2010 WI 62
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
IN SUPREME COURT
In the Matter of Judicial Disciplinary Proceedings Against the
Honorable Michael J. Gableman
The Honorable Michael J. Gableman,
JUN 30, 2010
David R. Schanker
Clerk of Supreme Court
MEMORANDUM DECISION OF
JUSTICE DAVID T. PROSSER,
JUSTICE PATIENCE DRAKE ROGGENSACK
AND JUSTICE ANNETTE KINGSLAND ZIEGLER
¶1 Justice David T. Prosser, Patience Drake Roggensack and Justice Annette Kingsland Ziegler: The court is at an impasse. Three members of the court, Justice Prosser, Justice Roggensack and Justice Ziegler, agree with the recommendation of the three-judge Judicial Conduct Panel (Panel) that the Wisconsin Judicial Commission's (Commission) complaint against Justice Michael J. Gableman must be dismissed. We agree with the Panel's recommendation because after conducting an independent review of the record and considering the arguments of counsel, we have concluded that the Commission failed to establish, by evidence that is clear, satisfactory and convincing, that Justice Gableman violated Supreme Court Rule 60.06(3)(c).
¶2 The campaign advertisement that gave rise to the Commission's
complaint against Justice Gableman and the governmental rule, SCR 60.06(3)(c),
by which the Commission seeks to punish Justice Gableman for that advertisement
must be examined according to the commands of the First Amendment. As the United States Supreme Court has
explained, the First Amendment applies to judicial elections and to canons of
judicial conduct that states seek to apply to candidates in judicial elections. Republican Party of
¶3 In order to meet its burden of proof under Wis. Stat. § 757.89, the Commission must persuade at least four justices, by clear, satisfactory and convincing evidence, that the advertisement by Justice Gableman's campaign committee violated SCR 60.06(3)(c). The Commission has failed to do so. Accordingly, we anticipate that the Commission, or the Commission and Justice Gableman together, promptly will file a motion to dismiss the complaint against Justice Gableman.
¶4 This action began on October 7, 2008, when the Commission
filed a complaint alleging that it had found probable cause to believe that
then-Judge Gableman willfully violated SCR 60.06(3)(c) of the Wisconsin Code of
Judicial Conduct and thereby engaged in judicial misconduct as defined by Wis.
Stat. § 757.81(4)(a)
(2007-08). The Commission alleged that the violation of
SCR 60.06(3)(c) occurred in a television advertisement that then-Judge
Gableman's campaign committee ran during the course of his campaign for
election to the Wisconsin Supreme Court. The Commission alleged that the television
advertisement "directly implied and was intended to convey the message
that action or conduct of Louis
¶5 Justice Gableman timely answered the complaint and raised affirmative defenses. Thereafter, Justice Gableman moved the three-judge panel for summary judgment dismissing the complaint. The Commission agreed that summary judgment was an appropriate procedure to use in the Panel's recommendation to the Supreme Court because the material facts were not disputed. The Panel accepted submissions of fact from the parties, accepted briefs from the parties and held a hearing prior to making its own findings of fact upon which its recommendation relied. The Panel found:
1. At all times material to the Commission's complaint, the Honorable
Michael J. Gableman was a circuit court judge for
2. At all times material to the Commission's complaint, Justice Gableman was a candidate for the office of Wisconsin Supreme Court justice and thus was a "candidate" for judicial office pursuant to SCR 60.01(2), Wisconsin Code of Judicial Conduct. (Footnote omitted.)
3. During the campaign, advisors to Justice Gableman told him that a third-party political group had released an advertisement in support of Justice Butler that suggested that Justice Gableman had "purchased his job," was a "substandard judge," and had "coddled child molesters." The advisors believed that the advertisement was very damaging to Justice Gableman's campaign and that Justice Gableman needed to respond with an advertisement that focused on the comparative backgrounds of the two candidates, emphasizing Justice Gableman's judicial philosophy and his experience as a prosecutor compared to Justice Butler's experience as a criminal defense attorney and his willingness to represent and find legal loopholes for criminal defendants.
