Friday, March 23, 2007

One Wisconsin Now: Sun rises in the east!!!

You'd expect a political hit piece from the folks at One Wisconsin Now but its "analysis" of Annette Ziegler's rulings on cases involving West Bend Savings Bank is, to be gentle, unsophisticated. Here is the shocking conclusion:

Ziegler has ruled in favor of West Bend Savings Bank in 43 out of 44 cases (97.7%) either by awarding them a financial judgment or agreeing to their motion to dismiss a case. In 40 out of 41 cases (97.6%) where there was a monetary judgment, she sided with West Bend Savings bank.

Does this mean Ziegler improperly favored West Bend? Does it even hint at that? Isn't 97% a really high number?

It might seem so until you stop and consider the types of cases that banks are involved in. Generally speaking, they sue people to whom they lend money and who do not pay it back. In virtually every such case, these people may have an excuse - even a sympathetic one ("I was diagnosed with cancer," "I lost my job") - but they do not have a legal defense. The two nondefaulted cases cited in the press involving West Bend reflect that. Judge Ziegler should have disclosed or recused, but the defendants would have lost in front of any judge because they had no case.

As a rookie lawyer at Foley & Lardner, I had to take a six month stint doing collections work for that was then First Wisconsin. I probably sued 20-30 every week for six months, bringing over 700 cases. My recollection is that only two of those 700 filed an answer and neither of them had a valid defense.

It's in the nature of the thing. Banks don't sue people who pay them back and they rarely make a mistake about whether that has happened - much less one that goes uncorrected past the time when collection efforts have failed and the matter goes to court. (This is not because banks are morally superior entities, but because a bank that couldn't keep track of who paid it back would not be in business for long.)

My guess is that West Bend wins a comparable percentage of its cases before all the judges in Washington County as do all the other lenders that go to court out there. If Judge Ziegler did favor West Bend, it is not possible to tell from One

Annette Ziegler did fail to follow a prophylactic rule in these cases - at least in the few where the defendant did not default. That is one factor among many to be considered in choosing between the Supreme Court candidates. But One Wisconsin's study is not, although it may be worth keeping in mind when evaluating any future "research" that it may conduct.


Anonymous said...

I would say that most banks don't have the same judge that hears all their cases and neither should West Bend Savings. According to your analogy it shouldn't matter who is sitting in that black rope, because a bank would never do anything wrong.

It's good to see that you have claimed that Judge Ziegler should have recused herself. As a law professor, you know that proving how she or any judge benefits could be nearly impossible. That's why there are rules.

Finally, what would you say if that 90% ruling was in favor of all cases she oversaw that involved businesses?

Anonymous said...

Willingness to adhere to basic, well established ethical rules is merely one factor?!

The fact is that you have chosen bare ideology over integrity and ethics. As a lawyer you know that Ziegler's violations are very serious even if, in fact, she was not consciously throwing cases the bank's way.

In effect: "She's corrupt, but she'll vote the way I like."

It is shameful that the public is being asked to elect a judge who has confessed to these violations and that you, a lawyer, put the weight of your professional identity behind this. No wonder the public is disgusted with the legal profession.

If there was any integrity to this, left and right would recognize that Ziegler is unfit. And WMC and company could learn a lesson about vetting their candidates.

Ironically, despite your high-minded critique of of judicial philosophy, your's appears to require only a candidate who will vote in a manner consistant with your politics. This thing is a sad mess.

Dad29 said...

Anony2, you should go back onto your meds before your condition gets really serious.

"Corruption" is a long, long way from 'non-disclosure.' And "politics" is not the issue in a Supreme Court race, no matter HOW much the Leftoids would want it so. (To the Left, everything is politics; it's an aberrance derived from Nietzsche's philosophy.)

Anony1, the facts on Z's record are clear, except to the deliberately obtuse. Your argument, such as it is, has the echo of the gay-marriage pleaders.

Isn't it time you graduated to Argumentation 202?

Anonymous said...

"(To the Left, everything is politics; it's an aberrance derived from Nietzsche's philosophy.)"

