Gableman misconduct was willful: WJC

According to the latest filing in the matter of Wisconsin Judicial Commission v. Michael Gableman, then-Circuit Court Judge Gableman was "not pleased with the 'tone' of the [television] ad" he ultimately approved for release against his political opponent, former Wisconsin Supreme Court Justice Louis Butler.

The WJC's statement of facts, submitted on February 27 in the ongoing investigation into Gableman's campaign activities last spring, alleges that Gableman's political advisers urged him to release the ad in response to other advertising produced not by Justice Butler's campaign but by third-party groups.

Both Gableman and his advisers considered those ads to be "devastating," as well as "blistering, negative, and false."

However, Gableman did not produce a response directed at the "blistering" third-party groups. Instead, he unleashed a most scurrilous personal attack against Louis Butler, linking him in an extremely misleading fashion to a convicted child molester.

Many observers detected in it racist overtones as well.

Perhaps Gableman, who is himself currently installed on the Wisconsin Supreme Court, deserves some credit for the fact that the television ad initially gave him pause and according to the Judicial Commission, Gableman delayed its release for several days while he considered possible alternative messages.

But he ended up releasing it exactly as formulated, thus negating any credit to which he may have been entitled.

This is somewhat devastating in and of itself, as it gives a strong indication of what Gableman thought of the ad, which in turn functions as support to the allegations that he knew precisely what he was doing when he authorized its release and broadcast.

Even more remarkably, although Gableman claims to have been troubled by statements issuing from third-party groups, he rather chose to direct his response to them against Justice Butler, who not only had no connection to the third-party outfits, but had openly condemned them on many occasions.

A willful violation of the code of judicial ethics constitutes a violation of Wis. Stat. § 757.81(4)(a), judicial misconduct. Penalties range from a private reprimand to suspension or expulsion from the court.

By comparison, in the most recent finding of ethics violations by a sitting judge, those of Gableman's current colleague Justice Annette Ziegler, a majority of the Wisconsin Supreme Court wrote:

Although the violations in the instant case are serious and were willful as defined in the statute, the violations were, as we explain below, also inadvertent. The Judicial Commission has characterized the violations as resulting from neglect and as serious.

Furthermore, a discipline of suspension or removal is not necessarily consistent with our past judicial and attorney discipline cases. Prior judicial misconduct cases in which judges received a sanction more severe than a reprimand all involved some degree of moral culpability that is not present here.

For her "inadvertent" violations, Justice Ziegler received only a public reprimand.

But the particular allegations against Michael Gableman certainly do not appear to have contained similarly mitigating elements of "inadvertent" conduct, at least insofar as he reportedly mulled over the television advertisement's content for several days.

As to the question of moral culpability, it most likely inheres in Gableman's conscious decision to go after Justice Butler personally in response to messages originating with third-party entities over whom Butler had no control and indeed had himself likewise condemned.

That's not the manner of judgment one should expect from a judge. Of course, Gableman's moral culpability was on display throughout his political campaign. The subject of the WJC investigation was arguably the most egregious instance, but there were others as well.

Michael Gableman has until April 1 to reply to the WJC's statement of facts (.pdf; 7 pgs.). No date has yet been set for Gableman's hearing in front of a three-judge panel, but it will take place in Waukesha County. The panel's recommendations then go to the Supreme Court.