Gableman's Brown-out

Louis Butler provided the deciding vote to overturn a sexual predator finding by the circuit court resulting in the release of the defendant into Milwaukee County. — Michael Gableman

According to this press release, One Wisconsin Now is set to file a complaint with the Wisconsin Judicial Commission over Burnett County Judge Michael Gableman's continuing portrayal of State v. Brown, a State Supreme Court opinion in which Justice Louis Butler joined the majority.

The Capital Times would appear to support it.

OWN suggests Gableman's description of the case runs contrary to a Wisconsin Supreme Court Rule which reads in part, "A candidate for a judicial office shall not ... misrepresent ... [a] fact concerning the candidate or an opponent."

I'm assuming the foregoing is supposed to apply to Gableman's claim of Butler's vote in Brown "resulting in the release of the defendant into Milwaukee County." Richard A. Brown is still in custody, and not even in Milwaukee County. He could die in custody tomorrow, for all we know, and never make it to town.

It's a fine point but the result Gableman describes hasn't occurred. In that sense it is a misrepresentation of a fact. I would go even further to say that Gableman doesn't know what's going to happen to Brown, nor where and how his supervised released will be administered.

Unless Gableman is seeking to add soothsayer to mindreader, among his catalog of remarkable propensities.

The other part of the Rule allegedly violated is quite a bit squishier: "A candidate for judicial office should not ... make statements that are likely to confuse the public with respect to the proper role of judges and lawyers in the American adversary system."

He shouldn't, but he may.

That provision is practically impossible to enforce. Statements that arguably fall within its purview can only be corrected with other statements. And even then, there may be confusing statements made in multi-million-dollar advertising campaigns vs. some obscure blogger with half a dozen readers.

Presumably the portion of Gableman's claim that runs afoul here is "Louis Butler provided the deciding vote." Gableman has no idea how the court's deliberations in reaching the Brown result proceeded; they take place in private. But it's also difficult to say whether Gableman's statement had the effect of confusing the public. Maybe the public was already confused.

There's little doubt this case, and this language, was selected by the Gableman campaign to inflame, if not confuse, the public. On the other hand, anybody strolling around Water St. and E. Juneau Ave. of a mild Friday evening wouldn't notice one extra sex offender anyway.

Butler and Prosser, judicial traditionalists

A few items related to the ongoing election campaign between incumbent Wisconsin Supreme Court Justice Louis Butler and his challenger, Burnett County Judge and sometime Republican gubernatorial contributor Michael Gableman.

First off, a very thoughtful and well written piece in the Badger Herald by Suchita Shah, a UW student of neurobiology (and the courts, it would appear), is worth checking out here.

Next we have the campaign watchdog committee, the WJCIC, issuing a couple of warnings, one to Gableman, and the other to some anti-Gablemans (nothing for Butler, however).

The WJCIC goes after a third-party outfit called the Greater Wisconsin Committee for a 30-second spot it produced called "Meet Mike Gableman." There's a QuickTime version at this link (it's actually pretty funny, and Wisconsinites sure do love their bobblehead dolls).

The spot presents a number of documented facts, and suggests there may have been some partisan political shenanigans leading to Gableman's Burnett County judgeship. Cory Liebmann has some more documentation on "Gableman's Suspicious Appointment" here and here.

But the WJCIC says the ad "implies, without explicitly stating, that Judge Gableman somehow committed an ethical lapse in the events leading to his appointment by [Republican] Governor Scott McCallum as a circuit court judge in Burnett County," and calls for the GWC to "immediately remove this ad from the airwaves."

That ain't going to happen.

The other WJCIC tongue-lashing concerns the Gableman campaign's characterization of State v. Brown, which is discussed below. (I don't know why the WJCIC is focused on the Margaret Farrow letter; the identical claims appear in Gableman's own official literature).

Butler the traditionalist

A more general concern voiced by the WJCIC is primarily of interest to law nerds, although it's probably the most salient point in the press release. According to Gableman, Justice Butler cast "the deciding vote" in State v. Brown, the implication being that if not for Butler, Richard A. Brown's petition for supervised release would have been ultimately denied.

But that isn't the way it works. It isn't as if six judges are deadlocked 3-3 on a question and Justice Butler happens to walk by and one of the six yells, "Hey Louis, what do you think? We need a tie breaker."

