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A Crippling Case of Ethics Self-Enforcement
Tuesday, July 13th, 2010
Robert Wechsler
I recently wrote a
blog post about a false statements in elections law 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.
I wrote about the falsity and first amendment issues in this case in a blog post last year. Here I would like to focus on the self-enforcement issues.
But I should first provide the basic situation. The state judicial commission filed a complaint based on the following TV ad (click here to see the video):
According to one of two state supreme court opinions in this case, 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)."
Here is the relevant sentence of the judicial conduct rule:
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."
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.
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?
The top Wisconsin daily, the Milwaukee Journal-Sentinel, concluded in an editorial last week, "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."
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.
Here's what the three justices who felt their fellow justice had misrepresented his opponent said in their decision:
Robert Wechsler
Director of Research-Retired, City Ethics
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I wrote about the falsity and first amendment issues in this case in a blog post last year. Here I would like to focus on the self-enforcement issues.
But I should first provide the basic situation. The state judicial commission filed a complaint based on the following TV ad (click here to see the video):
-
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?
According to one of two state supreme court opinions in this case, 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)."
Here is the relevant sentence of the judicial conduct rule:
-
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.
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."
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.
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?
The top Wisconsin daily, the Milwaukee Journal-Sentinel, concluded in an editorial last week, "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."
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.
Here's what the three justices who felt their fellow justice had misrepresented his opponent said in their decision:
-
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.
-
Justice Bradley's dissent is a political statement that will foster
disrespect for and distrust of the Wisconsin Supreme Court as an
institution.
Robert Wechsler
Director of Research-Retired, City Ethics
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