Yeah, this is the Big Bopper speakin'

David Ziemer is a bit more upset with the Capital Times than I was.

Ziemer, who contributes exemplary reportage and analysis to the Wisconsin Law Journal, thinks it was pretty irresponsible of the Cap Times to suggest that Mike Gableman shares the personal views of his attorney.

To be sure, Ziemer is correct and the more firmly grounded assumption is that Gableman retained Indiana lawyer James Bopp, Jr. on account of the latter's enhanced competence and expertise in that field where election law and freedom of speech intersect.

But that doesn't mean his selection is insignificant. Because Bopp probably wanted the case as much as Gableman wanted him on it. Bopp is into challenging these restrictions all over the country.

Bopp is also lead counsel in another action currently pending before a federal court in Wisconsin, Siefert v. Alexander.

John Siefert is a Milwaukee County Circuit Court Judge who is likewise challenging the constitutionality of several provisions of the State's Supreme Court Rules, the ones pertaining to partisan political activities and direct fundraising by judicial candidates.

The adverse party, James Alexander, is the executive director of the Wisconsin Judicial Commission, which administers the SCRs.

Judge Siefert will be up for reelection in 2011, and he wants to participate in those activities which the Rules currently forbid. He (and Bopp) argues that judges can maintain those associations while not compromising their ability to remain fair and impartial in deciding cases. It's a not unreasonable suggestion.

But the provision Gableman is attacking, SCR 60.06(3)(c), is different from the ones Judge Siefert is going after. It has to do with defaming one's electoral rivals, which is probably something self-respecting candidates for the State's highest court shouldn't be engaging in and maybe even face sanctions when they do.

Defamation is generally not found among the absolutely protected categories of speech (such as virtual child pornography, American flag burning, and conservative talk radio).

Indeed, Gableman/Bopp expressly acknowledge that aspect of the Rule's intent, except they claim that its language isn't crafted narrowly enough to achieve that goal and that the Rule serves to capture and proscribe non-defamatory statements as well.

Maybe so, but that's why there's a judicial commission to evaluate and assess individual complaints arising under the Rules.

This is one among Gableman/Bopp's numerous objections, of course, including their defense that the "allegedly" misleading advertisement was simply an innocent and informative collection of disconnected, objectively true statements in no sense meant to suggest or imply anything further about Gableman's political opponent.

Yeah, right. As if the ad wasn't making a broader statement, the sum of its parts so to speak, supported additionally by the insidious visual and aural elements. It was also frankly demeaning and insulting to its intended audience and others, but that's a separate question and there's no Rule against overtly cynical, grasping political ambition.

Rather, it occasionally merits both encouragement and reward.

As Isthmus news editor Bill Lueders puts it,

Gableman wants the rule struck down, so future judicial candidates can more freely lie their way into office. What a fitting legacy that would be for Justice Gableman.

That's not an entirely unfair assessment, if you ask me.

Yet Justice Gableman's detractors had better start to brace themselves. If I were a betting man, I'd wager SCR 60.06(3)(c) will not survive First Amendment scrutiny, if this case happens to get that far. Nor would I consider it much cause for celebration.

But for Bopp/Gableman, it would be victory and vindication. Which is, to co-opt from the thrust of Gableman's legal attack against the Rule, also both prima facie wrong and especially wrong as applied.

Bopp protected from Gableman's views: FedSoc

Hard to believe the stuff these Gableman apologists dream up.

Here's something,* objecting to negative reactions to statements made by Indiana lawyer James Bopp, statements made while representing and on behalf of his client, Michael Gableman:

The first big assumption is that every word said by an attorney automatically and verbatim represents the exact personal thoughts of the client.

Nobody even remotely suggested such a thing but, anyway ...

The [Wisconsin] Rules of Professional Conduct state that an attorney’s representation of a client does not constitute an endorsement of the client's "views or activities" (SCR 20:1.2(b)).

Here's how SCR 20:1.2(b) reads:

A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.

In other words, the rule purports to insulate the attorney from having attributed to him the client's views. For obvious reasons, such as a lawyer providing representation to a white supremacist, or to a doctor who performs abortions (as is explained in the Comments published below SCR 20:1.2(b)).

The purpose of the rule is to help ensure that even clients "whose cause is controversial or the subject of popular disapproval" may secure legal representation. Exactly opposite of what the Federalist Society's student recruiter is trying to show, which is that the client is protected from the attorney's political, etc., views. Baloney.

