Another SCR Bites the Dust?

In Duwe v. Alexander, prominent First Amendment attorney James Bopp won a federal district court decision (PDF) striking down SCR 60.06(3)(b), part of the Wisconsin Code of Judicial Ethics. Bopp convinced Judge Shabaz that the Code’s section prohibiting judges from making “pledges, promises, or commitments” interfered with their free speech rights under Republican Party of Minnesota v. White, 536 U.S. 765 (2002).

Bopp is currently pursuing another free speech claim in Siefert v. Alexander, again in the Western District federal court (PDF). Here, Bopp represents a Milwaukee County judge who is challenging three sections of the Code that prohibit judges from belonging to or participating in political parties.

He is also counsel to Justice Michael Gableman in the disciplinary proceedings regarding Gableman’s campaign TV ad. In the reply to the Judicial Commission’s charges (PDF), he affirmatively asserts that SCR 60.06(3)(2), the “misrepresentations” clause, is an unconstitutional impingement on free speech.

In other words, Bopp’s litigation in Wisconsin has successfully taken down one judicial ethics code section, and four more are under challenge.

But Bopp is litigating outside Wisconsin as well, and a recent decision Bopp won in a federal court in Kansas may result in new litigation in Wisconsin. Yesterday, Bopp issued a release hailing Judge Julie A. Robinson’s decision in Yost v. Stout, which struck down the Kansas Judicial Code’s ban on the direct solicitation of campaign donations by judicial candidates. Wisconsin SCR 60.06(4) says that “A judge, candidate for judicial office, or judge-elect shall not personally solicit or accept campaign contributions.” Under the federal district court’s decision in Kansas, it seems clear that 60.06(4) is unconstitutional. Will a Wisconsin judge or candidate soon challenge it as such?

This Post Has 8 Comments

  1. Daniel Suhr

    Thanks to Illusory Tenant for pointing out an oversight on my part. A Wisconsin judge has already challenged 60.06(4), the Code of Judicial Ethics’ ban on solicitation. I had read the Siefert complaint when it was first filed, and remembered that the media coverage focused on Judge Siefert’s desire to formally join the Democratic Party. I did not remember that the complaint also challenged the solicitation clause. So I’ll revise and extend my remarks to say instead that Judge Siefert has another precedent in his pocket as he challenges that particular clause.

  2. sean samis

    Since Judges are just folks with all the rights of ordinary people, the next step is to take away their Judicial Immunity.

    We don’t get it, why should they?

    If someone volunteers to be a judge with preexisting limits on their free expression, why not enforce that?

    And is it not amazing that a sitting Justice of the Wisconsin Supreme Court defends his misrepresentations (I consciously avoid the “L” word) on the grounds that misrepresentation is OK? Sigh … We live in a shameless time.

  3. Andrew Golden

    “An unconstitutional impingement on free speech”? Surely even you, Dan — being the vocal supporter of Judge Gableman that you are — must recognize that LYING about Justice Butler’s involvement in “letting a convicted rapist go free” (or whatever drivel was actually stated in that attack ad) doesn’t constitute free speech. Libel and slander has never been considered free speech in any state I’ve studied, and I’m willing to wager that’s still the case in Wisconsin.

    I agree that as long as we have judicial elections (though, would that we could remove them!), we have to allow for campaigning and solicitation of donations. However, that still doesn’t excuse Judge Gableman’s reprehensible comments in that ad, and I for one believe he needs to be punished for that.

  4. Nathan Petrashek

    I think there is general consensus that the advertisement that is the subject of the complaint against Justice Gableman was ill-advised. It has created a significant distraction and was likely unnecessary in the first instance. Still, the emphasis on the advertisement in the last two comments is misplaced given the subject of Daniel’s original post. It is the judicial code provision with which we should be concerned.

    SCR 60.06(3)(c) prohibits a candidate for judicial office from “knowingly or with reckless disregard for the statement’s truth or falsity misrepresent[ing] the identity, qualifications, present position, or other fact concerning the candidate or an opponent.”

    Justice Gableman, through Atty. Bopp, argues that SCR 60.06(3)(c) is unconstitutional because it is overbroad and vague. The rule is overbroad, he says, because it prohibits protected speech as well as defamatory speech. Thus, while you’re right that defamatory speech is generally not protected Andrew, Justice Gableman argues that the rule prohibits something more. Further, Justice Gableman argues that the rule is vague because it allows the Commission to pick and choose which speech “misrepresents” and which speech does not in an arbitrary fashion. The answer to this challenge is also anything but clear cut.

    If the objection to the advertisement is that it was simply ill-advised, you’ll find me in agreement. But arguing that Justice Gableman should be punished under a rule whose constitutionality is fairly in question without mentioning, let alone addressing, any of the constitutional questions raised by the rule seems premature.

    I also feel it necessary to respond to Sean’s argument that judicial code provisions, even if unconstitutional, should nonetheless be applied because the judge essentially consented to their enforcement by running for office. I find this argument on its face to be wholly unpersuasive and it raises a significant number of questions. Can one consent to the enforcement of an unconstitutional rule? Is simply running for office a clear enough statement of consent? Is that consent irrevocable such that a judge cannot later challenge the rule? I don’t have a definitive answer to any of these questions, but I know what my gut tells me.

