Gableman complaint before Supreme Court

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Madison – Justice Michael J. Gableman’s six colleagues on the Supreme Court have to decide whether the newest member violated judicial ethics rules during his 2008 run for the bench.

The court heard testimony Friday from the Wisconsin Judicial Commission, which alleged that Gableman willfully violated the Wisconsin Code of Judicial Conduct’s prohibition on making misrepresentations during judicial campaigns. The justices focused on the First Amendment implications of a television campaign ad.

On Oct. 7, 2008, the commission filed a complaint that stemmed from a television advertisement supporting then-Judge Gableman’s candidacy for the Supreme Court against incumbent Justice Louis B. Butler, Jr. Gableman defeated Butler in the spring 2008 election and started serving his 10-year term on the bench that August.

Attorneys for the commission have argued that language in an ad insinuated that Butler, while working as a public defender, found a “loophole” in the law, which kept a convicted child molester on the street, who subsequently raped an 11-year old girl. On Nov. 12 a three-judge review panel concluded that the facts alleged in the commission’s complaint did not constitute a violation of the Code of Judicial Conduct and recommended dismissal by the Supreme Court.

Attorney James Alexander, counsel for the commission argued that while the individual sentences contained in the ad are true, taken as a whole, they constitute a false statement and are in violation of the code.

Chief Justice Shirley S. Abrahamson questioned attorney Eric M. McLeod, counsel for Gableman, on how far campaign speech could go before it would be deemed a violation of the judicial code.

"I've read your briefs, and they seem to indicate that anything goes and the government cannot determine if statements are false or true," she said. "Is that your position?"

McLeod replied that in accordance with the code, only statements that are "objectively false" would be excluded from constitutional protection.

"These statements are true," he said of those contained in the ad. "What the commission wants to do is ask the court to look behind those and ask what is implied. That is not a question the government is allowed to ask and punish a speaker for."

The court is expected to decide whether Gableman’s ad was an intentional ethical violation of SCR 60.06(3)(c), which says in part that judicial candidates should not make misleading statements, even if found to be truthful. If a violation occurred, the court can determine an appropriate sanction which can include censure, public reprimand, suspension or dismissal.

Jack Zemlicka can be reached at [email protected].