Loophole Gableman, Parte the Seconde

While we wait for the Wisconsin Judicial Commission to schedule Michael Gableman's hearing before a three-judge panel in Waukesha County, we can have another look at Gableman's legal defense against his alleged violation of Wis. Stat. § 757.81(4)(a), willful judicial misconduct.

The following is from Gableman's Responsive Statement of Facts in Case No. 2008AP2458-J,* filed with the Supreme Court on Apr. 1, in rebuttal to the Commission's Statement of Facts, of Feb. 27:

9. The underlying facts giving rise to the Commission's Complaint are these:

D. Although urged by his campaign to release the responsive ad as soon as possible, Judge Gableman insisted first upon reviewing the entire video presentation because he wanted to make sure he understood what was going on, not just what the words in the ad were.

E. After receiving the text of the ad, and the video of the ad, Judge Gableman was not pleased with the "tone" of the ad.

F. Accordingly, Judge Gableman delayed the release of the ad for a week while trying to work out possible other endings to the ad. Ultimately, however, he did not make any changes.

Gableman's response:

Justice Gableman further disputes Paragraphs 9(D), (E), and (F) because they are misleading. Those Paragraphs are misleading because they do not set forth the fact that during the time leading up to the publication of the Ad, Justice Gableman sought to and did verify the accuracy of the Ad. See supra paragraph 13(a)-(b).

This is Gableman's paragraph 13(a)-(b):

13. Justice Gableman made every reasonable effort to ensure that the Ad was accurate by:

a. Obtaining assurances from campaign staff who had drafted the text of the Ad that an appropriate investigation into accuracy of the facts set forth in the Ad had been conducted.

b. Being familiar with the Mitchell cases in general, with their facts and holdings, and the arguments advanced by Butler, who represented Mitchell.

A couple of things first: As demonstrated earlier, Gableman was pretty clearly not as "familiar" with "the arguments advanced by Butler" in the Mitchell cases as he claims, otherwise he wouldn't have utilized the expression "legal loopholes," as he continues to do in his latest court filing.

(Gableman also claims that Butler "used" the law to "harm a rape victim." Yes, he's actually saying that now. Apparently this astonishing tactic failed to occur to him during the election.)

Second, it's irresponsible for a judge to rely on "campaign staff" assurances where the judge is the one governed by Supreme Court rules concerning the ethical conduct of elections. That this claim appears as an element of Gableman's "reasonable effort" seems to be only for the purpose of attempting to apportion some of the blame for Gableman's own actions onto the heads of his subordinates.

Elsewhere (¶ 15), Gableman claims he solicited "friends to view the Ad to address his concerns about the tone of the Ad." Whether Gableman's "friends" constitute an appropriate focus group under the circumstances is a separate subject for discussion, I suppose.

Nevertheless, Gableman has yet to document their reaction, so in the meantime, what these viewing parties have to do with Gableman's legal defense is anybody's guess. Because his friends said "Go for it"?

That's certainly no absolution for responsibility either.

Now, what Gableman is saying in his response to the Commission's 9(D), (E), and (F) is that each subparagraph describes one or more points in time, but their cumulative effect is "misleading" because a description of certain intervening events is missing.

This argument should sound ironically familiar because it's the same species of argument the Commission is advancing against Gableman and the collection of individual statements he made in his teevee advertisement:

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.

That is, Michael Gableman wishes us to buy into his deployment of the argument, but not the Commission's, and furthermore in spite of the fact that Gableman's allegedly disparate collection of propositions was embedded in video production complete with, inter alia, side-by-side mugshots of R.L. Mitchell and Justice Butler, minor-tonality musical accompaniment, and bathetic narration.

As a matter of fact this is the basic thrust of Gableman's defense: That each of those four sentences are in and of themselves "true" — even though the third one, at least, is false by definition — and therefore any inferences drawn by a viewer connecting the statements are irrelevant for the purposes of interpreting the ethics provision Gableman is accused of violating.

It's exceedingly difficult to imagine anyone not making the connection so clearly intended by Gableman's teevee ad, that Butler's lawyering led directly to Mitchell's subsequent offense by "putting him on the street."

On that point, it's also worth mentioning — again — that Butler's appeal was based upon Mitchell's trial lawyer's objections to certain evidentiary (over)rulings made by the judge in the circuit court. Not to take anything away from Louis Butler, but he didn't exactly dream up the grounds for appeal out of whole cloth all by himself.

If Gableman's defense seems a little weak, that's because it is. The only thing it's missing is a deed to the Okefenokee Swamp.

I'm going to make a prediction, as it seems to me blindingly obvious that Gableman won't be able to sustain this ill-advised defense beyond his impending hearing. Gableman will end up copping to the "aspirational" (as opposed to its immediately preceding "mandatory") provision of Supreme Court Rule 60.06(3)(c):

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.

Don't forget, you heard it here first. Not that it should help him much anyway, because at least one of those representations is false.

* The WJC's next filing in the case is expected tomorrow.

For Gableman, every case is a controversy

Somebody has finally written something of two motions* currently before the Wisconsin Supreme Court, requesting that embattled judge Michael Gableman stand aside from participating in a criminal appeal, the review of which the court accepted last year.

One of the motions is directed toward Gableman himself — which he will almost certainly deny — and the other asks the court to consider Gableman's recusal on due process of law grounds, the factual basis for which constitutional argument is his well documented behavior during an election in which roughly 9.5% of Wisconsin's eligible voters managed to position him on the far right of the high court bench.**

David Ziemer in the Wisconsin Law Journal describes the broad contours of the motions in a report that also features a couple of remarkable observations from some famous local conservative Republicans. First there is this non sequitur issuing from Marquette University law professor Rick Esenberg:

Esenberg said the Massey case and the issues raised by Henak differ, which is why the motion has little chance of success.

In fact "the Massey case" (Caperton v. A.T. Massey Coal Company, Inc.; see the SCOTUS Wiki) is mentioned only tangentially in one of the motions, which expressly acknowledges that the questions presented by both cases are merely "similar," in that each involves third party contributions to judicial campaigns.

So it's less than clear why Allen's motion has "little chance of success" simply because it's different from Caperton. Not only that, but Caperton hasn't even been decided yet, so nobody knows what — if any — direct application it will have to Gableman's latest imbroglio.