4. Justice Gableman's advisors wanted to air a responsive advertisement as soon as possible, and the advertisement that underlies this complaint was presented to Justice Gableman for his review.
5. Justice Gableman personally reviewed both the audio and video of the advertisement before its release. Justice Gableman was not pleased with the tone of the advertisement and he delayed the release of the advertisement while he sought to verify the accuracy of its contents.
6. As part of that effort, Justice Gableman became familiar with the decisions of the court of appeals and supreme court in Reuben Lee Mitchell's appeal, State v. Mitchell, 139 Wis. 2d 856, 407 N.W.2d 566 (Ct. App. 1987) (unpublished slip op.), reversed, State v. Mitchell, 144 Wis. 2d 596, 424 N.W.2d 698 (1988), Justice Butler's arguments made during his representation of Mitchell, and Mitchell's subsequent criminal conduct and conviction.
7. Justice Gableman ultimately approved the advertisement as it had been originally presented to him.
8. On or about March 14, 2008, Justice Gableman published and released a television advertisement supporting his candidacy for the supreme court against then-incumbent Justice Butler. The audio text of the advertisement is as follows:
Unbelievable. Shadowy special interests supporting Louis Butler are attacking Judge Michael Gableman. It's not true!
Judge, District Attorney, Michael Gableman has committed his life to locking up criminals to keep families safe——putting child molesters behind bars for over 100 years.
Louis Butler worked to put
criminals on the street. Like Reuben Lee
Mitchell, who raped an 11-year-old girl with learning disabilities.
An electronic copy of the advertisement is Exhibit A to the Commission's complaint.
9. The purpose of the advertisement was to compare and contrast the background, qualifications, and experience of Justice Gableman with the background, qualifications, and experience of Justice Butler.
10. Justice Butler had been an appellate state public defender from
1979 to 1992. As part of that
employment, he represented Reuben Lee Mitchell, from 1985 to 1988, in
Mitchell's appeal from a conviction of first-degree sexual assault of a
child. The advertisement refers to
11. One of the issues raised by Justice Butler in Mitchell's appeal
concerned the circuit court's admission of evidence that the victim had been a
virgin, evidence that
12. The State sought and the supreme court accepted review of the court of appeals' decision. The supreme court agreed with the court of appeals that evidence of the victim's virginity should have been excluded pursuant to the rape-shield law. The supreme court, however, held that the error was harmless and, therefore, reversed the court of appeals decision. Mitchell's judgment of conviction and sentence were reinstated.
13. Mitchell was not released from prison during the pendency of his appeal. Because the judgment of conviction was ultimately upheld by the supreme court, Mitchell remained in prison as sentenced by the circuit court.
14. Mitchell was released from prison on parole in 1992.
15. In 1995, Mitchell was convicted of second-degree sexual assault of a child.
16. Nothing that Justice Butler did in the course of his representation of Mitchell caused, facilitated, or enabled Mitchell's release from prison in 1992.
17. Nothing that Justice Butler did in the course of his representation of Mitchell had any connection to Mitchell's commission of a second sexual assault of a child.
18. The statement in the advertisement, "Louis Butler worked to put criminals on the street" is true. As a criminal defense attorney, Justice Butler appropriately assisted accused persons, whether they were innocent or guilty, in lessening or defeating the criminal charges lodged against them.
19. The statement in the advertisement describing Mitchell's 1985 crime, "Reuben Lee Mitchell . . . raped an 11-year-old girl with learning disabilities" is true.