More importantly, as the WJCIC suggests, according to the deciding vote theory, Justice David Prosser is equally responsible for allowing Brown's petition to move forward and Prosser is, according to Wisconsin Manufacturers & Commerce, not only the most "traditionalist" member of the court, he's also its least "activist."

So it's practically a self-defeating claim for the Gableman campaign to criticize Butler's vote in Brown when Prosser voted exactly the same way. Not only that but Justice Patrick Crooks, who WMC places on the "activist" side of the ledger, dissented in Brown. But obviously the Gableman campaign doesn't want you to know that, otherwise they wouldn't be able to shout, "zOMG sex offender on the loose!!!1"

Besides, if Prosser the traditionalist hero voted to reverse the court of appeals, doesn't that mean Butler got this one right? It also means that Michael "Stark Contrast" Gableman would eschew the traditionalist position in favor of the activist. And that can't be good.

No wonder he refused to engage further questioning on Monday.

One thing's for sure, Butler's recently hired communications director, Erin Celello, is no shrinking violet, and the AP's Scott Bauer reports that Celello sets up the Brown trilemma as follows:

Celello said Gableman's comments show that he either hasn't read the court's decision, doesn't understand it "or is purposely lying about it as a desperate attempt to get any traction in this race."

Lastly, a stellar example of responsible journalism from the Inter-County Leader, which published an unsigned piece describing the GWC effort as "smear television ads launched by a shadowy special interest group" and quoting Gableman lieutenant Darrin Schmitz as saying, "It looks like Louis Butler sent his liberal, special interest friends to do his dirty work for him."

The item goes on to again state that the GWC is "a shadowy group, which launches smear campaigns that mislead voters and do not pass the truth test." At the very end we find the source of the article: "submitted." Submitted by Darrin Schmitz, I think is a pretty safe bet to place. It's also likely a shoe-in for the Columbia Journalism Review's "Darts & Laurels" section, in that it's practically a bullseye.

It is, however, a clever "pot v. kettle" game Schmitz is playing.

[Please visit the iT Butler/Gableman archive.]

The ghost of Gableman to come

Burnett County Judge Michael Gableman is having some trouble with grammatical tenses: past, present, future ... that sort of thing. And he's insisting on maintaining his own idiosyncratic understandings despite being confronted with the facts.

Debating in Madison yesterday, incumbent Justice Louis Butler suggested that Gableman should correct a statement made by former Lt. Governor Margaret Farrow in a hyperventilating missive (.pdf; 4 pgs.) that began circulating earlier this month.

The statement has to do with the Wisconsin Supreme Court's decision in State v. Brown (.pdf; 52 pgs.), which reversed both circuit court and appeals court denials of a petition for supervised release filed by Richard A. Brown, who was convicted of second degree sexual assault nearly 15 years ago.

As AP reporter Scott Bauer puts it,

The offender, Richard A. Brown, was never released from prison. Butler called the letter "simply false," saying all the court's ruling did was order a release plan for Brown.

Gableman refused Butler's call to retract the letter, saying the court's ruling would have resulted in Brown's release had it not been for another factor that kept him in prison. He did not say what that was. After the debate he declined to comment in detail about the case, saying as a judge he didn't want to prejudge any case that may come before him.

How convenient, on both counts. First of all, it wouldn't have been terribly effective for Gableman to have repudiated Farrow's letter anyway, because the statement in question is lifted practically verbatim from Gableman's own campaign literature.

It comes from a list of brief (as in, one sentence) case synopses "Paid for by Gableman for Supreme Court," and distributed last year by three sheriffs and three district attorneys. For comparison:

Louis Butler provided the deciding vote to overturn a sexual predator decision by a circuit court, resulting in the release of the predator into Milwaukee County. — Farrow

Louis Butler provided the deciding vote to overturn a sexual predator finding by the circuit court resulting in the release of the defendant into Milwaukee County. — Gableman

(One sentence case synopses are practically by definition misleading, incidentally. Do not trust them, especially when they issue from a political campaign.)

Gableman is wrong, and Butler is correct, in that the Supreme Court's order was not to "release" Brown into Milwaukee County, but rather to instruct the lower court "to notify the Department of Health and Family Services that it should submit to the circuit court, pursuant to Wis. Stat. § 980.08(5), a plan for Brown's supervised release."

Big difference, and one in which the circuit court (not to mention the DOC) retains discretion and control over the supervised release plan.

