Yesterday a divided Wisconsin Supreme Court quietly finalized new rules allowing state judges to decide cases involving their biggest campaign supporters. This new ethical standard was proposed by two of the state's most powerful lobbying groups, Wisconsin Manufacturers and Commerce and the Wisconsin Realtors Association.
The rules stand in direct contradiction with the U.S. Supreme Court's 2009 ruling in Caperton v. Massey that a West Virginia Supreme Court justice had a duty to withdraw from a case involving a major campaign supporter and his failure to do so violated the Due Process Clause of the Fourteenth Amendment that protects the right to a fair trial.
Four of the state Supreme Court's seven justices - Patience Roggensack, David Prosser, Annette Ziegler and Michael Gableman - ignored the Caperton decision and sided with WMC and the Realtors on the amendment to Wisconsin's judicial ethics code.
This move came on the heels of Prosser, Ziegler and Roggensack blocking disciplinary action against Gableman for authorizing an untruthful campaign ad. Gableman stood accused of judicial misconduct for violating the part of the ethics code prohibiting judges from making false statements about an election opponent. Gableman's ad claimed Louis Butler "found a loophole" and implied a child molester got off on a technicality of Butler's making and "went on to molest another child." Trouble is, the man Butler was representing as a public defender didn't get off. He was never released until he had served his entire sentence. Only after that did he commit another crime. The ad was a lie. And an obvious violation of the judicial ethics code.
Prosser, Ziegler and Roggensack overlooked the plain facts in Gableman's misconduct case and ignored the plain meaning of the judicial ethics code. They refused to conclude that Gableman's ad was untruthful. It was just "distasteful," they ruled. And protected speech under the First Amendment.
The justices don't have a leg to stand on between the three of them on the truthfulness of the ad. It was way beyond distasteful. It was a lie. Invoking free speech was a far more clever maneuver. It made letting Gableman off appear somehow principled.
There is no disputing that Gableman had the right to say what he said about Butler. But that doesn't mean he shouldn't be held accountable for violating the judicial ethics code. Employees have the right to publicly say their bosses are total losers. But they shouldn't be at all surprised if that free speech gets them fired. General Stanley McCrystal and his aides had every right to say what they said to Rolling Stone magazine. President Obama also was entirely within his rights when he relieved McCrystal of his duties.
The right to speak is constitutionally protected. But that doesn't mean speech has no consequences under any circumstances. Justices Prosser, Ziegler and Roggensack waived application of that common sense to their colleague and ideological soulmate Michael Gableman. Some might even be tempted to say they found a loophole in the state judicial ethics code.
Columnist Joel McNally said it best: "This time a lowlife really did get off on a technicality."