To be sure, SCR 20:1.2(b) protects Bopp against being ascribed the opinions of Gableman by dint of Bopp's legal representation, not the other way around. But what Wisconsin law says, as the learned counsel William Tyroler (who, to the best of my knowledge, is neither from Indiana nor on the FedSoc payroll) put it here some time ago:

"Surrogates" — client Gableman and counsel Bopp enjoy a principal-agent relationship (as do all attorneys and their clients). State v. Divanovic, 200 Wis. 2d 210, 224-25, 546 N.W.2d 501 (Ct. App. 1996) ("The attorney-client relationship is one of agent to principal, and as an agent, the attorney must act in conformity with his or her authority and instructions and is responsible to the principal if he or she violates this duty.") In a word, Bopp is Gableman's mouthpiece. We can assume that Bopp, the agent, utters words approved by and therefore attributable to Gableman, the principal.

Yet the FedSoc official soldiers on nevertheless:

In a similar way, an attorney’s unscripted response to a reporter’s question should not be treated as though it came from the mouth of the attorney’s client as an exact representation of his personal thoughts on the matter.

Nothing but hyperbole here and in any event not similar to the present situation. Moreover, Bopp made substantially identical remarks in court, on the record, in the course of directly presenting Gableman's defense to a panel of three Wisconsin appellate judges.

Live and in person.

Agent Jim Bopp's statements are reasonably understood as those of his principal, Michael Gableman. That's what the law says.

And I clearly recall a number of occasions when Gableman promised to follow the law (as opposed to following the rules, which seems to have been an endeavor more distinguished by its arbitrariness).

* Intriguing too, is the Federalist Society employee's own objection to Justice Butler's disposition toward the accused's right to present evidence in his defense at trial: Forest Shomberg is innocent.

Is it any wonder, then, that he would champion Bopp's strategeries?

Quote of the day II: Gableman edition

Remarkable:

"Attorney Bopp's comments are irrelevant to the disciplinary proceeding ... " — Marquette professor of law Rick Esenberg

This is a unique perspective, considering the Attorney Bopp comments at issue were delivered before three appeals court judges last September during the disciplinary proceeding.

That is, they're part of the record of the disciplinary proceeding, which is slated to go before the Wisconsin Supreme Court on April 16 and they go directly to the question of Gableman's willfulness to violate the Wisconsin code of judicial conduct, precisely the manner of behavior the Wisconsin Judicial Commission alleges.*

In fact Bopp's mini-jeremiad issued forth in response to questions from the panel of judges requesting Bopp, the legal agent of Gableman, to explain the rationale behind Gableman's teevee advertisement, the very object of the disciplinary proceeding.

Perhaps Prof. Esenberg is distinguishing between Bopp's presentation on the record and his presentation to reporters after the hearing.

But not even Gableman, in his motion to recuse another Supreme Court justice from hearing oral arguments in the disciplinary proceeding, distinguishes between the two sets of commentary:

In [his separately authored concurrence], Justice Crooks condemned statements made by Attorney James Bopp, Jr. ... during oral argument before the Judicial Conduct Panel and to the press afterward.

Gableman seems to think they're mighty relevant indeed, as he's clearly out to protect his own bacon from the ill-advised public declarations of own attorney.

More specifically, he's looking to insulate himself from the perception Attorney Bopp's commentary created in a member of the tribunal before whom Gableman is to be judged, which is certainly one of the broader ironies to have emerged pursuant to this whole escapade.

Here, by the way, is a useful quote from Liteky v. United States, the sole case Gableman cites in his motion to recuse Justice Crooks:

The judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and are indeed sometimes (as in a bench trial) necessary to completion of the judge's task.

That's Justice Scalia, writing for a majority of the Court, supposedly in support of Gableman's efforts to un-preside Patrick Crooks.

Gableman's disciplinary proceeding is currently in its third year.

* The WJC has said repeatedly that Gableman "lied."

Gableman bounced back to Judicial Commission

Upping the ante, three of six justices want a defamation trial

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

Gableman recusal motions keep piling up

This one comes from prominent defense attorney Dean A. Strang.

We have not seen this latest motion, which was filed Monday, but Prof. Richard Esenberg of Marquette Law School assures us their "rationale" is "primarily (though not quite entirely) based on the now infamous Reuben Mitchell ad and certain statements made by Gableman's lawyer, Jim Bopp, in the course of defending Justice Gableman on ethics charges stemming from the ad."

Those two things. "Not quite entirely" = certain understatement.

Bopp: It is a loophole, that had nothing to do with [Mitchell's] guilt or innocence.

Judge Snyder: "Loophole" has kind of an emotional ring to it. It wasn't so much a loophole as it just was a properly argued application of the rape shield law, was it not?

Bopp: Well, uh, it turned out to be, yes.

Yes, somehow the argument was magically transformed from "a loophole" to "not a loophole." Please. Either it was or it wasn't.

The law didn't change. Nay, not one jot nor tittle, as they say.

And we have yet to hear Mr. Bopp explain how the admission or non-admission of evidence* — upon which juries base their findings of guilt or innocence — has nothing to do with guilt or innocence.

