Monday, November 19, 2007

Judicial Integrity In The Balance

The three-judge Judicial Conduct Panel that is reviewing the Annette Ziegler ethics case held its planned hearing this morning in West Bend. The panel is reviewing the state Judicial Commission's complaint against the newest member of the state Supreme Court alleging judicial misconduct as well as the commission's recommendation that she be reprimanded. The judges will be forwarding their findings and recommendation to the state Supreme Court, which has the final say in the matter.

The hearing lasted about an hour and a half, and after sitting through it, the first question that springs to mind is why was it even held. Both the Judicial Commission and attorneys for Ziegler said they were content to rest on the legal briefs they already had filed and had nothing new to add. None of the three judges explored any new territory. Most notably, none asked why the Judicial Commission had chosen to focus only on 11 cases that Ziegler handled involving West Bend Savings Bank where Ziegler's husband is a paid member of the board of directors, while ignoring at least three dozen other cases involving companies in which the Zieglers own substantial amounts of stock. No explanations were offered about why these stones were left unturned, and the judges didn't ask for any explanation.

Several times during the hearing, one of the judges or attorneys took pains to stress that the judicial discipline system is not designed to punish judges but rather educate them. The glaring double standard evident in these repeated statements was apparently lost on everyone in the courtroom with a law degree. Can anyone imagine any citizen accused of breaking the law standing before any judge and being told that if the verdict is guilty it is not the court's intention to punish but rather only to educate?

Something Justice Ziegler's lawyer said highlighted what a failure this approach to enforcement has been. At one point, the attorney said the longstanding judicial ethics rule requiring judges with a financial conflict of interest to disclose the conflict and recuse themselves did not cross Ziegler's mind as she handled the West Bend Savings Bank cases. If Ziegler is to be believed when she says she wasn't thinking of the ethics code when she ruled on these cases, then isn't that a pretty damning indictment of the judicial discipline system's "educational" efforts?

Other than articulating a clear preference for education over punishment, the panel of judges also conspicuously dwelled on precedent, namely past disciplinary actions taken against Wisconsin judges. The peculiar thing about the emphasis on precedent is that the Ziegler case is an unprecedented situation. Never before has a sitting member of the state Supreme Court faced possible discipline for judicial misconduct. Question for the judges: How do you apply precedent in an unprecedented case?

Another problem with remaining bound by precedent is that past enforcement of the judicial ethics code clearly has left a great deal to be desired, as evidenced by Ziegler's own admission that she didn't give a passing thought to the rules when she handled cases in which she had a clear financial conflict of interest. Question for the judges: Why do you apply precedent when it represents failure?

What the Judicial Conduct Panel's findings end up being and what the judges recommend in the way of discipline are anybody's guess. But the signals sent at today's hearing were hardly confidence inspiring.


Anonymous said...

The panel is thumbing its nose at the public with its sound bites...this should have gone straight to the Supreme Court from the Judicial Commission.

Anonymous said...

OK, Judge Ziegler has admitted that she made a mistake but I have yet to hear that any of the cases you mention was incorrectly decided.

I am starting to wonder if the reason the Wisconsin Democracy Campaign is worked up about this case has something to do with the fact that Judge Ziegler defeated a wanna be Judge from Madtown for her office.

Until some actual wrong-doing is found this coverage is getting kind of stale.

Anonymous said...

Anon 7:33 -

How can we expect anyone to follow the rules if the courts don't?

Don't be niave', this represents a much larger problem in the judicial system.

Anonymous said...

I heard your remarks on WPR about the appellate court panel hearing of Ziegler's case, Mike, and you are so right on.

It stretches belief beyond imagination that she truly never even thought about the obvious conflict of interest in cases involving the bank on which her husband served as a board member -- or even knew that it violated judicial ethics -- and, from reports I read during her run for SC, he had a paid position with the bank board.

Also the absurdity is beyond comprehension that judges on a lower court are sitting in judgment on a higher court justice. Isn't that another perception, if not in fact, of a conflict of interest? She will, after all, be hearing cases they have ruled on that get appealed to the Supreme Court. Do you think they just might have in the backs of their minds, even subconsciously, that if they don't go easy on her, she -- especially w/her track record as a judge on a trial court -- just might not be quite so inclined to uphold their rulings? Not that she would or wouldn't, but doesn't just the possiblity further raise the hairs on the back of your neck?

I moved to Wisconsin from California where I worked in the court system, and am pretty much roundly dismissed here whenever I mention or suggest a policy, procedure or way California does something, but I am astounded that this state's court system oversees the conduct and discipline of its own judges/justices. I don't have to mention foxes and henhouses, do I?

California has a separate body charged with those duties. For years that state's Judicial Performance Commission was dominated by judges and lawyers (who appear before judges, so...) Several years ago the commission makeup was changed to include a larger percentage of non-court/legal-community members. Judges howled, but I think ultimately the public benefited, if for nothing more than because the commission is not longer seen as overlaid with self-interest. Just like judges in Wisconsin, they didn't want to be too hard on their colleagues for fear that should they, god forbid, have a complaint filed against them, they in turn might be treated harshly.

Jerrianne Hayslett