The Wisconsin Supreme Court election Tuesday, April 1, pits incumbent Justice Louis Butler against challenger Judge Michael Gableman in a critically important election. But it’s being smeared with distortions and misrepresentations. And secretive groups with very deep pockets threaten to take control of justice.
Louis Butler was awarded a law degree from UW-Madison, served 11 years as an assistant state public defender, twelve years as a four times elected and re-elected judge in Milwaukee, and four years as a Wisconsin Supreme Court Justice. Justice Butler has been a Wisconsin judge longer than his opponent has been a lawyer. He is the first ever African-American Wisconsin Supreme Court Justice. Butler thinks race should not be a factor, and said, “It’s my hope we’ve gotten beyond that.” Governor Doyle appointed Louis Butler to the Supreme Court when he was recommended by the governor’s advisory council on judicial selection.
Michael Gableman was awarded a law degree from Hamline, a law school in Minnesota, served as a teacher, as a prosecutor in three counties, and six years as a Burnett County Circuit Court judge. Acting Governor McCallum passed over the two candidates recommended by the governor’s advisory council on judicial selection when he appointed Gableman to the Circuit Court, just weeks after Gableman had contributed substantial money to the McCallum election campaign, had hosted a fundraiser for McCallum, and had (for two months prior to the fundraiser) used his taxpayer provided office and telephone to call campaign staff, other big campaign contributors, and other political campaigns.
In recent years, judicial elections and appointments have become bitterly contested battles, funded by powerful vested interest groups, and directed by partisan political operatives. The ideal of impartial, independent Justices with unquestioned integrity is slipping away, and the problem is rapidly getting worse. In 1999, for the first time, over 1 million dollars was spent on a Supreme Court election. In 2007, almost 6 million dollars was spent on a Supreme Court race, over half of which was spent by phony issue ad sponsors. So far, the candidates in the current Supreme Court election have spent only 5 percent of the total funds spent on this election, and these groups that are supposedly “unaffiliated” with the candidates have spent 95 percent of the total.
For example, on March 21, the bi-partisan watchdog Wisconsin Judicial Campaign Integrity Committee issued this statement: The “(WJCIC) finds that a new ad produced by the Wisconsin Manufacturers and Commerce … is a deceptive attack … A review of his (Butler’s) dissent shows it offers no basis for implying, as this ad does, that Justice Butler would not have allowed the item to be admitted at trial. The entire Supreme Court – including Justice Butler – agreed that was a decision for the circuit court to make. Further, … we find it deceptive that WMC would refer to any Constitutional question as a mere ‘technicality’.”
For another example, WISC-TV posted a Reality Check on March 7 regarding an ad paid for by the state branch of the national (anti-regulation, free-trade advocate) “Club for Growth”. It depicted Gableman as “a former prosecutor who has gone toe-to-toe with the arsonists, sex predators, domestic abusers, and white collar criminals who belong in jail.” Ready for a reality check? In three years in Ashland County, Gableman prosecuted exactly one arson case, and that case was ordered an acquittal. In 19 felony child abuse cases prosecuted by Gableman, 3 were dismissed, and 13 were allowed to plead to misdemeanors. Only three went to trial, and two of those three were found not guilty. There goes Gableman, toe-to-toe with criminals.
The national group (composed of unidentified persons, corporations, and organizations) calling itself the “Coalition for America’s Families” ran an ad in Wisconsin that wildly distorts Justice Butler’s stellar record and the facts, and intentionally provokes an unjustified disgust and anger in the viewer. A sensationalized staged video is the backdrop for a narrative that asserts that Justice Butler’s decision ignored and disdained eyewitness testimony, as well as blood and fingerprint evidence, “to overturn this rapist’s conviction”. The ad fails to mention that DNA tests (unavailable at the time of the trial) proved that important evidence used to convict the defendant, could not have come from the defendant. The ad fails to mention that the majority concurred with Justice Butler that a new trial was warranted. The ad concludes this smear of Justice Butler’s stellar record by saying, “Tell Louis Butler victims, not criminals, deserve justice.” But, of course, everyone deserves justice. Justice is only “just” if it’s for everyone. Criminals deserve justice, which certainly includes being held to account for their crime. People accused, or even convicted of a crime that they may not have committed deserve justice, too, which includes the right to a fair and lawful trial, and the right to appeal, and to a new trial if substantial exculpatory evidence is obtained. And victims of crime certainly deserve justice. But justice for the victim is not served when the real perpetrator is not caught, and a person innocent of the crime is punished instead. A new trial is certainly proper and appropriate in this case, and that’s what Justice Butler, writing the opinion for the majority, said clearly. What’s wrong with that?
But the sleazy, misleading ads have not all come from “unaffiliated” groups. One of the worst misrepresentations is a TV ad that features a photograph of a smiling Justice Butler superimposed alongside the mug shot of a convicted rapist. The ad, which was approved by Gableman, says, “Louis Butler worked to put criminals on the street. Like Reuben Mitchell, who raped an 11-year-old girl with learning disabilities. Butler found a loophole. Mitchell went on to molest another child.” The conclusion any viewer would draw from the ad (approved by Gableman) is that Judge “Butler found a loophole” which gave him an excuse to release this convicted criminal from incarceration “to molest another child”. That is completely untrue. Justice Butler never ruled on a case involving this convicted felon. And nothing that Butler ever did in his entire life resulted in the release of this convict, who served his full sentence before being paroled.
The Gableman campaign also sent a mailing asserting that Butler “provided the deciding vote to overturn a sexual predator decision by a circuit court, resulting in the release of the predator into Milwaukee County.” That Gableman assertion is also absolutely untrue. The offender was never released, and is still incarcerated.
None of these (and other) extremely well-funded mud-slinging campaign ads have been unable to find any sleazy allegations or implications about Justice Butler that stand up to simple fact checking. That is pretty good evidence that there is actually nothing for them to find, and that they are hoping that we, the people, won’t care enough to find out the truth before voting.
But back to basics. The Supreme Court doesn’t conduct criminal trials and hand out sentences like a Circuit Court. Its responsibility is to decide Constitutional questions, and two-thirds of its cases do not even involve criminal law. However, Justice Butler voted to uphold criminal convictions in 97 percent of the cases considered by the Court. And a Wisconsin Law Journal analysis showed that Butler voted with the majority 85 percent of the time, the second highest percentage among the seven sitting Justices. He’s not a borderline Justice with flaky opinions.
Justice Butler is endorsed by many organizations that represent large numbers of working people who want their rights, their health, their livelihoods, and their civic institutions and infrastructure protected. Judge Gableman’s campaign is funded and supported by organizations that represent large corporations who want lower corporate taxes, free trade, and no regulation. Over 200 working Wisconsin judges endorse Butler. Twelve Wisconsin judges endorse Gableman. Four major Wisconsin law enforcement associations representing over 17,000 police officers endorse Butler.
There’s no good reason that one of the seven Supreme Court Justices shouldn’t have his experience embedded in the largest court system in the state, when more than one of every six Wisconsinites lives in Milwaukee County. There is no good reason that the people of Wisconsin can’t recognize the superb skills and achievements of Louis Butler, and proudly elect it’s first ever African-American Wisconsin Supreme Court Justice.
(Note: There is a solution to the serious problem of phony issue ads placed by lavishly funded secretive groups dominating judicial elections. And the solution is in the form of the Impartial Justice Bill, SB 171, in the Wisconsin legislature, that passed the state Senate by a vote of 23 to 10, and is now stalled by the leadership of the Assembly, which apparently will sidetrack and kill the bill rather than allow it to get an up-or-down vote, unless citizen action does not allow them to get away with that.)