The Wisconsin Supreme Court deadlocked June 30 on the issue of whether Justice Michael Gableman violated judicial ethics by using a potentially misleading campaign ad in reference to another justice.
The court needed a majority vote to sanction Gableman. The deadlock means the court could not definitively reach a decision and kicked the decision to a special judicial commission instead. The commission abandoned the case July 8, claiming insufficient evidence to pursue the issue further.
Gableman’s colleagues split 3-3 over the issue along ostensibly partisan lines, And in a highly unusual move , the court issued two separate opinions.
Chief Justice Shirley Abrahamson, Justices Ann Walsh Bradley and N. Patrick Crooks ruled Gableman, who described himself as a “judicial conservative” during his 2008 campaign, had violated a judicial ethics rule by allegedly lying about another justice during the race.
Justices David Prosser, Patience Drake Roggensack and Annette Ziegler ruled that although it was “distasteful,” the ad was protected under the First Amendment.
“False statements knowingly made or false statements made in reckless disregard of their truth or falsity are not protected by the First Amendment,” Abrahamson wrote in the opinion.
Gableman released a 2008 campaign ad in his run against former Justice Louis Butler Jr. and implied that Butler’s defense of sex offender Reuben Lee Mitchell allowed Mitchell to walk free and eventually molest another child, when Butler worked as a public defender on the case.
The ad in question said: “Butler found a loophole. Mitchell went on to molest another child. Can Wisconsin families feel safe with Louis Butler on the Supreme Court?”
However, the ad never mentioned that Butler was not able to get his client out of jail, and the second assault occurred after Mitchell had already served his original sentence and was released.
The court has had two other recent ethics cases and has been plagued with ideological fractures resulting in multiple requests for judges to remove themselves from judgment of cases.
“The Supreme Court’s opinions are not exoneration or vindication of Justice Gableman’s conduct,” the commission said in a statement. “There is simply no justification for judges or candidates for judicial office to intentionally and purposely misrepresent facts concerning an opponent in a judicial election campaign. To do so causes extreme harm to the public’s confidence in the integrity of Wisconsin’s judiciary.”
Supporters of Gableman argue the ad represents nothing more than a case of free speech and that attempting to punish the justice for exercising his First Amendment rights is unconstitutional.
The Center for Competitive Politics filed a brief on behalf of Gableman, arguing a decision to act against Gableman could spell the beginning of the end of free speech in politics.
“The prospect of seeking sanctions and retribution for political speech could have a chilling effect on a free exchange of ideas in the electoral process,” CCP Vice President Stephen Hoersting said in the brief. “The court should dismiss the idea of government truth panels and let voters decide what speech is appropriate.”
