MADISON, Wis. — A prosecutor asked the Wisconsin Supreme Court on Friday to reopen his lawsuit challenging Gov. Scott Walker's contentious collective bargaining law, contending a justice who voted to dismiss the suit earlier this year got free legal help from the firm defending the law.
Dane County District Attorney Ismael Ozanne argued in filings with the court that it should vacate its decision because Justice Michael Gableman never disclosed his arrangement with the Michael Best and Friedrich law firm. Wisconsin's ethics code prohibits state officials from accepting free gifts, and the judicial ethics code bars judges from accepting gifts from anyone likely to appear before them.
Ozanne asked the court to reinstate a circuit judge's earlier ruling declaring the law void and disqualify Gableman from participating in further proceedings if he won't recuse himself.
"Reasonable, well-informed people would reasonably question Justice Gableman's ability to be impartial under the facts presented here," he wrote. "Respectfully, any litigant in any case deserves to have his case heard by a judge who has not secretly received a valuable gift from the other side's lawyer."
Gableman's attorney, Viet Dinh, didn't immediately return a message late Friday afternoon. He told the Milwaukee Journal Sentinel this week that he doesn't believe the free legal services amounted to a gift. A message left at Michael Best and Friedrich's Madison office wasn't immediately returned.
Ozanne filed his lawsuit in March, alleging Republican lawmakers violated open meetings laws when they convened a committee to revise the collective bargaining measure without proper public notice. The meeting came during the height of massive around-the-clock protests at the state Capitol against the legislation, which eliminated most public workers' union rights. Walker, a Republican, said the legislation was needed to help local governments absorb deep cuts in state aid, but Democrats saw it as a blatant assault on unions, one of their key constituencies.
A Dane County judge declared the law void in May. But the state Supreme Court's conservative four-justice majority upheld the law in June, finding legislative rules trumped the open meetings law. The decision allowed the law to take effect.
Walker's spokesman, Cullen Werwie, issued a one-sentence response to Ozanne's action by email Friday, saying "we are confident the Supreme Court got it right the first time."
Michael Best and Friedrich helped the state Justice Department defend the law.
Gableman had hired the firm to defend him in a 2008 ethics case stemming from one of his campaign ads. The ad accused his opponent, then-incumbent Justice Louis Butler, of finding a loophole for a sex offender who went on to molest another child. The ad didn't mention that Butler failed to get the offender out of prison early and that the offender committed the new crime after he had served his sentence.
Word broke earlier this month that Gableman signed a contingency agreement with the law firm that called for him to pay attorneys' fees only if he prevailed in the case, a deal similar to promises personal injury lawyers make to clients not to collect payment unless they win.
The Supreme Court ultimately deadlocked 3-3 on whether the ad violated the ethics code. That meant Gableman didn't win or lose and didn't have to pay Michael Best and Friedrich for services some legal experts have estimated may have been worth thousands of dollars.
Dinh told the Journal Sentinel the services weren't a gift because the arrangement included the possibility of McLeod getting paid.
A court order forcing Gableman off the union case is highly unlikely. The court said in a 4-3 decision in July that justices can't force each other off cases; only a justice can decide for himself or herself whether he or she should stand down.
Ozanne wrote in his filings that if Gableman doesn't recuse himself, the rest of the court should reconsider that stance as well.
But even if Gableman steps aside, there's no guarantee the court will reopen the case. If no other justice changed his or her position on the lawsuit, a 3-3 deadlock would result.
Public sector unions have filed three other lawsuits challenging the collective bargaining law. Two cases are pending in federal court. The third is pending in Dane County Circuit Court.