A Court Divided
Posted by judicialethicsforum on Saturday, July, 3, 2010
The growing rift between liberal and conservative justices on the Wisconsin Supreme Court has once again caused indecision. This time, the issue was whether Justice Gableman should be disciplined for the misleading advertisement that his campaign committee aired against former Justice Butler. Butler had long ago been a public defender, represented a criminal defendant on appeal, won at the court of appeals level, but lost at the supreme court level. The client then served his time, but regrettably committed another serious offense after he was released from prison. From these facts, the campaign committee somehow crafted the following television attack ad, which Justice Gableman reviewed and approved: “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.” [See the full ad here.]
In short, the three liberal justices found disciplinable conduct in the ad’s misleading speech (opinion, here); the three conservative justices found the ad “distasteful” but not disciplinable (opinion, here). Now, the judicial conduct authorities do not know what to do with this tie.
This same three-three split occurred recently in the much-followed case of State v. Allen, in which a criminal defendant moved to disqualify Gableman (in part for the remarks above). The resulting deadlock meant that the motion to disqualify was effectively denied. And as a final example, the split essentially caused the Wisconsin Supreme Court’s anomalous Caperton response (or more accurately, nonresponse); see earlier post for details.
The Judicial Ethics Forum (JEF) 
Keith Swisher said
Following up, the judicial conduct commission indeed was effectively forced to drop prosecution in view of the supreme court’s fractured stance. In announcing the dismissal, however, the commission’s executive director gave both a jab and a warning: “The Judicial Commission remains firmly convinced that the advertisement in question in this case was a misrepresentation of fact purposely made in violation of SCR 60.06(3)(c) Code of Judicial Conduct and that the prosecution of this matter was appropriate and a constitutional application of that valid rule. The Judicial Commission will be remiss in its duties if it does not seek enforcement of the rule in the future if the facts so dictate.”