According to Ziemer, Esenberg claims that "virtually all judicial candidates employ a 'tough on crime' philosophy, including Chief Justice Shirley S. Abrahamson during her recent re-election campaign." Prof. Esenberg waxes syllogistic:

"If this motion is granted, then she — and virtually every other candidate who has ever run a contested race — should also be required to recuse themselves as well," Esenberg said.

Emphases added. But this doesn't at all follow either, given the substantial and substantive factual dissimilarities.

Gableman's campaign was devoted almost exclusively to this so-called "tough on crime philosophy" and isn't even remotely comparable to Abrahamson's. Rather, a prominent theme of the Chief Justice's recent campaign was an emphatic disabusing of the notion that judges "side" in advance with either plaintiffs or defendants.

Not only did Gableman continually and demonstrably promise to be an "ally" of law enforcement and its "war on crime," he went well out of his way to denigrate the professional experience of his opponent — so much so that Gableman has found himself up on ethics charges — and even further to disparage the very statutory and constitutional protections to which criminal defendants are entitled.

Abrahamson most certainly engaged in none of that business.

Moreover, the suggested test for Gableman's recusal under the circumstances is not simply whether or not he believes he can perform as an impartial magistrate, but whether a reasonable observer — in this case, the defendant/appellant, Allen — believes Gableman can, based on Gableman's own continuously repeated demonstrations.

This is a point that even the other conservative Republican quoted in Ziemer's story, Wisconsin Attorney General J.B. Van Hollen, appears to have overlooked:

Van Hollen said the motion [sic] "is an attack on our system of electing judges."

Van Hollen added that during an election, judicial candidates are allowed to express their views, within the limits of the law, and Gableman’s actions in 2008 were no different than past years.

"This in no way disqualifies them [justices] from being fair and impartial in a specific case," Van Hollen stated.

The latter is a daringly unequivocal claim. And it can only be true if one accepts that Gableman's actions were "no different than past years." But Gableman's actions were clearly quite different, in that they've succeeded in placing him in the unprecedented situation of being under investigation by the Wisconsin Judicial Commission.

No less an authority than former Wisconsin Supreme Court Justice Janine Geske had never seen anything like it, describing Gableman's shenanigans as "sinking to new lows," and one may safely accord considerably more deference to her observations than to Van Hollen's.

While it's true that a large amount of financial, media, and other support came from third parties (including, instructively, Rick Esenberg), not only did Gableman do nothing to set himself apart from those attacks against his opponent, but Gableman embraced them enthusiastically by featuring them prominently in his speechifying, his campaign literature, and at his campaign website.

(That website has long since been reduced to a lone index page bearing nothing but a logo, but much of it was previously retrieved and is attached as appendices to the motions for recusal.)

If anything was an attack on Wisconsin's system of electing judges, it was the disgraceful campaign of Gableman and his supporters.

Diane Sykes, the George W. Bush-appointed Seventh Circuit Court of Appeals judge, herself a former Wisconsin Supreme Court justice, called it "utterly inconsistent with the judicial role," and Gableman's notorious teevee ad a "particularly base and deceptive attack."

In any event, Caperton is more similar to Michael Gableman's situation than Esenberg lets on, since it deals with the appearance of bias created by massive campaign contributions to a judicial candidate by third party interests and according to the due process analysis, the appearance of bias is all that's required.

It was a core promise of Gableman's campaign he would not only be biased in favor of law enforcement but biased against criminal defendants. I don't know how even Esenberg could rebut that.

More specifically, one of the notable parallels between Gableman's case and Caperton is the involvement of the business outfit Wisconsin Manufacturers & Commerce, which spent millions of dollars on Gableman's behalf and ran literally thousands of radio and television spots in the weeks before the April, 2008 election disparaging Gableman's opponent for his work decades ago representing criminal defendants.

Rick Esenberg is often presented in the local press as a detached, academic observer, a special favorite of right-wing dissemblers like Charlie Sykes and Patrick McIlheran, and it was in that apparent capacity that he lent himself and Marquette University's prestige to WMC in a video presentation that laid the groundwork for WMC's and ultimately Gableman's notorious attacks on his political opponent.

But Prof. Esenberg's subsequent energetic defenses of the most fanatically and egregiously dishonest of Michael Gableman's supporters did much to detonate that facade of academic disinterest.

* The motions and related documents are available here.

** One of the reasons why Gableman's ethics investigation merits a public hearing — the one his lawyers are seeking to avoid — is so that the remaining 81% can learn more about what antics he got up to.

Wisconsin Supreme Court on civility and public trust

This Thursday, the Wisconsin Supreme Court will convene in public for a conference devoted to, among other things, Civility and Public Trust and Confidence. The court has been in the news lately because some of its members don't get along too well. Some observers have wondered why.

Here's a clue. This is Mike Gableman, who lied during his political campaign in 2008, and who still has a civil complaint alleging ethics violations pending against him, speaking to a rubber chicken event in Racine County last March. Much of Gableman's harangue is devoted to praising controversial Justice David Prosser, who Gableman claims is "slow to anger" and only gets mad "when there is some unjustness."

Around 7:20, Gableman gets to insulting his fellow justices:

A judge or a justice should not misuse their position, their office, their temporary office of the court, to supplant or replace the law with their personal, political, or social views. I saw that happening in Madison four years ago when I decided way up in Burnett County that it wasn't me who was failing to understand what Shirley Abrahamson, Ann Walsh Bradley, Pat Crooks and Loophole Louie [sic — it's Louis, rhymes with Lewis; as you can see and hear, Gableman is unrepentant of his judicial ethics violations] Butler were doing to the law [laughter]. It was they who were failing in their sacred vow to follow the law as written and not substitute their own political, social, and personal views for what they think the law ought to be. Thank you [applause].

Notice how Gableman says "Thank you" before the applause starts.

This is not Gableman the political campaigner, this is Gableman the justice of the Supreme Court — where he claims to preside "by the grace of God" — although the roles are indistinguishable in Gableman's case.

So there there you have Gableman accusing his colleagues of "failing" in their professional obligations, and yet some people are still wondering why there is personal tension among certain factions within the court.

