Citing an obscure law, a Milwaukee County supervisor is asking for an investigation into whether Wisconsin Supreme Court Justice Michael Gableman committed a crime when he ran an allegedly misleading campaign ad.

Sup. John Weishan Jr. said he believes Gableman violated a rarely enforced law that prohibits knowingly making "a false representation pertaining to a candidate."

Violators can be punished with up to six months in jail. An analysis by Court Data Technologies of Madison for the Wisconsin State Journal found just five cases in the past 30 years in which the law was used, either as an initial charge or as a reduced charge.

The statute was passed in 1911 as part of the Corrupt Practices Act, according to the Legislative Reference Bureau. Prosecutors have often declined to enforce it, saying the penalties are too severe and the wording of the law too vague. A 1981 legislative study recommended lawmakers lower the punishment to a fine or a misdemeanor instead of a felony and to clarify some of the terms. The Legislature never did but instead broadened the law in 1993 to include false statements about referendums.

Court Data Technologies found three cases since 1979 in which defendants were charged under the statute and two other cases in which a charge was reduced to knowingly making a false representation pertaining to a candidate. In the three cases, one defendant pleaded guilty to harassment and paid a fine, charges were dismissed in another and in the third, the defendant was found guilty by a jury and fined.

Some lawyers believe the law is unconstitutional on free speech grounds.

Samuel Gold, a northern Wisconsin attorney, has asked the Oneida County sheriff to investigate an ad being run by Sen. Barack Obama's campaign. Gold, a Republican, said he believed the ad made false claims about Sen. John McCain's health-care plan. He called the law "silly" and likely unconstitutional but said it should be enforced if on the books.

Wisconsin courts apparently have never ruled on the law's constitutionality. In 1938, the Supreme Court found that opinions attacking candidates — but not their records — don't violate the law. The decision came in a case involving a candidate for Milwaukee County sheriff who was dubbed "a love pirate and demoralizer of homes."

Weishan is asking Burnett County District Attorney William Norine to investigate Gableman, who defeated incumbent Justice Louis Butler in the April election. Norine said he would review the matter, which Gableman's campaign consultant Darrin Schmitz called "frivolous and another attempt by the left to circumvent the will of the voters."

Weishan said he filed the complaint because he was appalled by the ad, which falsely suggested Butler helped free a child molester who later raped again. Earlier this month, the Wisconsin Judicial Commission alleged Gableman committed judicial misconduct because the ad constituted "misrepresentation ... made knowingly or with reckless disregard for the truth." That complaint is pending.

State Journal reporter Dee J. Hall contributed to this report.

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