When is a rule not a rule?

Or: What would the Strict Constructionist do?

Being a couple of additional thoughts on last week's recommendation to the Wisconsin Supreme Court from a three-judge panel that charges of misconduct brought by the Wisconsin Judicial Commission against Michael Gableman should be summarily dismissed.* Indented below are the two rules of judicial ethics at issue.

The first sentence:

A candidate for a judicial office shall not knowingly or with reckless disregard for the statement's truth or falsity misrepresent the identity, qualifications, present position, or other fact concerning the candidate or an opponent.

The second sentence:

A candidate for judicial office should not knowingly make representations that, although true, are misleading, or knowingly make statements that are likely to confuse the public with respect to the proper role of judges and lawyers in the American adversary system.

Two judges (the majority) found that Gableman did not violate the rule announced in the first sentence (the "shall not"), but did violate the rule announced in the second sentence (the "should not").

The third judge found that while Gableman did not violate the rule announced in the second sentence, Gableman did violate the rule announced in the first sentence, but because the rule announced in the first sentence is unconstitutional, Gableman may not be prosecuted under the judicial misconduct statute (§ 757.81(4)(a)).

In sum, all three judges recommended that the Wisconsin Judicial Commission's complaint against Gableman be dismissed, but for competing reasons. Accordingly, we will set aside the third judge's (Ralph Adam Fine's) concurring opinion for the time being** and consider only the majority's reasoning.

The Wisconsin statutes define judicial misconduct to include "Willful violation of a rule of the code of judicial ethics." Which is exactly what the majority found: the willful violation of a judicial ethics rule.

So why can't Gableman be prosecuted under the Wisconsin statutes?

Because the preamble to the code of judicial ethics reads: "The use of 'should' or 'should not' in the rules is intended ... not as a binding rule under which a judge may be disciplined."

That is, the second sentence is a rule alright, except it's not a "binding rule." But the statute doesn't say "willful violation of only those rules of the code of judicial ethics which are binding rules."

In other words, the statute (a.k.a. "the law") makes no exceptions.

Yet, since this issue is never raised in the panel's opinions, must we then simply assume that the second sentence is not a rule at all?

Because the statute says misconduct is willful violation of a rule of judicial ethics, and the panel majority found that Gableman willfully violated a rule of judicial ethics, but instead recommends the Wisconsin Judicial Commission's complaint be dropped ... wait, what?

If Gableman can't be prosecuted because he's not in violation of the statute, then the rule the majority found that Gableman violated can't be a rule at all, let alone not just specifically a "binding rule."

Right?

The life of the law has not been logic, it has been experience. — Oliver Wendell Holmes, Jr.

Ah yes, thanks for the reminder.

It seems to me that at a minimum, what we have here is an extremely poor fit between the language of the statute, which is the expression of the people through the legislature, and the language of the code of judicial ethics, which is the somewhat more insulated expression of the separate institution of the judicial branch.

We may arguably have a situation where the courts — in this case both those courts which are respectively promulgating and interpreting the rules — are not permitted to create exceptions to a statute in addition to those authorized by the legislature.**

And that, according to the statute, is no exceptions at all.

* Findings of fact, etc. (.pdf; 37 pgs.)

** Judge Fine, quoting from Brown v. Hartlage, asserts that "demonstrable falsehoods" are not protected by the First Amendment, but elsewhere in his opinion he states:

Certainly, it is not a true representation to imply through crafty sculpting of words that because Justice "Butler found a loophole[,] Mitchell went on to molest another child."

(Brown v. Hartlage pits "demonstrable falsehoods" against "erroneous statement[s]," i.e., mistakes. Yet as Judge Fine himself points out in his footnote 4, this was no mere mistake, a finding of fact that all parties including ["apparently"] Michael Gableman acknowledge.)

Nevertheless, Judge Fine concludes that Gableman's speech is protected by the First Amendment. With all due respect to the learned judge, the difference between "demonstrable falsehood" and "certainly false representation" eludes me at the moment.

If it's certain, then it must somehow be demonstrable. And, indeed, Judge Fine did adequately (IMO) make that demonstration.

"Falsehood" and "not a true representation" are synonymous.

*** The loathed and feared "legislating from the bench," another of Gableman's signature campaign slogans, I'm compelled to remind my fellow aficionados of dramatic irony, or else to recruit new ones.