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Gableman 3.jpg
Wisconsin Supreme Court Justice Michael Gableman.

The Wisconsin Supreme Court deadlocked on whether one of its members committed misconduct, issuing unprecedented dueling opinions that order contradictory outcomes.

In opinions made public at 10:30 p.m. Wednesday, the court split 3-3 on whether Justice Michael Gableman violated the judicial code of conduct when he ran a potentially misleading and race-baiting campaign ad in 2008.

The opinions are here and here.

Chief Justice Shirley Abrahamson and two others seen as the court's liberal bloc said Gableman knowingly made a false statement suggesting his opponent helped free a sex offender who went on to rape again. They said a judicial panel wrongly recommended dismissing the case, and directed the Wisconsin Judicial Commission to seek a jury trial.

Three justices seen as Gableman's conservative colleagues said the ad was distasteful, but the words themselves were "objectively true." They ruled Gableman's speech was protected by the First Amendment and directed the commission to dismiss its complaint.

Each bloc accused the other of having no authority for their orders, neither of which contain the force of law since they lack a four-judge majority. The extraordinary scenario left even the most seasoned legal observers dumbfounded about what will happen.

"I can't quite fathom where it would go next. You can't even say who won or who lost," said former justice Janine Geske, now a law professor at Marquette University. "That is a real anomaly and I don't believe there's any precedent for them on how to handle that. It's a quandary."

Former Justice William Bablitch said it was shameful the court issued decisions that orders two different outcomes.

"I don't know what the Judicial Commission is supposed to do, flip a coin?" he said. "It's just further evidence of the deep divisions in the court and the dysfunctionality in the court. It's very discouraging."

Lawyers for Gableman, who recused himself from the case, declared victory and said the case should be over. They argued the commission failed to get four justices needed to sustain its burden of proof. They said they would oppose any attempt to hold further proceedings in the case, other than to dismiss it.

"The burden of proof is important. It resolves issues like this," said Gableman attorney James Bopp, Jr. "When the prosecutor comes forward and wants to punish you, he's got to get a majority vote for that. When he fails to do it, it means you are exonerated. Now they get another bite at the apple? I don't think so."

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Jim Alexander, executive director of the Wisconsin Judicial Commission, said the commission was reviewing whether it has any options to continue the case.

"With three justices on each side, quite frankly I don't know where we go from here or what the commission's options are or what we'll be reviewing," he said. "We'll be taking a very long and serious look at the situation."

Citizen Action of Wisconsin, the group that filed the initial complaint over Gableman's ad, said it would press the commission to seek a jury trial.

"It's important this case actually be heard and this process continue," said Robert Kraig, its executive director. "Letting him walk from violating the code of conduct in this fashion impugns the court and is damaging to our whole justice system in Wisconsin."

During his 2008 campaign for the court, Gableman approved the ad showing the face of his opponent, Louis Butler, the state's first African American justice, next to the face of a black rapist he represented years earlier as a public defender. The ad said Butler found a "loophole" and the man went on to rape again.

After Gableman narrowly defeated Butler, the Judicial Commission contended he violated a rule that says judges cannot knowingly misrepresent the background of their opponents and should be disciplined.

Butler had won the man a new trial from the appeals court based on a procedural error, but the decision was overturned by the Supreme Court. The man served his full prison term before being released and committing another offense.

A judicial panel recommended 2-1 last year the high court dismiss the case on free speech grounds. Gableman had argued the words of the ad were technically true, if misleading.

Bablitch said justices were likely trying to escape public attention by issuing the opinions late at night without routine advanced notice, but the move only invited more scrutiny.

"It shows what happens when it deteriorates to this situation," he said. "The people just aren't thinking strategically or clearly."

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