Litigation

WI Court Hears Complaint Against Justice Gableman

By Peter Hardin

An unusual ethics complaint accusing a Wisconsin Supreme Court justice of dishonesty in a 2008 election campaign ad was argued before his court colleagues. The six justices did not immediately reach a decision on the complaint against Justice Michael J. Gableman.

In November, a three-judge panel recommended dismissal of the judicial ethics complaint. It found that individual statements made in the TV ad attacking then-Justice Louis Butler Jr. were true.

In arguments before the state Supreme Court on Friday, James Alexander, executive director of the Wisconsin Judicial Commission, said that taken as a whole, the ad was a clear lie, according to an article in the Wisconsin Journal Sentinel.

“To separate each statement and read them alone, devoid of any context, denudes them of any meaning whatsoever,” Alexander said.

Alexander contended that the overall statement violated the judicial code’s prohibition on making misleading statements in judicial campaigns, according to a Wisconsin Law Journal article, and that such  statements can erode confidence in the courts:

“Campaign statements made in judicial elections that make misrepresentations can potentially do great violence to the public’s confidence in the integrity of the entire Wisconsin court system.”

A lawyer representing Justice Gableman, Eric McLeod, said the regulation of speech was not permitted under the First Amendment.

“What the commission wants is to look behind the statements and ask…what was intended? What was implied?” he said. “That’s not a question the First Amendment allows the government to ask, and it certainly does not allow the government to punish the speaker.”

Justice Gableman won a hard-fought election contest with incumbent Justice Butler. You can read more about the ethics complaint by clicking here for Gavel Grab, and you can read about problems caused by negative campaigning in judicial elections on Justice at Stake?s issues page. You also can view a WKOW broadcast about Friday’s hearing.

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.

To find a violation of the ethics code would require a majority of the court. The chief justice, Shirley Abrahamson, remarked on Friday about the difficulty inherent in sitting in judgment of a colleague.

“It is very difficult to sit in judgment of anybody, and it’s part of a judge’s job,” Justice Abrahamson said. “It is especially hard to sit in judgment when the person whom you’re judging is someone you know you work with, you have to work with and you will continue to work with regardless of the result in this case.”

President Obama has nominated Butler for a federal judgeship. A Wisconsin Supreme Court decision on the ethics complaint is expected by summer.

Full post as published by The Gavel on April 17, 2010 (boomark / email).