set    forth       in   the     Judicial    Commission's

complaint.    As there were no disputed factual issues that required

an evidentiary hearing, the Judicial Conduct Panel subsequently

ordered the parties to file memoranda regarding the appropriate

level of discipline that should be recommended.                    The Judicial

Commission filed a brief stating that the most appropriate sanction

for the misconduct in this matter would be a public reprimand.
Commissioner Gorski subsequently submitted a letter stating that

he would not be filing a responsive memorandum, indicating his

acquiescence to the Judicial Commission's request for a public

reprimand.

     ¶4   Given Commissioner Gorski's admissions in his answer,

the Judicial Conduct Panel found the following facts.

     ¶5   At all times relevant to this proceeding, Commissioner

Gorski has had a close personal friendship with Attorney Timothy
Gebert.      Commissioner    Gorski   has      known    Attorney    Gebert   for
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                                                                 No.     2019AP199-J



approximately 20 years, and the two men socialize at least once a

month.     Between 2015 and 2018, Commissioner Gorski and Attorney

Gebert,    along   with    other    individuals,     went   on   four     overseas

vacation trips together.       They also have taken frequent overnight

golfing trips together, both locally in northern Wisconsin and in

other parts of the United States.

     ¶6     In September 2015 Commissioner Gorski presided over a

pretrial conference in a small claims case, Accurate Remodeling

LLC v. Meyer, Wood County Case No. 2015SC630 ("the Meyer case").

A small claims trial was scheduled to occur in the case on November

18, 2015.    Attorney Gebert represented the plaintiff in the case.

The defendant, Mr. Meyer, a non-lawyer, represented himself.

     ¶7     In   October    2015,    between   the   date   of    the     pretrial

conference and the trial, while the case was still pending before

him, Commissioner Gorski went on one of the four overseas trips

with Attorney Gebert.         They, Commissioner Gorski's son, and a

fourth individual went on a week-long golfing trip to Ireland.

     ¶8     Commissioner Gorski continued to preside over the Meyer
case.    He did not disclose to Mr. Meyer the trip to Ireland or his

friendship with Attorney Gebert.

     ¶9     Commissioner Gorski presided over the small claims trial

on November 18, 2015.       During that trial, he lost his temper with

the self-represented Mr. Meyer on two occasions.                  On the first

occasion, he said, "Stop, now, just stop with that!                    Jesus . . .

Come on.    That's getting old, that's getting really old."                 On the

second occasion, Commissioner Gorski audibly groaned in response


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                                                                 No.   2019AP199-J



to something Mr. Meyer said and then asked, "Why can't you just be

quiet when other people are talking?"

     ¶10       At another point after the verdict had been rendered by

Commissioner Gorski, Mr. Meyer made an assertion that the verdict

was an example of corruption.            Commissioner Gorski again audibly

groaned       and   then    responded,   "That's   my   middle    name   .   .   .

corruption."        Commissioner Gorski admitted that his comments to

Mr. Meyer had been said in anger and with sarcasm.

     ¶11       When Commissioner Gorski appeared before the Judicial

Commission in October 2018 during its investigation of this matter,

he stated that Attorney Gebert had appeared before him on six or

seven occasions.           Indeed, just prior to that meeting with the

Judicial Commission and after having been notified that it was

investigating his failure to recuse himself in a case in which

Attorney Gebert had appeared before him, Commissioner Gorski had

presided over a pretrial conference in another case in which

Attorney Gebert represented one party and the other party was self-

represented. While this other case was pending before Commissioner
Gorski, he took a trip with Attorney Gebert and others to Vietnam.