O please. "Aberrance?" Can't even guess. Don't know what you mean about "the Left," but I am pretty sure that there is no meaningful Nietzschean influence in modern american politics. But at least you sound fancy.

And, let me make this simple: She repeatedly broke the rules of ethics and ruled in cases where she and her family had a personal stake. I really don't know what standards you use for public officials, but yeah, its corruption.

My reference to politics was that you handful of robot-like, arch right wingers would back anyone regardless of talent or trust worthiness who you thing would vote the way your dime-store ideology likes.

Actually, my main point is that all ideologues, all of 'em, right and left, are liars and whores. This race with a candidate who confessed to scores of ethical violations is just the most obvious and pathetic example that's come along in awhile.


Rick Esenberg said...

I don't think anyone is saying that only Judge Ziegler heard West Bend cases. I did suggest that a more instructive study would have compared her rulings to those of other judges on West Bend cases. But instruction wasn't the goal.

Of course, banks can "do wrong." But the overwhelming majority of the cases they bring are against people who have defaulted on loans. The cutomer has about as many legal defenses as you would have if you bolted at a restaurant.
They are going to win 99.9% of those cases.

The 90% statistic would be meaningless just as the West Bend stat is.

Rick Esenberg said...

Its one factor to consider because you would have to decide whether it demonstrates an unwillingness to comply with these rules or whether it was simply sloppy, i.e., she did not appreciate what the rule required. The latter would also be troubling but that would have to be weighed along with everything else you know about both candidates, including, not necessarily their politics as you use that word, but their judicial philosophy.

Anonymous said...


Rick, as a lawyer, you know that ethics rules exist, in part, so we can tell from a distance whether an official is acting properly. This ridiculous "gut check" business, i.e., "don't worry about the rules, just trust me" is really a confession.

Ok - I took a bribe, but would've ruled that way anyway - just as persuasive.

I would imagine that a baseline area of agreement would be that first and foremost, officials ESPECIALLY judges must approach their work consistant with the rules of ethics. After that, let the debate begin.

I find that, with most judges, sometimes I think they are right, sometimes wrong. I like Scalia on the 1st amendment, hate him on the 14th for the most part. Abrahamson is sometimes very eloquent on procedural and due process issues, sometimes she is a result oriented hack. Crooks, etc.

But at least we can debate and develop the law. The idea that integrity (yes, this means following the law) is merely a factor to be weighed against I suppose how one expects her to vote, floors me.

Ok, so and so is corrupt but they vote my way is a deadly approach to the judiciary and the development of law.

What about the public's faith in and respect for the courts? What about the fact that Ziegler would be at the top of the lawyer regulatory process?

A couple of final points: "Sloppy" dozens of times? Is that better or worse? And, I don't equate politics and judicial philosophy at all. But what has passed for discussion about "philosophy" has nothing to do with it; its really a river of political rhetoric in this race in particular?

You think Dad29 was led to textualism after wrestling with Holmes' legal realism? Perhaps his approach is informed by the evolution of the structural approach between the federalist papers and the constitution?

In a word, a lot of rightwing sloganeering, and frankly plenty on the left too, has been trying to pass itself off as a discussion about philosophy. As in public policy, anyone who can sum up a judicial philisophy in a sentence is a fool or a liar.

What is stunning about the supreme court race is that it lays bare the fact that in much of our discussion, almost no one is ready to reconsider their ferociously held articles of faith when confronted with new arguments or even facts. Ziegler's ethics problems are new facts, facts that one would think would be of interest to everyone. But they don't - the small group of zealots who think Ziegler will toe the party line dismiss them as besides the point.

Its just not an honest or meaningful discussion. My concern is that this sudden tolerance for corruption will haunt the court and the profession. If and when Ziegler wins, she will be disciplined while sitting on the supreme court. This is good for the state?

Anonymous said...

anon 2 - I fully agree

Rick - A Bank winning cases is not justification for judges to break the rules. How does anyone know what they should have lost under these circumstances.

This is about a judge with serious ethical problems that is mocking the judicial system. I hope your student aren't reading some of your stuff.

anon 3

Rick Esenberg said...

