Commission files complaint against new justice

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The Wisconsin Judicial Commission has filed a complaint against Justice Michael J. Gableman for an ad that ran during the 2008 Supreme Court race.

Alleging that the ad contained “false statements” and a “misrepresentation of the facts,” the commission’s complaint called for disciplinary action against Gableman, who joined the state’s highest court on Aug. 1.

Darrin Schmitz, spokesman for Gableman’s campaign, said the complaint filed today had no merit and was not based on fact or the law.

The complaint alleges Gableman released a television ad last March, which seemed to directly link the actions of his opponent, Justice Louis B. Butler Jr., to a sexual assault committed by one of Butler’s former clients. The ad touted Gableman’s tough stance on criminals as a judge and public defender. At the same time, it drew a contrast with Butler, a former assistant public defender.

Part of the ad stated: “Louis Butler worked to put criminals on the street. Like Reuben Lee Mitchell who raped an 11-year-old girl with learning disabilities. Butler found a loophole. Mitchell went on to molest another child.”

In its complaint, the commission explained that Butler did represent Mitchell with an appeal from 1985 to 1988. Although both the Wisconsin Court of Appeals and Supreme Court agreed that the circuit court committed an error, the Supreme Court determined the mistake was not sufficient to warrant a new trial, so Mitchell remained in custody. He was released on parole in 1992 and was convicted of sexually assaulting a child three years later.

The commission wrote, “The Advertisement directly implied and was intended to convey the message that action or conduct of Louis Butler enabled or resulted in Mitchell’s release and Mitchell’s subsequent commission of a criminal molestation. Each of these statements of fact constituting the message is false.

“Louis Butler did not cause, facilitate, or enable Mitchell’s release from prison and had no responsibility for or connection with Mitchell’s subsequent commission of a crime.”

In its complaint, the commission alleged, “The false statements expressed in the Advertisement … related to Louis Butler’s background, qualifications, and experience and constitute a misrepresentation of facts. The misrepresentation was made knowingly or with reckless disregard for the truth by Judge Gableman. The publication of the Advertisement therefore constituted a willful violation by Judge Gableman of SCR 60.06(3)(c), Wisconsin Code of Judicial Conduct.”

In a released statement, Schmitz said, “The Commission has intentionally disregarded the First Amendment. No candidate for office sacrifices his right to freedom of speech. The Commission chose to ignore the plain language of the ad, which is factual. Instead, the complaint alleges that the ad contains false statements on the basis of inference and implication. The First Amendment does not allow a claim to be made on that basis.”

Chief Judge Richard Brown is expected to select a Judicial Conduct Panel to hear the matter. That group will make a recommendation to the Supreme Court.

Schmitz also expressed optimism that once the complaint reaches the panel of judges, it will be dismissed.

This is the second year in a row that the commission has filed a complaint against a new justice. In 2007, the commission filed a complaint against Justice Annette Kingsland Ziegler for sitting on 11 cases involving a bank where her husband served on the board of directors, without disclosing that fact to the parties. That resulted in a public reprimand.

Once again, the justices will have to determine whether to discipline one of their colleagues.