Testimony on Judicial Discipline

Legislative Council Special Committee

August 5, 2010

Thank you for extending an invitation to the Wisconsin Democracy Campaign to provide a citizen perspective on judicial discipline. Over the years, the Democracy Campaign has filed numerous complaints with the state Government Accountability Board and its predecessor agencies – the Elections Board and Ethics Board – against both major political parties in Wisconsin as well as elected officials and candidates from both parties. Those complaints have dealt with violations of various campaign finance laws and the state ethics code, and many resulted in fines or other penalties.

We have filed a complaint with the state Judicial Commission on only one occasion. But that marked the first time in our state’s history that a sitting member of the Wisconsin Supreme Court was accused of judicial misconduct. And the ensuing investigation resulted in that justice being the first found guilty of violating the Judicial Code of Conduct. It is from this vantage point that we offer our perspective on the process used in Wisconsin to handle matters related to judicial discipline.

Transparency, Timeliness and Effectiveness of Judicial Commission Proceedings

There is precious little transparency in the Judicial Commission’s handling of judicial misconduct cases. On March 19, 2007 the Democracy Campaign filed a formal request for investigation with the Judicial Commission alleging that Justice Annette Ziegler (then a circuit court judge in Washington County) presided over cases in which she had economic conflicts of interest. We cited 16 cases in our complaint. Seven involved West Bend Savings Bank, on whose board of directors Ziegler’s husband served. The other nine cases involved businesses in which the Zieglers owned $50,000 or more worth of stock.

Several days later, we received a letter dated March 20, 2007 from the Judicial Commission’s executive director acknowledging receipt of our request for an investigation. The letter went on to say there would be an initial evaluation by staff and the matter would then be reviewed by the commission to determine whether to authorize an investigation. That was the last we heard from the Judicial Commission.

On April 18 the state Ethics Board filed a complaint alleging Ziegler had violated the state ethics code. Two days later, we learned that the Judicial Commission announced to the news media that it had authorized an investigation of possible judicial misconduct. Nothing was communicated to us about the commission’s decision, nor were we ever contacted by commission staff for additional information regarding our complaint. Our own inquiries were rebuffed.

On May 16, Ziegler acknowledged violating the state ethics code and agreed to pay a $5,000 fine as well as roughly $12,000 in investigative expenses incurred by the Ethics Board.

The Judicial Commission announced on September 6 that it was filing a complaint with the state Supreme Court against Ziegler. It also was announced at the same time that the commission and attorneys for Ziegler were filing a stipulation and joint recommendation for reprimand. The commission’s complaint citied 11 cases involving West Bend Savings Bank that Ziegler presided over. No mention was made of other cases and no explanation was offered as to why the complaint focused only the West Bend Savings Bank cases.

The Judicial Commission did send Ziegler a letter informing her that the commission was dismissing allegations of misconduct relating to other cases she presided over “in which you may have had an economic interest.” The letter mentioned cases involving the Federal National Mortgage Association (FNMA), Ford Motor Company and General Motors Corporation. The letter said the commission considered her ownership of stock in those companies “de minimis” and said “its value could not have been affected by the outcome of the cases.” The letter went on to issue an “expression of warning” to Ziegler.

The commission’s conclusion that the stock ownership was de minimis is curious given that one of the commission’s advisory committees issued a 2000 opinion recommending that judges who have an interest of $20,000 or more with a party in a case should withdraw or tell all of the parties and let them decide whether to seek another judge for the case. The value of the Zieglers’ FNMA stock was estimated at between $51,464 and $60,048 during the two-year period (2002 through 2004) when that case was pending. The value of the GM stock also exceeded the $20,000 level for at least part of the time that case was pending as it was estimated at between $7,009 and $33,804 during the period in question.

More curious was the fact that the commission did not address either in its complaint or its letter of dismissal and warning cases Ziegler presided over involving Harley Davidson, JP Morgan Chase Bank and United Healthcare that the Democracy Campaign cited in its request for investigation. The statement of economic interest filed by Ziegler indicated her family held more than $50,000 worth of stock in each of those companies. The Democracy Campaign never received an explanation from the Judicial Commission of why those cases were overlooked.

It is impossible to evaluate the commission’s handling of the investigation or its judgment because there is no public record to examine.