Apparently had a jury found Mitchell not guilty, Mr. Bopp would have nevertheless found him guilty and yet accused others of a "willingness to subvert our system." In the course of defending Mike Gableman.

Of course Bopp has a First Amendment right to mouth absurdities.

Coincidentally, a notorious and "shadowy" third-party Mike Gableman fan club, the Coalition For America's Families, brazenly courted a defamation suit for pulling a similar stunt, pronouncing guilty a defendant whose conviction had been reversed. With friends like these, etc.

This is how these people think, and every indication is that Mike Gableman thinks this way too. And that is what these motions for recusal are primarily based upon, not simply two discrete events.

* In this case, evidence that is barred by the Wisconsin legislature, a fact both acknowledged and affirmed by a unanimous Supreme Court.

Gableman's restatement of the law

An Indiana lawyer, speaking on behalf of a Wisconsin Supreme Court justice, reveals his view of the adversarial system of American law:

Reporter: Let me ask you first of all, [regarding] the contention from [the Wisconsin Judicial Commission], that it really hinges on that final statement, 'Mitchell went on to rape again.' Without the argument that using the word 'loophole' implies that he was set free because of Justice Butler in some way, what does that final statement have to do with Louis Butler?

Jim Bopp: Well, it's the type of person that he was willing to represent, and the type of person that he was willing to find a loophole for. It had everything to do with Justice Butler's, uh, judgment, that he was willing to find a loophole to let such a heinous — or to relieve — such a heinous criminal from responsibility for his crime. Whatever that meant, in terms of finding a loophole.

Justice Butler at the time, as a criminal defense lawyer, was urging that Mitchell get, be released. In fact the Court of Appeals ordered him to be released* based upon this loophole. And so it has to do with [Butler's] judgment and his willingness to subvert our system of criminal, uh, bringing criminals into account. That's what it has to do with.

Can a judge who sits on Wisconsin's Supreme Court possibly agree with this proposition, that exercising the constitutionally guaranteed right to effective counsel in criminal matters is "subversion"?

Is this an accurate reflection of Michael Gableman's own attitude when he's sitting in judgment of an appeal in a criminal case?

I'm not aware that the United States Constitution distinguishes among the "types of person" that are entitled to representation.

And I hardly think that seeking a new trial for a defendant against whom evidence was admitted in contravention of the plain language of a Wisconsin statute has anything to do with a willingness to "relieve" the defendant from responsibility for a particular charge.

Whatever one might derive from or say about Gableman's defense against his ethics charges, it is not an especially admirable one. Indeed, it's offensive, in at least two separate senses of the word.

Yesterday when the WJC's counsel was asked, "Who is really harmed?" by Gableman's celebrated television advertisement, counsel responded that it was primarily "the institution of the courts."

That may well be but I believe a far better argument could be made that the individual who suffered the most harm in this affair is Michael Gableman himself. And he continues to suffer harm by way of this manner of statement made by his attorney.

Of course the correct answer to the reporter's question is: Nothing. It's only there in support of the claim-by-implications that Louis Butler's actions were in some way causally connected with the crime.

But the correct answer would not serve Michael Gableman's past — and apparently current and perhaps even future — purposes.

* In fact, this is false. That court made no such order.

It's more than a little ironic that Mr. Jim Bopp would make such an obviously false statement of the record in a case where he's defending the "literal truth" of each and every of his own assertions.

Clearly, Mitchell's "release" and subsequent offense were meant to be causally connected by Gableman to Butler's having "found a loophole," which is what the Judicial Commission's allegations are all about.

Yet Mr. Bopp claimed yesterday, on the record:

There is no effort to attribute the finding of the loophole to his release and subsequent molestation of a child. There is no claim made that that is the sequence of events or the result of the finding of the loophole.

It's extremely difficult to imagine anyone actually believing this.

Whosoever does believe it perhaps could be summoned from among Mr. Jim Bopp's speculative collection of speculative persons who would find nothing morally objectionable about raping 11-year-old children with learning disabilities.

Unfortunately yesterday's proceedings dwelt more on the individual veracity of particular "statements" — English sentences removed from context — than the "statement" so obviously conveyed by the advertisement itself in toto, complete with visual and aural effects.

What does Gableman think of this lawyer?

The Milwaukee Journal-Sentinel reports that Albert Earl Ellis, who is charged with the serial killing of seven local women, has retained defense counsel.

Attorney Russell J.A. Jones announced Ellis, 49, is not responsible for the deaths.

On Wednesday Gableman's own lawyer, Mr. Jim Bopp of Terre Haute, IN, criticized another former defense attorney's "judgment" for being "willing to relieve a criminal from responsibility for his crime."

