In The Matter Of Judicial Disciplinary Proceedings v. The Honorable Michael J. Gablemanwis. Judicial Comm'n

• Decision Date: 30 June 2010
• Docket Number: No. 2008AP2458-J.,2008AP2458-J.
• Citation: 784 N.W.2d 631,2010 WI 62,325 Wis.2d 631
• Parties: In the Matter of JUDICIAL DISCIPLINARY PROCEEDINGS AGAINST the Honorable Michael J. GABLEMANWisconsin Judicial Commission, Complainant,v.The Honorable Michael J. Gableman, Respondent.
• Court: Wisconsin Supreme Court

325 Wis.2d 631

784 N.W.2d 631

2010 WI 62

In the Matter of JUDICIAL DISCIPLINARY PROCEEDINGS AGAINST the Honorable Michael J. GABLEMANWisconsin Judicial Commission, Complainant,

v.The Honorable Michael J. Gableman, Respondent.

No. 2008AP2458-J.

Supreme Court of Wisconsin.

June 30, 2010.

For the complainant there were briefs and oral argument by James C. Alexander and the Judicial Commission, Madison.

For the respondent there was a brief by Eric M. McLeod and Michael Best & Friedrich LLP, Madison, and James Bopp, Jr., Anita Y. Woudenberg, and Bopp, Coleson & Bostrom, Terre Haute, Ind., and oral argument by Eric M. McLeod.

MEMORANDUM DECISION OF JUSTICE DAVID T. PROSSER, JUSTICE PATIENCE DRAKE ROGGENSACK AND JUSTICE ANNETTE KINGSLAND ZIEGLER

¶ 1 Justice DAVID T. PROSSER, Justice PATIENCE DRAKE ROGGENSACK and Justice ANNETTE KINGSLAND ZIEGLER.

The court is at an impasse. Three members of the court, Justice Prosser, Justice Roggensack and Justice Ziegler, agree with the recommendation of the three-judge Judicial Conduct Panel (Panel) that the Wisconsin Judicial Commission's (Commission) complaint against Justice Michael J. Gableman must be dismissed. We agree with the Panel's recommendation because after conducting an independent review of the record and considering the arguments of counsel, we have concluded that the Commission failed to establish, by evidence that is clear, satisfactory and convincing, that Justice Gableman violated Supreme Court Rule 60.06(3)(c).

¶ 2 The campaign advertisement that gave rise to the Commission's complaint against Justice Gableman and the governmental rule, SCR 60.06(3)(c), by which the Commission seeks to punish Justice Gableman for that advertisement must be examined according to the commands of the First Amendment. As the United States Supreme Court has explained, the First Amendment applies to judicial elections and to canons of judicial conduct that states seek to apply to candidates in judicial elections. Republican Party of Minnesota v. White, 536 U.S. 765, 788, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002). We acknowledge that the advertisement run by Justice Gableman's campaign committee was distasteful; however, the First Amendment prevents the government from stifling speech, even when that speech is distasteful. R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377, 380, 391, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). The United States Supreme Court has established the parameters of the First Amendment's protections of campaign speech that we follow in our decision below.

¶ 3 In order to meet its burden of proof under Wis. Stat. § 757.89, the Commission must persuade at least four justices, by clear, satisfactory and convincing evidence that the advertisement by Justice Gableman's campaign committee violated SCR 60.06(3)(c). The Commission has failed to do so. Accordingly, we anticipate that the Commission, or the Commission and Justice Gableman together, promptly will file a motion to dismiss the complaint against Justice Gableman.¹

I. BACKGROUND

¶ 4 This action began on October 7, 2008, when the Commission filed a complaint alleging that it had found probable cause to believe that then-Judge Gableman willfully violated SCR 60.06(3)(c) of the Wisconsin Code of Judicial Conduct and thereby engaged in judicial misconduct as defined by Wis. Stat. § 757.81(4)(a) (2007-08).² The Commission alleged that the violation of SCR 60.06(3)(c) occurred in a television advertisement that then-Judge Gableman's campaign committee ran during the course of his campaign for election to the Wisconsin Supreme Court.³ The Commission alleged that the television advertisement “directly implied and was intended to convey the message that action or conduct of Louis Butler enabled or resulted in [Reuben] Mitchell's release and Mitchell's subsequent commission of a criminal molestation.” ⁴

¶ 5 Justice Gableman timely answered the complaint and raised affirmative defenses. Thereafter, Justice Gableman moved the three-judge panel for summary judgment dismissing the complaint. The Commission agreed that summary judgment was an appropriate procedure to use in the Panel's recommendation to the Supreme Court because the material facts were not disputed.⁵ The Panel accepted submissions of fact from the parties, accepted briefs from the parties and held a hearing prior to making its own findings of fact upon which its recommendation relied. The Panel found:

1. At all times material to the Commission's complaint, the Honorable Michael J. Gableman was a circuit court judge for Burnett County, Wisconsin.

