Wisconsin Law Blog

Date: 10/8/2008 3:51 AM

By RYAN J. FOLEY
Associated Press Writer

MADISON, Wis. (AP) _ State regulators say a Willie Horton-style campaign ad that suggested the first black member of the Wisconsin Supreme Court freed a child molester played so loose with the truth that the court’s newest member should be disciplined for it.

The Wisconsin Judicial Commission filed a complaint against Justice Michael Gableman on Tuesday, claiming he violated a rule that prohibits judicial candidates from knowingly misrepresenting facts about their opponents.

Gableman was the first challenger to defeat an incumbent justice in 41 years when he knocked off Louis Butler in the April election with 51 percent of the vote. Gableman, 42, joined the court for a 10-year term in August.

During the campaign, Gableman faced intense criticism from independent observers when his campaign ran a television ad that 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.”

When Butler was a public defender, he represented Mitchell on the appeal of his 1985 conviction for raping an 11-year-old girl.

Butler convinced an appeals court that Mitchell deserved a new trial because certain evidence should not have been allowed. The Supreme Court overturned that decision and Mitchell served his full sentence. After his release on parole in 1992, Mitchell was convicted of raping a 14-year-old girl and sentenced to 40 years in prison.

Gableman knew those facts when he personally approved the ad, the complaint said. Therefore, he knew Butler was not responsible for Mitchell’s release from prison and subsequent criminal behavior as the ad suggested, it said.

“The misrepresentation was made knowingly or with reckless disregard for the truth by Judge Gableman,” the complaint said.

Gableman defended the ad during the campaign as contrasting his background as a prosecutor against Butler’s as a defense lawyer.

His campaign manager, Darrin Schmitz, said in a statement that the complaint has “no basis in fact or in law” and tramples on Gableman’s rights to free speech.

“The Commission chose to ignore the plain language of the ad, which is factual,” he wrote. “Instead, the complaint alleges that the ad contains false statements on the basis of inference and implication. The First Amendment does not allow a claim to be made on that basis.”

He added: “We’re confident that in the end actual judges will apply the law and the matter will be dismissed.”

Seven members of the judicial commission participated in the decision to file the complaint. They were either appointed by the governor or the Supreme Court and include prominent lawyers, businesspeople and an appeals court judge.

Butler, who recently accepted a faculty position at the University of Wisconsin law school, declined comment. “It’s important to let the process work itself through,” he said.

A three-judge panel will now hear the complaint and determine whether it has merit. If it does, the panel will make a recommendation on discipline to Gableman’s colleagues on the Supreme Court, which will make the final decision. Discipline could include a reprimand, suspension or even removal from the bench.

Lawyers across the political spectrum called Gableman’s ad misleading before the election and the liberal-leaning Citizen Action of Wisconsin filed the complaint that prompted the commission investigation.

“What’s most discouraging about this complaint was not only that everyone saw it coming but that the campaign worked,” University of Wisconsin-Madison professor Howard Schweber said.

The ad had echoes of the one featuring Horton, who was serving a life term for murder and was granted a weekend furlough under a program overseen by then-Gov. Michael Dukakis of Massachusetts. Horton escaped to Maryland, where he robbed and raped a woman.

A TV ad in the 1988 presidential campaign associating Dukakis, the Democratic nominee, with the incident hurt him in his race against Republican George H.W. Bush, who won the election.

Copyright 2008 The Associated Press.