And ironic accusations they are, considering Gableman's own behavior.

Gableman returns to praising Prosser, who defended Gableman's ethical violations and indeed told the people of Wisconsin to "get over it" during a debate with JoAnne Kloppenburg, who challenged Prosser for his seat on the court and came within half a percentage point of winning it:

Former [Wisconsin] governors Tommy Thompson and Patrick Lucey, two who you probably cannot find with more divergent political views, are the co-chairmen of his campaign.

Which is funny because just a couple of days later:

Lucey "resigned as honorary co-chair of Justice David Prosser's re-election campaign and endorsed his opponent, State Assistant Attorney General JoAnne Kloppenburg. Lucey said in a statement that he has followed Prosser's campaign "with increasing dismay and now alarm," adding that "Prosser has lost that most crucial of characteristics for a Supreme Court Justice — as for any judge — even-handed impartiality." Lucey also cited Prosser's "disturbing distemper and lack of civility that does not bode well for the High Court in the face of demands that are sure to be placed on it in these times of great political and legal volatility."

That's right, Prosser's own campaign chairman abandoned ship.*

More recently Gableman came up with a tale that Justice Ann Walsh Bradley, whose neck Prosser admitted putting his hands around during a disagreement in her office on June 13, 2011, had "struck" him on the back of the head either in 2008 or 2009 (Gableman told Dane County police detectives it was 2008, then changed the year to 2009 after Wisconsin State Journal reporter Dee Hall noticed that there were no meetings of the court on the date Gableman had alleged in 2008).

Following Gableman's testimony to the Dane County police detectives, he apparently forewarned his other "conservative" colleagues on the court that he had so testified. Justices Prosser and Annette Ziegler both told the detectives they had no other knowledge of the alleged incident, despite Gableman's assurances that all seven justices were present. Three other justices have affirmatively denied such an event took place. The remaining justice, Patience Roggensack, has declined to comment.

This space has wondered — as there was a criminal investigation undertaken into the alleged physical altercation between Justices Bradley and Prosser — why there hasn't been a separate investigation into Gableman's allegations. Or whether the Dane County Sheriff's Office would take notice that Mike Gableman may have been misleading them.

Still wondering.

* Somewhat reminiscent of then-Dodge County district attorney and now-Circuit Court Judge Steven G. Bauer's abandoning of Gableman.

Are you now or have you ever been

The following is part of a remarkable exchange that took place last Wednesday at the Wisconsin Supreme Court, during an open hearing on various proposed amendments to the rules of judicial conduct, between Michael Gableman and Virginia M. Bartelt, the attorney for a petitioner, the League of Women Voters of Wisconsin:

Michael Gableman: Counsel, we're discussing funding here and impartiality. Who funds the League of Women Voters?

Virginia Bartelt: It comes from a variety of sources. Certainly the league itself is an interest group.

Gableman: Does uh, do those sources include the Open Society Institute?

Bartelt: I'm sorry that I don't know the answer to that.

Gableman: If I indicated that the League of Women Voters' official website listed the Open Society Institute as one of its donors, would you have any reason to doubt that?

Bartelt: I would have no reason to doubt it.

Gableman: Do you know what the Open Society Institute is?

Bartelt: I don't know, your honor, but the executive director of the league is [telling me] that that is not a member of the Wisconsin association.

Gableman: Okay. So, but the Open Society Institute is one of the donors to the league.

Bartelt: It's possible. Nationally.

Gableman: And that's a George Soros-funded entity. Do you know that?

Bartelt: I don't know that.

Gableman: Okay, so you wouldn't know, for instance, how much George Soros has contributed to the League of Women Voters in the last, say, five years.

Bartelt: I would not, your honor.

Gableman: Or the last year.

Bartelt: No.

Gableman: Could you find that out.

Bartelt: I imagine that I could.

Gableman: Would you.

Bartelt: Certainly.

Gableman: Okay. What kind of time frame do you think.

Bartelt: Within five days.

Gableman: Okay. Thank you.

Gableman's objective here is blindingly obvious: To discredit the League of Women Voters of Wisconsin by linking it to one of the paranoid right-wing's favorite boogeymen. He's playing at cheap politics, this time directly from the bench of the Supreme Court.

Except the LWVW isn't a State Supreme Court; it's an organization of people concerned about the public's perception of the court's impartiality. That is, the LWVW has no such obligation of its own to impartiality even remotely analogous to that of the court's.

And theirs is a legitimate concern: A poll showed that nearly 80% of Wisconsinites believe the impartiality of their State courts is compromised by campaign contributions, those same Wisconsinites whose lives are affected by those courts' decisions.

When Gableman launches his inquisition against the LWVW, he's implicitly placing the court on equal terms with a political organization. Look again to his introductory proposition: "We're discussing funding [of judicial candidates] here and [public perceptions of] impartiality [on the courts]."

And then he turns those questions toward the LWVW. It's almost as if he's acknowledging that the Supreme Court is simply another political interest outfit, the same as the LWVW or Wisconsin Manufacturers & Commerce (of whose counsel Gableman, conspicuously, never demanded any similar disclosure of specific contributors).

At — of all possible venues — a public inquiry into judicial bias.

In making a presentation to the court, the LWVW deserves a fair hearing on the merits of its petition and not a transparently political ad hominem attack from an obvious right-wing ideologue.

Whatever his politics, and to whatever organizations he chooses to distribute his money (a.k.a. speech), George Soros is an American citizen, with just as much right as anybody to support whichever causes he cares to, which is supposedly a right that Gableman and his fellow "traditionalists" on the Supreme Court support unreservedly.

In light of the fact that Gableman himself benefited from nearly $2M worth of Wisconsin Manufacturers & Commerce largesse and tens of thousands of dollars in campaign contributions received from out-of-State donors, the irony of Gableman's political faux-trage and deliberately selective line of interrogation verges on the hypocritical.

The League of Women Voters of Wisconsin should reconsider and decline to give Gableman the documentation he's demanded, at least until he demands the same from all of the other petitioners.

Gableman's distinguished service

There was an interesting editorial the other day in the Dunn County News dealing with the Butler/Gableman campaign, and in particular criticisms leveled at Wisconsin Supreme Court Justice Butler by challenger Michael Gableman and his surrogates and supporters. The editorialist(s) write:

Criticism of Butler’s vote on a certain case is only valid if a critic makes a legal argument that Butler applied the law incorrectly. It is not valid to complain that his vote did not produce the result the critic preferred.

