Sadly, the approach offered in defense of the advertisement at issue here would approach the Code of Judicial Conduct in the manner of wordplay and linguistic gamesmanship, rather than as an embodiment of substantive ethical standards.
— Opinion of Abrahamson, Bradley, and Crooks
To the surprise of probably no one, the Wisconsin Supreme Court has reached an "impasse" in the matter of Michael Gableman (depicted at left). Three justices, Prosser, Roggensack, and Ziegler, said last night they "anticipate" that the Wisconsin Judicial Commission will formally abandon its ethics complaint against Gableman (significant to the court's opinions, a complaint that Gableman himself has not been successful in having dismissed). [eta: Gableman is reportedly dancing a victory gavotte-by-proxy.]
The other three justices, Chief Justice Abrahamson, Bradley, and Crooks, gave "directions" to the Commission to request a trial by jury to determine whether Gableman's scurrilous 2008 teevee ad deliberately and maliciously misrepresented facts about then-sitting Wisconsin Supreme Court Justice Louis B. Butler.
It's not immediately clear whether half of an equally divided court (Gableman, titularly the seventh member, is not participating) has any authority to compel those directions in this case. Nor is it clear, even if half the court does possess that authority, whether the Judicial Commission long since relinquished its opportunity to exercise its own authority to request a jury's factual review.
According to the court's general provisions in the Wisconsin statutes, the Commission may request a jury hearing in a matter, but it has to do so before it files a formal complaint, which it already did in October, 2008.
The latter requirement, it seems to me, presumes a resolution once the Commission advances its case, something that has yet to be achieved even after its reaching through the State Supreme Court. But the court yesterday was unanimous in its view that the next move, whatever it might be, belongs to the Judicial Commission.
[eta: Learned counsel Rob Henak suggests it move into Club Fed.]
The Commission in 2008 chose instead to present its case not to a jury but before a three-judge panel. That presentation happened last September in Waukesha County. Two months later the panel handed up its recommendation, which the Supreme Court is not obliged to follow. The panel recommended that the complaint against Gableman be dismissed, but two judges also found that Gableman had violated a different provision of the code of judicial ethics.
The third panelist, Ralph Adam Fine, disagreed substantially and found Gableman had by his deeds committed the more serious, punishable violation alleged by the Commission, but that the ethics rule itself was an unconstitutional abridgment of speech and thus not enforceable against Gableman.
As I said at the time, Judge Fine's separate opinion was the most significant. That turns out to have been an accurate prediction.
Judge Fine was the only one of the panelists who rightly found ludicrous Gableman's defense that the statement clearly professed in his ad, that Butler's professional obligations as defense counsel contributed to causing the rape of an 11-year-old mentally disabled girl, could be overlooked in favor of isolating an audiovisual ad's script, breaking that script into individual, brief English sentences and, moreover, ignoring the meaningful connections between those.
It's a defense that Prosser, Roggensack, and Ziegler succumbed to, and one that Abrahamson, Bradley, and Crooks rejected entirely.
The latter three justices determined that Gableman's statement — "statement" is a crucial term of legal art in this case whose meaning as applied to the ad has never been sufficiently explored, imho — regarding Butler's causal connection with the rape (the others coyly attribute the message to "then-Judge Gableman's campaign committee") was arguably and provably defamation uttered in malice and as such is not availing of First Amendment protection.
Those justices emphasized — as has been repeatedly emphasized at this here blog — Gableman's own affirmations that he had made himself thoroughly familiar with all of the substantive and procedural circumstances of Butler's representation as an appellate attorney for Reuben Lee Mitchell and therefore had to have known that his — not his "campaign committee's" — teevee ad conveyed a false statement of fact. (Or, as the Commission puts it, Gableman lied.)
The three also tossed in a factor contributing to their determination that hadn't been addressed until, ironically, Gableman's lawyer James Bopp of Indiana brought it up during the proceedings. This has to do with the case citations that appear as text at the bottom of the teevee ad which, when investigated as Mr. Bopp had suggested, deviously point away from the fact that Butler's appeal on his client's behalf was ultimately rejected by the Wisconsin Supreme Court.
More later. Obviously there's much to say about these opinions.
Opinion of Prosser, Roggensack, and Ziegler
Opinion of Abrahamson, Bradley, and Crooks
Although apparently overlooked by both opinions, the real question seems to be not what the Commission should do before the Court of Appeals panel (dismiss or hold a jury trial), but whether it should petition for cert. to the US Supreme Court. After all, the central question here is whether Justice Gableman's knowingly false ad is protected by the First Amendment. That question will not change with a trial limited to determination of the facts, which are not in dispute (and, therefore, proved by clear and convincing evidence, contrary to Justice Roggansack's opinion).
ReplyDeleteThe suggestion that the Commission should just dismiss the allegation without final resolution of the constitutional issue because half the Wisconsin Supreme Court wants this all to just go away simply does not make sense. The fact that we have an evenly split Court on the issue of application of the First Amendment suggests exactly the type of uncertainty that would justify a cert. petition.
On second thought, there may be a problem that this is not a "final" decision that could be appealed to the Supreme Court. The Commission might need to move for reconsideration, noting the futility of a jury trial, and requesting a final decision based on the fact that a 3-3 tie results in a denial of discipline. The wording would have to be carefully done so it could not be distorted by those with a political bent into a "waiver."
ReplyDeleteCould a jury trial be determined as futile as a matter of law in this case?
ReplyDeleteMy thought is that jury, as the fact finder, could still find that the ads were not misleading. If that should happen, Gableman would be exonerated and thus, the trial would not be futile.
I'm also puzzled by the Roggensack crew's assertion that there was no motion for summary judgment. (par. 55) When they note previously that "Justice Gabelman moved the three-judge panel for summary judgment dismissing the complaint. The commission agreed that summary judgment was an appropriate procedure to use in the Panel's recommendation to the Supreme Court because the material facts were not disputed."
of course, this overlooks that even if parties agree on summary judgment that the material facts are undisputed, both the circuit court and the reviewing court must determine, as a matter of law, whether any material facts are in dispute. Precision Erecting, Inc. v. AFW Foundry, Inc., 229 Wis.2d 189, 197, 598 N.W.2d 614 (Ct. App. 1999).