     ¶12       Based on these findings of fact, the Judicial Conduct

Panel     concluded        that   Commissioner   Gorski   had     violated    the

following provisions of the Code of Judicial Conduct:


              By failing to recuse himself in the Meyer case when he
               had a personal bias or prejudice concerning a party or
               a party's lawyer, he violated SCR 60.04(4)(a);5

     5   SCR 60.04(4)(a) provides:

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                                                 No.   2019AP199-J




       By failing to recuse himself in the Meyer case or to
        disclose his close friendship with Attorney Gebert to
        the self-represented defendant when reasonable, well-
        informed persons knowledgeable about judicial ethics and
        the judicial system and aware of the facts that
        Commissioner Gorski knew or reasonably should have known
        would have reasonably questioned his ability to be
        impartial and when the recusal was not waived by the
        parties after full disclosure, he violated SCR 60.04(4);

       By making comments to Mr. Meyer that failed to treat
        those with whom he dealt in performing his adjudicative
        duties with patience, dignity, and courtesy, he violated
        SCR 60.04(1)(d);6

     (4) Except as provided in sub. (6) for waiver, a
judge shall recuse himself or herself in a proceeding
when the facts and circumstances the judge knows or
reasonably should know establish one of the following or
when reasonable, well-informed persons knowledgeable
about 241 judicial ethics standards and the justice
system and aware of the facts and circumstances the judge
knows or reasonably should know would reasonably
question the judge's ability to be impartial:

     (a) The judge has a personal bias or prejudice
concerning a party or a party's lawyer or personal
knowledge of disputed evidentiary facts concerning the
proceeding.
6   SCR 60.04(1)(d) provides:

     (1) In the performance of the duties under this
section,   the    following apply   to   adjudicative
responsibilities:



                                           (footnote continued)


     (d) A judge shall be patient, dignified and
courteous to litigants, jurors, witnesses, lawyers and
others with whom the judge deals in an official capacity
and shall require similar conduct of lawyers, staff,
court officials and others subject to the judge's
direction and control. During trials and hearings, a
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                                                             No.    2019AP199-J



           By failing to recuse himself and by the comments he made
            during the November 18, 2015 trial in the Meyer case,
            thereby failing to comply with the law and to act at all
            times in a manner that promotes public confidence in the
            integrity and impartiality of the judiciary, he violated
            SCR 60.03(1);7 and

           By failing to recuse himself and by the comments he made
            during the November 18, 2015 trial in the Meyer case,
            thereby   failing  to   participate   in   establishing,
            maintaining, and enforcing high standards of conduct and
            failing to personally observe those standards in order
            to preserve the integrity and independence of the
            judiciary, he violated SCR 60.02.8
    ¶13     Violations   of   mandatory   provisions    of    the    Code   of

Judicial Conduct constitute judicial misconduct under Wis. Stat.

§ 757.81(4)(a)    when   those   violations   are      determined      to   be

"willful."    Violations are "willful" when the judicial officer's


    judge shall act so that the judge's attitude, manner or
    tone toward counsel or witnesses does not prevent the
    proper presentation of the cause or the ascertainment of
    the truth. A judge may properly intervene if the judge
    considers it necessary to clarify a point or expedite
    the proceedings.
    7  SCR 60.03(1) provides: "A judge shall respect and comply
with the law and shall act at all times in a manner that promotes
public confidence in the integrity and impartiality of the
judiciary.
    8   SCR 60.02 provides:

         An   independent   and   honorable   judiciary   is
    indispensable to justice in our society. A judge should
    participate in establishing, maintaining and enforcing
    high standards of conduct and shall personally observe
    those standards so that the integrity and independence
    of the judiciary will be preserved. This chapter applies
    to every aspect of judicial behavior except purely legal
    decisions.    Legal decisions made in the course of
    judicial duty on the record are subject solely to
    judicial review.

                                    7
                                                                         No.    2019AP199-J



conduct was not the result of duress and when the judicial officer

knew or should have known that the conduct was prohibited by the

Code of Judicial Conduct.        In re Judicial Disciplinary Proceedings

Against Tesmer, 219 Wis. 2d 708, 729, 580 N.W.2d 307 (1998).                           Here,

the Judicial Conduct Panel concluded that Commissioner Gorski had

committed    these    violations      of       the     Code   of     Judicial        Conduct

willfully.

     ¶14    The    Judicial    Conduct         Panel    concluded       that     a    public

reprimand was a necessary and sufficient level of discipline, given

the violations set forth above.            It noted that all of Commissioner

Gorski's misconduct had occurred while he was acting in his

official capacity.