That's a fair assessment. Gableman has been making these sorts of charges against Butler at least since the two appeared for an online debate in January.

During it, Gableman repeatedly and baselessly derided Butler for grounding judicial opinions in the latter's "personal sympathies or feelings." Even the more sensible Butler critics, such as Marquette Law School's Rick Esenberg, will tell you that the results Gableman has in mind are defensible according to legal rationales. But Gableman's foolish and insulting characterizations are not.

The State Bar is hosting a formal debate between the candidates in Madison on March 25, and I sincerely hope someone gets up and expressly challenges Gableman on his evidence-free assertions. If Gableman is any kind of judge at all, he would never let a lawyer get away with comparable claims during, for example, a trial. And this campaign is essentially Gableman's own trial.

So somebody please put him on cross (without putting him on a cross; that only feeds the conservative persecution complex).

Taking judicial attendance

Meanwhile, the diligent investigators at One Wisconsin Now have uncovered more fascinating tidbits pursuant to what they call "Gableman's Suspicious Appointment" to his current Burnett County judgeship. The appointment, which was made by former Republican Governor Scott McCallum contrary to the procedures set in place by the governor's own executive order, has since been defended by Gableman in terms of McCallum's appreciation for the judge's "service" on a couple of statewide committees.

OWN obtained the minutes of one of them, the Wisconsin Judicial Council, and it turns out that of seven monthly meetings held between November 16, 2001, and May 17, 2002, Gableman only managed to turn up at two of them.

It would appear that Gableman's service, in this case, was distinguished primarily by his remarkable absence from it.

Quips blogger coldH20, "I guess he was Albert Einstein & Steven Hawking during those two meetings." Well, not exactly. Apart from once seconding someone's else's motion, the only other notable reference to Gableman in the 30 pages of meeting minutes concerns his request to be appointed to one of the Council's committees.

One would hope there was more to Gableman's involvement with the Council than that — he modestly describes himself as a "past member" at his campaign website — but OWN's evidence doesn't point to anything particularly distinguished about it.

So, scratch that "service" as one of the reasons Gableman finds himself on the county circuit court bench. And add it to the reasons why he shouldn't be elected to the State Supreme Court.

eta: Brazen Maverick spots a Gableman spot.

[Please visit the iT Butler/Gableman archive.]

Gableman misconduct was willful: WJC

According to the latest filing in the matter of Wisconsin Judicial Commission v. Michael Gableman, then-Circuit Court Judge Gableman was "not pleased with the 'tone' of the [television] ad" he ultimately approved for release against his political opponent, former Wisconsin Supreme Court Justice Louis Butler.

The WJC's statement of facts, submitted on February 27 in the ongoing investigation into Gableman's campaign activities last spring, alleges that Gableman's political advisers urged him to release the ad in response to other advertising produced not by Justice Butler's campaign but by third-party groups.

Both Gableman and his advisers considered those ads to be "devastating," as well as "blistering, negative, and false."

However, Gableman did not produce a response directed at the "blistering" third-party groups. Instead, he unleashed a most scurrilous personal attack against Louis Butler, linking him in an extremely misleading fashion to a convicted child molester.

Many observers detected in it racist overtones as well.

Perhaps Gableman, who is himself currently installed on the Wisconsin Supreme Court, deserves some credit for the fact that the television ad initially gave him pause and according to the Judicial Commission, Gableman delayed its release for several days while he considered possible alternative messages.

But he ended up releasing it exactly as formulated, thus negating any credit to which he may have been entitled.

This is somewhat devastating in and of itself, as it gives a strong indication of what Gableman thought of the ad, which in turn functions as support to the allegations that he knew precisely what he was doing when he authorized its release and broadcast.

Even more remarkably, although Gableman claims to have been troubled by statements issuing from third-party groups, he rather chose to direct his response to them against Justice Butler, who not only had no connection to the third-party outfits, but had openly condemned them on many occasions.

A willful violation of the code of judicial ethics constitutes a violation of Wis. Stat. § 757.81(4)(a), judicial misconduct. Penalties range from a private reprimand to suspension or expulsion from the court.

By comparison, in the most recent finding of ethics violations by a sitting judge, those of Gableman's current colleague Justice Annette Ziegler, a majority of the Wisconsin Supreme Court wrote:

Although the violations in the instant case are serious and were willful as defined in the statute, the violations were, as we explain below, also inadvertent. The Judicial Commission has characterized the violations as resulting from neglect and as serious.

Furthermore, a discipline of suspension or removal is not necessarily consistent with our past judicial and attorney discipline cases. Prior judicial misconduct cases in which judges received a sanction more severe than a reprimand all involved some degree of moral culpability that is not present here.

For her "inadvertent" violations, Justice Ziegler received only a public reprimand.

But the particular allegations against Michael Gableman certainly do not appear to have contained similarly mitigating elements of "inadvertent" conduct, at least insofar as he reportedly mulled over the television advertisement's content for several days.

As to the question of moral culpability, it most likely inheres in Gableman's conscious decision to go after Justice Butler personally in response to messages originating with third-party entities over whom Butler had no control and indeed had himself likewise condemned.

That's not the manner of judgment one should expect from a judge. Of course, Gableman's moral culpability was on display throughout his political campaign. The subject of the WJC investigation was arguably the most egregious instance, but there were others as well.

Michael Gableman has until April 1 to reply to the WJC's statement of facts (.pdf; 7 pgs.). No date has yet been set for Gableman's hearing in front of a three-judge panel, but it will take place in Waukesha County. The panel's recommendations then go to the Supreme Court.

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

Best of the Wisconsin Bogs

The incestuous farce known as the Milwaukee Journal-Sentinel's "Best of the Wisconsin Blogs" is usually good for a laugh, and this past weekend's offerings are no exception.

The J-S editorial board apparently found themselves a tough choice between professional Republican "critical thinker" Brian Fraley complaining about too many children in strollers at a Milwaukee street festival and a petulant ramble by their fellow Journal Communications employee Jeff Wagner, so they included them both.

