Justices split on Gableman decision (UPDATED)

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In a split decision that divided the state Supreme Court to the point it issued opinions under separate citation numbers, the court was unable to agree on how to handle the judicial ethics complaint filed against Justice Michael J. Gableman for a 2008 campaign television advertisement.

The 3-3 ruling, issued late the night of June 30, leaves the future of the complaint unclear. The question now becomes whether the case will be heard in a jury trial before the Wisconsin Judicial Commission or be dismissed entirely. It will be the Commission’s choice whether to pursue a further hearing in the case.

Commission attorney James Alexander conceded that the court’s split decision was a disappointing end and he is unsure of how or if the commission will proceed.

“We’re reviewing the situation and the only thing I can say is we will collectively look at what happened and determine what our options are,” he said. “I don’t know what the sentiments of the commission are at this point.”

According to Gableman’s attorneys, the court’s ruling means the case is over and Gableman should face no further scrutiny. Co-counsel Eric M. McLeod said Gableman has no legal responsibility to comply with the recommendation that the case be remanded to the Judicial Commission.

“There is no authority for the court to remand the case to the commission, which is a state agency, not a tribunal,” he said. “And certainly three justices don’t have the authority to direct the Judicial Com-mission to do anything.”

The ad in question ran a month prior to Gableman’s victory over then-incumbent Justice Louis B. Butler Jr. It referenced a case Butler took as a public defender involving child sex offender Rueben Lee Mitchell. The ad states that “Butler found a loophole” and Mitchell went on to molest another child.

What the ad didn’t mention is that the state Supreme Court overturned Butler’s win on appeal and Mitchell did not commit the subsequent crime until he was on parole.

Gableman’s lead attorney, James Bopp, Jr., said the split ruling “vindicated” Gableman and added that the minority of justices who agreed that their colleague ran afoul of the Judicial Code of Conduct “means nothing.”

Three justices — Ann Walsh Bradley, N. Patrick Crooks and Chief Justice Shirley S. Abrahamson — recommended that the case be remanded to the Wisconsin Judicial Commission and be settled through a jury trial.

The trio concluded that Gableman knowingly misrepresented facts about his opponent in the ad and that the First Amendment does not protect knowingly false statements.

“By means of the advertisement that he personally reviewed and checked out, Justice Gableman knowingly or with reckless disregard for the statements’ truth or falsity misrepresented a fact concerning an opponent within the meaning of SCR 60.06(3)(c),” wrote Abrahamson.

But the opposing justices — Patience Drake Roggensack, David T. Prosser and Annette K. Ziegler — said in the event of a deadlock, the case should be dismissed, in accordance with what a three-judge review panel recommended in November.

“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,” wrote Prosser.

Marquette University Law School Professor Rick Esenberg suggested that the case should be over and that a jury trial before a panel would produce the same result because no member believes there are facts to be tried.

“Beyond that, it seems that all six members of the Court believe that Justice Gableman either has or has not violated the rule as a matter of law,” he said. “A jury verdict, either for or against Justice Gableman, would not and actually, given the reasoning expressed in their writings, should not, change anyone’s mind since no one really thinks it’s necessary to resolve the case.”

In an unusual move acknowledged by Abrahamson, the court issued opinions with separate citations.

“Surprisingly, Justices Prosser, Roggensack, and Ziegler do not wish their separate writing to have the same public domain citation as our writing — a complete break from our usual practice,” she wrote.

Wisconsin Democracy Campaign executive director Michael McCabe said the divided outcome appeared to be based more on the ideology of the justices, rather than a disagreement about a conduct violation.

He called the ruling a “sad commentary” on the state of the judiciary and noted that it will likely further strain collegiality on the court.

“More broadly, it raised a real question about whether this court is able to enforce the judicial ethics code,” said McCabe. “My fear is that this will do nothing but encourage behavior that goes up to the line or even crosses it in the future.”

Jack Zemlicka can be reached at [email protected].

Related Story: Gableman complaint before Supreme Court