tag:blogger.com,1999:blog-20692053.post1878498742821583448..comments2023-11-03T06:35:48.003-05:00Comments on Shark and Shepherd: One way or another, the Gableman Case Is OverRick Esenberghttp://www.blogger.com/profile/07280070509167910367noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-20692053.post-62655142764376929912010-07-08T14:09:06.930-05:002010-07-08T14:09:06.930-05:00Well Rick, it appears that this discussion is now ...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.RobHhttps://www.blogger.com/profile/08984987196154086855noreply@blogger.comtag:blogger.com,1999:blog-20692053.post-24081818796128958642010-07-08T11:43:08.396-05:002010-07-08T11:43:08.396-05:00Part 2 - As you note, although apparently overlook...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.<br /><br />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.<br /><br />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.<br /><br />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.<br /><br />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.<br /><br />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.RobHhttps://www.blogger.com/profile/08984987196154086855noreply@blogger.comtag:blogger.com,1999:blog-20692053.post-61884146878571440212010-07-08T11:42:48.000-05:002010-07-08T11:42:48.000-05:00Part 1 - An interesting combination of valid analy...Part 1 - An interesting combination of valid analysis, political wishlist, and just plain wrong.<br /><br />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. <br /><br />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).RobHhttps://www.blogger.com/profile/08984987196154086855noreply@blogger.com