Former federal prosecutor Wagner, as if to prove up H.L. Mencken's observation that all lawyers spend their entire careers trying to be something other than lawyers, shares a 620 AM WTMJ microphone with those other profound medium wave cogitators, Charlie Sykes and James T. "Hip Musings" Harris.

"Best of the Wisconsin Blogs" finds Wagner depicting anybody with a continued interest in the rise of State Supreme Court Justice-elect Mike Gableman as "completely unhinged."

Wagner spins furiously, fallaciously conflating the escapades of Gableman with those of Justice Annette Ziegler, whose colleagues on the court last month issued a public reprimand for ethical breaches committed while a circuit judge in Washington County.

Justice Ziegler's travails have nothing to do with Gableman, obviously, while Wagner's attempt to connect the two is pure rhetoric, and failed rhetoric at that.

Rather, the Gableman issue raised last week has to do with the refusal of a number of State officials to investigate at least 52 telephone calls Gableman made to a number of Republican apparatchiks and financial backers in April and May of 2002, while he was the District Attorney for Ashland County.

On June 12, 2002, a fundraiser was held in Cable, WI for then-Governor Scott McCallum (R), who had inherited the executive department of Wisconsin the year before, when George W. Bush selected Tommy Thompson to go to Washington and sidestep Congressional questioning into stem cell research as Secretary of Health and Human Services.

Gableman "escorted" McCallum to the event and introduced the Governor just prior to sitting down at the head table with a gaggle of other Republican hotshots for a $625 dinner and photo op.

Wagner casually refers to "several" calls, which means "consisting of an indefinite number but yet not very many." Fifty-two is a pretty definite number, and it's also quite a few more than not very many. The objects of the calls are pretty definite as well:

11 to Mary Stitt
— McCallum campaign contact
10 to Laura Gralton
— McCallum contact for the June 12 event
5 to McCallum campaign HQ
2 to Wisconsin GOP HQ
5 to Johnson Timber
— CEO and president were on the June 12 committee
4 to Johnson Bank
— Regional president was on the June 12 committee
3 to Chuck Johansen
— Member of the June 12 committee
4 to Kurt Carlson
— June 12 head table grandee
9 to Vince Biskupic for State AG campaign HQ

Effective June 3, Gableman resigned as Ashland County DA and was cooling his heels in Appleton, thanks to his appointment to an administrative position by Scott McCallum, which Gableman held for about ten weeks while waiting for his next job.

Then, in August, 2002, Scott McCallum appointed Gableman circuit court judge in Burnett County, even though Gableman hadn't officially applied for the position nor was he vetted by the committee McCallum had appointed to review applicants.

But civil servant/public employee Gableman did contribute $2,500 to McCallum's campaign, half of it on June 18, 2002.

Gableman brought this scrutiny on himself and it's entirely appropriate for the people of Wisconsin to wonder — and continue to wonder — about the circumstances of Gableman's ascent to the State Supreme Court. There's nothing unhinged about such inquiries.

When questioned about the telephone calls earlier this year, Gableman said he couldn't recall the topics of conversation, but he was sure none of them were for political purposes. However, he "may have called to find out details about a visit McCallum was making to the area," according to reporter Patrick Marley.

Fifty-two times, just to make sure he didn't miss it.

What's unhinged here is credulity, which is strained well beyond the breaking point. And it sure is sad for "Best of the Wisconsin Blogs" Jeff Wagner that Gableman isn't quite out of the woods yet.

Document archive at One Wisconsin Now.

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.]

If Mike Gableman was an ethical judge

Then he wouldn't have needed to hire this lawyer in the first place.

The court split 3-3 in June 2010 and the [Wisconsin Judicial Commission's] case ended there, with no agreement on whether Gableman lied or violated the ethics code.

That's not quite accurate, it bears repeating, because a three-judge panel convened in September, 2009 on Gableman's motion, meaning, in the vernacular, at Gableman's request. While the panel recommended dismissal of the Wisconsin Judicial Commission's complaint against Mike Gableman, it was upon that question that the Supreme Court split.

For the Supreme Court's purposes, the panel is owed zero deference.

Thus the ethics complaint remains pending against Mike Gableman and it's noteworthy that the Commission never withdrew the complaint — which was the recommendation of Gableman's three Republican allies on the Supreme Court — but only suspended its prosecution. Despite the panel's recommendation, all three judges found that Mike Gableman violated one or another of two separate judicial ethics provisions.

The statutory framework governing the prosecution of judicial ethics violations in Wisconsin is incoherent, as dramatized by the Gableman imbroglio, and as far as I'm aware, the legislature hasn't done a darn thing about it, even though four of the last six Republicans elected to the Supreme Court have found themselves parties to some ethical transgression or other. The latest, David Prosser, is under investigation.

And Mike Gableman should be too, once again, for his questionable testimony to Dane County Sheriff's Office investigators last summer.

Ironically, these justices are responsible for determining whether Wisconsin's lawyers are adhering to their own code of professional ethics. Fortunately the lion's share of those cases have to do with the handling of clients' money, from which objective standards obtain.

But given the unpredictable and unprecedented nature of Wisconsin politics, surely it won't be too long until Gableman has to decide a case where an individual running for judicial office slandered her opponent.

As for Gableman disqualifying himself from the present dispute: dream on. Gableman refused to remove himself from a set of criminal appeals in spite of his clearly articulated disdain for criminal defendants and the criminal defense bar generally. Any attempts to get Gableman to stand aside in this case have about as much chance as those trying to get Clarence Thomas out of the federal health care dispute: slim and none.

Gableman: Over the rainbow and out to lunch

Last Tuesday during his debate with Wisconsin Supreme Court Justice Louis Butler, Burnett County Judge Michael Gableman let fly this startling little shot across the bow:

[Butler] has a substantial and consistent history of legislating from the bench and we don't have too look far or long to find a series of cases that reflect that. I think what he said here today sounded very good, but in addition to all these longstanding case precedents he cited, I remember reading one case where he cited The Wizard of Oz and based decisions on social science studies that were manufactured at colleges and universities.

Gableman was apparently referring to a 2005 decision of the Wisconsin Supreme Court called State v. Dubose (.pdf; 63 pgs.).

