Thursday, July 1, 2010

Impasse At Wisconsin Supreme Court

The Wisconsin Supreme Court has issued opinions concerning allegations that Justice Michael Gableman violated canons of judicial ethics in campaigning for the court. Three justices would dismiss the charges:

Three members of the court, Justice Prosser, Justice Roggensack and Justice Ziegler, agree with the recommendation of the three-judge Panel that the Commission's complaint against Justice Gableman must be dismissed.  We agree with the Panel's recommendation because after conducting an independent review of the record and considering the arguments of counsel, we have concluded that the Commission failed to establish, by evidence that is clear, satisfactory and convincing, that Justice Michael J. Gableman violated SCR 60.06(3)(c). 

The campaign advertisement that gave rise to the Commission's complaint against Justice Gableman and the governmental rule, SCR 60.06(3)(c), by which the Commission seeks to punish Justice Gableman for that advertisement must be examined according to the commands of the First Amendment.  As the United States Supreme Court has explained, the First Amendment applies to judicial elections and those canons of judicial ethics that states seek to apply to judicial elections.  Republican Party, 536 U.S. at 788.  We acknowledge that the advertisement run by Justice Gableman's campaign committee was distasteful; however, the First Amendment prevents the government from stifling speech, even when that speech is distasteful.  R.A.V., 505 U.S. at 380, 391.  The United States Supreme Court has established the parameters of the First Amendment's protections of campaign speech that we have followed in our decision. 

In order to meet the burden of proof assigned to the Commission by Wis. Stat. § 757.89, at least four justices must conclude that the advertisement by Justice Gableman's campaign committee violated SCR 60.06(3)(c), when SCR 60.06(3)(c) is interpreted and applied consistent with the commands of the First Amendment.  The Commission has not met that burden of proof.  Accordingly, we anticipate that the Commission, or the Commission and Justice Gableman together, promptly will file a motion to dismiss the complaint against Justice Gableman.  

Chief Justice Abrahamson, joined by two justices took a different view:

It is clear that the court is equally divided regarding the disposition of the matter.  No four justices have voted either to accept or to reject the Judicial Conduct Panel's recommendations, nor have four justices agreed on Justice Gableman's motion for summary judgment or any disposition of the Judicial Commission's complaint.  No action can therefore be taken on the Panel's recommendation.  The Judicial Commission has failed to obtain a majority of justices to reject the recommendation of the Panel.  Under these circumstances, the Panel is relieved of any further responsibility in this matter, and we remand the matter to the Judicial Commission with directions to request a jury hearing...

This analysis from

Milwaukee: Late last night the Wisconsin State Supreme Court split 3-3 on the complaint against Justice Michael Gableman for running a deliberately false and misleading campaign ad.

The complaint, which was originally filed by Citizen Action of Wisconsin in March 2008, maintains that Justice Gableman made false and deliberately misleading statements in a campaign ad directed at Justice Louis Butler, violating the Wisconsin Code of Judicial Conduct. The ad, which sparked outrage from the legal community, editorial boards, and the public at large, was compared by many to the infamous “Willy Horton” ads. It falsely charged that Justice Butler’s actions had led to the release of a felon who committed another crime. In October 2008 the Wisconsin Judicial Commission agreed with the Citizen Action complaint, ruling that an attack ad by Michael Gableman showed “reckless disregard for the truth” and constitutes “judicial misconduct.” The Judicial Commission found the ad to be willfully false, and a clear violation of the Wisconsin Code of Judicial Conduct.

“The sharp division of the State Supreme Court over one of the most odious ads in Wisconsin campaign history is yet another stunning turn of events in a case that has drawn national attention,” said Robert Kraig, Executive Director of Citizen Action of Wisconsin. “We agree with Chief Justice Abrahamson and Justices Bradley and Crooks that the conduct of Gableman undermines the public reputation of the court, and that the Judicial Commission should hold a jury trial on the charges.”

In a well reasoned opinion released last night, Chief Justice Abrahamson, Justice Bradley, and Justice Crooks found that the ad was willfully misleading and thus violated the Judicial Code of Conduct. "False statements knowingly made or false statements made in reckless disregard of their truth or falsity are not protected by the First Amendment," the justices concluded.

“The Judicial Code expects judges to have high standards,” Kraig continued. “This is why the Code provides that a candidate for judge cannot knowingly or with reckless disregard misrepresent a fact concerning an opponent. Clearly anyone seeing the Gableman ad knows it was not true. It was grossly misleading.”

(Mike Frisch)

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