The Role of the Judicial Conduct Panel and the Supreme Court in Determining Discipline

Before the Supreme Court decides what action, if any, to take in response to a complaint filed by the Judicial Commission, the commission’s findings and recommendations are reviewed by a Judicial Conduct Panel made up of three state appeals court judges. In the Ziegler case, the only “public” aspect of the three-judge panel’s deliberations was a hearing on the matter on November 19, 2007. Despite the fact the allegations of judicial misconduct originated from the Democracy Campaign, we were not invited to participate. This “hearing” involved only attorneys for the Judicial Commission and Ziegler and her attorneys. It lasted about an hour and a half. After sitting through the proceeding, it was difficult to see why it was 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 while ignoring at least three dozen other cases involving companies in which the Zieglers owned substantial amounts of stock. No explanations were given about why these stones were left unturned, and the judges didn’t ask for any.

Several times during the hearing, both panel members and attorneys emphasized that the judicial discipline system is not designed to punish judges but rather educate them. Apparently lost on them was the glaring double standard evident in those repeated statements. The remote probability of any citizen found guilty of breaking the law standing before any judge and being told it is not the court’s intention to punish but rather only to educate did not appear to cross their minds.

Moreover, Ziegler’s attorney said the longstanding judicial ethics rule requiring judges with a financial conflict of interest to disclose the conflict and withdraw from the case did not cross her mind as she handled the West Bend Savings Bank cases. If Ziegler was indeed not thinking of the ethics code when she ruled on those cases, then the judicial discipline system’s emphasis on educating judges rather than punishing them clearly had failed.

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 was that the Ziegler case was an unprecedented situation. Never before had a sitting member of the state Supreme Court faced possible discipline for judicial misconduct. The judges seemed oblivious to the fact they were applying precedent to an unprecedented set of circumstances.

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. The judges gave not even a passing thought to whether it is wise to apply precedent when it represents failure.

Several comments made by panel members during the hearing raise serious questions about whether the judicial discipline process is best served by having judges sitting in judgment of other judges. One such comment was in response to a Judicial Commission attorney’s point that Ziegler had repeatedly ruled on cases in which she had economic conflicts of interest. The judge said repeating the same mistake multiple times does not amount to multiple mistakes. Try telling that to criminal prosecutors as they make sentencing recommendations for those convicted of multiple counts of a crime, or to a judge who hands down the stiffer sentence. That same panel member questioned whether a “cup of hemlock” was the appropriate punishment for Ziegler.

When the process moved from the Judicial Conduct Panel to the Supreme Court for a final decision, the process remained cloaked in secrecy. Reading the high court’s decision, many of the three-judge panel’s considerations – no questioning of unaddressed cases, careful adherence to precedent despite the unprecedented nature of the case, and an emphasis on educating rather than punishing – were evident. But this final step in the process also raised a new concern. For the first time in Wisconsin’s history, members of the Supreme Court were in a position of having to judge whether one of their own had committed judicial misconduct and having to determine what, if any, discipline to impose.

This arrangement forces members of the court to choose between collegiality and enforcing the judicial ethics code. This is a no-win proposition both for the court and the public. And, as the more recent misconduct case involving Justice Michael Gableman brings into sharper focus, there is the very real possibility that disciplinary matters involving a member of the high court won’t be resolved at all because of a tie vote. This clearly is not desirable for any of the involved parties, nor does it serve the public interest.

Possible Alternatives to the Current Process

Some thoughts about how to improve enforcement of the judicial ethics code:

  • Enhanced transparency. Create opportunities for public participation in the process and ways to establish a public record of disciplinary proceedings in each stage of the process.
  • Don’t have judges judging judges. Consider moving away from the current system’s reliance on the Judicial Conduct Panel of appeals court judges as well as the Supreme Court as the final enforcement authority. Consider broadening the Judicial Commission’s authority to enforce the Judicial Code of Conduct and empowering the commission to impose discipline or alternatively establish a new enforcement body, preferably one overseen by a board with a majority of members who are not attorneys or judges.
  • Expand the menu of disciplinary options. Currently, if a judge is found guilty of ethical misconduct the Supreme Court has four disciplinary options: reprimand, censure, suspension and removal from the bench. Consider adding penalties – such as civil forfeitures – that other state enforcement authorities have at their disposal.