Gableman's remark is instructive for a number of reasons, not the least of which is that it raises the question whether he even knows what he's talking about. As for 'citation,' it's a term of art, and it means something specific to lawyers. Aspirants to the Wisconsin Supreme Court, in my opinion, shouldn't play fast and loose with legal terms of art for the sake of mugging in front of the crowd.

It's not only misleading, it's dishonest, because one would expect Judge Gableman to fully understand what is meant by them.

First of all, Dubose was authored by Justice Patrick Crooks, not Butler. Second, Dubose embodies a very complicated due process analysis that involves revisiting a number of Wisconsin and U.S. Supreme Court cases in light of a considerable amount of more recently obtained empirical data having to do with the reliability of eyewitness evidence, and in particular evidence gathered through a certain type of police identification procedure. To put it mildly, Dubose does not lend itself to one-liner soundbites, especially the utterly nonsensical one offered by Gableman.

And one has to be especially careful reading Dubose because it contains three separate dissents, by Justices Wilcox, Prosser, and Roggensack. Each takes issue with the majority opinion for different reasons. It requires some serious work just to tease out the competing strands of analysis in Dubose, let alone portray it accurately for the layperson. To reduce it to, "He cited The Wizard of Oz" is, on a charitable reading, an act of negligence and, to my mind at least, raises a concern as to Gableman's suitability for the position he seeks.

While Butler joins Crooks's DuBose opinion in full, he writes separately only to shed light on a failure he detects in Justice Roggensack's dissent. To wit, Roggensack relies, at one point, on the very data she had derided as "disputed social science theory" only a few paragraphs previous. That's about the entire thrust of Butler's very brief concurring opinion. His apparent sin, to return to Gableman's dishonest characterization, was to criticize Roggensack's skepticism over the empirical data by saying this:

Unless, and until, we improve eyewitness identification procedures so that the likelihood of irreparable misidentification is significantly reduced, we can no longer proceed as though all is good in the Land of Oz.

That's it. A figure of speech, hardly the "citation" that Gableman would attempt to have us believe.

Incidentally, our good friend Daniel Suhr is also completely wrong (surprise) when he claims that Butler wrote to "especially defend" the majority's use of the empirical data. He was not "especially defending" the majority, he was "especially criticizing" one of the dissents for a glaring error of reasoning. It is notable, however, that Suhr also makes an issue of Butler's offhand reference to the "Land of Oz." It's almost as if Gableman was presented with Suhr's "Research Briefing" in preparation for his debate with Butler. D'ya think?

Suhr, by the way, can be more easily excused for his ineptitude than can Gableman, since Suhr hasn't sworn his lawyer's oath yet. (If there's a god in heaven, my humble prayer to her or him is that Daniel Suhr pulls Justice Butler for his swearing-in ceremony.)

Gableman's portrayal of empirical data as "manufactured" at colleges and universities is also quite telling, and he is kidding himself — and the Wisconsin electorate — if he thinks he'll just be able to laugh off relevant empirical studies prepared by the U.S. Department of Justice if and when he finds himself on the Supreme Court.

It's often said that there's a crock of gold at the end of the rainbow, but it appears that Judge Gableman is entertaining us to a crock of something else, something more fragrant than gold.

[Please visit the iT Butler/Gableman archive.]

"I'm aware of a story involving another justice."

In light of our friend Mike Gableman's repeated claims that Wisconsin Supreme Court Justice Ann Walsh Bradley had "hit" or "struck" him on the head on September 18, 2009, let's revisit a portion of Justice David Prosser's testimony to Dane County Sheriff's Office detectives on July 8, 2011. At 1:30:28, one of the detectives begins asking Prosser whether he was aware of any earlier instances of Justice Bradley "doing something to somebody else in the past," having "had physical contact with somebody." At 1:31:25, the detective gets down to brass tacks:

Detective: Had you witnessed Justice Bradley ever charge at anybody like this in the past?

Prosser: I have never seen her charge anybody once.

Detective: Okay. Is there a reason, uh, are you aware that anything like that's happened? Before [June 13, 2011]?

Prosser: Yes.

Detective: You're aware of an incident specific with Justice Bradley ...

Prosser: Yes.

Detective: ... that she has charged other people. Anything that you've witnessed?

Prosser: Yes.

Detective: Okay. Did that just contradict what you just earlier said? Because I thought you just said you never witnessed anything. Is that correct or am I a little off on that?

Other detective: You're aware of it?

Prosser: [Sighs] I ... [chuckles]. Okay, I'm aware of a story involving another justice. I didn't see that.

Detective: Okay.

Now, recall that Mike Gableman told the detectives on July 5, 2011, that Justice Bradley had "hit" him on the back of the head on September 18, 2008 and that he, Gableman, had never told anyone about this alleged incident prior to his July 5, 2011 interview with Dane County detectives.

On August 31, 2011, reporter Dee Hall of the Wisconsin State Journal discovered that the court had not convened any meetings on September 18, 2008. On September 1, 2011, Gableman released a statement claiming that it was September 18, 2009 that Justice Bradley "struck" him on the back of the head and that all seven justices were present.

Justice Bradley, Chief Justice Abrahamson, and Justice Crooks all affirmatively denied that any such head-striking incident ever took place. On July 18, 2011, Justice Ziegler told the detectives that Gableman had "recently" told her about the alleged head-striking incident but that she had no details of the alleged incident, nor could she be specific about when Gableman told her about the alleged incident.

(Justice Ziegler did not mention the alleged head-striking incident at her first meeting with detectives, which took place on June 30, 2011.)

The obvious question presents itself: Was Justice Prosser referring to the same head-striking incident that Gableman has alleged? If so, for one thing, Justice Prosser says he wasn't there, despite Gableman's statement that all seven justices were present on September 18, 2009.

And if so, for another thing, why did Gableman tell Justice Prosser, and furthermore tell Justice Ziegler, following his meeting with detectives on July 5, 2011, after never having spoken about the incident between September 18, 2009 and July 5, 2011, as Gableman had claimed?

And what about the one remaining justice, Justice Roggensack, who Gableman alleges was also present on September 18, 2009? Did Gableman likewise inform her? Roggensack has not commented so far.

Wisely, in my humble estimation.

