Complaint responds to campaign tactics

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The Wisconsin Judicial Commission’s complaint against Justice Michael J. Gableman for an ad that ran during the 2008 Supreme Court race was a step in the right direction, according to a University of Wisconsin-Milwaukee professor.

Alleging that the ad contained “false statements” and a “misrepresentation of the facts,” the Judicial Commission has filed a complaint calling for disciplinary action against Gableman, who joined the state’s highest court on Aug. 1.

Mordecai Lee, a UWM political science professor, said the commission’s action show that candidates cannot “say anything before the election” with no fear of repercussions. He indicated that American politics has deteriorated to an “anything goes” approach as long as you win.

“What the complaint is saying is that there are consequences for behavior that is really beyond the pale — that one cannot say anything to win a campaign,” Lee said.
Free Speech

In a released statement, Darrin Schmitz, spokesman for Gableman’s campaign, said the complaint filed last week had no merit and was not based on fact or the law.

“The commission has intentionally disregarded the First Amendment,” Schmitz said in the statement. “No candidate for office sacrifices his right to freedom of speech.”

The complaint alleges Gableman re-leased a television ad last March, which seemed to directly link the actions of his opponent, Justice Louis B. Butler Jr., to a sexual assault committed by one of Butler’s former clients. The ad touted Gableman’s tough stance on criminals as a judge and public defender. At the same time, it drew a contrast with Butler, a former assistant public defender.

Part of the ad stated: “Louis Butler worked to put criminals on the street. Like Reuben Lee Mitchell who raped an 11-year-old girl with learning disabilities. Butler found a loophole. Mitchell went on to molest another child.”

‘Message is False’

In its complaint, the commission ex-plained that Butler did represent Mitchell with an appeal from 1985 to 1988. Although both the Wisconsin Court of Appeals and Supreme Court agreed that the circuit court committed an error, the Supreme Court determined the mistake was not sufficient to warrant a new trial, so Mitchell remained in custody. He was re-leased on parole in 1992 and was convicted of sexually assaulting a child three years later.

The commission wrote, “The Advertisement directly implied and was intended to convey the message that action or conduct of Louis Butler enabled or resulted in Mitchell’s release and Mitchell’s subsequent commission of a criminal molestation. Each of these statements of fact constituting the message is false.

“Louis Butler did not cause, facilitate, or enable Mitchell’s release from prison and had no responsibility for or connection with Mitchell’s subsequent commission of a crime.”
In its complaint, the commission alleged, “The false statements expressed in the Advertisement … related to Louis Butler’s background, qualifications, and experience and constitute a misrepresentation of facts. The misrepresentation was made knowingly or with reckless disregard for the truth by Judge Gableman. The publication of the Advertisement therefore constituted a willful violation by Judge Gableman of SCR 60.06(3)(c), Wisconsin Code of Judicial Conduct.”

In the released statement, Schmitz said, “The commission chose to ignore the plain language of the ad, which is factual. Instead, the complaint alleges that the ad contains false statements on the basis of inference and implication. The First Amendment does not allow a claim to be made on that basis.

“The commission’s complaint represents an apparent desire to advance a particular agenda which disregards Justice Gable-man’s Constitutional rights — rights which are enjoyed by all citizens.”

Ad Criticism

Sachin Chheda, a partner at Nation Consulting in Milwaukee, was Butler’s campaign manager during the election. Noting that he no longer speaks for the former justice or his campaign, Chheda condemned the ad and the assertion that it was factual.

“The ad was clearly dishonest and shameful,” Chheda said. “Most observers said so at the time. It’s good to see that the judicial system now seems to say so officially.”
Lee also challenged the idea that the ad was factually accurate and protected by the First Amendment.

“They crossed the line,” he said. “They knew what they were insinuating and they didn’t get away with it.”

Thomas J. Basting Sr. was chairman of the Wisconsin Judicial Campaign Integrity Committee, which called for the ad to be pulled right after it began running.

“From the committee’s standpoint, it’s fairly obvious that the Judicial Commission agreed with the position that we took condemning the ad after it ran,” Basting said.
Chief Judge Richard Brown is expected to select a Judicial Conduct Panel to hear the matter. That group will make a recommendation to the Supreme Court.

Schmitz expressed optimism that once the complaint reaches the panel of judges, it would be dismissed.

In a telephone conversation, Schmitz declined to respond beyond the released statement.

“Our statement really is going to be our only comment until there is some further development here,” Schmitz said.

This is the second year in a row that the commission has filed a complaint against a new justice. In 2007, the commission filed a complaint against Justice Annette King-sland Ziegler for sitting on 11 cases involving a bank where her husband served on the board of directors, without disclosing that fact to the parties. That resulted in a public reprimand.
Once again, the justices will have to determine whether to discipline one of their colleagues.