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Wisconsin Judicial Comm’n v. Hon. Michael J. Gableman, 2010 WI 61 / 62

2010 WI 61 (Abrahamson, CJ, Bradley, Crooks, JJ); 2010 62 (Prosser, Roggensack, Ziegler, JJ); Judicial Conduct Panel Findings, etc.; WJC Brief; Resp.; WJC Reply

Judicial Discipline – Campaign-Related Misconduct

The court splits 3-3 on whether Justice Gableman’s infamous “loophole” ad violated the Judicial Code. The Chief, et al. (61 bloc), say it did:

We three, Chief Justice Shirley Abrahamson, Justice Ann Walsh Bradley, and Justice N. Patrick Crooks, conclude:

• Justice Gableman’s advertisement violated the first sentence of SCR 60.06(3)(c).

• The advertisement “misrepresent[ed] . . . [a] fact concerning . . . an opponent” and was made knowingly or with reckless disregard for truth or falsity.

• The First Amendment does not protect knowingly false statements.

Because of a deadlock, we three conclude that a remand to the Judicial Commission for a jury hearing is required.

As for the others (62 bloc):

¶53 We three justices have concluded that based on the undisputed facts before us, the Commission has failed to prove the allegations in its complaint by evidence that is clear, satisfactory and convincing as Wis. Stat. § 757.89 obligates the Commission to do.  When a party has not met its required burden of proof, dismissal of the complaint is required by law.  Wis. Stat. § 757.89; see Seraphine, 44 Wis. 2d at 65.

What now? The 61 bloc suggests (no position commands a majority so the court can’t exactly “order” anything) remand to the Judicial Commission for jury trial under Wis. Stat. § 757.87, ¶17; a court of appeals judge, selected by the chief judge, would preside, ¶20. But as the sharp-eyed Tom Foley discerns, it may well be too late (statutory procedure at least arguably requiring that the commission “request a jury hearing” before filing the petition, an event long-since passed). The Commission, though, has the benefit of crackerjack advice from Rob Henak how to try to break this impasse.

In the meantime, Justice Gableman’s lawyers say it’s time to declare victory and withdraw from the field of battle. “McLeod says the 3-3 split means the case is over because the Wisconsin Judicial Commission needed four justices to satisfy its burden of proof.” “‘When the prosecutor comes forward and wants to punish you, he’s got to get a majority vote for that. When he fails to do it, it means you are exonerated,’ said Gableman attorney James Bopp, Jr.” Is their confidence misplaced? We’ll see. But: exonerated? The Justice hasn’t been absolved of wrongdoing, he’s the beneficiary of a hung proceeding, if you care to put it in those terms; a stalemate. In some ways, an inconclusive ending only ensures on-going strife. Three Justices have accused a fourth of lying to win his seat, 2010 WI 61, ¶¶34, 48-52. The tie vote leaves the denunciation unresolved. And so it simply remains hanging, a toxic cloud over the court.

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