Mr. Jim Bopp, who represents Michael Gableman in an ongoing judicial ethics investigation in which Gableman stands accused of lying during the course of a political campaign, characterized the activities of defense attorneys as the "willingness to subvert our system of bringing criminals into account."

Where is the subversion exactly, one can't help but wonder.

Does it reside with lawyers performing obligations that are constitutionally guaranteed to criminal defendants, or with a State Supreme Court justice who holds such disparaging views of them?

Or maybe Gableman needs to distance himself from the opinions of his attorney.* After all, he's sitting in judgment of criminal appeals.

In the meantime, it makes even more sense today why a Milwaukee lawyer is seeking Gableman's recusal from his own criminal appeal.

Perhaps his recusal should be sought in every single one of them.

(Amusingly, Wisconsin Attorney General J.B. Van Hollen called the motions for recusal "an attack on our system of electing judges." Van Hollen may wish to reconsider who is launching an attack on what.)

* As in, by publicly and unequivocally denouncing them. Although that may be problematic, as Mr. Bopp's views were expressed in service of explaining the message of Judge Gableman's political campaign.

Speaking as the agent of Michael Gableman. In court. On the record.

Who's paying Mike Gableman's lawyer Viet Dinh?

Or, for that matter, his "Master of Disaster"?

Gableman's attorney, Viet Dinh of Washington, D.C., said the resolution was nothing more than a partisan political attack that "reveals the underlying motivation and insidious nature of the attacks against Justice Gableman." — via the AP's Scott Bauer

I hope it's not much, if that's the best he can come up with. Poor Gableman. He's being attacked. What goes around comes around dude.

Mike Gableman attacks his own current colleagues fer chrissakes.

And who paid the infamous out-of-State agitator Jim Bopp? Bopp, Esq. of Terre Haute did the heavy lifting in Gableman's ethics case.* So effective was Bopp's counsel that he actually caused Justice N. Patrick Crooks to change his mind from favorable to adverse pursuant to a motion for disqualification filed against Gableman in a criminal appeal.

* And who paid Federalist Society member Anita Y. Woudenberg?

Mike Gableman is a walking make-work project for Republican lawyers.

Gableman's revisionist "success"

Says the Milwaukee Journal-Sentinel:

[James Bopp] successfully argued in 2009 that State Supreme Court Justice Michael Gableman could not be disciplined for a campaign ad that said opponent Louis Butler "found a loophole" while representing a sex offender appealing his conviction.

If by successfully argued you mean failed to win your motion to dismiss, sure. More generally, success is measured by succeeding.

Once again: the party arguing the "loopholes" was the State. Butler's position obtained from the plain language of the Wisconsin statute which barred the victim's prior sexual history from being introduced as evidence at trial.* And ten out of ten appellate judges agreed.

Under different circumstances self-described conservatives assert their faithful devotion to the law's plain language, except when as a matter of political expediency hypocrisy is more convenient.

And all three judges who heard Bopp's oral presentation — convened on Gableman's motion, it's important to emphasize — nevertheless found that Gableman violated the State code of judicial ethics.

So it's not clear to me where success enters into any of this.

The entire parade of ugly circumstances, initiated by Michael Gableman and carried forward by James Bopp, was a blight.

* Atty. Bopp: It is a loophole, that had nothing to do with [the defendant's] guilt or innocence.

Judge Snyder: 'Loophole' has kind of an emotional ring to it. It wasn't so much a loophole as it just was a properly argued application of the rape shield law, was it not?

Atty. Bopp: Well, uh, it turned out to be, yes.

No, it didn't "turn out to be." It was all along, right from day one.

Gableman has a constitutional right to lie

And he deliberately exercised it, according to Judge Ralph Adam Fine, who concludes that while Gableman did indeed violate the Wisconsin judicial ethics rule against telling lies about one's political opponent, that rule is an unconstitutional abridgment of speech.

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

Judge Fine's significant analysis begins on page 20.

At least Judge Fine concedes that Gableman's teevee advertisement itself is a "statement," and that setting each of its individual spoken English propositions in isolation is "a crabbed reading, lashed to the mast of sentence-by-sentence literalism, and ignores the way we use language, often deriving significant meaning from implication."

The panel's decision also contains a number of admonitions directed toward Gableman, but all are completely toothless in light of its recommendation that the complaint against Gableman be dismissed.

The other two panelists voted to dismiss the Judicial Commission's complaint because Gableman didn't violate the code of ethics or, at most, only violated that portion for which no prosecution is available.

What's missing from the panel's opinions is any discussion of Gableman's — who was not only a candidate but a sitting judge at the time — professional obligation to adhere to the code of ethics in spite of his desire* to behave outside its restrictions, yet still within the broader protections guaranteed by the U.S. Constitution.

I guess this is what they call a "victory for free speech."

