WAUKESHA - What, exactly, is a lie?
A panel of three appeals-court judges was asked Wednesday to weigh that question in deciding whether a controversial ad run in the 2008 race for Wisconsin Supreme Court was "false" and should result in discipline for the winning candidate, Justice Michael Gableman.
During a 90-minute hearing at the 2nd District Court of Appeals here, the three judges grappled with how far the state Supreme Court could or should go in regulating the speech of judges running for office, which in most instances is protected by the First Amendment.
Gableman's lawyer, Jim Bopp, said the ad may have been "misleading," but it wasn't a misrepresentation, which is barred by the Supreme Court's Code of Judicial Conduct. Pointing to an enlarged script of the 15-second ad, Bopp declared, "Each of the statements of fact are true."
But James Alexander, a lawyer for the Wisconsin Judicial Commission, which brought the misconduct allegation against Gableman, countered that the statements must be taken as a whole. Viewed that way, he said, the commercial "was false. It was intended to be false. It sent a false message."
The ad stated that incumbent Justice Louis Butler, a former public defender, "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."
As a lawyer defending Mitchell, Butler had successfully argued that the trial judge should have barred evidence about the young victim's virginity, and the state Court of Appeals ordered Mitchell freed. But the Supreme Court ruled the error wasn't serious enough to let Mitchell out. He was released on parole in 1992 and sexually assaulted another child in 1995.
Alexander said the ad left the "unambiguous" and false impression that "something that Louis Butler did allowed Reuben Mitchell back on the street ... where he committed another crime."
But Bopp argued that another interpretation of the ad is that Butler was "willing to find a loophole for a person who is so evil and despicable."
The Judicial Commission charged that Gableman violated the Supreme Court rule that bars judicial candidates from knowingly misrepresenting "the identity, qualifications, present position, or other fact concerning the candidate or an opponent."
The commercial aired in the final weeks of a multi-million-dollar battle between Butler and Gableman, a Burnett County Circuit Court judge. Gableman's narrow win against Butler marked the first time in 41 years that a sitting state Supreme Court justice had been ousted.
The case will be decided by Gableman's six peers on the Supreme Court. Gableman didn't attend Wednesday's proceedings, and there's no deadline for the panel's recommendation. The judicial conduct panel consists of appeals-court judges Harry Snyder, 2nd District; Ralph Adam Fine, 1st District; and Reserve Judge David Deininger.