Butler should know, since he joined the majority opinion, and also wrote separately to discuss a technical point of the law of evidence. And Gableman should know better, because he's advertising himself as qualified to serve on the State's highest court.

At the moment, Richard A. Brown is nowhere near Milwaukee County. He's in a supervised living facility in Mauston, 150 miles away. And it's unlikely that Brown will be wandering around Milwaukee County unsupervised anytime soon.

There's little question that Richard A. Brown is an eminently disturbing character, with an equally disturbing past. He's also dangerous; at least, that has been the determination of the State, and he's a registered sex offender for life.

But, like it or not, the Wisconsin legislature has put in place the means by which people like Brown (and worse) can apply for various degrees of supervised release from prison. Furthermore, to say that the circuit court and appeals court decisions that denied Brown's petition were close calls is an understatement.

So apparently this is Gableman's latest campaign strategy: to mischaracterize not only the law but the facts of Supreme Court opinions and then, when asked to explain, retreat under the Cone of Silence that supposedly prevents him from expounding further on the questions addressed in the case.

Funny, because Gableman has been announcing for a robust, constraint-free discussion of issues in his campaign to unseat Justice Butler. I can't say I'm real impressed with this tactic, and nobody else should be, either.

Gableman admits to conflict

Casts deciding vote in defamation case against Milwaukee Magazine

The result is that the lower court's decision, ordering the dismissal of Bradley DeBraska's complaint against the publication, stands.

Gableman is very familiar with the expression, "deciding vote."

Why Wisconsin Right to Life was not charged

Further to yesterday's blargh entry, "Bribes" are a wash.

To recap, here's the operative portion of WRtL's email:

The Wisconsin Right to Life and Family Action coalition is offering rewards for volunteers who make an impact over the weekend by educating and encouraging family and friends to vote by absentee ballot. Here are the rewards: $25 Gift Card for any volunteer who can get at least 15 pro-life/pro-family voters to complete an Absentee Ballot Application dated by Tuesday, July 5th.

This is the assistant district attorney's own condensation of the statute:

(1m) Any person who does any of the following violates this chapter:

(a) Offers [or] gives ... anything of value ... to ... any elector, or to ... any other person, in order to induce any elector to ...[v]ote or refrain from voting.

Offer or give. Give or offer. That is, whether the thing of value is given or offered, each action is equally violative of the statute. It is not more violative to give than to offer, nor is it worse to offer than to give.

Yesterday ADA Landgraf decided that it is worse to give than to offer.

Moreover, he decided that it is worse to request than to offer, even though the statute says absolutely nothing about any requesting. And in the course of deciding so, he characterized the statute as follows: "The 'thing of value' need only induce the elector to vote." Italics are his.

Except that is not at all what the statute says. The inducement — or "encouragement," if you will — obtains from the any other person who is offered the thing of value. Contra the ADA's reading, it is not the "thing of value" that provides the inducement to vote; rather, it's the "any other person" who was offered the thing of value who performs the inducement to vote. The latter action is WRtL's "encouragement."

Any person offers a thing of value to any other person, who in turn "induces" an elector to vote. There are three parties in the statute.

I continue to see no way to deny that and it should probably be fixed.

Notably, part of Mr. Landgraf's analysis involves postulating a set of hypotheticals that are very much unlike the circumstances before him. For example he imagines a rally featuring "a national recording artist who would otherwise perform only for persons paying far in excess of a $1 admission fee." That's entirely unlike WRtL's offer, to coin a phrase.

But on the other hand Landgraf concludes that, "fact patterns that are not entirely unlike those presented here may well violate the Election Bribery statute, even if Absentee Balloting is involved." So why not charge WRtL? Throughout Landgraf's analysis, he denotes both what he perceives as the lack of clear guidance in the language of the statute itself and the fact that "no judicial opinions offer guidance to help answer" the question, "What does it mean to induce an elector to vote?"

So should there be a judicial opinion, or will the ADA's opinion suffice?

I expect there will eventually be a judicial opinion, just not today.

I will note that Black's Law Dictionary, 7th ed., defines inducement as "enticing or persuading another person to take a certain course of action." The word WRtL uses is "encourage." The Pocket OAD, 2nd ed., defines induce as "persuade or influence someone to do something."

Encourage means "give support, confidence, or hope to someone," or "help an activity, belief, etc., to develop." That's not "inducement"?