20. The statement in the
21. The statement in the advertisement, "Mitchell went on to molest another child," is true.
A. Standard of Review
¶6 We review the findings of fact, conclusions of law and
recommendation of the Panel pursuant to Wis. Stat. § 757.91. In re Disciplinary Proceedings Against
Laatsch, 2007 WI 20, ¶1,
¶7 Neither party contends that the Panel's findings of fact should be
overturned or supplemented. Rather, the
Commission contends that the application of SCR 60.06(3)(c) to the facts found
by the Panel prove that Justice Gableman violated SCR 60.06(3)(c). Justice Gableman contends that when SCR
60.06(3)(c) is interpreted and applied to the campaign speech at issue here in
a manner that does not contravene the First Amendment of the United States
Constitution, no violation of SCR 60.06(3)(c) occurred. The interpretation and application of SCR
60.06(3)(c) under constitutional standards present questions of law that we
review independently of the Panel's determination. State v. Brienzo, 2003 WI App 203, ¶9, 267
B. The First Amendment
¶8 The advertisement that forms the basis for the Commission's complaint was run during the course of a campaign for political office. To consider the advertisement in the context in which it was distributed, we first interpret SCR 60.06(3)(c) consistent with the commands of the First Amendment, and then we apply that interpretation to the advertisement itself. We begin with foundational First Amendment principles.
1. General principles
¶9 The First Amendment to the United States Constitution provides
that "Congress shall make no law
. . . abridging the freedom of
speech." As a general matter, this means that the
First Amendment prohibits government restrictions on speech "because of
its message, its ideas, its subject matter, or its content." Ashcroft v. American Civil Liberties Union,
¶10 There are limited, permitted exceptions to the general prohibition
on governmental regulations of speech. See,
e.g., United States v. Williams, 553
¶11 The constitutional protection of the First Amendment has its
fullest and most robust application to speech during a campaign for political
office. Buckley, 424
¶12 When a challenge is made to the regulation of campaign speech, the
challenger is not required to prove that the regulation was unconstitutionally
applied. See id. at
464. Because core First Amendment speech
is being regulated by the government, the government's application of the
regulation is subject to strict scrutiny.
Accordingly, the government bears the burden of proving that the application
of its regulation does not contravene the First Amendment.
¶13 Recent United States Supreme Court decisions that address governmental restrictions on speech demonstrate the application of strict scrutiny. In R.A.V., the Supreme Court examined the St. Paul Bias-Motivated Crime Ordinance that provided:
Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.
¶14 The United States Supreme Court accepted the Minnesota Supreme
Court's interpretation of the ordinance as affecting only "fighting
words," but it nevertheless struck down the ordinance because it
restricted speech "solely on the basis of the subjects the speech
¶15 More recently, in Republican Party, the United States
Supreme Court examined a canon of the Minnesota Code of Judicial Conduct that
provided, a "candidate for a judicial office, including an incumbent
judge," may not "announce his or her views on disputed legal or
political issues." Republican
¶16 The United States Supreme Court recognized that campaign speech is
"at the core of our First Amendment freedoms."
¶18 In 2010, the United States Supreme Court once again examined
restrictions of speech relating to elections.
Citizens United v. Federal Elections Comm'n, 130
¶19 In interpreting a governmental regulation of campaign speech,
courts must recognize that, "[t]he decision to speak is made in the heat
of political campaigns, when speakers react to messages conveyed by
¶20 Even though defamation cases such as New York Times Co. v. Sullivan, 376 U.S. 254 (1964) and Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), are sometimes discussed in opinions where a governmental regulation of speech is at issue, principles from civil defamation cases should not be transferred into the analysis of governmental regulations that operate on protected speech. This is so because: (1) civil defamation claims do not involve enforcement of governmental regulations that are subject to strict scrutiny under the First Amendment; and (2) the law of defamation permits prosecution of false statements by private persons only when those statements also harm another's reputation, see New York Times, 376 U.S. at 267, thereby permitting evidence of the effect of the statement on others.
¶21 To explain further, judicial consideration of an alleged violation
of a governmental regulation of speech employs strict scrutiny to assure that
the regulation serves a compelling governmental interest and also to assure
that application of the regulation is narrowly tailored to achieve that
compelling interest. Wisconsin Right
to Life, 551
¶22 By sharp contrast in a civil defamation suit, no governmental
regulation is construed, and in order to prevail, the plaintiff must prove he
has sustained an injury to his reputation.
