In The Matter Of Judicial Disciplinary Proceedings v. The Honorable Michael J. Gableman.Wis. Judicial Comm'n

325 Wis.2d 579

784 N.W.2d 605

2010 WI 61

In the Matter of JUDICIAL DISCIPLINARY PROCEEDINGS AGAINST the Honorable Michael J. GABLEMAN.Wisconsin Judicial Commission, Complainant,

v.The Honorable Michael J. Gableman, Respondent.

No. 2008AP2458-J.

Supreme Court of Wisconsin.

Decided June 30, 2010.

SHIRLEY S. ABRAHAMSON, C.J., ANN WALSH BRADLEY, J., and N. PATRICK CROOKS, J.

¶ 1 Under normal circumstances the court would be issuing a per curiam opinion (an opinion BY THE COURT), setting forth the separate writings of the members of the court. See our proposed per curiam attached as Attachment A. See also, State v. Allen, 2010 WI 10, 322 Wis.2d 372, 778 N.W.2d 863 (Feb. 11, 2010). Unfortunately, Justices David Prosser, Patience Roggensack, and Annette Ziegler are unwilling even to join us in the proposed per curiam attached.

¶ 2 Surprisingly, Justices Prosser, Roggensack, and Ziegler do not wish their separate writing to have the same public domain citation as our writing-a complete break from our usual practice. Our writing will have a public domain citation of 2010 WI 61. The separate writing of Justices Prosser, Roggensack, and Ziegler will have a public domain citation of 2010 WI 62.

ATTACHMENT A

In the Matter of Judicial Disciplinary Proceedings Against the Honorable Michael J. Gableman

Wisconsin Judicial Commission, Complainant,

v.

The Honorable Michael J. Gableman, Respondent.

Filed June 30, 2010.

PER CURIAM.

Separate writings attached.

¶ 3 SHIRLEY S. ABRAHAMSON, C.J.; ANN WALSH BRADLEY, J.; and N. PATRICK CROOKS, J., deliver the following opinion.

¶ 4 For ease of reference, here is a road map to this opinion.

I. Justice Gableman's Motion for Summary Judgment Fails to Capture 4 Votes. ( See ¶¶ 3-19)

We three, Chief Justice Shirley Abrahamson, Justice Ann Walsh Bradley, and Justice N. Patrick Crooks, conclude:

• Justice Gableman's advertisement violated the first sentence of SCR 60.06(3)(c).

• The advertisement “misrepresent[ed] ... [a] fact concerning ... an opponent” and was made knowingly or with reckless disregard for truth or falsity.

• The First Amendment does not protect knowingly false statements.

Justice David T. Prosser, Justice Patience D. Roggensack, and Justice Annette K. Ziegler ¹ conclude otherwise and anticipate a further motion from the Judicial Commission.

Because of a deadlock, we three conclude that a remand to the Judicial Commission for a jury hearing is required.

II. The Advertisement Violates the First Sentence of SCR 60.06(3)(c). ( See ¶¶ 20-63)III. The First Amendment Does Not Protect Knowingly Made False Statements. ( See ¶ 64-113).

I

¶ 5 The Wisconsin Judicial Commission (Judicial Commission) filed a complaint against Justice Michael J. Gableman based on a TV advertisement run by his campaign.

¶ 6 The Wisconsin Judicial Commission contends that Justice Gableman's advertisement violated the first sentence of SCR 60.06(3)(c) because the advertisement “misrepresent[ed] ... [a] fact concerning ... an opponent.”

¶ 7 A Judicial Conduct Panel (Panel) was designated to hear this matter under Wis. Stat. § 757.87(3). The parties filed proposed statements of facts, ² and the Judicial Commission then moved the panel to compel further response from Justice Gableman. The Panel denied this motion, stating that “[g]iven the existence of factual disputes, an evidentiary hearing is the next step in the process.” Justice Gableman then moved the Panel for summary judgment.

¶ 8 The Panel received briefs and heard oral argument on Justice Gableman's motion for summary judgment. In its determination of the motion for summary judgment, the Panel made findings of fact and conclusions of law. The Panel recommended that Justice Gableman's motion for summary judgment be granted ³ and that the Judicial Commission's complaint be dismissed. ⁴ The matter comes before the court on review of the Panel's recommendation to grant summary judgment.⁵ The Panel entered its recommendation recognizing that the Supreme Court “retains the ultimate authority to grant or deny the motion.” Judicial Conduct Panel, slip op. at 4 n. 4. The court is equally divided with respect to the Panel's recommendation.

