hearts and minds

March 27, 2008

Louis Butler v. Michael Gableman, or Truth v. Fiction, et al

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.)


  1. I am sending your information around. I have had
    people tell me they are really confused by the
    negative ads around the judicial election. This will
    help. Thanks for doing this.

    Comment by Marge T — March 27, 2008 @ 10:59 am | Reply

  2. Thanks for the info Clyde!

    Comment by Linda S — March 27, 2008 @ 11:34 am | Reply

  3. Thank you for the information. It did not take a PhD. to figure out who was telling the lies. I did not know the facts and glad you are here to help us.

    Comment by Jane C — March 27, 2008 @ 12:07 pm | Reply

  4. I was wondering what the heck those ads were about on the tv! I found them confusing and upsetting. They were obviously meant to mislead and manipulate. Thank you for doing the homework for all of us who don’t have the time and resources to research these questions and issues. I will be voting on Tuesday, and I am definitely voting for Justice Butler. We need to keep scumbags like Gableman out of our courts.

    Comment by Elizabeth M — March 27, 2008 @ 6:18 pm | Reply

  5. For anyone who’d like to dive deep into the discussion, I recommend Illusory Tenant, Shark and Shepherd and Folkbum, especially in the comments for all three.

    Comment by John Foust — March 28, 2008 @ 1:04 pm | Reply

  6. Clyde, your post is great. People should definitely utilize http://illusorytenant.blogspot.com as a resource for this race. He has torn apart many of Da Gableman’s lies, and links to others who have done so. http://folkbum.blogspot.com also has a great new piece about the slime the Gableman people are spreading.

    Comment by TheRealCharlieSykes — March 28, 2008 @ 1:09 pm | Reply

  7. Clyde, I’m from Minnesota and have viewed a few of these ads. They were upsetting to me (they seemed overly malicious)and I had no information as to what was going on. Thanks for the post. Makes me wish I could vote in Wisconsin.

    Comment by Krystal — March 29, 2008 @ 9:17 am | Reply

  8. Click on learn the truth, and you will be linked to the first article in a series of five articles performing a concise, complete legal analysis of the outrageous false claims made by the phony issue ad groups supporting Mike Gableman’s bid to be elected Tuesday to the Wisconsin Supreme Court. The subsequent articles in this series are also available at that web site. The articles are a specific, brief, case-by-case analysis, that simplifies the legal terminology to layman’s language. Click on check the facts to see whether the slime being thrown at Justice Butler actually sticks.

    Comment by clyde winter — March 29, 2008 @ 12:32 pm | Reply

  9. Many thanks to Mr. Clyde and the rest.

    Comment by illusory tenant — March 31, 2008 @ 6:41 pm | Reply

  10. Hope is alive.

    Our spirit will not be demolished, by yesterday’s election. There have been worse days and better, and there will be worse and better to come.

    Much respect and gratitude is due to Justice Butler for his service; for his integrity, impartiality, and independence; for his admirable alloy of professionalism and humanity; and for his example and his tough forbearance. Thank you, Justice Louis Butler and thank you Senator Lena Taylor for inspiring, informative, hopeful election campaigns.

    Many thanks to all those (not least of which is illusory tenant) who defended so well the shining promise of justice and democracy. Thanks for the inspiration, and the solidarity, and the future.

    Comment by clyde winter — April 2, 2008 @ 10:58 am | Reply

  11. […] to have the proud honor of electing a Supreme Court Justice who would have been one of the most qualified, most deserving, most intelligent and thoughtful Justices that Wisconsin has ever had, as well as the first […]

    Pingback by Wisconsin Supreme Court Elections, Past and Future « hearts and minds — April 6, 2008 @ 5:28 am | Reply

  12. (This comment from state Senator Glenn Grothman (R), along with the following comment from County Sheriff Maury Straub (R), were the only two items on the subject that appeared in the Ozaukee News-Graphic prior to the April 1 Supreme Court election. That newspaper refused to print the column above (to which this comment is posted)

    Here is Mr. Grothman’s published comment:

    “I would like to remind all Wisconsin residents to vote for Mike Gableman for judge on April 1. State supreme court judges serve for 10-year terms so it is important not to forget. These judges not only affect our crime rate but business climate as well.

    I’ve known Judge Gableman for eight years and consider him one of the nicest, most intelligent judges I’ve ever met.

    The Wall Street Journal has mocked the current supreme court for being so antibusiness. Judge Gableman will challenge this. Fifty-one sheriffs and 36 district attorneys are backing Mike Gableman who used to be a DA himself.

