Legal Commentary

Although my principal interest is in law and religion, one of my charges at Marquette is to stay engaged with local policy issues and, as part of that, I have followed the Wisconsin Supreme Court, developing a course on the Court and state constitutional law. You can?t follow the Wisconsin Supreme Court in recent years without confronting issues of judicial selection and campaign conduct in judicial elections. We have had two heavily financed and bitterly fought races for the Court in the past three years. (There have been similar races in other states, including Michigan, Ohio and West Virginia.)

These races have resulted in a number of ethical charges and, later this month, a three judge panel will hear a complaint against a sitting Justice of the Court for, to put in bluntly, lying in a campaign commercial That panel's recommendation will ultimately be passed upon by the Court itself. While there have been ethical complaints against sitting Justices before in Wisconsin, this one seems to be more strikingly malum in se as opposed to malum prohibitum.

Justice Michael Gableman was elected in April 2008, successfully challenging incumbent Justice Louis Butler. Butler was the first African American to sit on the Wisconsin Supreme Court. Both campaigns attracted millions of dollars in independent expenditures (much of which came from outside the state) running the typical fare of judicial campaign ads: dead bodies, empty swings, clanging cell doors and pictures of scary looking sex offenders who either had or had not been locked up for a sufficient period of time.

But the ad (click on Gableman TV ad: ?Prosecutor?) that has become the subject of ethical proceedings was run by the Gableman campaign itself. After extolling candidate Gableman?s bona fides as a tough judge, the ad says that Justice Butler ?worked to free criminals.? It offers an example of an defendant accused of rape. The ad says that Butler found a loophole and the defendant went on to rape again.

All of this is true but false. Butler represented the defendant as a lawyer. He ?found a loophole? bit the state Supreme Court held that it was harmless error and denied the requested relief. The defendant did go on to offend again, but only after serving the prison term that Butler failed to avoid.

In Wisconsin (and I suspect every state), the judicial code prohibits a judicial candidate from making false statements about and opponent or statements that, while true, mislead the public about the roles of lawyers and judges and the nature of the judicial system.

Is that rule constitutional? Should we be concerned about the chilling effect of reexamination of an ad to determine what has been implied and whether that implication is true or false? If a violation is found, what discipline is proper? Should a Justice elected by the people be removed?