2. At all times material to the Commission's complaint, Justice Gableman was a candidate for the office of Wisconsin Supreme Court justice and thus was a “candidate” for judicial office pursuant to SCR 60.01(2), Wisconsin Code of Judicial Conduct. (Footnote omitted.)

3. During the campaign, advisors to Justice Gableman told him that a third-party political group had released an advertisement in support of Justice Butler that suggested that Justice Gableman had “purchased his job,” was a “substandard judge,” and had “coddled child molesters.” The advisors believed that the advertisement was very damaging to Justice Gableman's campaign and that Justice Gableman needed to respond with an advertisement that focused on the comparative backgrounds of the two candidates, emphasizing Justice Gableman's judicial philosophy and his experience as a prosecutor compared to Justice Butler's experience as a criminal defense attorney and his willingness to represent and find legal loopholes for criminal defendants.

4. Justice Gableman's advisors wanted to air a responsive advertisement as soon as possible, and the advertisement that underlies this complaint was presented to Justice Gableman for his review.

5. Justice Gableman personally reviewed both the audio and video of the advertisement before its release. Justice Gableman was not pleased with the tone of the advertisement and he delayed the release of the advertisement while he sought to verify the accuracy of its contents.

6. As part of that effort, Justice Gableman became familiar with the decisions of the court of appeals and supreme court in Reuben Lee Mitchell's appeal State v. Mitchell, 139 Wis.2d 856, 407 N.W.2d 566 (Ct.App.1987) (unpublished slip op.) reversed, State v. Mitchell, 144 Wis.2d 596, 424 N.W.2d 698 (1988), Justice Butler's arguments made during his representation of Mitchell, and Mitchell's subsequent criminal conduct and conviction.

7. Justice Gableman ultimately approved the advertisement as it had been originally presented to him.

8. On or about March 14, 2008, Justice Gableman published and released a television advertisement supporting his candidacy for the supreme court against then-incumbent Justice Butler. The audio text of the advertisement is as follows:

Unbelievable. Shadowy special interests supporting Louis Butler are attacking Judge Michael Gableman. It's not true!

Judge, District Attorney, Michael Gableman has committed his life to locking up criminals to keep families safe-putting child molesters behind bars for over 100 years.

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.

Can Wisconsin families feel safe with Louis Butler on the Supreme Court?

An electronic copy of the advertisement is Exhibit A to the Commission's complaint.

9. The purpose of the advertisement was to compare and contrast the background, qualifications, and experience of Justice Gableman with the background, qualifications, and experience of Justice Butler.

10. Justice Butler had been an appellate state public defender from 1979 to 1992. As part of that employment, he represented Reuben Lee Mitchell, from 1985 to 1988, in Mitchell's appeal from a conviction of first-degree sexual assault of a child. The advertisement refers to Butler's representation of Mitchell.

11. One of the issues raised by Justice Butler in Mitchell's appeal concerned the circuit court's admission of evidence that the victim had been a virgin, evidence that Butler argued should have been excluded under the rape-shield law, Wis. Stat. § 972.11(2)(b) (1985-86). The court of appeals agreed with Butler and reversed Mitchell's conviction.

12. The State sought and the supreme court accepted review of the court of appeals' decision. The supreme court agreed with the court of appeals that evidence of the victim's virginity should have been excluded pursuant to the rape-shield law. The supreme court, however, held that the error was harmless and, therefore, reversed the court of appeals decision. Mitchell's judgment of conviction and sentence were reinstated.

13. Mitchell was not released from prison during the pendency of his appeal. Because the judgment of conviction was ultimately upheld by the supreme court, Mitchell remained in prison as sentenced by the circuit court.

14. Mitchell was released from prison on parole in 1992.

15. In 1995, Mitchell was convicted of second-degree sexual assault of a child.

16. Nothing that Justice Butler did in the course of his representation of Mitchell caused, facilitated, or enabled Mitchell's release from prison in 1992.

17. Nothing that Justice Butler did in the course of his representation of Mitchell had any connection to Mitchell's commission of a second sexual assault of a child.

18. The statement in the advertisement, “Louis Butler worked to put criminals on the street” is true. As a criminal defense attorney, Justice Butler appropriately assisted accused persons, whether they were innocent or guilty, in lessening or defeating the criminal charges lodged against them.

19. The statement in the advertisement describing Mitchell's 1985 crime, “Reuben Lee Mitchell ... raped an 11-year-old girl with learning disabilities” is true.

20. The statement in the advertisement, “Butler found a loophole,” is true. In Mitchell's appeal,

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