  5. Andrew Golden

    I understand and respect your point, Nathan, but I fail to see how this is overbroad. Can you come up with an example of a statement that would be protected under free speech (so, not libelous/slanderous) that would be prohibited under SCR 60.06(3)(c)? I can’t. As for a claim of “vagueness” on the grounds Judge Gableman alleges, his claim has nothing to do with the law itself, but rather its application. Had he sued claiming that the Commission applied it willy nilly, I could see a point. But he didn’t, and I suspect it is because he would have to prove that it was unfairly applied TO HIM, and I think we all know that he’d lose on that.

    Look, I support constitutional challenges as much as the next guy. But I have a hard time swallowing a claim when it’s being done as an out, as this clearly is. Judge Gableman didn’t do this thinking it was acceptable and then finding out it wasn’t; he did this knowing damn well it wouldn’t be, and is now challenging the law in the hopes he can get away with it. For that, he deserves to lose and subsequently have the book thrown at him.

  6. Daniel Suhr

    Thanks, everyone, for your thoughts.
    With this comment I simply want to point out the extremely limited nature of what I was saying. This is much more of a news alert than an opinion piece. I do not in this post express any opinion about whether or not Justice Gableman should be disciplined or whether Judge Siefert’s claims should succeed. This was more of a news alert: A case was decided in Kansas, and the precedent bears directly on certain events unfolding in Wisconsin. I thought readers would find that of interest. That’s it.

  7. Sean Samis


    Regarding overbroadness, Andrew Golden’s question seeking examples of protected expression which the SCR would improperly penalize is crucial. Courts normally dismiss bizarre examples; so barring examples of reasonably likely expressions that should be protected but fall under the SCR, the overbreadth claim will fail.

    Claims that a statute’s regulation of expression is “overbroad” usually start with the admission that one’s expression DID fall legitimately under the regulation, but that others might be caught innocently. If one claims to be innocent of misbehavior, overbroadness is an inapt defense

    Claims of vagueness are related to statutory notice, Gableman must claim that he could not have known his lies were sanctionable. If he didn’t know that his lies were, then he’s all but admitting incompetence. If Gableman argues that the meaning of the SCR is uncertain then one wonders what he’ll do when faced with something actually difficult.

    If his claim is that “the rule is vague because it allows the Commission to pick and choose which speech ‘misrepresents’ and which speech does not in an arbitrary fashion” he is making an “abuse of discretion” claim. Good luck with that. I am not in a place where I can look it up but I think SCR 60.06(3)(c) has been on the books for a number of years, and that Gableman may be the only Supreme Court Justice charged with a violation of it. Given the uniqueness of the charge against him and the uniqueness of his conduct (the ad), Gableman will have a hard time showing that others have violated the statute and escaped charges before him; thus demonstrating arbitrariness on the part of the Commission. Short of that, his claim should fail.

    You characterized my argument (above) as: “judicial code provisions, even if unconstitutional, should nonetheless be applied because the judge essentially consented to their enforcement by running for office.” That’s not quite right. If a person seeks a judicial position, then they consent to whatever reasonable rules constrain those who do so. The SCRs are published rules under which the Court system in Wisconsin has been operating for some time. They are reasonable and narrowly tailored for a legitimate and important (if not compelling) purpose.

    You ask fairly: “Can one consent to the enforcement of an unconstitutional rule?” The answer is: Yes, of course. When someone accepts a position with a non-compete clause, they are consenting to a rule that would be unlawful absent their consent. Similarly when you buy a cell phone or a laptop, you sign a purchase agreement that almost always binds you to mandatory arbitration which would be unlawful absent your consent. We are all free to consent to waivers of rights in exchange for purchases or employment opportunities.

    “Is simply running for office a clear enough statement of consent?” I don’t know how it could be clearer. Since running for this office is no simple thing, since the rules have been in place for a long time, since the very nature of the position involves the enforcement of rules, it is odd to claim afterwards, “Well, I really didn’t want to work under these conditions.” The SCRs do not place an unconscionable burden on Justices, especially given the power, privileges and stature that go with the position.

    How Gableman could claim he went through all the trouble to run for the Supreme Court but was unaware of the SCRs or that he could “announce” his objection to them by violating them is beyond me. Such claims don’t work for the rest of us, why should they work for him?

    I don’t know what your gut tells you, Nathan, but my gut tells me the man does not belong on the Court. This is not about ideology, it’s about morality and judicial fitness.

  8. Nathan Petrashek

    I hapeen to be a huge fan of the Simpsons. There is a sixth season episode in which Bart suspects Ned Flanders of murdering his wife. After discovering a perfectly mundane explanation for everything, Homer sarcastically says “Oh, I see! Then I guess everything’s wrapped up in a neat little package!”

    I don’t think the answers are so clear cut, but I recognize that others do. It will certainly be interesting to see how this all plays out.

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