Gableman's lawyer, James Bopp, described the panel's recommendation as a complete vindication, the AP reported.

Disgraceful. I would even say immoral.

So, why exactly does the Supreme Court of Wisconsin require lawyers to complete biennial training in ethics to maintain their licenses? I mean, by what authority does Michael Gableman get to mandate that I complete biennial training in ethics? Also the First Amendment?

Because it's clearly not a moral authority.

* In fact the record shows that Gableman allowed his political advisers to convince him that it was a need: a need for lying attack ads even though those attacks were inspired by communications made by third-party interests that Gableman decided were politically threatening. That decision alone was a twisted ethical failure.

Earlier:
Loophole Gableman, Parte the Firste
Loophole Gableman, Parte the Seconde

Gableman refuses to recuse

As mentioned earlier, a Milwaukee attorney filed two motions with the Wisconsin Supreme Court last April seeking the recusal of one of its members, Michael Gableman, from hearing a criminal appeal.

The first motion was directed to Michael Gableman individually. On Thursday, September 10, Gableman summarily denied that motion (which was to be expected, especially considering the admissions he would have had to have made in order to grant it).

The remaining motion requests the entire court to entertain argument as to whether Gableman "for any reason cannot, or appears that he cannot, act in an impartial manner."*

The factual grounds for the challenge are essentially a rehearsal of Gableman's notorious 2008 political campaign, during which he simultaneously paraded himself as an "ally" in the "war on crime" and disparaged the constitutional role of criminal defense attorneys.

In fact that disparagement so offended a former Wisconsin State prosecutor (since elected a Dodge County circuit court judge) that the latter publicly withdrew his support from Gableman and had published a trenchant letter to the Watertown (WI) Daily Times.

Indeed, the disparagement continued even into last week, when Gableman attempted to defend himself against charges by the Wisconsin Judicial Commission that Gableman intentionally lied about his political opponent in television advertisements.

Now Atty. Stephen J. Meyer of Madison notes the filing of a supplemental motion in the wake of Gableman's pro hac vice** counsel Jim Bopp of Terre Haute, IN's reckless claims before a three-judge panel at an appeals court in Waukesha on Wednesday:

As the [supplemental] motion states: "As such, Justice Gableman's views and defense in his judicial ethics proceeding, as expressed through his attorney, reflect an absolute inability to be impartial in a criminal appeal such as this."

Of course Gableman can insist on his impartiality until the ungulates are repatriated, but there is much evidence to the contrary that points directly to at least the "appearance" mentioned in the statute.

Evidence, that is, which Gableman himself proudly introduced.

* Wis. Stat. § 757.19(2)(g), paraphrased.
** The term has an alternate meaning in Latin.

Bopplicity

Madison's Capital Times this morning runs a couple of paragraphs about James Bopp, Jr., the Indiana lawyer who is handling the Wisconsin Judicial Commission's complaint against Mike Gableman.

Beneath the headline Gableman hires anti-abortion attorney to fight ethics charges, the Cap Times reporter infers:

If there was any question as to where newly elected Wisconsin Supreme Court Justice Michael Gableman stands on abortion or, for that matter, on a host of other social issues, his choice of attorney should provide some clues.

I don't know about that. Obviously abortion has nothing to do with the present action* and Bopp, Jr. is one of the go-to guys nationally on any number of right-wing causes célèbre.

Rather, it was Gableman himself who telegraphed his stances with the magic phrases "judicial conservative" and "plain language of the law," recited ad nauseam throughout his campaign (as if only "judicial conservatives" begin their inquiries with the "plain language of the law" — the point is, the plain language of two laws conflicting often creates ambiguities, which are what appeals courts are called upon to resolve, notwithstanding Gableman's sloganeering).

In any event, so long as the Roe v. Wade line of cases stands and Democrats control both Wisconsin legislative bodies, Gableman's legal opinion on abortion is unlikely to see the light of day.

Then again, if Gableman manages to survive his ten-year term and the tail end of it is served under President Sarah Palin along with Chief Justice Joe the Plumber, that could change.

Miles Davis — Boplicity (1949)

* Although some of the cases Bopp is likely to rely on in support of his First Amendment argument do. Not abortion per se, but the right of electioneering judges to speak about their views during campaigns.

Reporters need to read legal opinions

Or else ask somebody who has. According to the Badger Herald:

Crooks said that Bopp's comments "startled and appalled many in the legal community," and he called on Gableman to distance himself from the lawyer's views.

No, Justice Crooks did not "call on Gableman to distance himself from the lawyer's views." Justice Crooks simply observed that a recent statement of Gableman's pledging to treat "all persons fairly" did not include a repudiation of Bopp's comments. That's just a plain fact.