¶ 9 Summary judgment is available to a party “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Wis. Stat. § 802.08(2).⁶ In Grams v. Boss, this court set forth the method for evaluating such a motion:

If the complaint states a claim and the pleadings show the existence of factual issues, the court examines the moving party's (in this case the defendants') affidavits or other proof to determine whether the moving party has made a prima facie case for summary judgment under sec. 802.08(2). To make a prima facie case for summary judgment, a moving defendant must show a defense which would defeat the plaintiff. If the moving party has made a prima facie case for summary judgment, the court must examine the affidavits and other proof of the opposing party (plaintiffs in this case) to determine whether there exists disputed material facts, or undisputed material facts from which reasonable alternative inferences may be drawn, sufficient to entitle the opposing party to a trial.

....

The papers filed by the moving party are carefully scrutinized. The inferences to be drawn from the underlying facts contained in the moving party's material should be viewed in the light most favorable to the party opposing the motion.... If the material presented on the motion is subject to conflicting interpretations

or reasonable people might differ as to its significance, it would be improper to grant summary judgment.

Grams v. Boss, 97 Wis.2d 332, 338, 294 N.W.2d 473 (1980). In Green Spring Farms v. Kersten, we clarified that the approach taken by an appellate court to a summary judgment motion is identical to that taken by a trial court:

There is a standard methodology which a trial court follows when faced with a motion for summary judgment. The first step of that methodology requires the court to examine the pleadings to determine whether a claim for relief has been stated.

If a claim for relief has been stated, the inquiry then shifts to whether any factual issues exist.

....

When this court is called upon to review the grant of a summary judgment motion, as we are here, we are governed by the standard articulated in section 802.08(2), and we are thus required to apply the standards set forth in the statute just as the trial court applied those standards.

Green Spring Farms v. Kersten, 136 Wis.2d 304, 314-15, 401 N.W.2d 816 (1987) (citations omitted).

¶ 10 The court is equally divided on the recommendation of the Panel that Justice Gableman's motion for summary judgment be granted and the Commission's complaint dismissed. Three justices would reject the recommendation of the Panel and three would accept it. We three justices, Chief Justice Abrahamson, Justice Bradley, and Justice Crooks, would deny Justice Gableman's motion for summary judgment on the grounds that he has failed to establish a prima facie case for summary judgment.

¶ 11 Justice Prosser, Justice Roggensack, and Justice Ziegler would accept the Panel's recommendation to grant Justice Gableman's motion for summary judgment and dismiss the complaint, on the grounds that the Judicial Commission has failed to establish a prima facie case for summary judgment and has failed to meet, to a reasonable certainty by evidence that is clear and convincing, its burden of proof with regard to Justice Gableman's alleged violation of the Judicial Code.

¶ 12 The court is equally divided on the question of whether the advertisement constituted a violation of SCR 60.06(3)(c) for which discipline may be imposed.

¶ 13 We three, Chief Justice Abrahamson, Justice Bradley, and Justice Crooks, would reject and three justices, Justice Prosser, Justice Roggensack, and Justice Ziegler, would accept the Panel's recommended conclusion that there was no violation of the first sentence of SCR 60.06(3)(c).⁷

¶ 14 We three justices, Chief Justice Abrahamson, Justice Bradley, and Justice Crooks, conclude that the advertisement misrepresented a fact about Justice Gableman's opponent and that this misrepresentation was made knowingly or with reckless disregard for the truth or falsity of the statement, and thereby violates the first sentence of SCR 60.06(3)(c). Specifically, the advertisement knowingly (or with reckless disregard of the truth or falsity of the statements) communicated the falsehood that Louis Butler's conduct as Mitchell's defense attorney in finding a “loophole” facilitated Mitchell's release and later offense. The advertisement can reasonably be viewed only as communicating that Louis Butler's actions in representing Mitchell and finding a “loophole” led to Mitchell's release and his commission of another crime. ⁸

¶ 15 Further, we conclude that imposing discipline under SCR 60.06(3)(c) would not violate the First Amendment to the United States Constitution in the present case. Since we three justices who find that a violation occurred do not constitute a majority, we do not reach the question of the appropriate sanction.

¶ 16 The question of whether the advertisement constituted a misrepresentation remains unresolved at this point. This case reaches us in summary judgment posture. Given that no majority of justices agrees to accept the Panel's recommendation that summary judgment be granted, the Judicial Commission's complaint has survived summary judgment.

¶ 17 It is contrary to every precedent and principle of civil procedure to suggest, as Justice Prosser, Justice Roggensack, and Justice Ziegler do, that the Judicial Commission, which was successful in defeating a motion for summary judgment in this court, should then be coercively “invited” to bring a motion to dismiss the case that it has not...