Wisconsin Supreme Court – Page 27 – Marquette University Law School Faculty Blog

The Wages of Speech

Post author:Richard M. Esenberg
Post published:December 10, 2009
Post category:First Amendment Judges & Judicial Process Wisconsin Supreme Court

Apparently, the Wisconsin Supreme Court is not the only one sharply divided on an array of issues and fighting over questions of recusal. In Michigan, the Supreme Court voted 4-3 to require that individual justices who have denied a motion to recuse themselves explain the reason in writing and to permit the Court to overrule the refusal to step aside. A Detroit Free Press columnist says that the Michigan court has been characterized by “back-biting, name-calling and playground-level cruelty” and adoption of the rule did draw sharply worded dissents. Sound familar?

Locally, there appears to be a concerted effort (spurred, in part, by an internal memo circulated within the State Public Defender’s office) to seek the recusal of Justice Michael Gableman in a number of criminal cases because he has allegedly expressed a general bias against criminal defendants. Justice Gableman has refused to step aside (the rationale for the motions would apply in every criminal case), and it is unclear whether the Court can compel him to do so.

I think the controversy raises some interesting questions about the interaction between campaign speech and recusal. I am writing a paper on the topic and thought I’d test drive a few of the arguments here as applied to our local controversy.

Memo To The New Justices: That’s Not How We Do Things On The Court

Post author:Edward A. Fallone
Post published:November 25, 2009
Post category:Business Regulation Judges & Judicial Process Wisconsin Supreme Court

At last month’s Conference on the Wisconsin Supreme Court, the panel discussing the Court’s business law cases during the 2008-2009 term began with an observation and a question. The panel noted that there were three business law cases in which the votes of the Justices split on a 5-2 basis. These cases were Farmer’s Automobile Ins. Assn. v. Union Pacific Ry., 2009 WI 73; Krier v. Vilione, 2009 WI 45; and Star Direct, Inc. v. Dal Pra, 2009 WI 76. The question our panel asked was “Is this 5-2 split just a coincidence, or is something else going on?”

I cannot speak for my co-panelists, Tom Shriner and Leonard Leverson, and these comments should not be interpreted to reflect their views. However, I have concluded that, taken together, the three dissents filed by Justices Abrahamson and Bradley in the aforementioned cases can be read as an clear admonishment to their two newest colleagues on the Wisconsin Supreme Court.

The message that comes through to me, loud and clear, is one of disapproval of Justices Ziegler and Gableman for failing to adhere to the unwritten standards of professionalism that apply to the highest court in the State. It’s as if these two members of the “old guard” feel it necessary to remind their colleagues that they now sit on a Supreme Court, and that there are certain things that one just doesn’t do as a Supreme Court Justice. That the concerns of the dissenters have arisen in the context of three cases involving business law disputes is nothing more than a coincidence.

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.