Friday, November 16, 2007

Is this really an "ethics" problem?

The Cap Times is after Supreme Court candidate Mike Gableman for "personally soliciting" contributions to his campaign. Gableman apparently had a personal message on the same page where one could make an on-line donation. One Wisconsin pronounces this "troubling."

The Judicial Code of Ethics prohibits candidates for judicial office from personally soliciting campaign contributions. It would pretty clearly be improper for a candidate to call and ask for a contribution or to write an individual letter seeking donations.

James Alexander of the Judicial Commission won't say that the site violated the rules but then is reported as having gone on to say that the prohibition is clear and that a personal solicitation is a personal solicitation. If the report is accurate, he is clearly signalling that he does think the rule was violated.

The rule may be uncomplicated, but whether that prohibition is violated by a message placed on a web site is quite another matter. Gableman's message was personal but was it a solicitation? Justice Butler's website also permits on-line contributions, although it, at least as of now, has a disclaimer that the request comes from "Friends of Louis Butler" and not from Justice Butler himself. That's a good lawyerly way to do it but does it really differ substantively from Gableman's site?

If the rule is designed to prevent donors from feeling pressured by a personal entreaty from a judge, is that concern implicated by a statement on a website? One can, I know, always fall back on that source of legal mischief - "the appearance of impropriety" - but that strikes me as lazy. Why does a canned statement that is directed to no one in particular and which conveys a message ("I want your support") that is implicit without it create a greater appearance of impropriety than setting up an organization that uses your name to actively solicit funds on your behalf?

Neither candidate has made a request for contributions directed to any particular individual or group. Both have allowed their name and image to be associated with a request for funds, although it's hard to imagine how anyone could raise money for a candidate without mentioning his or her name. Gableman's campaign has quite correctly modified the site to take down the message attributed to the candidate, but I think that the virtue in that is the avoidance of any technical questions rather than the avoidance of any real or apparent impropriety.

7 comments:

Anonymous said...

While we may squabble over these things, I want to know what Butler has done as a Justice to assure the people of this state that he will do all within his power to assure there rights and to stand on the constitution without caving in to the pressures of his peers.

Right now I'm unimpressed by him. We need someone that will put the constitution first in the Supreme Court.

Anonymous said...

Let me get this straight... Gableman received his undergraduate degree at Ripon College and his legal education at Hamline -- the least selective law school in the midwest. What kind of legal "scholar" is he? Based on this foundation, not much would be the conclusion one would come to.

As a lawyer and law school professor, you know how aspiring students select law schools -- they go to the best place that they can get into. And many who start lower on the food chain transfer after performing well during the first year. Gableman started at the bottom of the legal ladder and stayed there.

Enlighten me, please, professor, on how he overcame this most humble beginning. And don't use the defense used by former Nebraska Senator Hruska when defending one of Richard Nixon's Supreme Court picks -- that even the mediocre deserve representation!

Rick Esenberg said...

I don't know enough to express any view of Gableman as a jurist. I was commenting on the ethics issue.

I do know that I don't want to judge people on where they went to law school. If that were a criteria then I should be favored over every member of the state Supreme Court since none of them went to Harvard. I think you'd agree that would be a silly way to look at it.

Students do select law school based on their rankings (which, incidentally, very few people in the law school world say good things about), but some are also constrained by personal concerns that require them to stay in a particular area (there is a lot of this at Marquette because it is the only school in a large city: that doesn't apply to Hamline) and, I think, other very smart students who are not quite as prepared as others (or who may have partied through undergrad) are better served by a lower tier school. The one thing you have to remember is that lawprof jobs are very competitive now, the faculty at so-called fourth tier schools often consists of extremely talented people. There is learning on offer everywhere.

hot fuzz said...

anon, although I think Professor Esenberg responded ably to your suggestions, I would like to supplement his response. I am a Marquette University Law School student, and I chose Marquette over several more highly rated schools, some of which offered me scholarships approaching the one offered by Marquette (Notre Dame, Minnesota, Wisconsin, wait-listed at Michigan, denied at Yale).

Although I began my law school search focused on your sole criterion, with the oft-criticized U.S. News rankings, I soon realized that my education was more than just my school's ranking (and scholarship offers). I realized my choice may lead me to lifelong scrutiny from persons who share your assumption about students' school selections (a partner with whom I worked for the past two summers suggested that I transfer to Wisconsin).

And I know Marquette is not Hamline, but I have worked with a couple of able Hamline attorneys, and I don't think their legal education would prevent them from serving as judges.

Anonymous said...

Rick and Hot Fuzz both miss the point.

If you were to line up all of four year colleges and universities in the state, Ripon College is probably the bottom of the barrel. Then perform the same exercise with all the law schools in the midwestern states and the Hamline Law School is also the bottom of the barrel.

The point is this: Judge Gableman was "educated" at the lowest level possible.

Yes, Rick, you could probably claim to be better educated that all of the current members of the Wisconsin Supreme Court. But do we really want a Justice with such minimal qualifications?

Kronenwetter Law said...

How about this for a question: What has Gableman ever done that is impressive?

I think that his choices of school are not, by themselves, indications that he cannot do well on the bench. But what experience has he had since school?

Look at the man's resume, he jumps from job to job, rarely staying for more than a year or two. What can you learn about being an ALJ in a year? What can you learn about any legal position in a few months? And Burnett county? No offense, but it's not like he's getting tested in a crucible of legal scholarship up there.

Anonymous said...

Kronenwetter law asked, "What can you learn about being an ALJ in a year?" In fact, the question in Gableman's case ought to be, "What can you learn about being an ALJ for less than three months?", because Gableman was only in that UI ALJ position in June-Aug. 2002. I have it from a source who was in the UI ALJ corps at the time that he was never even out of his training period.

An interesting related question I wish someone would dig into: how (and why) did Gableman happen to get that ALJ job?