Rechsteiner v. Hazelden, 2008 WI 97, ¶72 n.11, 313 Wis. 2d 542, 753 N.W.2d 496
(explaining that to prevail on a claim for defamation the plaintiff must prove
a false statement that is unprivileged and "tends to harm one's
reputation so as to lower him or her in the estimation of the community or to
deter third persons from associating or dealing with him or her"). Accordingly, proof that the statement's
effect was to injure the plaintiff's reputation requires courts to consider the
understanding of the hearer. See New
York Times, 376
¶23 For example, New York Times was based on a private right of
action, New York Times, 376
2. Interpretation and Application of SCR 60.06(3)(c)
¶24 It is within the above described framework of core constitutional principles established to ensure that campaign speech is not diminished, that we must interpret and apply SCR 60.06(3)(c) because the television advertisement occurred during the course of a campaign for political office. It was run "to compare and contrast the background, qualifications, and experience of Justice Gableman with the background, qualifications, and experience of Justice Butler." More importantly, each statement in the advertisement is true.
¶25 While reluctant to identify any impact of the First Amendment on SCR 60.06(3)(c), the Commission did opine that the compelling interest furthered by SCR 60.06(3)(c) is "the protection of the integrity of the judicial system," and that the rule could not be tailored more narrowly. Justice Gableman does not contend that the protection of the integrity of the judicial system is not a compelling interest. However, he maintains that the Commission's interpretation and application of SCR 60.06(3)(c) is contrary to the First Amendment's protection of campaign speech. Stated otherwise, Justice Gableman maintains that when SCR 60.06(3)(c) is interpreted and applied using strict scrutiny, which the constitution requires, his campaign speech does not violate the Supreme Court Rule.
¶26 Our interpretation of SCR 60.06(3)(c) presents as a question of first impression and begins with the language of SCR 60.06(3)(c), which provides:
Misrepresentations. A candidate for a judicial office shall not knowingly or with reckless disregard for the statement's truth or falsity misrepresent the identity, qualifications, present position, or other fact concerning the candidate or an opponent. A candidate for judicial office should not knowingly make representations that, although true, are misleading, or knowingly make statements that are likely to confuse the public with respect to the proper role of judges and lawyers in the American adversary system.
¶27 SCR 60.06(3)(c) has the potential to operate as a prior restraint
of speech during judicial campaigns.
This is so because, without defining "truth or falsity," SCR
60.06(3)(c) both prohibits judicial candidates from making certain statements
during the course of campaigns and permits the government to prosecute and
punish willful violations. See
¶28 When a governmental regulation is not clear and is interpreted
using "ambiguous tests," it forces a speaker who wants to avoid the
threat of punishment to obtain prior permission to speak. See Citizens United, 130
¶29 Without a doubt, the First Amendment applies to SCR 60.06(3)(c)'s
interpretation and application, see Wisconsin Right to Life, 551
U.S. at 476, and, therefore, SCR 60.06(3)(c) is subject to strict scrutiny by
this court, see id. at 464 (explaining that "the Government
must prove that applying [the regulation] . . . furthers a compelling
interest and [that the regulation] is narrowly tailored to achieve that
interest"); see also Republican Party, 536
¶30 Supreme Court Rules are subject to the rules of statutory
¶31 The Commission alleges no violation of the second sentence of SCR 60.06(3)(c); rather, the Commission claims Justice Gableman violated the first sentence of SCR 60.06(3)(c), which provides:
A candidate for judicial office shall not knowingly or with reckless disregard for the statement's truth or falsity misrepresent the identity, qualifications, present position, or other fact concerning the candidate or an opponent.
The Panel interpreted SCR 60.06(3)(c), and in so doing, it compared the first sentence of SCR 60.06(3)(c), which is phrased in mandatory terms, and the second sentence of SCR 60.06(3)(c), which is phrased in aspirational terms.
¶32 The second sentence of SCR 60.06(3)(c) addresses statements that although true, are misleading or likely to confuse. It must regulate conduct that does not fall within the parameters of the first sentence, to avoid rendering the second sentence mere surplusage. Therefore, to violate the first sentence, the statement must be false because a true statement that misleads falls within the second sentence of SCR 60.06(3)(c).