For about the 66th time, I do not believe that Ziegler handled the West Bend cases properly. I use the term "sloppy" because I think it is implausible that she was trying to benefit herself or was determined not to follow the rules. I believe it is most likely that she believed that she was called to make an individualized determination of whether she could be impartial (hence her use of the term "gut check").

Although something like that is required on certain potential conflicts (indeed, this is precisely what candidate Clifford proposes on cases that might advance the interests of the plaintiffs' bar), Ziegler was wrong on that in the cases involving West Bend and, I admit, that is relevant to the campaign.

My point - really my only point - is that it does not necessarily establish that she is "corrupt."

It might suggest that she is not always very careful or thorough. That's a strike against her. If we were to conclude that this is characteristic of her professional practice, it might certainly mean that we would never suggest her as a candidate or appointment. But an election is never a choice about one candidate but, rather, is a comparison of two.

In comparing two candidates, I am not prepared to say that assessing the candidate's view of the proper role of the judiciary and its relationship to other branches of government is just about whether a candidate "votes my way."

I do agree that, too often, "no one is ready to reconsider their ferociously held articles of faith when confronted with new arguments or even facts." But consider whether you may be guilty of that here.

I have tried to be clear on where I think the criticisms of Judge Ziegler are fair but I think it is just as important to make clear where they go too far. The One Wisconsin study is designed to imply that, not only did she not follow a prophylactic rule (which, for the 67th time, she should have followed), but that she also improperly favored West Bend. While it may now be an article of faith for you that Judge Ziegler is corrupt and unfair, the One Wisconsin numbers prove nothing and you need not be exercised that I have pointed that out.

Anonymous said...

Rick - I guess my only point is that, other than an isolated and truly de minmimus technical violation, recent, repeated violations of the rules of judicial ethics should be fatal to a campaign to sit on the highest court, the court with jurisdiction over judicial and lawyer discipline.

Even if your attempt to mitigate the importance, "most likely . . . she believed that she was called to make an individualized determination of whether she could be impartial" is true - and I have no idea how you would pull this observation from the air - its just as bad. "The rules don't apply to me because I know I can be fair" is a dangerous recipe for ethical problems.

You protest my use of the word "corrupt." I think repeated, substantive violations of the ethics rules (which she has effectively admitted) makes this fit, as opposed to "sloppy" or accidental.

On a related matter, how'd you get it into your head that she is a strict constructionist or whatever we are calling it?

Rick Esenberg said...

To be clear, I am not suggesting that she decided that the rules don't apply to her. I am suggesting that she did not understand the rule.

The reason I say that is that nothing was really at stake for her and her family in those cases. No one else was going to handle garden variety foreclosures any differently and she wasn't going to get a penny richer.

"Strict constructionist" is not a term that I use. As for how she compares to Linda Clifford on judicial philosophy, I'd invite you to review the candidates' statements and draw your own conclusions.

illusory tenant said...
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illusory tenant said...

I am suggesting that she did not understand the rule.

That's an intriguing defense of Judge Ziegler's failures to disclose, and something of a disturbing proclivity for an aspirant to the Supreme Court, don't you think?

Anonymous said...

I think it's fascinating how Rick the Right Winger has been backed into the corner on this and how, to his credit, he has backpeddled a bit. He concedes that Judge Annette broke the rules. For this he deserves credit.

This puts him a cut above Chicken Hawk Charlie Sykes, who is congenitally incapable of viewing anyone on the right has having even a minor blemish or anyone on the left of having any remotely redeeming value.

But ponder this: If the shoe was on the other foot and it was the "liberal Madison lawyer" in Judge Annette's shoes, this would be a disqualifying offense worthy of time in Taycheedah!

Dad29 said...

Illusory, if you read all the 'ethics' rules which apply, you'll find the term "de minimis" (or its equivalent) floating around.

Z's failure to follow the letter of the Code is a fault, yes. Was it "corrupt"? Not likely. "De Minimis" is written all OVER those decisions.

As to Nietzsche: his philosophy began with 'the transvaluations of all values' and migrated through 'the will to power.'

I note that Clifford's judicial philosophy is based on re-writing (or creating) legislation--effectively transvaluating values. And to do that requires the power granted the Supremes.

