The more I look at the writings in Judicial Commission v. Gableman, the more I become convinced that the case should be over. To suggest otherwise seems to require the Judicial Commission to do something that it cannot do, that makes no sense and that cannot alter the deadlock on the Court. Here's why.
The Abrahamson group (I refer to the two groups by the name of their senior member) purports to dismiss the three judge panel and remand the case to the Judicial Commission. As a preliminary matter, it can do neither because a majority of the participating justices have not so ordered. Ties don't count as wins.
The Abrahamson group would get around this problem by treating the recommendation as a motion for summary judgment that has, by virtue of a deadlock, not been granted and that would somehow leave the matter pending below. But that is not quite right. The motion for summary judgment was directed to the three judge panel and resulted - not in a motion - but in a recommendation. That recommendation has not been accepted but that is not equivalent to the denial of a motion for summary judgment.
It might have been akin to denial of such a motion if a majority of the participating justices had remanded the case for further fact finding. But, again, that didn't happen and it is clear from their writings that neither the Abrahamson or Prosser group believes that further factfinding is necessary. More on this in a moment.
The Abrahamson group goes beyond a simple assertion that the motion for summary judgment has been denied. It tells the Judicial Commission to treat the complaint "as if were just being filed." But it cites no authority that would permit the Commission to do so. The reason that the group wants to do this is to take the matter from the three judge panel who, in its view, got it wrong and could not reasonably be expected to do anything differently should the matter be tried. (This is because, as noted below, there appear to be no factual assertions advanced by anyone that would - or, given the reasons they have given for the panel's decision - should alter the outcome.) The Abrahamson group tells the Commission that "it needs" to request a jury (and, oddly, not only a jury but a jury of twelve - something that is not required even if a jury is properly requested).
This seems to contradict the relevant statute which provides that "before the commission files a formal complaint or a petition under s. 757.85(5), the commission may, by a majority of its total membership not disqualified from voting, request a jury hearing." Wis Stat. sec. 757.87(1)(emphasis supplied) The statute goes on to say that "[i]f a jury is not requested, the matter shall be heard by a [panel ...." Id.
In this case, the Commission did not request a jury and, therefore, the matter was submitted to the three judge panel. Absent some breakthrough in quantum physics, there is obviously no way that the Commission can now go back and request a jury before the complaint was filed.
Perhaps an argument can be made to read the statute to permit a jury request at this stage in the proceeding. A realist might, after all, point out that the statute means whatever the state's highest court says it means.
And there's the rub. A majority of the participating justices has not said that the Commission may now request a jury trial. In fact, three justices have said that it may not and that alone is enough to render any such trial meaningless. Those three justices believe - and will hold - that a jury trial was unlawful and presumably will not accept any recommendation based upon such a trial.
Putting that aside, a jury trial in this case seems almost certain to accomplish nothing. No participant in the process to date - not the Judicial Commission, not Justice Gableman, not the Abrahamson group and not the Prosser group - has thought that there are any unresolved issues of material fact. What they have disagreed on is how to read the statute, its application to the undisputed facts and, in the case of Judge Fine, its constitutionality as applied to this case. If you take seriously what the Prosser group and Abrahamson group said in their writings, a jury verdict won't change anyone's mind. In fact, it shouldn't change anyone's mind.
Assume that a trial is held and a jury finds that the ad was not false. The Abrahamson group will not - and, given the rationale set forth in its writing - should not change its position. These three Justices believe that the undisputed facts establish a violation. They were willing to, in effect, grant summary judgment to the Commission because they do not believe that there is any issue of material fact as to Justice Gableman's liability. If you believe that there is no issue of material fact on the question of a violation, then the matter ought not to be submitted to a jury and any verdict that finds no violation should be set aside.
Conversely, if a jury finds that the ad was misleading, the Prosser group will not - and given the rationale set forth in its writing - should not change its position. They believe that there are no material issues of fact as to Justice Gableman's innocence. If that is what you believe, then submission of the question to a jury would be error and any verdict finding a violation should be set aside.
This is why our friend Illusory Tenant is wrong in suggesting that there are facts to be tried. The Abrahamson group tries to create an issue of fact by referring to the video portion of Mitchell's ads and three citations that appeared on the screen. These three citations were to the proceedings in Mitchell's case in the circuit court and Court of Appeals. There was no citation to the Supreme Court decision that reversed Mitchell's victory in the Court of Appeals while including citations to the proceedings below. That omission, they say, wasn't included in the stipulation considered by the three judge panel.
There are three problems with that. The first is that it is not at all clear that the video of the ad was not considered by the three judge panel. Second, the import of excluding the Supreme Court citation was addressed by the stipulation of facts before the panel, i.e., then Attorney Butler did not obtain Mr. Mitchell's release. The Supreme Court affirmed his conviction and he served his sentence. It is, at best, cumulative.
But most fundamentally, neither the Prosser or Abrahamson group found this fact to be material, i.e., they were able to resolve the case without any finding on whether the citations made the ad true (as Justice Gableman's counsel attempted to argue) or constituted some type of independent or exacerbating falsehood.
Commenting on Tom Foley's blog, Rob Henak (who brought certain of the motions to recuse Justice Gableman) offers the Abrahamson group some advice. Perhaps the problem is that the Prosser group misunderstands the impact of the First Amendment here wrongly believing that it prohibits discipline of statements that, while literally true, are misleading. Why not petition for cert and ask the Supreme Court to make clear that this is not so?
But,as Rob points out, there is no final order to appeal from and cannot be unless at least one member of the Abrahamson group crosses over and votes to dismiss - presumably because further proceedings would be futile. Beyond that, it doesn't seem like a strong case for cert. Although the constitutional issue is quite interesting, the Prosser group didn't hold the rule unconstitutional but simply construed it to avoid a constitutional problem. Construction of the rule is a question of state law and is not reviewable by the United States Supreme Court.
Even if the Court, through invocation of the rule requiring a clear statement of adequate state grounds to avoid the potential for federal review, takes the case, the most it can do is clarify what it believes the First Amendment requires and remand for reconsideration in light of that clarification. The Prosser group would still remain free to construe the statute as it has and might even invoke the state constitution in support of its construction. Given all that, it's hard to see that the U.S. Supreme Court would take the case.
I appreciate the concerns of those who have a hard time seeing why the case should be over because the Court deadlocked. The answer lies in allocation of the burden of proof. A violation cannot be established without the agreement of a majority of the Court. A majority has not agreed and, based upon the reasons given by the competing groups, never will. I think that, whatever your view of the merits, it's over.