    Please join me in voting for Mike Gableman.”

    State Sen. Glenn Grothman, R-West Bend,
    20th Senate District

    Comment by glenn grothman — April 17, 2008 @ 6:48 am | Reply

  13. (This comment by County Sheriff Maury Straub (R) together with the one above, by state Senator Glenn Grothman (R) are the only items on the subject that were printed in the Ozaukee News-Graphic just prior to the April 1 election. The column above, itself, was submitted as usual, but not printed in the newspaper.)

    The race for the state supreme court between Justice Louis Butler and Judge Michael Gableman is a very important one. That fact should be obvious to anyone paying attention to all of the radio and television ads surrounding this election.

    Unfortunately, as the ads for both candidates have turned somewhat negative, many people have turned a deaf ear to it all. As a result, many citizens do not fully understand the great importance this race will play in the future of Wisconsin.

    Within the current supreme court there is an obvious 4 to 3 split with a liberal majority and a conservative minority.

    The liberal majority is a product of a gubernatorial appointment several years ago of Justice Louis Butler to the court to replace a more conservative Justice, Diane Sykes, who took a federal judgeship.

    Since the liberal mindset became the majority opinion, the court has become decidedly left leaning and has repeatedly demonstrated a propensity for legislating from the bench.

    Furthermore, the current court, through liberal interpretation of the Constitution, has shown a general bias against good, honest law enforcement, and against the victims of crime, in favor of criminals and defense lawyers.

    Simply put, the current court has made it more difficult for law enforcement to protect the public from criminals.

    That is why the Wisconsin Sheriffs & Deputy Sheriffs Association, more than 50 of the 72 individual sheriffs throughout the state, more that 50 police chiefs, and the vast majority of district attorneys in this state, all have chosen to publicly endorse Judge Michael Gableman in his effort to be elected to this state�s highest court.

    Unlike the alternative, Judge Gableman comes from a law enforcement background, having a long history as a prosecutor, and knows the challenges of law enforcement. Both as a prosecutor and judge he has shown his support for victims, and the fair treatment of criminals, while interpreting and applying the law and the Constitution, in a fair, no nonsense manner.

    Law enforcement and the citizens of this state need Judge Gableman in the supreme court. That is why the WSDSA, along with most sheriffs, district attorneys, and many police chiefs from throughout the state, support Judge Gableman.

    This supreme court race is extremely important as it will have an immediate and long-lasting impact on the lives of all the citizens of this state.

    Law enforcement and the voters of this state need a change in order to preserve the qualities of this great state.

    No one can afford to continue in the direction that this court is sending us. I am concerned and you should be as well.

    Maury Straub, Ozaukee County sheriff; vice president,
    Wisconsin Sheriffs & Deputy Sheriffs Association

    Comment by Maury Straub — April 17, 2008 @ 6:58 am | Reply

  14. […] It was also quite correct to point out that my description of Judge Gableman as “a mediocre third-stringer” was not substantiated in my article, and was “an open show of bias”. Mea culpa. I never linger in the middle of the road or pretend to be neutral about a subject that I find worth researching and writing on. However, I usually indicate facts or references that support and inform my writing. But with regards to that particular statement, I did not do so. A column I submitted before the election (but that was not published in the newspaper) provided substantiation (including links) for my assessment. […]

    Pingback by Human and Civil Rights, Law, and the Wisconsin Supreme Court « hearts and minds — May 1, 2008 @ 3:12 pm | Reply

  15. (Your article stated:) “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.”

    I would like to comment that the 3rd person that went to trial for child sex abuse but was found guilty in 1999 under Gablemans watch, was falsely accused. WI Supreme Court rightly gave him his appeal in 2002 because he was denied his constitutional rights to defend himself with expert witnesses in court, by both DA Mike Gableman and Judge Eaton. Because the now 16 yr old “child” is still recanting even to this day, 3/3/09, just as she did in court in ’99, all charges were dropped and he got out of WI immediately before the corrupt system up there found something else to charge him with. There had never been anyone who got an appeal up there before, so naturally they were shocked and mad, esp when their names were on front page news declaring their wrong doing….yet this poor man sat in prison for 3 1/2 years for no wrong doing.

    Gableman told other attorneys in the Ashland WI area that he was going to use this CASE to move up in the world. Guess he did alright, but it looks from the news as though he is still just as corrupt in how he does that. And now he himself is on the Supreme Court…how ironic…and thus it continues to show us how pathetic our legal/politico system is.

    Comment by paisley — March 3, 2009 @ 9:25 pm | Reply

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