Wisconsin Supreme Court – Page 25 – Marquette University Law School Faculty Blog

What Is a Lie and Is It Constitutionally Protected?

Post author:Richard M. Esenberg
Post published:November 17, 2009
Post category:First Amendment Legal Ethics Wisconsin Supreme Court

I think that the three judge panel’s decision to recommend dismissal of ethics charges against Justice Michael Gableman is the right outcome. I doubt that we really want tribunals passing upon the truth and falsity of campaign speech – even for judges.

There were differing approaches taken by the panel judges. Judges Snyder and Deininger found that the Gableman campaign’s ad criticizing Louis Butler for “finding a loophole” for a convicted rapist who went on to offend again was literally true, nohwithstanding that “the loophole” did not result in Butler’s client’s release and he offended again only after serving his sentence. It was, they believed, a misleading ad but true because each sentence in the ad, taken in isolation, was literally true. Although the Judicial Code also addresses true, but misleading statements, its admonition against such statements is only aspirational and cannot form the basis for discipline.

Judge Fine, on the other hand, wants to take the statement as a whole and that has substantial intuitive appeal. We don’t, in common discourse, isolate a message’s individual words, phrases and sentences to discern its meaning.

He goes on, however, to find that the Code’s prohibition on knowingly false statements to be unconstitutional. But that finding seems itself to be a function of his willingness to apply the language of that Code in a more expansive way.

Public Financing of Supreme Court Races: The Legislature Whacks A Mole

Post author:Richard M. Esenberg
Post published:November 9, 2009
Post category:First Amendment Wisconsin Supreme Court

In a forthcoming article in the Harvard Journal of Law & Public Policy, I argue ( the metaphor is not original with me) that campaign finance reform is like a game of Whac-A-Mole™ in which the moles always win.

The state legislature has passed public financing for state Supreme Court elections. I have no problem with public financing in general but this bill is likely to enhance what most people disliked about our recent hotly contested Supreme Court races. Most of the money in the two hotly contested races was spent by independent groups. For a variety of reasons, those ads tend to be negative which, in a judicial race, means calling your opponent “pro-criminal” or displaying photos of he sex predators that he did not send away for a long enough time.

The bill doesn’t restrict independent expenditures (that would be constitutionally difficult) although it does try to counter their impact by providing increased public financing to candidates who face independent expenditures calling for the defeat of that candidate or the election of her opponent when, in the aggregate, those expenditures exceed 120% of the public financing benefit, i.e., $ 300,000 for the general election. These “matching” public funds are capped at three times the public financing benefit, e.g, $900,000 for the general.

Pondering the Wisconsin Supreme Court’s Criminal Docket

Post author:Michael M. O'Hear
Post published:November 3, 2009
Post category:Criminal Law & Process Wisconsin Criminal Law & Process Wisconsin Supreme Court

Last week, I was delighted to participate in the Conference on the Wisconsin Supreme Court organized by Rick Esenberg. The panel I moderated reviewed some of the court’s most significant criminal cases last term. But “most significant” is a relative term, and I don’t think any of the panelists found the court’s recent criminal cases to offer anything especially bold or innovative. The court seems to be operating more in an error-correction mode than a law-declaration mode. Recent decisions generally do not announce new rules of law, but operate within established legal frameworks and decide cases based on the particularities of the facts presented. (Indeed, an exception to this trend, State v. Ferguson, 767 N.W.2d 187, drew a sharp rebuke from Justice Bradley, who characterized the majority decision as “an unbridled exercise of power.”) Notably absent is the “new federalism” exhibited in some earlier terms, in which the court interprets state constitutional rights in ways that are more protective than the analogous federal rights.

Fans of judicial minimalism should be happy with the court’s recent criminal decisions. So should fans of judicial collegiality: the court’s minimalist holdings produce few dissenting votes and (Bradley’s shot notwithstanding) a generally respectful tone in the few dissenting opinions. I wonder, though, if all of this minimalism and case-specific analysis provides sufficient clarity in the law for the police officers, lawyers, and trial-court judges working in the trenches of the criminal-justice system. Though much in vogue now, minimalism has its vices, too.