A judicial conduct panel recommended Thursday the Wisconsin Supreme Court drop a complaint against one of its justices for questionable ethics in regard to a campaign but did agree the ad was not in good taste.
The panel — composed of Justices Harry Snyder, Ralph Fine and David Deininger — was reviewing a complaint filed against Supreme Court Justice Mike Gableman in October 2008 by the Judicial Commission, according to court records.
The Judicial Commission asserted Gableman willfully violated Wisconsin Code of Judicial Conduct by running an attack ad on then-incumbent Supreme Court Justice Louis Butler, court records said.
According to the complaint, the ad insinuated that as an appellate state public defender, Butler “found a loophole” to put a child molester back on the streets.
The court records state the Judicial Commission based its complaint on two rules of conduct that say the judicial candidates should maintain a certain level of dignity in their campaigns and they shall not say anything untruthful or misrepresent the facts.
All three panel members decided to recommend dismissal of the complaint, but said this does not mean the ad was not improper.
Snyder and Deininger said they agreed the content of the ad was not against code because it was not false, just misleading for those watching because of the way the facts were presented. Fine, however, said the content of the ad was false but said the rule restricting the speech of judicial candidates is unconstitutional.
Mike McCabe, executive director of the nonpartisan political monitoring group Wisconsin Democracy Campaign, said he did not see Fine’s conclusion as valid.
“His view of the rule is that it’s against the First Amendment; I don’t agree,” McCabe said. “The First Amendment is important, but not absolute. You need balance against other rights, like right to due process.”
McCabe said campaigns with aggressive, warring candidates can demonstrate bias and those entering a courtroom may not feel assured of having a fair trial.
McCabe added it is a “foregone conclusion” that Gableman will not face any discipline for the questionable ad when the matter comes before the Supreme Court itself.
Jay Heck, executive director of nonpartisan citizen lobby Common Cause in Wisconsin, agreed the court will not punish Gableman for the ad, because they are hesitant to punish fellow justices.
“I’m not surprised about the decision because of the makeup of the panel and because justices are wary to impose harsh penalties on essentially their colleagues,” Heck said.
Heck said the Impartial Justice Act, recently passed by the Legislature, will be a step in the right direction because it provides limited public financing for justice campaigns.