Not too hard to follow is it?

Anonymous said...

Dad, you provide an example of your lack of intellectual integrity. Ziegler's conflicts went way beyond what the judicial commission has long defined as de minimus, something that been reported, say, a dozen times.

You will simply say anything to avoid recognizing that your candidate did something wrong (a long list of things, actually).

Your ability to sum up one of most complex, difficult philisopher of the last 500 years in a sentence is ridiculous. Did you ever see "A Fish Called Wanda," with Kevin Klein?

Anway, you do the same thing with libs as you do with Clifford - you ignore their self-definition, you define them in the most outrageous way and reinvent them to be awful - then you point out that they're awful. Real interesting.

You folks attribute some deep and seriously held judicial philosophy to Ziegler because . . . that's what her campaign consultants/WMC are telling you; and the reverse is true of Clifford.

You write: "Clifford's judicial philosophy is based on re-writing (or creating) legislation." You or someone like you simply made this nonsense up out of thin air - because the pollsters and the constultants decided it would sell.

Dad, despite your fancy, often made-up words you still basically string a couple worn out right-wing slogans together and call is commentary.

Don't worry, this kind of empty chatter is not limited to self-proclaimed conservatives.

Rick Esenberg said...

I am not sure how I've backpedaled. I have been saying that Ziegler was wrong on the West Bend cases as soon as it was established that she did not disclose her husband's status on non-defaulted cases and I admit that this does not reflect well on her.

I have said that is one issue to be balanced when choosing between her and, say, a candidate who wants to let the constitution "breathe" to "give society what it needs." Concern over the latter is not about politics and ideology. It's about the character of our government.

James Rowen said...
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James Rowen said...

Oh, Rick, Rick, Rick;
We're all prisoners of our own ideologies from time to time;
Some friendly, Backstory-pal advice: start with your lawyerly advice, but from the right, and then lead us to your political position.
Just a thought: it's yer blog.

Dad29 said...

Anony, there actually ARE ways to condense things. Those are not within your repertoire, but keep working on it. Someday you'll get there.

By the way, for a $280MM (assets) bank, $40K is very much de minimis. You perhaps understand that LESS that $40K is even smaller than de minimis?

Considering the structure of the Bank (not the traditional share-held, but a mutual), Ziegler's husband's interest is microscopic.

Finally, Clifford's remarks (quoted by Rick E.)on what she thinks are the duties of the Supremes speak for themselves. My conclusion that she would 'transvalue' the proper relationship between legislative and judicial branches is not a leap of imagination.

But skip the Nietzsche. Just think Adam and Eve. Shorter, but the same lesson.

Jay Bullock said...

Rick: I am suggesting that she did not understand the rule.

Perhaps, but the language is remarkably hard to misunderstand, even for decidedly non-legal people like me:
[A] judge shall recuse himself or herself in a proceeding when the facts and circumstances the judge knows or reasonably should know establish [that . . . t]he judge or the judge's spouse, or a person within the third degree of kinship to either of them, or the spouse of such a person [. . ] is a party to the proceeding or an officer, director or trustee of a party.

You'd have to try to deliberately misunderstand that. And the year 2000 advisory opinion defining de minimis as holding less $20,000 in stocks is also clear, if non-binding. And she ruled, without conflict notices to the parties, in at least 22 cases where she held greater than $50,000 in stocks. We're not talking sloppy like the papers on my desk; we're talking sloppy like the world's biggest Slip-n-Slide slathered in tapioca pudding.

Dad29: By the way, for a $280MM (assets) bank, $40K is very much de minimis.

You do realize that de minimis refers to the judge's stakes in a case, not a particular party's, right? And if we use your logic, Annette Ziegler recused herself from he Wal*Mart case on something much more minimis than the WBSB cases--so why Wal*Mart and not them?

illusory tenant said...
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illusory tenant said...

Illusory, if you read all the 'ethics' rules ...

And Dad29, if you read my post, I was commenting on the suggestion that Judge Ziegler "did not understand the rule," not that she "failed to follow the letter of the Code."

Those are entirely separate concerns.

