A three-judge panel Thursday unanimously encouraged the state Supreme Court to dismiss a complaint filed against Justice Michael J. Gableman by the Wisconsin Judicial Commission.
The panel concluded that it must construe SCR 60.06(3)(c) narrowly, to prohibit only statements that are factually untrue, and not to encompass statements that, “although true, are misleading.”
In their findings of fact, appellate court judges Harry G. Snyder, Ralph A. Fine and David D. Deininger determined that a campaign advertisement run by Gableman in 2008 did not violate SCR 60.06(3)(c).
The panel concluded that the complaint relied on an implicit message which the Judicial Commission contended was false or, at best, misleading.
“[I]t is undisputed that the individual statement[s] in the advertisement were true. By its own words, the complaint relies on an implicit message which the Commission contends was false or, at best, misleading,” the panel noted.
“However, because the individual statements in the advertisement were true, any false or misleading implied message of the advertisement necessarily falls within the reach of the second sentence of SCR 60.06(3)(c), for which discipline may not be imposed. Therefore, we conclude that the facts alleged in the complaint do not constitute a violation of SCR 60.06(3)(c) for which discipline may be imposed. Accordingly, we recommend that Justice Gableman’s motion for summary judgment be granted and the Commission’s compliant be dismissed.”
The ad in question ran a month prior to Gableman’s victory over incumbent Justice Louis B. Butler, Jr., last year. It referenced a case Butler took as a public defender involving child sex offender Rueben Lee Mitchell.
The ad states that “Butler found a loophole” and Mitchell went on to molest another child.
What the ad didn’t mention is that the state Supreme Court overturned Butler’s win on appeal and Mitchell did not commit the subsequent crime until he was on parole.
While the panel agreed that the complaint should be dismissed and no punishment should be imposed on Gableman, Deininger still took issue with the advertisement in a separate concurrence.
He said the advertisement would have been deserving of condemnation under the Code of Judicial Conduct had Butler’s representation of Mitchell resulted in the offender’s release from prison.
“More troubling than the misleading implication, however, is the advertisement’s disdain for the role of defense counsel in our adversary system,” Deininger wrote.
Deininger noted, “Justice Butler’s proper discharge of his ethical and constitutional obligations to his client subjected him to the attack advertisement that is at issue in this action. Justice Gableman’s counsel argued in this proceeding that the First Amendment to the U.S. Constitution requires a strict and narrow construction of the reach of the first sentence of SCR 60.06(3)(c). The majority of this panel agrees.”
But Deininger added, “It is more than a bit ironic that Justice Gableman has been represented in this matter by an able lawyer who, it might be argued, ‘found a loophole.’”
He added that the Code of Conduct informs judicial candidates that they shouldn’t knowingly make statements that are likely to confuse the public with respect to the proper role of judges and lawyers in the judicial system.
“That is precisely what the advertisement does, and what the advertisement was apparently intended to do,” he stated.
Judge Fine also wrote separately, agreeing with the ultimate recommendation, but disagreeing with the reasoning.
Judge Fine concluded, “SCR 60.06(3)(c) is an unconstitutional arrogation to a government tribunal of the electorate’s responsibility and sole power to assess campaign speech.”
Fine found that the advertisement did violate the rule, reasoning, “Neither common sense nor the law permits the sculpting of literally true ‘facts’ into a lie.”
But he concluded that the rule violates the constitution, arguing, “That only the electorate may assess the truth of falsity of political speech flows from the whole body of First-Amendment law.”
Fine posited the recent election of Chief Justice Shirley S. Abrahamson: “Abrahamson ran an advertisement that featured Dane County Sheriff David J. Mahoney saying: ‘The Chief? She’s law enforcement’s ally.’ What does this mean? Is this true? Is it capable of being proven true? Is it capable of being proven false? [SCR 60.06(3)(c)] opens the door for disappointed candidates or their supporters to seek punishment for something said during the campaign in the teeth of the voters’ judgment. That, in my view, violates the First Amendment.”
4 Comments on This Article
1
Disappointed nailed it. How is it possible that a judge running for the Wisconsin Supreme Court can make false and misleading (and racist to boot) statements to the public when the Court would never allow an attorney to do that in any court?
The "First Amendment" arguments made are the last refuge of a scoundrel. You can't shout "fire!" in a theater and no candidate for judicial office should be allowed to misrepresent the record of an opponent. To say the 1st Amd. protects this kind of speech is an outrage against the community and standards of decency and fair play.
The public's trust and faith in our Supreme Court has never been lower. All three branches of Wisconsin government have been wallowing in mud. The question is why should anybody have faith in a system that allows this? Our country is coming apart at the seems and this is just another tear in the fabric of society. Soon there will be nothing left.
Whether you like Justice Gableman or think he's a creep, it's time for him and the other six justices to stop acting like spoiled brats in public and get back to the work of the court. The court of public opinion has judged the court guilty and only it can try and regain the public trust. The court can begin with this case. If it just dismisses it outright with no thoughtful and thorough discussion of the issues, the public will simply see this as further proof the court is d$yfunctional; a place where honor and decency take a back seat to arcane legal judgments made by servants of the court.
Comment ByHoratio Alger Friday, November 13, 2009 at 7:36 PM
2
Gableman and his cousel must be sighing with relief that the "justice" was not charged under the Attorney's code of ethics 20:8.4 (c) : "It is professional misconduct for a lawyer to..engage in conduct involving dishonesty ,fraud, deciet or misrepresentation.." This provision has been broadly construed to prohibit the type of slick and artfull dishonesty represented by carefully stringing together true statements to prduce an absolutely false conclusion. Most judges wouldn't put up with a lawyer stringing along true statements to make a false argument..lawyers owe judges "candor to the tribunal" Apparently judges don't owe candor to the public..sad sad day. Conclusion: Judge's ethics standards allow them to be decieve under free speech..oh my. Comment ByDisappointed Thursday, November 12, 2009 at 4:34 PM
3
This is another sad day for our appellate system. From once being held in high esteem nationally, our Supreme Court now has now become an embarassment. I hope the Supreme Court has the fortitude to ignore this recommendation. Comment By Raven Thursday, November 12, 2009 at 4:25 PM
4
THE WHITEWASH IS COMPLETE. Comment ByHoratio Alger Thursday, November 12, 2009 at 3:50 PM
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