¶33 Two members of the Panel concluded that because each of the statements in the advertisement was true, no violation occurred. Stated otherwise, those Panel members determined that SCR 60.06(3)(c) does not regulate objectively true statements. We agree with that interpretation of the rule.
¶34 To explain further, the Panel's interpretation comports with the requirements of the First Amendment as well as generally accepted principles of statutory interpretation. This is so because defining "truth" as a statement that is objectively true, without regard to any effect the statement may or may not have on the hearer, narrowly tailors the rule as strict scrutiny requires.
¶35 Defining "truth" as a statement that is objectively true
also accomplishes at least three other important First Amendment goals: (1) it limits the rule's potential to be
enforced as an effective prior restraint of speech, see Citizens
United, 130 S. Ct. at 892; (2) it removes uncertainty from the rule,
thereby reducing the propensity for self-censorship, i.e., the chilling of
political speech, see id. at 895-96; and (3) it promotes uniform
application of the rule because the speaker is not at the mercy of the hearer's
understanding, see Wisconsin Right to Life, 551
¶36 The Commission asserts a television advertisement run by Justice
Gableman's campaign committee "directly implied and was intended
to convey the message that action or conduct of Louis
¶37 In Wisconsin Right to Life, the United States Supreme Court
mandated the use of an objective standard when evaluating speech to which a
governmental regulation was being applied.
¶38 Furthermore, United States Supreme Court precedent prohibits
applying SCR 60.06(3)(c) in a way that considers what a hearer thinks the
campaign speech means. See Citizens
¶39 The Commission admits that each statement made in the advertisement
is true. All parties agree that the
First Amendment prohibits punishing truthful speech. See Wisconsin Right to Life,
¶40 Wisconsin Right to Life repeatedly explains that the court
has rejected a First Amendment test of campaign speech that considers the
intent of the speaker.
For the reasons regarded as sufficient in Buckley, we decline to adopt a test for as-applied challenges turning on the speaker's intent to affect an election. . . . The test should also "reflect our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." A test turning on the intent of the speaker does not remotely fit the bill.
¶41 Wisconsin Right to Life also reaffirmed Buckley's holding that First Amendment campaign speech cannot be limited by the hearers' understanding of what was said, rather than evaluating the words actually spoken. As the Supreme Court related:
Buckley also explains the flaws of a test based on the actual effect speech will have on an election or on a particular segment of the target audience. Such a test "puts the speaker . . . wholly at the mercy of the varied understanding of his hearers." . . . Litigation on such a standard may or may not accurately predict electoral effects, but it will unquestionably chill a substantial amount of political speech.
¶42 The Commission asserts we must "interpret" the statements
based on the "context in which [they were] made." The Commission relies on various defamation
cases "for guidance in determining that the Advertisement contains a false
statement of fact." The Commission's reliance on defamation cases
for support in defining that the statements in the advertisement are false is
misplaced. This is so because the
Commission employs a broad interpretation and application of SCR 60.06(3)(c),
contrary to strict scrutiny, and also because the test for determining whether
a statement is false is different in defamation cases than it is in
governmental restraint cases. Compare
New York Times, 376
¶43 Our position that defamation principles should not be applied to SCR 60.06(3) also is supported by the plain meaning of SCR 60.06(3)(c). To explain, while SCR 60.06(3)(c) applies to statements that one candidate makes about another candidate, it also applies to statements that a candidate makes about himself or herself. Defamation cases can have no relevance to an alleged SCR 60.06(3)(c) violation based on an untruthful statement a candidate makes about himself or herself.
¶44 The Supreme Court's discussion of false statements in civil defamation cases is not appropriate to engraft onto cases addressing governmental regulations of political speech. This is so for at least three reasons: (1) in defamation cases, the falsity of the statement is interwoven with the effect of the statement on the hearer, Milkovich, 497 U.S. at 20 n.7; (2) in governmental regulation of political speech cases, we are prohibited from considering the effect of the speech on the hearer, Wisconsin Right to Life, 551 U.S. at 469; and (3) civil defamation cases arise from a private right of action where the plaintiff's right to recover for damages to his good name is balanced with the speaker's defense under the First Amendment, without concerns that a governmental regulation will chill constitutional speech.