In short, did Gableman round up his "conservative" pals on the court to make them aware of the little incendiary device he'd dropped to the detectives on July 5, 2011, to make sure everybody had their stories straight in case the topic arose? Seems like a reasonable question to me.

Aina? Inquiring minds want to know.

Who will be the next Wisconsin special prosecutor

On July 5, Mike Gableman, who is a justice of the Wisconsin Supreme Court, told investigators with the Dane County Sheriff's Office that a colleague, Justice Ann Walsh Bradley, hit him on the back of the head.

More recently Gableman upgraded the circumstances of the alleged battery to "struck" — "Justice Bradley struck me," Gableman declared in a press release yesterday. Initially Gableman affirmed to detectives that Bradley did so on September 18, 2008, his birthday, and weeks after his installation on the court. After it was determined that it was impossible for such an event to have taken place, Gableman moved the battery forward one year, to 2009, claiming now to be "uncertain" of the date.

Three justices, including Bradley, Chief Justice Shirley Abrahamson, and Justice Patrick Crooks, have essentially accused Gableman of lying. They all say the incident never happened. A fifth justice, Annette Ziegler, says she didn't know anything about the incident until Gableman told her his tale. The remaining two justices, Prosser and Roggensack, have been understandably mum. If they affirm Gableman's story, then by extension they become parties to the lie that Mike Gableman stands accused of.

Gableman says all seven justices were present on September 18, 2009.

When Justice Bradley accused Justice Prosser of having her in a "choke hold" — and Prosser did confess to having both hands around her neck — the matter spurred a criminal investigation, although the appointed special prosecutor declined to pursue charges. In the meantime, a separate investigation by the Wisconsin Judicial Commission is ongoing.

This blog has certainly never been a fan of Mike Gableman, ever since he began misrepresenting the law back in December, 2007, in furtherance of his nakedly partisan political ambitions. In fact this blog has found Gableman's behavior to be reprehensible. But if there needed to be a criminal investigation into Justice Bradley's allegations, then there needs to be a similar investigation into Gableman's. And obviously the Judicial Commission, which monitors judicial ethics, must likewise investigate.

Because somebody is lying. The Supreme Court is tasked with the enforcement of the legal profession's code of ethical conduct. Its members should be setting the example, and not undermining it.

Poor Mike Gableman

It's been some time since we've encountered Daniel Suhr, the fresh young GOP fellow in the robin's egg sweater vest combo.

Now it seems that Master Suhr has taken special umbrage at Adam Liptak's description of renowned conservative Republican Mike Gableman as "a small-town judge with thin credentials" in the pages of the New York Times. "This East Coast elitism is just rancid," moans the young GOPer.

First of all, Siren, WI is a small town by any measure.

But it's simply not true, Suhr 'argues,' because Mike Gableman's "four years as a front-line prosecutor is more than [Wisconsin Supreme Court] Justices Abrahamson, Bradley, and Butler have combined." Naturally, young Daniel doesn't mention that Justice Butler has been a judge — on three different courts — for longer than Mike Gableman has been a lawyer.

And a highly effective front-line prosecutor Mike Gableman was. So effective that he sat on a homicide case for two years, one so cold blooded that the criminal complaint indicated the alleged perpetrator blew a hole in his wife's back with a shotgun as she fled away from him, and the county where Mike Gableman toiled as a prosecutor refused to elect him to the Wisconsin Supreme Court, despite every surrounding county's determination to the contrary.

Likely because Ashland County is where they know "front-line prosecutor" Mike Gableman the best. And by the time charges were filed by Gableman's successor in office, after Gableman high-tailed it to an administrative position at a 20k per annum pay cut thanks to his political connections with former Republican governor Scott McCallum, the defendant removed himself from the gene pool.

And Mike Gableman had the temerity to claim repeatedly, during one of the most disgraceful political campaigns in recent memory, that he was a righteous advocate for victims of crime.

"I was mad as hell," the victim's cousin, Jerry Bauch said. "I was frustrated because the case simply went nowhere during the three years that [Mike Gableman] was district attorney."

That's some quality victim advocatin' right there.

However, it is true that Gableman won Burnett County fairly handily, because after all, that is where Judge Mike Gableman "presided over" 9,000 uncontested traffic tickets.

And that is no thin credential. It's enough to wallpaper Siren, WI.

"There's no need to insult the man," sniffs college Republican Suhr, who, via some particularly laughable contortions, depicted Justice Butler as a clear and present danger to the "safety, prosperity, and health of the citizens of many states, especially Wisconsin."

No, there's no need to insult the man, he just earned the privilege.

Gableman gets one more kick at the can

Beleaguered State judge Mike Gableman has until tomorrow to counter the Wisconsin Judicial Commission's rebuttal to his attempt to have the ethics case against him dropped.

It appears that Gableman's impending response will be the last paper filing before the matter is finally set for a public hearing in front of a three-judge panel. The judges and the venue, Waukesha County, have long since been selected and it's about time Wisconsinites are entertained to Gableman's oral presentations.

According to the WJC, a teevee advertisement approved by Gableman during his 2008 election campaign "contains a false statement of fact that [Gableman] made intentionally or with reckless disregard for its truth or falsity."

Doing so is a violation of the Wisconsin Code of Judicial Conduct for which Gableman may face a number of sanctions, including his removal from the Supreme Court.

Gableman has continued to insist variously that all of the messages contained in the ad were "true" and even if they weren't, whatever he said or implied is protected by the First Amendment.

Ironically, Gableman and his well heeled supporters had referred disparagingly to some provisions of the Constitution and other statutory protections as "loopholes" and "technicalities."

But apparently they come in mighty handy once you find yourself the respondent in a disciplinary proceeding.

In the meantime, Wisconsin Attorney General J.B. Van Hollen has reportedly hired Gableman's campaign manager, Darrin Schmitz, as his political spokesperson. Schmitz is a real class act.

And according to Van Hollen's website, his campaign treasurer is Margaret Farrow, another Gableman supporter who helped spread misinformation and falsehoods about former Supreme Court Justice Louis Butler. It's quite the little gang State Republicans have here.

Over the last couple of years I've had occasion to meet a lot of lawyers who know Louis Butler and have known him for decades. Without exception they have nothing but the highest praise for his skill and integrity as a lawyer, as a judge, and as a person.

