Gavel Grab

The Wisconsin Supreme Court should throw out an ethics complaint accusing one of its own, Justice Michael Gableman, of dishonesty in a TV campaign ad, a three-judge panel recommended today.

The campaign ad attacking then-Justice Louis Butler Jr. did not violate Wisconsin’s Code of Judicial Conduct, the appellate judges wrote in a 37-page opinion, according to an article in the Wisconsin State Journal.

The panel found that individual statements made in the TV ad were true. The rule at issue states that “A candidate for judicial office shall not knowingly or with reckless disregard for the statement’s truth or falsity misrepresent the identity, qualifications, present position, or other fact concerning the candidate or an opponent.”

Because the  individual statements were true, “any false or misleading implied message of the advertisement,”  then falls within the scope of a second sentence of the rule “for which discipline may not be imposed,” the panel wrote. “Therefore, we conclude that the facts alleged in the complaint do not constitute a violation of [the rule]  for which discipline may be imposed.”

The second sentence of the rule  states, “A candidate for judicial office should not knowingly make representations that, although true, are misleading, or knowingly make statements that are likely to confuse the public with respect to the proper role

of judges and lawyers in the American adversary system.”

James Alexander, executive director of the Wisconsin Judicial Commission, had contended at a hearing before the panel that the  individual parts of the ad made a false statement when taken together.

Reserve Judge David Deininger today scolded Justice Gableman in a concurring opinion, according to the Milwaukee Journal Sentinel. Judge Deininger wrote, “more troubling than the misleading implication (in the ad) is the advertisement’s disdain for the role of defense counsel in our adversary system.”

The ad spotlighted the case of Reuben Lee Mitchell, a  convicted sex offender.  Butler,  then a public defender, represented Mitchell on appeal.

“Butler found a loophole. Mitchell went on to molest another child,” Gableman’s TV ad stated. It did not state that although  Butler won the appeal, the state Supreme Court ordered that Mitchell remain locked up. It was after his release on parole that he committed a subsequent crime. Nor did the ad state that Butler represented Mitchell as a lawyer and never ruled on the case as a judge.

Judge Ralph Adam Fine wrote today that the judicial conduct rule at issue is unconstitutional. “In my view, the only tribunal that may assess whether campaign speech is true or false is the electorate,” he wrote, according to the State Journal.

Judge Fine also contended that the TV ad actually violated the ethics rule, according to Wisconsin Law Journal, saying, “Neither common sense nor the law permits the sculpting of literally true ‘facts’ into a lie.” But Judge Fine agreed with the panel’s ultimate recommendation.

A lawyer for Justice Gableman, James Bopp, described the panel’s recommendation as a complete vindication, the Associated Press reported.

Judge Deininger’s concurring opinion offered a pointed remark about Justice Gableman, his TV ad and his lawyer. “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,’” Judge Deininger wrote, according to Wisconsin Law Journal.

Robert Craig of Citizen Action of Wisconsin labeled the panel’s recommendation “unbelievable,” according to WisPolitics.com. He said, “It is a sad day for truth in Wisconsin when a justice of the Wisconsin Supreme Court can lie in a campaign ad and not be punished.”

The 2008 campaign was a heated and big-spending contest. Butler, when appointed by Gov. Jim Doyle to the state Supreme Court in 2004,  became the state’s first African American justice. He came under attack in the 2008 election from business groups supporting Gableman. One of them slammed him as “Loophole Louie” in a TV ad suggesting Justice Butler was easy on criminals; then-county Judge Gableman’s  ad took a similar tack. Judge Gableman, who is white,  unseated Justice Butler.

More recently, President Obama has nominated Butler for a federal court judgeship. For more information, you may check out earlier Gavel Grab posts about this case here.