¶45 A United States Supreme Court defamation decision provides a
helpful example, demonstrating how the analysis of whether a statement is false
in a defamation case differs from the analysis of whether a statement is false
in a governmental regulation of political speech case. In Milkovich, the Supreme Court was
asked to decide whether a statement expressed as an opinion was protected from
prosecution as defamation. Milkovich,
¶46 The defamation claim in Milkovich required proof that the
published statement was false and also that it lowered Milkovich in the esteem
¶47 The evaluation of whether a statement is false when the potential
for restraint of political speech is at issue is much different. When a governmental regulation of speech
results in the government's seeking to punish the speech that it sought to
regulate, the United States Supreme Court has precluded consideration of the effect
of the speech on the hearer. Wisconsin
Right to Life, 551
¶48 We are bound to follow the directives of the United States Supreme
Court's First Amendment jurisprudence as we apply SCR 60.06(3)(c). Republican Party clearly establishes
that candidates for judicial office have First Amendment rights that codes of
judicial conduct may not transgress. Republican
¶49 We conclude that the statements in the campaign advertisement were objectively true and therefore, they did not violate SCR 60.06(3)(c). Were we to conclude that objectively true statements can be punished for what the government asserts they imply or for the alleged effect they may have on some hearer, we would violate the command of strict scrutiny that the regulation be narrowly construed and applied. We follow the directives of the United States Supreme Court in our decision, as we must.
C. Burden of Proof
¶50 The Commission commenced this original action by filing a complaint against then-Judge Gableman with the clerk of the supreme court, pursuant to Wis. Stat. § 757.85(5). In so doing, the Commission assumed the obligation to prosecute the complaint, § 757.85(6), and was given the burden to prove the complaint as set out in Wis. Stat. § 757.89. Section 757.89 requires that a complaint alleging judicial misconduct "be prove[d] to a reasonable certainty by evidence that is clear, satisfactory and convincing."
The supreme court shall review the findings of fact, conclusions of law and recommendations under s. 757.89 and determine appropriate discipline in cases of misconduct. . . . The rules of the supreme court applicable to civil cases in the supreme court govern the review proceedings under this section.
¶52 In this case, there is no dispute by either party about the Panel's findings of fact. On review, we employ the rules applicable to civil proceedings and we accept the Panel's findings of fact unless they are clearly erroneous. No party contends the Panel's fact findings are clearly erroneous or that there is any need for further fact-finding. Rather, both parties accept the Panel's findings of fact as the facts upon which our ultimate decision is to be made.
¶53 We three justices have concluded that based on the undisputed facts
before us, the Commission has failed to prove the allegations in its complaint
by evidence that is clear, satisfactory and convincing as Wis. Stat. § 757.89 obligates the
Commission to do. When a party has not
met its required burden of proof, dismissal of the complaint is required by
¶54 This case has not been dismissed because Chief Justice Abrahamson, Justice Bradley and Justice Crooks refuse to apply the burden of proof to the Commission that the legislature specifically requires in § 757.89. They refuse to follow the law, even though it is apparent that the Commission has not met its burden of convincing four members of this court that Justice Gableman violated SCR 60.06(3)(c), and even though the Commission agrees that the facts found by the Panel are all true.
¶55 The Abrahamson writings also repeatedly try to shift the focus of the reader to a discussion of summary judgment, when no party has moved this court for summary judgment. This is not an appellate review process in which we are engaged, where we review motions made and decided by a previous court. This complaint was filed with the Wisconsin Supreme Court; it is a case of original jurisdiction. No one has moved this court for summary judgment. The Abrahamson writings' attempt to fog the issues actually presented with their summary judgment ploy is unworthy of the difficult process in which we are engaged.
¶56 Applying the burden of proof set out by the legislature in Wis.
Stat. § 757.89,
requires dismissal of the complaint.
Other courts have dismissed actions when the party who had the burden of
proof garnered only an evenly divided court.
