Office of Lawyer Regulation v. Kessler

ANNETTE KINGSLAND ZIEGLER, J.

¶ 35. (concurring). I concur and agree that in this case, we are bound by the referee's findings of fact because they have not been shown to be clearly erroneous. Per *575curiam, ¶ 26. As Justice Prosser, Justice Roggensack, and Justice Ziegler noted in the Gobiernan decision, see In re Judicial Disciplinary Proceedings Against Gableman, 2010 WI 62, ¶ 52, 325 Wis. 2d 631, 784 N.W.2d 631, this court is to observe the findings of facts or stipulation of facts as they exist in the record. As Justice Prosser, Justice Roggensack, and Justice Ziegler further observed in the Gobiernan decision, it is not within our province to call for a jury trial or a further fact-finding process. See id., ¶ 54 n.24. I am pleased that we now have unanimous agreement on our proper role in such matters.

¶ 36. Simply stated, the per curiam's analysis in this case is consistent with the analysis of Justice Prosser, Justice Roggensack, and Justice Ziegler in the Gobiernan decision. See id., ¶ 52 ("On review, we employ the rules applicable to civil proceedings and we accept the Panel's findings of fact unless they are clearly erroneous. No party contends the Panel's fact findings are clearly erroneous or that there is any need for further fact-finding."). However, the per curiam's analysis is inconsistent with the writing of Chief Justice Abrahamson, Justice Bradley, and Justice Crooks in the Gobiernan decision, in which those three justices disregarded the Judicial Conduct Panel's findings of fact and the parties' stipulation of facts. See In re Judicial Disciplinary Proceedings Against Gableman, 2010 WI 61, ¶¶ 37, 46, 325 Wis. 2d 579, 784 N.W.2d 605. I am pleased to see that here, Chief Justice Abrahamson, Justice Bradley, and Justice Crooks afford proper deference to the facts before this court. The level of deference which we apply to the referee's findings of fact in this case should be consistent with the deference we owed the Judicial Conduct Panel's findings of fact *576and the factual stipulation in the Gobiernan decision. See Gobleman, 325 Wis. 2d 631, ¶ 52.

¶ 37. For the foregoing reason, I respectfully concur.

¶ 38. I am authorized to state that Justice PATIENCE DRAKE ROGGENSACK joins this concurrence.