You know what appellate judges do, right? They understand (hopefully) and apply rules, rules often far more complex and subtle than a simple conflict of interest admonition.

But hey, if she's a conservative Republican, I guess that's good enough for y'all, "Nietzschean aberrances" notwithstanding.

Rick Esenberg said...


I always try to follow your advice. You are, after all, my elder. In this case, I don't really follow it.


For the 96th time, I agree that the rule is clear. I am suggesting, however, that the hypothesis that she was out to feather her nest doesn't track and, if it becomes a question of competence, I have to weigh her error against someone whose conception of what a judge ought to do (allow the constitution to "breathe" to give society what she thinks it needs) is fundamentally at odds with our constitution's separation of powers. A person with that view of things can be - and I am sure that Linda Clifford is - intelligent and honest and well intentioned - yet make a complete and utter mess of the law. You can try to reduce that to politics and ideology, but it's not

Anonymous said...

Rick - with the revelation of even more Ziegler conflicts by One Wisconsin Now, it's time for you to do the right thing.

There must be something inside of you that wants to say it but you're afraid. C'mon, tell the world that Ziegler should have withdrawn.

Anonymous said...

BOTTOM LINE: Judge running for Supreme Court violated the State judicial Commission's code of ethics at least 40 times. How can this be excused. If you are making a point about social science methodology fine, OneWisconsin does nto pass a legal journal's peer review. But the only point that can be made about this judge from the record before us is that she does not take the law seriously, at least not when it imposes duties on herself. Anyone who cares about legal ethics must say she is unfit to serve on the Supreme Court AT LEAST UNTIL SHE ADMITS SHE ACTED IMPROPERLY. She can't even bring herself to do that! She's like a little kid who cannot say sorry to her mother when she's been caught with her hand in the cookie jar.

Anonymous said...

Anon-3 (or maybe 4)

Every justice has to interpret the constitution. That is their job. They are an equal branch of the government, and are supposed to act as a check on legislators who may on occasion fall prey to the whims of a small but vociferous group (e.g., Dad29). To act as though the interpretation of the constitution is never remotely impacted by the era in which it is interpreted is foolish and dishonest. Clearly supreme courts of the state and country have on very rare occasions intervened when legislation violates consitutional principles (such as due process and equal rights) that evolve as the culture and country evolve. Such interference should be rare indeed, but is not only permitted, but required.

That is all Clifford has said about this, but from that you have apparently decided she is going to be "activist" to mimic the talking points of the righties.

The issue here is that we have a candidate for the highest court in the state who admits using a "gut-check" to many elemental decisions that any judge should know were wrong. To what else is she going to apply the "gut-check?"

I agree that you have said 67 or more times that she was wrong to do this. I just think it is such a basic, elemental issue that its violation-dozens and dozens of times, followed by denial and then finally distraction (but never admission) surely disqualifies her to sit on the supreme court. I can't believe that you continue to support someone who is so clearly incompetent versus someone for whom you have leapt to rather dramatic conclusions with little basis other than right wing hysterics planted by those with an agenda. If you can't vote for Clifford, then why not just not vote?

Honestly, I am an attorney, and I think to vote for Ziegler as an attorney is a sad commentary on what we accept in the name of cutlure wars. And make no mistake, Rick, that is what you are doing.

Anonymous said...

"I have to weigh her error against someone whose conception of what a judge ought to do (allow the constitution to "breathe" to give society what she thinks it needs) is fundamentally at odds with our constitution's separation of powers. A person with that view of things can be - and I am sure that Linda Clifford is - intelligent and honest and well intentioned - yet make a complete and utter mess of the law. You can try to reduce that to politics and ideology, but it's not."

Way to go, Rick. How unfortunate that we had US Supreme Court Justices in the 1960's who struck down the law which prevented interracial marriage. If it were not for that decision, we could have protected the "purity" of the white race for another generation longer!

(This is tongue in cheek, for the terminally obtuse.)

illusory tenant said...

There's also an element of irony in decrying Ms. Clifford's allegedly freewheeling approach to constitutional construction whilst defending Judge Ziegler's application of the "gut check" doctrine when faced with the plain text of an ethical guideline.