For example, in In re Isserman (Isserman I), 345 U.S. 286
(1953) the United States Supreme Court was equally divided when the Court was
confronted with whether Isserman, an attorney convicted of misconduct and
disbarred by a state supreme court, should be disbarred by the United States
Supreme Court as well. When the Isserman
matter was first presented to the Supreme Court, the rule provided that
Isserman be disbarred unless "he shows good cause to the contrary within
The order of the Court placed the burden upon respondent to show good cause why he should not be disbarred. In our judgment, he has failed to meet this test. An order disbarring him from practice in this Court should issue.
¶57 Less than one year later, on rehearing, the Supreme Court vacated
the order entered in Isserman I. In
re Isserman (Isserman II), 348
¶58 In In re Apportionment of Michigan Legislature, 140 N.W.2d
¶59 In Lohrmann v. Arundel Corp., 500 A.2d 344 (Md. Ct. Spec.
App. 1985), the Maryland Court of Special Appeals was confronted with
"whether an evenly-divided vote by the Ann Arundel County Board of Appeals
operates as a denial of a special exception previously granted by a zoning
hearing officer or as an affirmance of the hearing officer's decision."
¶60 The burden of proof is a foundational premise of law. The person to whom that burden is assigned must meet it or dismissal of the complaint is required. This is so because when the burden of proof has not been met, the evidence presented is held insufficient to satisfy the charge made in the complaint as a matter of law. See Bubb v. Bruskey, 2009 WI 91, ¶30, 321 Wis. 2d 1, 768 N.W.2d 903; State v. Bonds, 2006 WI 83, ¶53, 292 Wis. 2d 344, 717 N.W.2d 133.
¶61 The equal division of the justices in the complaint pending against Justice Gableman shows that the Commission has failed to carry its burden to prove to a majority of the court that Justice Gableman violated SCR 60.06(3)(c) by evidence that is clear, satisfactory and convincing, as Wis. Stat. § 757.89 requires. Accordingly, we anticipate that the Commission, or the Commission and Justice Gableman together, promptly will move this court to dismiss the Commission's complaint, as it is apparent that it cannot be proved.
¶62 Three members of the court, Justice Prosser, Justice Roggensack and Justice Ziegler, agree with the recommendation of the three-judge Panel that the Commission's complaint against Justice Gableman must be dismissed. We agree with the Panel's recommendation because after conducting an independent review of the record and considering the arguments of counsel, we have concluded that the Commission failed to establish, by evidence that is clear, satisfactory and convincing, that Justice Michael J. Gableman violated SCR 60.06(3)(c).
¶63 The campaign advertisement that gave rise to the Commission's
complaint against Justice Gableman and the governmental rule, SCR 60.06(3)(c),
by which the Commission seeks to punish Justice Gableman for that advertisement
must be examined according to the commands of the First Amendment. As the United States Supreme Court has
explained, the First Amendment applies to judicial elections and those canons
of judicial ethics that states seek to apply to judicial elections. Republican Party, 536
¶64 In order to meet the burden of proof assigned to the Commission by Wis. Stat. § 757.89, at least four justices must conclude that the advertisement by Justice Gableman's campaign committee violated SCR 60.06(3)(c), when SCR 60.06(3)(c) is interpreted and applied consistent with the commands of the First Amendment. The Commission has not met that burden of proof. Accordingly, we anticipate that the Commission, or the Commission and Justice Gableman together, promptly will file a motion to dismiss the complaint against Justice Gableman.
 Chief Justice Abrahamson, Justice Bradley and Justice Crooks would like to remand the complaint for a hearing before a jury panel that the Commission never requested. (One could interpret their writings as actually remanding the matter for a jury trial. See writings of Chief Justice Abrahamson, Justice Bradley and Justice Crooks, 2010 WI 61, ¶105 [hereinafter the Abrahamson writings]. However, when the court is sitting six, it takes the affirmative vote of four justices to make any type of court order, including a remand. There are not four votes to remand.)
They assert their suggestion of a jury panel is
necessary to resolve the court's impasse.