Justice Crooks's overarching point was that Gableman's lawyer Bopp's remarks turned up in supplemental filings to Aaron Antonio Allen's initial request to have Gableman recused from hearing his criminal appeal and the court was giving short shrift to those additional factors by refusing to order additional briefing on the matter.

A reporter should know the difference between reporting and advocacy, a particularly crucial distinction in this instance, where no such advocacy exists. Gableman also claims that Justice Crooks's observation is a "rebuke" and a "gratuitous personal attack," but neither of these hyperbolic accusations is supported by the record.

Gableman set his own table. He sure ain't no victim.

Walker judicial team brings the Gableman defense

Governor Scott Walker's judicial selection committee (.pdf; 3 pgs.) includes Michael Best & Friedrich partner Eric McLeod, who represented Supreme Court Justice/Gableman in the latter's unsuccessful bid to have a Wisconsin Judicial Commission ethics complaint against him dismissed.

Gableman was accused of lying in a Statewide election in 2008, Year of Our Lord. McLeod and Jim Bopp, a lawyer from Indiana, prepared Gableman's defense. I understand it's fallacious to attribute the client's views to his counsel — after all, that's what Justice/Gableman did in his unprecedentedly sleazy teevee ad* — but the judiciary is all about politics for the Walker administration, so why shouldn't it be for everybody else?

Put another way, you don't want to be cynical, but they force you.

Therefore if this is the message Walker wants to send, good for him, and if it energizes his detractors, all the better. Go for it, by all means.

On the other hand when three of the four self-described "conservative" justices who recently invented a novel form of judicial authority — which otherwise is supposed to derive from the State constitution, by the way, a connexion claimed yet ironically denied by the four "conservatives" to both the State's elected representatives and the trial judge in that case — are subject to ethics investigations and/or formal ethics complaints, it's presumed that Walker's selection committee couldn't do much worse.

Scott Walker's team also includes a fellow Gableman alumnus of Hamline University who, Walker's crack communications specialists advise us, "is currently practicing in the area of . . . Land Lord Tennant Law."

Good grief.

* Moreover, McLeod's co-counsel went so far as to malign the integrity of his client's rival by belittling him as the "type of person" who would take on a criminal case. In fact Bopp, Esq.'s remarks** were so offensive to those concerned with professional ethics that they induced Justice Patrick Crooks to switch his vote from dismissing a set of motions to have Justice/Gableman recused from criminal cases to granting those motions. That alone is a big deal and an even bigger deal that Crooks decided to make public his decision and his reasons for making it.

And it's why Lester Pines ruefully opined that nobody whoever practiced criminal defense — the right to which is guaranteed by the U.S. Constitution — could ever be a Supreme Court justice, which is most probably true, thanks to the cynical manipulation of Wisconsin's system of electing them by dishonest Republican politicians like Mike Gableman.

As was noted here in April, 2008, it's not the voters who can't be trusted when it comes to electing Supreme Court judges. It's the candidates.

** And it's not fallacious to attribute the counsel's views to the client.

I guess I read it differently

According to (of all things) the Wisconsin Law Journal:

A three-judge panel unanimously encourages the state Supreme Court to dismiss a complaint filed against Justice Michael J. Gableman by the Wisconsin Judicial Commission, concluding that a campaign ad run by Gableman’s campaign in 2008 did not violate the Code of Judicial Conduct.

But see:

[W]e conclude that the facts alleged in the complaint do not constitute a violation of SCR 60.06(3)(c) for which discipline may be imposed. — Judge Harry Snyder (emphasis added)

I write separately ... to emphasize that, although the panel recommends that the Commission’s complaint against Justice Gableman be dismissed, no one should be misled into believing that we find no fault with the advertisement in question. Justice Gableman’s counsel virtually conceded at oral argument that the advertisement is misleading because it falsely implies that Justice Butler’s representation of Reuben Mitchell caused or resulted in Mitchell’s release from prison, and it thus contravenes the "aspirational" second sentence of SCR 60.06(3)(c). — Judge David Deininger

Although I agree with the Majority’s bottomline recommendation that the supreme court should dismiss the Judicial Commission’s complaint ... I respectfully disagree with its analysis—specifically, its conclusion that the advertisement did not violate the first sentence of SCR 60.06(3)(c), which is the only provision that could subject Justice Gableman to discipline because of the advertisement. — Judge Ralph Adam Fine

That is, they all concluded that Gableman did violate the code of judicial conduct. Judges Snyder and Deininger decided that Gableman couldn't be disciplined for his violation, and Judge Fine decided that the (different) provision Gableman violated is unconstitutional.

Make no mistake: The panel did not recommend dismissal of the Wisconsin Judicial Commission's complaint because Michael Gableman was found to be innocent of the alleged violations.

Gableman's lawyer, James Bopp, described the panel's recommendation as a complete vindication, the AP reported.

Perhaps, in his troubled fantasies.

