February 10, 2008

Gableman: An inconvenient truth

Burnett County Judge Michael Gableman, who is challenging Wisconsin Supreme Court Justice Louis Butler in an April 1 election, has a link at his campaign website to an AP story discussing the court's decision in Helgeland v. Wisconsin Municipalities (.pdf; 105 pgs.), which was released last Thursday.

Helgeland addresses whether anybody and their dog can become parties to a separate lawsuit challenging the State's policy against providing health care benefits to the same-sex partners of State employees. Four Justices, including Butler, conclude that the municipalities that seek to join the lawsuit cannot do so, because they “failed to demonstrate ... how their interests relate to the subject of the action in a direct and immediate fashion.”

What Gableman's campaign doesn't link to is the other decision of the court released Thursday, State v. Hambly (.pdf; 63 pgs.), a criminal defendant's appeal originating in Washington County pursuant to the arrest of a suspected coke dealer and addressing whether statements made by the suspect during a disputed invocation of his Fifth Amendment rights were admissible at his trial.

One may legitimately wonder why the Gableman campaign might want to publicize Helgeland, but not Hambly. It seems to me there are at least two reasons. The first is that in Hambly, Justice Butler "sided with law enforcement," an inconvenient fact of life that flies directly in the face of Gableman lieutenant Darrin Schmitz's claim that Butler "consistently sides with criminals over law enforcement."

Not only that, but Butler joined a separate concurring opinion along with two of the court's "traditionalist" heroes, Justices Roggensack and Prosser (the third "traditionalist," Justice Ziegler of Washington County, sat this one out).

The second reason has to do with the anti-Butler contingent's objections to his having departed from U.S. Supreme Court guidance in favor of broader interpretations of Bill of Rights provisions as exemplified (so they claim) by the contingent's signature criminal case, State v. Knapp. According to this view, which Butler's detractors describe as "New Federalism," the Wisconsin Supreme Court should be bound by federal interpretations of the Bill of Rights, and not expand those protections further than have the federal holdings.

In fact, in Hambly, while finding for the State on a different rationale, it's the court's "traditionalists" that go to great lengths to expressly reject an argument made by the State that the defendant must not prevail because the U.S. Supreme Court had previously declared, "We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than 'custodial interrogation.'"

So, if criticisms over "New Federalism" are to be leveled against Justice Butler, they must necessarily be leveled against the court's so-called "traditionalists" as well. Indeed, those great lengths involve distinguishing the facts and law in Hambly from the U.S. Supreme Court case upon which the State urges the court to rely, which was precisely the exercise in Knapp.

All of this goes to demonstrate two things: (1) Hambly is an inconvenient truth to the Gableman campaign and (2) things are not always as they seem, and often do not resonate well with Gableman's overly simplistic depiction of Justice Butler's jurisprudence.

And, to put it mildly, one would be well advised to be extremely wary of that overly simplistic depiction.

[Please visit the iT Butler/Gableman archive.]

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