Wednesday, July 07, 2010

One way or another, the Gableman Case Is Over

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.


RobH said...

Part 1 - An interesting combination of valid analysis, political wishlist, and just plain wrong.

You are absolutely correct that a jury trial would not make a difference and that the Commission likely has missed the deadline for requesting one. You therefore are correct that the Abrahamson group is wrong in suggesting such a trial. However, you are wrong in suggesting that the procedural status of the case makes no difference. The case to this point was heard on the Court of Appeals’ panel’s recommendation on Justice Gableman’s motion for summary judgment. Although originally heard in the Court of Appeals panel, the motion necessarily was directed to the Supreme Court. Accordingly, a tie vote means, not that Gableman wins, but that the summary judgment motion is denied. Under basic civil procedure, that means that the case has to be tried, as futile as that may seem.

The Prosser group thus likewise is wrong in suggesting that the case is over because, in their view, the Commission has not carried its burden of proof. A burden of proof applies to facts, not legal issues. The question remains whether Justice Gableman’s misrepresentations in the ad are protected by the First Amendment, as the Prosser group claims, or are not protected, as the Abrahamson group claims. I did not see anything in the Prosser group’s opinion that provided any defense to the ad outside its First Amendment argument. While the Court no doubt ultimately will rule in Justice Gableman’s favor by a tie vote should once the appropriate procedures are followed, that is different from saying that he has won just because there is a tie score at half time. (By the way, Rick, none of the Justice’s concluded, or even suggested, that Gableman was “innocent.” At best, he received a hung verdict, yet another Supreme Court non-decision).

RobH said...

Part 2 - As you note, although apparently overlooked by both opinions, the real question is not what the Commission should do before the Court of Appeals panel (dismiss or hold a jury trial), but whether it should petition for cert. to the U.S. Supreme Court. After all, the central question here is whether Justice Gableman's knowingly false ad is protected by the First Amendment. The two opinions do not appear to dispute that the First Amendment issue, and whether First Amendment defamation authority applies, is controlling. Even if the Commission were in a position at this late date to request one, a trial limited to determination of the facts, which are not in dispute (and, therefore, proved by clear and convincing evidence, contrary to the opinion of Justices Prosser, Roggansack and Ziegler), will not change that core question. The Wisconsin Supreme Court, moreover, has demonstrated that it cannot resolve that issue on its own.

The suggestion that the Commission should just dismiss the allegation without final resolution of the constitutional issue because half the Wisconsin Supreme Court wants this all to just go away does not make sense. A “hung jury” does not require dismissal in The fact that we have an evenly split Court on the issue of application of the First Amendment suggests exactly the type of uncertainty that would justify a cert. petition.

A cert. petition to the U.S. Supreme Court provides the only chance of actually resolving this issue for both Justice Gableman and the people of Wisconsin. Justice Gableman has to know that his attorney’s claims of victory in the press are just transparent spin, with a tie vote in the Wisconsin Supreme Court regarding whether his actions were constitutionally protected or a sanctionable lie far from any form of “exoneration.” The people of Wisconsin who were denied their right to vote based on truthful information likewise are not served by the Supreme Court’s non-decision. Nor, finally, is the Court itself served by a process that leaves unresolved significant allegations of misconduct by one of its members. Neither dismissal nor a meaningless jury trial will change any of this.

Of course, as you note, there is a problem that this currently is not a "final" decision that could be appealed to the U.S. Supreme Court. The Commission might need to move for clarification or reconsideration, noting the futility of a jury trial, the importance of a final order allowing it to pursue this matter to the U.S, Supreme Court, and the traditional procedure that a 3-3 tie results in a denial of discipline.

I understand that does not technically apply here since the issue before the Court actually was Justice Gableman’s motion for summary judgment, such that the absence of a majority results in the denial of that motion rather than the petition for discipline. However, as a practical matter, it is clear that nothing that could happen in before the Court of Appeals panel now would change the 3-3 outcome.

Although you are correct that the Supreme Court grants cert. in very few cases, I believe that the issues presented here would have a decent chance of catching the Court’s attention. The question of free speech versus competing interests in judicial elections is a hot topic before the Court in recent years. Adding to the potential attraction of this matter to the Court is the fact that the relevant facts are neither disputed nor complex. We also have two dramatically different interpretations of controlling First Amendment authority and the question of whether the Court’s defamation precedent applies in the context of campaign defamation. Taken together, this appears to me to be a prime candidate for review by the U.S. Supreme Court.

RobH said...

Well Rick, it appears that this discussion is now just so much navel gazing as the issue is moot. The Commission decided that it did not have the legal authority to take the matter any further, so we will never know whether the ad in fact was protected by the First Amendment or was a sanctionable lie.

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