Who, exactly, is to blame?

Wisconsin Supreme Court Justice David Prosser writes:

The Allen motion ... has been followed by nine additional recusal motions against members of this court [seven of which are "against" Gableman]. The Wisconsin State Public Defender's office has invited the entire defense bar to file recusal motions against [Gableman] in criminal cases. The number and savagery of these motions is unprecedented and amounts to a frontal assault on the court. The court should have denied Allen's motion quickly, without comment. This would have avoided exposing controversy within the court.

Or, alternatively, Gableman should have anticipated the controversy that he engendered by engaging in scurrilous political subterfuge.

Savagery, indeed. Sorry, but it's mighty hard to sympathize.

That the court today divided 3-3 on Allen's motion to disqualify Gableman (who did not participate*) means the motion is neither granted nor denied.** Notably, Justice Patrick Crooks wrote separately to indicate that he was fully prepared to deny Allen's motion, thus providing a fourth and decisive vote in that direction, had it not been for Atty. James Bopp's shenanigans as Gableman's defense lawyer during and after Gableman's hearing on ethics charges in September.

So beware those nasty unintended consequences. Heckuva job, etc.

* Which may seem obvious, but according to the lead opinion, Gableman was undecided for some time over whether to participate on the more impersonal question of whether the court, as an institution, had the authority to overrule an individual judge of that court's own decision not to disqualify himself from a case.

** Rather, the motion is "not granted." Furthermore, as Chief Justice Shirley Abrahamson put it: "As a practical matter, Justices Prosser, Roggensack, and Ziegler are implicitly telling all litigants in Wisconsin that they need to go to the federal courts to seek relief from a Wisconsin justice who they believe is biased."

Perhaps that's another clue as to the meaning of "Federalist Society."

Earlier: Bopp's demagoguing was completely unnecessary.

Wisconsin's award-winning justice

Albeit not a particularly coveted award:

Lying Hypocrite of the Year: Michael Gableman
The most recent inductee into Wisconsin's once-honorable Supreme Court isn't a great legal mind or even especially qualified. But he got elected in 2008 with big-time help from big business and a campaign ad falsely suggesting his opponent found a loophole to let a child molester re-offend. Faced with a Judicial Commission complaint, he argued that the deliberately misleading ad couldn't be punished because its component parts were true. In other words, noted one judge who recommended tossing the charges, he found a loophole! Here's a 100% true statement: Justice Gableman is a disgrace.

Bill Lueders, making me feel chaste and demure by comparison.

Jim Bopp [Gableman's defense lawyer*]: It is a loophole, that had nothing to do with [Mitchell's] guilt or innocence.

Judge Snyder: "Loophole" has kind of an emotional ring to it. It wasn't so much a loophole as it just was a properly argued application of the rape shield law, was it not?

Bopp: Well, uh, it turned out to be, yes.

That little exchange is always good for a mordant chuckle. Atty. Bopp is no dummy; he knows what total bullshit it is he's defending.

* Who hails not from Wisconsin but from Terre Haute (which — irony of all ironies — translates roughly as "higher ground"), Indiana.

It's a dirty job, but somebody's got to do it. And it's funny, because Reuben Lee Mitchell had a constitutional right to Louis Butler's representation, whereas Gableman has none to Jim Bopp's, his current and ongoing predicament being a civil controversy (although there's nothing at all civil about the cheap sleaze at the heart of it).

Loophole Gableman, Parte the Firste

Louis Butler worked to put criminals on the street. Like Reuben Lee Mitchell, who raped an 11-year-old girl with learning disabilities. Butler found a loophole. Mitchell went on to molest another child.

— Gableman campaign teevee ad script

Here's one of several highlights from the latest pleading in the case of Michael Gableman, the Wisconsin Supreme Court justice accused of violating the State Code of Judicial Conduct:

¶7. That "Butler found a loophole" in Reuben Lee Mitchell's case is true.

No, it isn't. It's false. Literally. By definition.

In fact, the opposite is true: It was the adverse party, the State of Wisconsin and not Louis Butler, which attempted to find a "loophole" in the rape shield statute (Wis. Stat. § 972.11(2)(b)).

Black's Law Dictionary, 7th ed., defines "loophole" as follows:

An ambiguity, omission, or exception (as in a law or other legal document) that provides a way to avoid a rule without violating its literal requirements ...

Finding a way to avoid the rule of evidence announced in the rape shield provision is exactly what the State of Wisconsin tried to do.

In appealing Mitchell's 1985 conviction for sexual assault, Butler did not find — nor did he even claim to find — an ambiguity, omission, or exception in the law. Neither was Butler attempting to demonstrate a way to avoid the literal requirements of the evidentiary rule.

Rather, he relied on that rule's literal requirements, which prohibit the introduction of evidence of the victim's prior sexual conduct.

