A Crippling Case of Ethics Self-Enforcement
I recently wrote <a href="http://www.cityethics.org/content/false-statements-elections" target="”_blank”">a
blog post about a false statements in elections law</a> in Ohio, and
the problems with enforcing such laws. I have often written about the
problems with self-enforcement of ethics laws. In the Wisconsin case of
a state supreme court justice's misrepresentations in an election ad, the two
have come together, big-time. The result is far more injurious, even crippling, to public trust in the judiciary than the original misrepresentations.<br>
<br>
I wrote about the falsity and first amendment issues in this case in <a href="http://www.cityethics.org/node/741" target="”_blank”">a blog post last year</a>.
Here I would like to focus on the self-enforcement issues.<br>
<br>
But I should first provide the basic situation. The state judicial
commission filed a complaint based on the following TV ad (<a href="http://www.youtube.com/watch?v=8GquEW0XKcA" target="”_blank”">click here</a> to see the video):
<ul>
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?
</ul>
The evidentiary "loophole" the judicial candidate "found" was accepted
by the court, but considered too minor to matter, and Mitchell went to
prison. He molested another child only after he went on parole, which
had nothing to do with the judicial candidate. Based on the Mitchell
case, there is no truth whatsoever to the first and last sentences of this portion of the ad, and
there is a big lie in omitting the fact that Butler did not prevent
Mitchell from going to prison. But the biggest lie of all is acting as
if criminal defense attorneys do not have the obligation to assert
every "loophole" they can find to help their clients. Anyone who
implies otherwise has no place on any judicial chair.<br>
<br>
According to <a href="http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqN…; target="”_blank”">one
of two state supreme court opinions in this case,</a> dated June 30, 2010 (there was
an even split 3-3), the state judicial conduct panel "made findings of
fact that each of the four sentences in the advertisement relating to Louis
Butler was factually true [and] that four true statements cannot fit
within the prohibition of the first sentence of SCR 60.06(3)(c)."<br>
<br>
Here is the relevant sentence of the judicial conduct rule:
<ul>
A candidate for a judicial office shall not knowingly or with reckless
disregard for the statement's truth or falsity misrepresent the
identity, qualifications, present position, or other fact concerning
the candidate or an opponent.
</ul>
<a href="http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqN…; target="”_blank”">In the other state supreme court opinion, </a> the other three supreme court justices agreed with the state judicial
conduct panel that four truthful statements are protected by the first
amendment, even though together they form a misrepresentation.<br>
<br>
According to the three justices who found that the statement was indeed
a misrepresentation, "This view would ignore the normal way that people
speak, read, and listen, the way in which people express meaning
through language, and the way people understand not just words but
sentences, and ultimately meaning." And these three justices concluded,
"We refuse to approach the Code of Judicial Conduct in that manner or
to adopt an approach to SCR 60.06(3)(c) that invites future judicial candidates to push and distort the content of
advertising in judicial campaigns as far past truthful communication as
the creative use of language may allow."<br>
<br>
Three justices and one judge were willing to read the judicial conduct
provision as the ethics law it is, that is as a minimum requirement, rather than as a criminal law, which allows the strictest interpretation. However, the other two judges on the judicial conduct panel and three
supreme court justices refused to enforce an ethics rule as an ethics rule.<br>
<br>
The result of having judges, including the respondent's six direct
colleagues, enforcing an ethics rule with respect to another judge is that
instead of just one judge losing the public trust, the entire state
judiciary loses the public trust. How could this possibly be good for
either the judiciary or the public? Why would anyone who cares about
public trust create a system like this?<br>
<br>
The top Wisconsin daily, the Milwaukee <i>Journal-Sentinel</i>, concluded
in <a href="http://www.jsonline.com/blogs/news/98052134.html" target="”_blank”">an
editorial last week</a>, "Here's our take: The three-judge panel and
the three justices who voted not to sanction Gableman found a loophole.
Gableman is free to lie again in campaigning. What a message."<br>
<br>
To add insult to injury, the supreme court issued its opinions late at
night on the last day of the session, without the usual advanced
notice, and they issued their opinions under different case numbers,
rather than as separate decisions in the same case.<br>
<br>
Here's what the three justices who felt their fellow justice had
misrepresented his opponent said in their decision:
<ul>
If this court is unwilling or unable to keep its own house in order,
perhaps it will require action by others to step in and assist in
maintaining the integrity of the court and preserving the public trust
and confidence that Wisconsin judges will be impartial.
</ul>
And here's what the other three justices said:
<ul>
Justice Bradley's dissent is a political statement that will foster
disrespect for and distrust of the Wisconsin Supreme Court as an
institution.
</ul>
In other words, all the justices realize that this case has fostered disrespect and distrust for the supreme
court, but only three of them give the right reason for it, and see what the right solution is. Perhaps more judges
who can stand up to the common institutional preference for
self-regulation will get themselves elected to the state supreme court, and there won't have to be more cases like this in Wisconsin.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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