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Wednesday, September 09, 2009

Policing Judicial Campaigns: A Story From Wisconsin

Although my principal interest is in law and religion, one of my charges at Marquette is to stay engaged with local policy issues and, as part of that, I have followed the Wisconsin Supreme Court, developing a course on the Court and state constitutional law. You can’t follow the Wisconsin Supreme Court in recent years without confronting issues of judicial selection and campaign conduct in judicial elections. We have had two heavily financed and bitterly fought races for the Court in the past three years. (There have been similar races in other states, including Michigan, Ohio and West Virginia.)

These races have resulted in a number of ethical charges and, later this month, a three judge panel will hear a complaint against a sitting Justice of the Court for, to put in bluntly, lying in a campaign commercial That panel's recommendation will ultimately be passed upon by the Court itself. While there have been ethical complaints against sitting Justices before in Wisconsin, this one seems to be more strikingly malum in se as opposed to malum prohibitum.

Justice Michael Gableman was elected in April 2008, successfully challenging incumbent Justice Louis Butler. Butler was the first African American to sit on the Wisconsin Supreme Court. Both campaigns attracted millions of dollars in independent expenditures (much of which came from outside the state) running the typical fare of judicial campaign ads: dead bodies, empty swings, clanging cell doors and pictures of scary looking sex offenders who either had or had not been locked up for a sufficient period of time.

But the ad (click on Gableman TV ad: “Prosecutor”) that has become the subject of ethical proceedings was run by the Gableman campaign itself. After extolling candidate Gableman’s bona fides as a tough judge, the ad says that Justice Butler “worked to free criminals.” It offers an example of an defendant accused of rape. The ad says that Butler found a loophole and the defendant went on to rape again.

All of this is true but false. Butler represented the defendant as a lawyer. He “found a loophole” bit the state Supreme Court held that it was harmless error and denied the requested relief. The defendant did go on to offend again, but only after serving the prison term that Butler failed to avoid.

In Wisconsin (and I suspect every state), the judicial code prohibits a judicial candidate from making false statements about and opponent or statements that, while true, mislead the public about the roles of lawyers and judges and the nature of the judicial system.

Is that rule constitutional? Should we be concerned about the chilling effect of reexamination of an ad to determine what has been implied and whether that implication is true or false? If a violation is found, what discipline is proper? Should a Justice elected by the people be removed?

Posted by Richard Esenberg on September 9, 2009 at 10:01 AM | Permalink


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Ain't this country grand, where even the lowest deliberate prevaricator or Hamline graduate can run for the highest office? Where just a few handfuls of Benjamins per hour can hire a lawyer to convince others that the sky isn't actually blue? Where debaters can grow so deliberately obtuse as to wonder what the meaning of 'is' is?

Posted by: John Foust | Sep 11, 2009 2:41:17 PM

This is why I say it is true but "false."

'But' is a logical operator having the functional equivalence of 'and.' A statement cannot be both true and false. It is either one or the other.

The words — in isolation — can be said to be literally true.

Sure, they can be said to be literally true. Apparently this is among the claims Gableman is forwarding in his defense. Except in this case, those words ("found a loophole") are literally false. That's what the record — the same one Gableman claims to have examined in detail — shows.

Posted by: Thomas Foley | Sep 10, 2009 1:38:16 PM


This is why I say it is true but "false." The words - in isolation - can be said to be literally true. Taken together, they are misleading and convey a message that is false. The question, it seems to me, is not whether the ad can be defended. It can't. Rather, the isue is what type of scrutiny is consistent with the first amendment, whether that scrutiny can be more intrusive in the judicial context and what the Court ought to do in the way of discipline.

Posted by: Rick Esenberg | Sep 10, 2009 12:06:22 PM

Here we go again.

All of this is true ...

No, it isn't true. It's false. It's only "true" when the meanings of words are cynically manipulated by desperately grasping politicians to mean something that they don't, a practice that should be abhorrent viscerally not only to lawyers and professors of law but to judges sitting on Wisconsin's highest appellate court.

"If the defendant is accused of [sexual assault], any evidence concerning the complaining witness's prior sexual conduct ... shall not be admitted into evidence during the course of the hearing or trial, nor shall any reference to such conduct be made in the presence of the jury."

Wis. Stat. § 972.11(2) (emphasis added).

It is simply not true that any of Reuben Lee Mitchell's lawyers "found a loophole," but rather both at trial and on appeal objected to the introduction of evidence in contravention of the plain language of the statute. That is not "finding a loophole." Indeed, it's the exact opposite of "finding a loophole," by definition.

In fact it was the State that attempted to "find a loophole," by convincing the trial court that evidence of the complaining witness's prior sexual conduct fell within one of the exceptions to 972.11(2). And the admission of that evidence by the trial court, it must be emphasized, was found to be an abuse of the trial court's discretion by a unanimous court of appeals, a component of its holding that was affirmed by a unanimous Wisconsin Supreme Court.

This is made abundantly clear in the latter's opinion, State v. Mitchell, 424 N.W.2d 698 (Wis. 1988), in which the court disposes of each of the State's own three proposed loopholes: 1) that the plain language of the statute contravenes legislative purpose and intent 2) that the plain language of the statute mandates an absurd result and 3) that the plain language of the statute represents an unconstitutional infringement by the legislature on the courts' discretionary power over the admissibility of evidence.

In short, it was the State that purported to find loopholes throughout the proceedings, not any of Mitchell's counsel. Rather, Mitchell's lawyers adhered directly to the black letter law.

So why is this particularly significant in Gableman's case?

For one thing, because Gableman advertised himself continuously as a "strict constructionist" and a plain reading of the statute at issue — and of the English language generally: See Black's Law Dictionary, 7th ed. at p. 954 — belies Gableman's claim that any of Mitchell's attorneys "found a loophole." That claim is demonstrably false.

For another, Gableman claims in his responses to the Wisconsin Judicial Commission's filings in the ethics case against him that he reviewed in detail the record of the Mitchell case from its inception to the Supreme Court's ultimate disposition. One simply cannot accept Gableman's claim while absolving him of responsibility for understanding what the words he was using actually mean.

Either Gableman knew exactly the meanings of the words he was deliberately misusing and thus lied about the record, or else deliberately employed words in their more colloquial sense in not only an offensively cynical manipulation of voter sentiment but in the course of a thoroughly disgraceful mischaracterization of the duties of the very lawyers who can expect to argue criminal appeals in front of him.

Which of the foregoing choices is less becoming to a justice of the Wisconsin Supreme Court remains an open question.

Posted by: Thomas Foley | Sep 10, 2009 11:55:38 AM

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