     ¶15     The Judicial Conduct Panel pointed to the fact that

Commissioner Gorski had admitted having presided over six or seven

proceedings in which Attorney Gebert had appeared, including a

pretrial    conference    after      he    had       learned       of   the     misconduct

allegations in this case, which suggested that Commissioner Gorski

had not recognized or acknowledged the misconduct related to
Attorney Gebert's appearances before him.                 The panel acknowledged,

however, that there was no suggestion that Commissioner Gorski's

failure to recuse himself had affected the outcome of the case or

that it had occurred in order to advance his personal desires.

     ¶16    With     respect    to    the       second        type      of     misconduct,

Commissioner Gorski's improper comments to Mr. Meyer during the

small claims trial, the Judicial Conduct Panel found that those

comments appeared to have been an isolated incident, and that the


                                           8
                                                                   No.     2019AP199-J



comments had not been made to advance his personal objectives or

to achieve personal gain.

       ¶17     Ultimately,     the     Judicial    Conduct     Panel    stated   that

Commissioner Gorski's failure to recuse himself or to disclose his

close friendship with Attorney Gebert and his impertinent comments

during the small claims trial in the Meyer case had caused a

substantial negative impact on the integrity of the judiciary and

on the public's perception of the independence of the judiciary.

Weighing the factors described above, it concluded that a public

reprimand would be sufficient to impress upon Commissioner Gorski

the need to recuse himself or to obtain a waiver in future cases

in    which    a     good   friend    would     appear   as   counsel    and   to   be

circumspect in his comments to and dealings with self-represented

individuals.

       ¶18     Given Commissioner Gorski's admission of the allegations

against him in his answer to the Judicial Commission's complaint,

there is no dispute about the Judicial Conduct Panel's findings of

fact.    Accordingly, we adopt the panel's findings of fact based on
the allegations in the complaint.                We also agree with the panel's

conclusion         that     those     factual     findings      demonstrate      that

Commissioner Gorski willfully violated the specified provisions of

the     Code    of    Judicial       Conduct,     thereby     committing    judicial

misconduct as defined in Wis. Stat. § 757.81(4)(a).

       ¶19     We now turn to the issue of the appropriate level of

discipline.        We agree that Commissioner Gorski's failure to recuse

himself or even to disclose his close friendship with Attorney
Gebert and his angry and sarcastic comments to a pro se litigant
                                           9
                                                             No.        2019AP199-J



appearing    before    him    undermined,   rather    than   promoted,         the

public's confidence in the integrity and impartiality of the

judiciary.    A sanction is necessary to impress upon him the damage

that such conduct does to the judicial system and the rule of law

and to ensure that he does not repeat such conduct.

     ¶20    In its sanction memorandum, the Judicial Commission

stated that the prior judicial disciplinary case that is most

similar to the facts of this case is In re Judicial Disciplinary

Proceedings Against Laatsch, 2007 WI 20, 299 Wis. 2d 144, 727

N.W.2d 488.       Like Commissioner Gorski, Judge Laatsch was a part-

time judicial official (a municipal judge), who presided over three

cases in which he should have recused himself because one of the

parties appearing before him was a relative or a current client of

his law practice.       Also like Commissioner Gorski, Judge Laatsch

was found to have engaged in another type of misconduct in addition

to the failure to recuse (in that case misusing the prestige of

his judicial office in an advertisement for his law firm).                    This

court concluded that the proper level of discipline for Judge
Laatsch was a public reprimand, and we agree that the same level

of discipline should be imposed on Commissioner Gorski.

     ¶21    Our     comment   in   the    Laatsch    decision      is     equally

applicable to Commissioner Gorski and the resolution of this

disciplinary proceeding:

     A fair and impartial judge is the cornerstone of the
     integrity of the judicial system. Even the appearance
     of partiality can erode the public's confidence in the
     integrity of the judiciary.



                                     10
                                                     No.   2019AP199-J



Laatsch, 299 Wis. 2d 144, ¶13.    We trust that the reprimand we

impose today will cause Commissioner Gorski to avoid any future

conduct that gives even the appearance of partiality and to treat

those who come before him with patience, dignity, and courtesy.

    ¶22   IT IS ORDERED that the Honorable Kenneth W. Gorski is

reprimanded   for   judicial   misconduct   established    in    this

proceeding.

    ¶23   BRIAN HAGEDORN, J., did not participate.




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    No.   2019AP199-J




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