Mitchell's defense lawyer at the trial (who was not Louis Butler) had several times objected to the introduction of that evidence, which objections were also based on the literal requirements of the rape shield provision, but was overruled. It was those determinations of the trial court judge that formed the basis for the appeal.

The court of appeals decided that not only was this evidence inadmissible — again, based on the literal requirements of the law — but also that it had prejudiced the jury to such an extent that Mitchell's conviction had to be reversed, which the court of appeals did, and ordered a new trial (no charges were lessened or dropped, as Gableman describes Butler's role elsewhere in the same pleading).

The State took it to the Wisconsin Supreme Court, which agreed with the court of appeals that the trial court had erred in admitting the evidence, but determined that that error was harmless as opposed to prejudicial and upheld Mitchell's conviction. It was before the Wisconsin Supreme Court that the State's attorneys argued in favor of "loopholes" overriding the plain language of the law.

Moreover, the (unanimous) Supreme Court found, among other things, that the legislature had originally drafted the rape shield provision as a response to an earlier decision of the Supreme Court (State v. Gavigan), and indeed had drafted it expressly to prohibit courts from reading exceptions ("loopholes") into the law.

It was such an exception unauthorized by statute — or "loophole" — that the State of Wisconsin, and not Butler, argued in favor of. The Supreme Court unanimously declined to accept the State's position.

Gableman's defense of the veracity of his television advertisement is based in a theory that each individually stated proposition contained in the ad is true, notwithstanding the fact that those statements viewed together in context themselves constitute the statement for which he stands accused of violating the Code of Judicial Conduct.

But according to the meaning of Michael Gableman's own carefully considered words and the case history upon which he depends,* not even the individual proposition he defends in ¶7 above is true.

Gableman pledged to apply the "plain language of the law" throughout his political campaign. Surely he should be held to that promise.

On the other hand, Gableman might maintain that his deliberate (and, as he admits, deliberative) choice of the term "loophole" wasn't limited to any technical, legally-defined sense, but instead was an appeal to some manner of squishier, vernacular understanding among his prospective audience of political supporters.

If so, then that line of semantic reasoning would place him at odds with his current, rigid theory of defense wherein the meaning of each individual proposition is strictly defined and discrete, and on a path toward at least a tacit admission that his considered intent was to misrepresent via ambiguity Louis Butler's involvement in Mitchell's appeal by suggesting a connexion between Butler's professional responsibilities and R.L. Mitchell's subsequent, unrelated offenses.

Either way, he's gone and got himself in quite the jackpot and I, for what's it's worth, am not real impressed with his defense even though it was formulated by the illustrious Hoosier, James Bopp, Jr.

To say nothing of his decision to even attempt a defense.

* ¶13. Justice Gableman made every reasonable effort to ensure that the Ad was accurate by ... [b]eing familiar with the Mitchell cases in general, with their facts and holdings, and the arguments advanced by Butler, who represented Mitchell.

Emphasis added.

Gableman free speech claims dismissed

For now, at least. This is a bit odd:

The judicial conduct panel adjudicating the Hon. Michael J. Gableman ethics case have [sic] made a ruling.

The judges sitting on the panel have dismissed Gableman's counterclaim, filed earlier this year.

They said that Gableman should instead file a response to the initial motion against him before January 5.

The counterclaims were contained in that portion of Gableman's Nov. 19 answer to the Wisconsin Judicial Commission's Oct. 7 complaint consisting of Gableman's legal attack against the State judicial ethics rule on First Amendment (freedom of speech) grounds.

Gableman responded to all of the allegations in the Commission's complaint and in addition argued an affirmative defense and filed the counterclaims, all within one document. Almost certainly Gableman will refile the counterclaims separately.

But will Indiana's James Bopp, Jr. get to bill him two times?

What is the sound of one irony meter exploding

Gableman wants Crooks off of ethics case

Here's why:

Notably, Justice Patrick Crooks wrote separately to indicate that he was fully prepared to deny Allen's motion [to get Gableman off of his case], thus providing a fourth and decisive vote in that direction, had it not been for Atty. James Bopp's shenanigans as Gableman's defense lawyer during and after Gableman's hearing on ethics charges in September.

Unintended consequences.

Apparently Gableman is concerned about getting a fair hearing before an impartial tribunal, and is troubled by "gratuitous personal attacks" and "personal criticisms" which might have a tendency to generate the appearance of judicial bias against the respondent, Gableman.

Who would have ever heard of such things.

Here's my question: If Justice Crooks recuses himself from future participation in Gableman's ethics case, will Crooks thereby be denying Gableman's First Amendment right to vote in a general election for the State Supreme Court justice of his choosing?

What about the 499,636 Wisconsinites who voted for Justice Crooks?