Judicial Panel Recommends Dismissing Gableman Complaint

A racially charged television ad run by Wisconsin Supreme Court Justice Michael Gableman's campaign last year constitutes protected free speech, a three-judge panel determined Thursday, dismissing ethics charges against him. MADISON, Wis. (AP) -- A racially charged television ad run by Wisconsin Supreme Court Justice Michael Gableman's campaign last year constitutes protected free speech, a three-judge panel determined Thursday, dismissing ethics charges against him.

The Wisconsin Judicial Commission had accused Gableman of violating the state judicial code by falsely suggesting in a campaign ad when he was a candidate that his opponent, then-Supreme Court Justice Louis Butler, helped free a convicted rapist.

Gableman's attorney, James Bopp Jr., called the ruling a "complete vindication."

Commission director James Alexander said he was disappointed but had no further comment.

The case boiled down to the panel's interpretation of whether the statements in the ad by themselves were truthful, or whether taken in context they added up to a lie.

"The panel found that every statement in the ad was true and that there were no grounds for discipline," Bopp said. "He's very pleased with the result."

Each of the judges emphasized different reasons for recommending that the case be dismissed.

District 2 Appeals Judge Harry G. Snyder, writing for the majority, said all of the statements made in the ad were true and therefore Gableman couldn't be disciplined.

In a concurring opinion, Reserve Judge David G. Deininger agreed with Snyder's conclusions but stipulated that "no one should be misled into believing that we find no fault with the advertisement in question." He said the ad showed a "disdain for the role of defense counsel in our adversary system."

District 1 Appeals Judge Ralph Adam Fine said he believed the ad did violate the judicial code, but that under the First Amendment it is up to voters to determine that, not up to any court.

The final word in the case rests with Gableman's six colleagues on the Supreme Court, which must decide whether to follow the recommendation of the three-judge panel or go their own way.

The only other time the Supreme Court has disciplined one of its own was in 2008, when Justice Annette Ziegler was reprimanded for presiding over 11 cases as a Washington County circuit judge involving a bank where her husband was a director.

Robert Kraig, director of the liberal interest group Citizen Action of Wisconsin -- which filed the initial complaint against Gableman with the Judicial Commission -- called it a "sad day for truth." Kraig said he hoped the Supreme Court would reject the recommendation and instead discipline Gableman. The court could choose to do nothing all the way up to removing him from the bench.

Gableman's ad ran several weeks before the April 2008 election. It showed a picture of Butler, the state's first black justice, next to a mug shot of convicted rapist Reuben Lee Mitchell, who is black. A narrator said, "Butler found a loophole. Mitchell went on to molest another child."

Butler was Mitchell's public defender when Mitchell appealed his 1985 conviction for raping an 11-year-old girl. Butler convinced an appeals court that the man deserved a new trial.

The ad did not mention that while Butler prevailed at the appeals court, the state Supreme Court overturned that decision and Mitchell served his full sentence. After his release in 1992, Mitchell was convicted of raping a 14-year-old girl and sent back to prison.

Gableman has claimed in court filings the ad was true because none of the statements taken alone were "objectively false." Bopp argued that the ad gets to the heart of the First Amendment and is protected speech.

"The Supreme Court has ruled that the First Amendment fully applies to judicial candidate speech and I think it's very important that the public understands that government has an extremely limited role in policing candidate speech," Bopp said Thursday.

The judicial commission argued Gableman knew Butler wasn't responsible for Mitchell's release and the second rape when he approved the ad, amounting to willful misconduct.

Gableman defeated Butler with 51 percent of the vote, becoming the first challenger to defeat a sitting justice in 41 years. Gableman is in the second year of a 10-year term.

Butler was appointed last month by President Barack Obama to be a federal judge for the Western District of Wisconsin, based in Madison. He is awaiting confirmation by the U.S. Senate.

(Copyright 2009 by The Associated Press. All Rights Reserved.)

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