Abrahamson writings, ¶16. Generally, when the court reaches an impasse,
the decision immediately preceding our review is affirmed. See, e.g., Hornback v. Archdiocese
of Milwaukee, 2008 WI 98, ¶5,
The Abrahamson writings do not choose this usual mode
of resolving an impasse because they do not like the result. However, their attempt at a second trial is
wholly without merit. Any request for a
jury panel must have been made before the complaint was filed.
 Commission complaint, ¶16.
Wisconsin Stat. § 757.81(4)(a) (2007-08) provides that it is judicial misconduct to commit a "willful violation of a rule of the code of judicial ethics." All further references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
 Commission complaint, ¶¶6–15.
 Judicial Conduct Panel Decision, 4 n.4 [hereinafter Panel Decision].
Supreme court, disposition. The supreme court shall review the findings of fact, conclusions of law and recommendations under s. 757.89 and determine appropriate discipline in cases of misconduct . . . . The rules of the supreme court applicable to civil cases in the supreme court govern the review proceedings under this section.
 The First Amendment is
applied to the states by the Fourteenth Amendment. State v. Douglas D., 2001 WI 47, ¶2 n.2, 243
 "The First
Amendment protects a liberty——liberty
of expression——and it
is an effect of this liberty that there is wide and uninhibited discussion of
political matters. . . .
The First Amendment does not protect a person from lies or
imposition by private individuals.
Rather the First Amendment protects against impositions by
government." Charles Fried, The
New First Amendment Jurisprudence: A
 See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).
 Panel Decision (Finding of Fact No. 2).
 April 16, 2010 statement of James Alexander at oral argument before this court.
 SCR 60.06(3)(c) cmt. (explaining that "[t]he second sentence is aspirational" and "[t]he remaining standards are mandatory").
 We interpret rules to
avoid surplusage. See Hutson
v. Wisconsin Pers. Comm'n, 2003 WI 97, ¶49, 263
 Panel Decision, 14.
Abrahamson writings repeatedly rely on defamation cases. In so doing, the writings fail to recognize
that civil defamation cases do not employ strict scrutiny as part of the
analysis. However, subjecting the
governmental regulation of speech to strict scrutiny is a foundational
principle that a proper First Amendment analysis requires when the government
is seeking punishment for an alleged violation of its regulation. Federal Elections Comm'n v. Wisconsin
Right to Life, 551
 Commission complaint, ¶11 (emphasis added).
 April 16, 2010 statement of James Alexander at oral argument before this court.
brief in chief, 12. The Abrahamson writings fall into the same quagmire because
of their reliance on civil defamation cases where the effect of the statement
on the hearer is not only a permissible part of the analysis of the claim, it
is a required part. See, e.g., Milkovich,
 See supra ¶¶20–23 (discussing defamation cases).
 The Wisconsin Supreme
Court has appellate and original jurisdiction.
 Instead of applying the burden of proof required by Wis. Stat. § 757.89, Chief Justice Abrahamson, Justice Bradley and Justice Crooks suggest that the complaint should be returned to the Commission so that the Commission can now request a jury trial. Abrahamson writings at ¶¶15-17. This suggestion passes belief. Juries determine facts and the facts of this matter are not in dispute, by either the Commission or Justice Gableman. Furthermore, no party has asserted that the facts as found by the Panel should be supplemented.
A hearing before a jury panel is not a legal
option. This is so because
In addition, the Abrahamson writings are not
forthright in their representations to the public about the availability of a
hearing before a jury panel. Their
After the commission has found probable cause that a judge or circuit or supplemental court commissioner has engaged in misconduct or has a permanent disability, and 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. If a jury is not requested, the matter shall be heard by a panel constituted under sub. (3). The vote of each member on the question of a jury request shall be recorded and shall be available for public inspection under s. 19.35 after the formal complaint or the petition is filed.
 The Abrahamson writings also mischaracterizes our opinion as "granting summary judgment." Abrahamson writings, ¶9. No party moved this court for summary judgment and we three justices are not ruling on a motion for summary judgment. Because this is a case of original jurisdiction, we are not reviewing a summary judgment motion made to the Panel. We have independently reviewed the record, including the basis for the findings of fact made by the Panel, and the applicable law.