I've always maintained that the 2008 judicial election was a travesty and that impression is only reinforced by the regard his peers have for Butler. It's an absolute disgrace how Gableman and his supporters and enablers attempted to destroy this man's good character.

Gableman needs to pay something for that.

Gableman to turn over new leaf?

From the Charity Begins at Home Department, the Milwaukee Journal-Sentinel's Stacy Forster reports that Burnett County Judge Michael Gableman, in previewing his latest teevee ad, vows to "cut through [the] slimy attacks and set the record straight."

Presumably this means Gableman's new advertisement will vacate and correct the number of false innuendoes and misrepresentations in his previous offering, the one that inspired Dodge County District Attorney Steven G. Bauer to publicly and demonstratively withdraw his support for Gableman.

Maybe Gableman can also explain in greater detail what the problem was when Wisconsin Supreme Court Justice Louis Butler voted to 'prohibit prosecutors from using a tool' of law enforcement when the said tool was so laughably unconstitutional to begin with, Chief Justice Shirley Abrahamson was moved to borrow from the "Soup Nazi" episode of Seinfeld.

(It's a good thing Gableman isn't running against C.J. Abrahamson, or else he'd accuse her of "citing" Spike Feresten.)

A bit later in the day, Ms. Forster related the following priceless non-observation by Gableman. Concerning Justice Butler's experience as a defense attorney 20+ years ago (before Gableman had even started law school), Gableman "declined to explain why voters should view that as a reason not to vote for Butler in the April 1 election."

Hey, you can't really expect him to answer that one, can you? Because Butler's previous career (did I mention that was before Gableman had even started law school?) is only the current front and centerpiece of the Gableman campaign. Apparently Mike Gableman is a man of few words. Rather, he is a man of many disturbing and deliberately misleading images. But even those are just a bit of spin!

[Please visit the iT Butler/Gableman archive.]

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.

Gableman wants it both ways

Last week, the advocacy group One Wisconsin Now voiced a concern over some campaign literature distributed by Michael Gableman, who is seeking to unseat Louis Butler from the Wisconsin Supreme Court next April. At issue is the prohibition against candidates for judicial office making “pledges, promises, or commitments” with respect to “cases, controversies, or issues” likely to come before the court.

The flyer, labeled, “Louis Butler: Failing Wisconsin Law Enforcement,” contains thumbnail accounts of Butler's opinions in nine split decisions of the Supreme Court wherein Butler variously joined the majority or dissented. Eight of the nine cases are 4-3 splits. Butler voted with the majority in five of those cases, and dissented in the other three. The ninth case is a 6-1 decision where Butler authored the lone dissent.

Gableman is advertised as standing in “stark contrast” to Butler, who, it's suggested, is dedicated to “expanding the rights of criminals.” The message, presumably, is that Gableman would have (or will) ruled opposite to the disposition Butler reached in the cited cases. Whether he's promising to do so in the future when faced with similar controversies is the question OWN is raising.

What interests me at the moment, however, is the juxtaposition of two of the nine cases and the objections Gableman is proffering against Butler's results in those cases from a perspective of “conservative judicial philosophy,” which is, let's face it, what Gableman is selling here.

The first, State v. Jensen (.pdf, 60 pgs.), has to do with (among other law of evidence questions) the U.S. Constitution's Confrontation Clause, which appears in the Sixth Amendment: “At all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” Jensen was unable to confront the particular witness in question because he'd, er, caused her death.

In the other, State v. Knapp (.pdf, 62 pgs.), as Gableman's campaign puts it, “Butler voted to expand criminal’s [sic] rights beyond the US Constitution by voting against allowing key evidence of bloody clothing in a murder case.”

As to the latter, it's a cliché of constitutional law that the U.S. Constitution sets a floor, and not a ceiling, in terms of the enumerated rights in the Amendments. In other words, whatever limits the U.S. Supreme Court places on the Bill of Rights, States remain empowered to grant greater latitude.

In still other words, for example, if Justice Scalia convinces four of his colleagues that smoking giant cones packed with sticky, sticky bud is not a legitimate free exercise of Rastafarianism, Wisconsin courts may nonetheless deem it so, at least for the purposes of State law. This is a feature of federalism, which addresses the tension between State and federal power.

Wisconsin courts, however, embody a tradition of not hovering too far above that floor, and Gableman doesn't appreciate that Butler may wish to reconsider some of that State precedent. Because, as we all know, the doctrine of stare decisis is sacrosanct to conservatives — witness the devotion to Roe v. Wade. I digress (but not much).

Presumably, one of the defenses the Gableman campaign may raise against OWN's concerns is that the flyer, far from making any promises or commitments, is simply enunciating the candidate's judicial philosophy. And, no doubt, as the campaign continues, Gableman's supporters, at least, can be expected to let loose the familiar code phrases, “strict constructionist” and “original intent,” guaranteed to warm the conservative heart and invoke pleasant apparitions of their favorite jurisprudes, Scalia and Thomas.

But in his Jensen dissent, Butler deploys both strict constructionism, in his emphasis on the Confrontation Clause's “all criminal prosecutions” language, and original intent, in arguing that the U.S. Supreme Court's interpretation of the Sixth Amendment is itself frozen in 1791, which is what informs Butler's conclusion.

However, apparently, it's merely the result Gableman doesn't like. Surely he can't be objecting to the employment of strict constructionism and original intent, can he? If so, there's a Butler campaign slogan for you right there: "Michael Gableman, a living, breathing judge who sees the Constitution in exactly those terms."

(Better a Charlie Schutze campaign slogan, come to think of it.)

Now, it may be claimed that Butler is the one who wants it both ways, on the one hand arguing for a modern expansion of the Fifth Amendment (as in Knapp) but also for restricting the Sixth to its original understanding (as in Jensen).

But there's nothing unusual about a judge employing different means of interpretation when facing resolutions based in different sets of circumstances and different historical strains of law. They all do it. And besides, it isn't Butler who's criticizing Gableman for his jurisprudence; it's the other way around. For the moment, at least.

The moral of the story is that the next time you hear a conservative yammering about strict constructionism or original intent and her unwavering devotion to same, don't believe a word of it.

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.