Wisconsin Supreme Court encourages dismissal of complaint against Justice Michael J. Gableman.

Byline: Jack Zemlicka

A three-judge panel Thursday unanimously encouraged the state Supreme Court to dismiss a complaint filed against Justice Michael J. Gableman by the Wisconsin Judicial Commission.

The panel concluded that it must construe SCR 60.06(3)(c) narrowly, to prohibit only statements that are factually untrue, and not to encompass statements that, although true, are misleading.

In their findings of fact, appellate court judges Harry G. Snyder, Ralph A. Fine and David D. Deininger determined that a campaign advertisement run by Gableman in 2008 did not violate SCR 60.06(3)(c).

The panel concluded that the complaint relied on an implicit message which the Judicial Commission contended was false or, at best, misleading.

[I]t is undisputed that the individual statement[s] in the advertisement were true. By its own words, the complaint relies on an implicit message which the Commission contends was false or, at best, misleading, the panel noted.

However, because the individual statements in the advertisement were true, any false or misleading implied message of the advertisement necessarily falls within the reach of the second sentence of SCR 60.06(3)(c), for which discipline may not be imposed. Therefore, we conclude that the facts alleged in the complaint do not constitute a violation of SCR 60.06(3)(c) for which discipline may be imposed. Accordingly, we recommend that Justice Gableman's motion for summary judgment be granted and the Commission's compliant be dismissed.

The ad in question ran a month prior to Gableman's victory over incumbent Justice Louis B. Butler, Jr., last year. It referenced a case Butler took as a public defender involving child sex offender Rueben Lee Mitchell.

The ad states that Butler found a loophole and Mitchell went on to molest another child.

What the ad didn't mention is that the state Supreme Court overturned Butler's win on appeal and Mitchell did not commit the subsequent crime until he was on parole.

While the panel agreed that the complaint should be dismissed and no punishment should be imposed on Gableman, Deininger still took issue with the advertisement in a separate concurrence.

He said the advertisement would have been deserving of condemnation under the Code of Judicial Conduct had Butler's representation of Mitchell resulted in the offender's release from prison.

More troubling than the misleading implication, however, is the advertisement's disdain for the role of defense counsel in our...

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