                                                                   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:       ABRAHAMSON, J. concurs and dissents (opinion
                              filed).
  DISSENTED:
  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.
                                                                          FILED
Crime Victims Rights Board,                                          JUN 27, 2017

             Respondent-Appellant,                                      Diane M. Fremgen
                                                                     Clerk of Supreme Court

Wisconsin Department of Justice,

             Respondent.




      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



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.


                                                   2
                                                                    No.     2016AP275



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


                                        3
                                                                               No.    2016AP275



(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.


                                               4
                                                                          No.     2016AP275



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).


                                            5
                                                              No.    2016AP275



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)).


                                    6
                                                                         No.     2016AP275



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).


                                               7
                                                                                No.     2016AP275



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
                                                  8
                                                                             No.    2016AP275



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
                                               9
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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").


                                       10
                                                                                    No.    2016AP275



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]
                                            11
                                                                              No.       2016AP275



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.
                                              12
                                                                         No.     2016AP275



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,

                                             13
                                                                           No.     2016AP275



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)
                                            14
                                                                      No.    2016AP275



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."


                                            15
                                                                               No.        2016AP275



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.


                                            16
                                                                         No.    2016AP275



       ¶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.


                                             17
                                                                         No.    2016AP275



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.


                                            18
                                                                               No.     2016AP275



                            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."       Rock-

Koshkonong 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
                                                19
                                                                               No.       2016AP275



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
                                           20
                                                                       No.    2016AP275



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.").


                                           21
                                                                                 No.    2016AP275


       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,


                                                 22
                                                                       No.    2016AP275



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     co-

ordinate 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


                                            23
                                                                       No.    2016AP275



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.").


                                          24
                                                                           No.       2016AP275



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.").


                                              25
                                                                         No.    2016AP275



       ¶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.").


                                            26
                                                                           No.     2016AP275



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 decision-

making       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,
                                              27
                                                                           No.   2016AP275



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).


                                               28
                                                                        No.     2016AP275



       ¶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
                                          29
                                                                             No.     2016AP275



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
                                                 30
                                                                                No.    2016AP275



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.


                                                  31
                                                                                 No.     2016AP275



      ¶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
                                            32
                                                                                      No.       2016AP275



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
                                                   33
                                                                          No.        2016AP275



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.


                                              34
                                                                                   No.     2016AP275



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
                                                   35
                                                                             No.    2016AP275



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
                                             36
                                                                                 No.     2016AP275



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.


                                                  37
                                                                           No.       2016AP275



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
                                         38
                                                     No.   2016AP275



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)).


                                  39
                                                                                  No.       2016AP275



               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

                                             40
                                                                             No.    2016AP275


      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,

                                           41
                                                                                No.    2016AP275


       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)).


                                                  42
                                                                                              No.    2016AP275



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)
                                                       43
                                                                         No.    2016AP275



                                      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.


                                             44
                                                                  No.     2016AP275



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.




                                     45
                                                                      No.   2016AP275.ssa


     ¶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).


                                           1
                                                               No.    2016AP275.ssa


          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)
                                        2
                                                                    No.    2016AP275.ssa


           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.


                                          3
                                                                       No.   2016AP275.ssa


             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).


                                          4
                                                                     No.    2016AP275.ssa


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




                                           5
                                                                    No.    2016AP275.ssa


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.)


                                           6
                                                                           No.    2016AP275.ssa


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



                                                 7
                                                                    No.   2016AP275.ssa


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

                                         8
                                                                      No.   2016AP275.ssa


           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)).


                                            9
                                                                     No.   2016AP275.ssa


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.


                                         10
                                                              No.    2016AP275.ssa


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.").


                                   11
                                                                 No.   2016AP275.ssa


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).


                                        12
                                                          No.   2016AP275.ssa


      (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 . . . .").


                                   13
                                                    No.   2016AP275.ssa


         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.").


                                 14
                                                       No.   2016AP275.ssa


      (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)
                                  15
                                                               No.   2016AP275.ssa


                 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)).


                                        16
                                                                     No.    2016AP275.ssa


       ¶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).


                                             17
                                                               No.   2016AP275.ssa


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-by-
state?.

     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.


                                         18
                                                                      No.    2016AP275.ssa


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.


                                            19
                                                      No.   2016AP275.ssa


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."


                                  20
                                                                  No.   2016AP275.ssa


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").


                                       21
                                                            No.   2016AP275.ssa

     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.").


                                      22
                                                                  No.    2016AP275.ssa


       ¶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)
                                 23
                                                                 No.    2016AP275.ssa


      ¶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.


                                      24
                                                                     No.    2016AP275.ssa


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)
                                          25
                                                            No.     2016AP275.ssa


    ¶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.


                                      26
                                                                     No.    2016AP275.ssa


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)
                                          27
                                                            No.   2016AP275.ssa


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).


                                    28
                                                              No.   2016AP275.ssa


      ¶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.


                                    29
                                                                      No.    2016AP275.ssa


      ¶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.)


                                               30
                                                                       No.    2016AP275.ssa


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




                                           31
                                                             No.   2016AP275.ssa


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.").


                                    32
                                                             No.   2016AP275.ssa


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."


                                        33
                                                                            No.    2016AP275.ssa


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.


                                             34
                                                                             No.   2016AP275.ssa


       ¶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.").


                                                35
                                                                             No.   2016AP275.ssa


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.


                                              36
                                                                   No.   2016AP275.ssa

     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.


                                         37
                                                                         No.    2016AP275.ssa


       ¶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     decision-

making 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


                                             38
                                                         No.       2016AP275.ssa

    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.


                                     39
                                                               No.   2016AP275.ssa


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).


                                    40
                                                                                No.   2016AP275.ssa


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.


                                                  41
                                                                          No.   2016AP275.ssa


       ¶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.


                                               42
                                                              No.   2016AP275.ssa


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.


                                       43
                                                                    No.   2016AP275.ssa


     ¶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)).


                                           44
                                                                       No.   2016AP275.ssa


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,




                                             45
                                                                     No.    2016AP275.ssa


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.


                                           46
                                                                   No.   2016AP275.ssa


     ¶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.


                                          47
                                                               No.    2016AP275.ssa


                            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.


                                      48
                                                                      No.    2016AP275.ssa


      ¶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.


                                            49
                                                                         No.   2016AP275.ssa


      ¶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:

                                            50
                                                                    No.    2016AP275.ssa

    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).

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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.
                                     * * * *

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    ¶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.

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        • 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,           even-

handed 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.




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