Additionally, the Milwaukee County district attorney's investigation unearthed a trove of correspondence among WRtL, its partner Wisconsin Family Action, and those groups' "family and friends," detailing the two outfits' objectives. Not only were those outfits' efforts directed at inducing voting, and not only were they directed at inducing voting for sympathetic candidates, they were directed at inducing voting for a specific, named candidate: Republican Senator Alberta Darling.

The longer view takes into consideration the fact that ADA Landgraf had two separate cases on his hands: the one involving WRtL and another involving Wisconsin Jobs Now, which was organizing van rides for prospective voters to City Hall at the starting point to which there was available "refreshments" ("barbeque") if one wanted them. In the latter case Landgraf acknowledged — through testimony provided by, of all people, Media Trackers, which had previously accused Wisconsin Jobs Now of "multiple violations of election law" — there were none of the connections between the three parties contemplated by the statute.

The ADA also makes much of the fact that Wisconsin Jobs Now is aligned with Democratic interests, while Wisconsin Right to Life is aligned with Republican interests (specifically, its interests in incumbent Republican Senator Alberta Darling). Whereas the ADA finds not only no connection between WJN and any specific candidate, he finds no connection between WJN and any specific political party. And whereas WRtL admits its connection to and support of a specific candidate, despite a depiction of its activities as "issue ad[vertising]" which, in another area of election law, is by definition the antithesis of named-candidate advertising.

Landgraf also emphasizes the fact that each of the legal memoranda he solicited from both Wisconsin Right to Life and Wisconsin Jobs Now tended to exonerate from prosecution the activities of the other.

In short the sense conveyed by ADA Landgraf's letter to the circuit court judge is that this escapade, as a whole, is a wash. Offsetting penalties, by the gridiron analogy. Personally I still find the "barbeque" and the "gift cards" circumstances very much distinguishable as applied to the plain terms of the election bribery statute. Mr. Landgraf admits as much but eschews a "common sense" approach in favor of, among other relatively nebulous and extra-textual concepts, his hypothetical situations.

The ADA wasn't wrong — arguably his conclusion not to prosecute isn't unreasonable nor an abuse of his discretion — and it clearly was not an easy decision to arrive at. I reckon that but not for the "barbeque," WRtL would have gotten served a criminal complaint. So thanks to the heroes at Media Trackers — whose own testimony proved that its own accusations were complete bullshit — and the MacGyvers, who seemingly induced the Media Trackers "barbeque" witness* after another Media Trackers principal "refused to cooperate" with the DA's investigation.

In brief: Legal bullet dodged, because politics. They are often difficult to extricate from one another, there remains little question about that.

* Who testified he never even saw, let alone ate, any barbeque. Indeed, Mr. Landgraf's report is worth reading as much for its legal commentary as for its objective portrayal of Media Trackers' pathetic dishonesty.

Gableman sets the standard ... in MN

A former Republican congressman and governor of Minnesota, Al Quie, must have been following last year's Wisconsin Supreme Court election more closely than the 81% of eligible voters here who weren't.

On Thursday, Quie will testify to that neighboring State's Senate judiciary committee with a view to carefully avoiding the Wisconsin experience. Quie and several other local notables are recommending reforms to Minnesota's system of electing judges.

And it's clear from this column at MinnPost.com that the deserved villain of the piece is Wisconsin's own Michael Gableman (although Gableman attended law school in St. Paul, so L'Etoile du Nord can proudly assume its share of the responsibility).

But at least one further clarification is in order:

Gableman accused the incumbent Butler of being the "deciding vote" resulting in the "release of [a sexual] predator into Milwaukee County." But the predator was never released. He served his complete sentence before offending again.

Actually those were two separate cases, and two separate falsehoods propagated by Gableman. The "predator" in question is this one,* whereas the complete sentence-server is at the heart of Gableman's ongoing ethics investigation by the Wisconsin Judicial Commission.

Speaking of which, there's unlikely to be a resolution in that case until after this April's election, which currently features yet another Hamline law school alumnus telling every Republican within earshot that Wisconsin's Chief Justice is "intellectually dishonest."

* Who remains in custody still, incidentally.

Sarah Palin Truth Squad to the rescue!

Margaret Farrow, a notorious Republican lobbyist and sometime lieutenant governor of Wisconsin, has been appointed by John McCain to the local branch of his Sarah Palin "Truth Squad," supposedly intended to counter "attacks" against McCain's veep choice and soulmate, reports the AP.

