One Wisconsin Now has filed a grievance against Supreme Court Justice-elect Michael Gableman with the Office of Lawyer Regulation. Having failed to interest anyone in filing criminal charges against Gableman, it now wants OLR to investigate disciplinary charges.
Gableman's alleged offense is making phone calls from his office at the Ashland County District Attorney's office (or on a state cell phone) that may have been connected to a fundraiser that he hosted for Governor Scott McCallum.
Thus, the permanent campaign becomes the permanent election. OWN has absolutely no interest in ensuring that no state property is ever used for political or personal business. There is no chance that it would ever scour the phone records of politicians and public officials that it favors. If I dropped records showing that a liberal politician had done the same thing on Scot Ross' desk, nothing would happen.
But a partisan motivation doesn't mean the complaint does not have merit. OWN wants to say that this is just like the legislative caucus scandal in which staffers were hired with legislative funds and then directed to work on campaigns.
The statute that this is supposed to violate is sec. 946.12 which makes it a felony for a public officer "[w]hether by act of commission or omission, in the officer’s … capacity as such officer … exercises a discretionary power in a manner inconsistent with the duties of the officer’s … office … or the rights of others and with intent to obtain a dishonest advantage for the officer … or another ...."
OWN might also argue that, if the calls were made from his office and included political solicitations, then they would violate sec. 11.36(4), a clumsily worded statue that states that "[n]o person may enter or remain in any building, office or room occupied for any purpose by the state, by any political subdivision thereof or by the University of Wisconsin Hospitals and Clinics Authority or send or direct a letter or other notice thereto for the purpose of requesting or collecting a contribution."
The complaint is, I suspect, going nowhere. There is no way to determine what was said in these phone calls (Justice Gableman says that he cannot remember but is sure that he made no fundraising calls) and I doubt that OLR is going to file a complaint against a sitting Supreme Court justice based upon a presumption that they "must have" related to politics or included solicitations because they were directed to political people. However reasonable that inference might be, it's going to take more than that.
Beyond let's assume that they involved planning the fundraiser. (That seems to be the most that one could infer.) Should they be considered criminal? Does one really gain a "dishonest advantage" by making phone calls from his or her office? Doing so is rather commonplace.
OWN would like to rely on the cases against legislative leaders like Chuck Chvala and Scott Jensen. In my view, criminalizing the caucus scandal was wrong. But it is one thing to hire staffers with legislative funds and use them on a campaign. It is quite another to make a few phone calls. (Although a jury apparently need not find that even the former violates the statute.
I appreciate the OWN is funded to snap at conservative ankles, but this is a nonstarter.