Litigation

WI Supreme Court Split on Gableman Complaint

By Peter Hardin

The Wisconsin Supreme Court, with its two factions issuing dueling opinions, has deadlocked on the merits of an ethics complaint accusing fellow Justice Michael J. Gableman of dishonesty in a campaign ad, and on what should happen next.

Three liberal justices wrote an opinion concluding that Justice Gableman had committed misconduct by misrepresenting a fact, “knowingly or with reckless disregard to the truth or falsity of the statement,”  in a campaign ad aired against then-Justice Louis Butler in a 2008 election contest, according to an article by WisPolitics.com.

These justices, Chief Justice Shirley Abrahamson and Justices Ann Walsh Bradley and N. Patrick Crooks, said the 3-3 deadlock did not constitute a decision against Justice Gableman. The matter should go back to the state Judicial Commission and be followed by a jury trial, they said, according to the Milwaukee Journal Sentinel.

“False statements knowingly made or false statements made in reckless disregard of their truth or falsity are not protected by the First Amendment,” Justice Abrahamson wrote.

The court’s three more conservative justices issued an opinion that found the attack ad “distasteful” but also protected by the First Amendment. The trio said that given the split decision, the Judicial Commission should drop the case. These jurists were Justices David T. Prosser, Patience Drake Roggensack and Annette Ziegler.

The latter trio didn’t stop with a recommendation. The opposing justices were “refusing to follow the law,” this trio wrote, and a jury trial would be inappropriate. “This suggestion passes belief,” Justice Prosser wrote.

Justice Gableman did not participate in the case. His lawyer, Eric McLeod, said today that the jurist had prevailed, the Associated Press reported. The case is done, McLeod said, because the Judicial Commission needed four justices to meet the burden of proof against his client, and the state Supreme Court vote was 3-3.

You can learn about the complaint and oral arguments in the case by clicking here for Gavel Grab. The 2008 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 Mitchell?s 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.

Gableman won a hard-fought election contest with incumbent Justice Butler. Subsequently President Obama nominated Butler for a federal judgeship.

You can read about problems caused by negative campaigning in judicial elections on Justice at Stake’s issues page on the topic.

Full post as published by The Gavel on July 01, 2010 (boomark / email).