Margaret Farrow is also a former member in dubious standing of a Judge Mike Gableman "Truth Squad," which plied its disingenuous trade across the State earlier this year.

While Farrow has some experience with political attacks, having perpetrated a considerable number of them herself, whether she'll satisfy the "Truth" component is an open question.

Among the special versions of "Truth" that Margaret Farrow championed was this claim, dated February 1, 2008:

Louis Butler provided the deciding vote to overturn a sexual predator decision by a circuit court, resulting in the release of the predator into Milwaukee County.

More on that at this link and also at this one.

Richard A. Brown, the predator in question, was at that time and remains to this day safely ensconced in a Wisconsin Department of Corrections supervised living facility in Winnebago County.

That leaves the Sarah Palin "Squad," at least.

UPDATE: The freshly minted Sarah Palin "Truth Squad" swings immediately into robust action, inadvertently excoriating candidate John McCain for comparing Senator Hillary Clinton to a pig.

Wisconsin: Why isn't Gableman being recalled?

"Appearance of impropriety" is a dead, legal fiction 'round here.

State Supreme Court Justice Michael Gableman in two cases cast the deciding vote in favor of parties represented by a law firm that gave him tens of thousands of dollars of free legal services, a review of State records shows. — By Patrick Marley.

Tens of thousands of dollars worth. For free.

Thank heavens it wasn't a Speed Queen rib.

Except nothing is for free, is it.

"That's a judgment call," Rick Esenberg said.*

Naturally. Rick Esenberg and his then-research assistant at the Marquette University Law School stumped extensively for Gableman. Esenberg even appeared in a video for Wisconsin Manufacturers & Commerce, which spent like the bejeezus getting Gableman elected.

Rick Esenberg should have declined to comment. It does not look good on him that he did, considering his status as an enthusiastic Gableman surrogate. This blog has been following Gableman's antics for four years.

Kind of a sordid anniversary ain't it.

I was still an idealist in those days. No more.

* "Thanks for the golden insight, Rick." — Mike Plaisted

rofl

Heckuva job on Brownie

A Fighting Bob guest blogger, Juris Prudence, offers another enlightening angle on the State v. Brown episode discussed below.

To wit, a bit of procedural history:

What hasn’t been pointed out yet, however, is that the [former Republican Governor Scott] McCallum administration, which Gableman was trying to curry favor with, was the same McCallum administration that was to blame for the decision in State v. Brown. * * *

"On December 30, 2002, the department (of health and family services) filed the updated report, supporting supervised release. The report stated that Brown 'ha[d] completed sufficient treatment at (Sand Ridge) to reduce his risk for sexually violent behavior to the point that he has become an appropriate subject for supervised release.'"

After this filing by the McCallum DHFS, the state then didn’t call a single psychologist to oppose McCallum’s DHFS’s request for release. The result was, not surprisingly, that the state failed to provide enough admissible evidence — so it failed to prove its case. You can’t blame the referee for calling the game for the defendant when the state doesn’t show up to play — or worse, where the administration throws the game.

Why isn’t Gableman attacking McCallum? Of course! Because Gableman gave thousands of dollars to McCallum, held fundraisers for McCallum, and then McCallum gave Gableman his job.

To which I would only add — or inquire, as it were — who was it that argued on behalf of the State of Wisconsin to deny Richard A. Brown his petition for supervised release, before both the Court of Appeals and the State Supreme Court?

None other than Peggy A. Lautenschlauger, Attorney General under current Governor Jim Doyle. Evidently Gableman's benefactors in the McCallum administration didn't leave her much to work with. Although she managed a win in the Court of Appeals, it was all over by the top court (thanks to Justice Prosser's deciding vote).

Prosser, Roggensack hypocrites? Of course!

Atty. Tom Basting writes:

The conference regarding [learned counsel John] Dawson was held in secret. After the vote was taken not to reappoint, Justice Pat Roggensack spoke to Gannet Wisconsin Media (according to the Appleton Post Crescent) and attempted to disclose what had occurred in the closed session — which she had insisted be closed.

Meanwhile Justice Prosser is deciding who gets reappointed to the chair of the Wisconsin Judicial Commission at the moment Justice Prosser is the subject of a pending Wisconsin Judicial Commission prosecution.

How embarrassing. For everybody.