Ziegler is no strict constructionist when it comes to potential conflicts of interest, evidently.

Rick Esenberg said...

Way to go, Rick. How unfortunate that we had US Supreme Court Justices in the 1960's who struck down the law which prevented interracial marriage. If it were not for that decision, we could have protected the "purity" of the white race for another generation longer!

Not a particularly good point. The case refer to, Loving v. Virginia, was rooted in a specific constitutional text (the 14th Amendment) passed in the aftermath of the civil war and the abolition of slavery. One needn't animate the constitution to get that result, one need only read it.

Anonymous said...

Re: Loving v. VA:

But Rick,
You are making the exact point that CLifford makes, aren't you? The 14th Amendment is out there 100 years before Loving. For 100 years no one was willing to say enough is enough, we no longer treat Black people like inferior citizens or God forbid, a white woman wants to marry a Black man. So a court, 100 years after passing the 14th amendment, had the guts to interpret the constitution.

So yes, Loving v. VA is an excellent example of what I expect from a supreme court,and I believe is what anyone HONEST about the role of a supreme court would admit to.

Are you ever gpoing to admit that your support is purely political, because your legal arguments are cutting it?

Anonymous said...

Meant to say "your legal arguments aren't cutting it."

Rick Esenberg said...

It was out there for 100 years and as illustrated by Justice Harlan's dissent in Plessy, the court was getting it wrong. I am not saying that there is no such thing as precedent that is wrong nor do I believe that there are not new circumstances to which textual principles need to be applied. My argument is that the supreme court needs to base its decisions on the constitutional text and that text has a particular meaning. Just how that meaning is to be applied in any given case may not be self-evident but answering that question - and not "giving society what it needs" - is what the court should be about.

Anonymous said...

So the court was getting the 14th Amendment wrong for 100 years? Do you suppose there were "textualists" who wrongly interpreted it during that time or do you suppose it is more likely that over time American culture changed to recognize that disparate treatment of races was unconstitutional? The evidence, of course, is that the court ultimately had to intervene where a co-equal branch of state government refused to acknowledge each person's inherent equality in light of the massive civil rights changes that took place between the passing of the amendment and the state of VA's criminal prosecution for miscegenation.

In other words, a law that was repeatedly interpreted as constitutional (as people in VA were criminally convicted of marrying others from anothe rrace or leaving the state to get married to someone of another race) even after the 14th Amendment was passed, gradually was considered unconstittuional. You can't tell me (at least not with a straight face) that this was not an example of "divine textualism" under which suddenly the court comprehended the true text of th eamendmnet. It is a case in which over time, when the amendment was allowed to "breathe" in light of new social, political, and cultural developments, that the court decided nthe law violated the constitution.

Rick Esenberg said...

I do wonder, as did Justice Harlan in Plessy, how a constitutional command of racial equality was so long avoided. My best guess is, not that society changed so that the segregation that was consistent with the amendment in 1891 was now inconsistent with it in 1954, but that the court had sufficiently discarded its racial blinders to see what the textual principle required.

You can, I suppose, say that this means that they let the constitution breathe, but I find that type of anthropomorphizing of the constitution to be, at best, meaningless and, at worst, dangerous. If the text has no determinate meaning and we may read it into it whatever we think "social, political and cultural changes" require, then we are no longer interpreting the law. Instead, we are enshrining our own personal preferences or, and it generally amounts to the same thing, whatever happens to be the legal elite's flavor of the day.

Anonymous said...

I used the term "breathe" because I know that gets you in a bundle. But the point remains that the text never changed, just the interpretation of the text. And if you think societal changes had little to nothing to do with it, you're kidding yourself. Whether you want to stick to the "100 years of court interpretation by numerous courts was wrong," or the more likely "the court was affected by the experience of the country over 100 years of gradual understanding," the fact is that there was change and growth that none of us (hopefully) would roll back. And that includes politicvians.The court did its job in waitng, waiting, waiting for the legislature to recognize the need to change the law. When the chicken-livered politicians did not, the court finally had to act.

So back to the point, do you think Ziegler (assuming she does not get suspended) does not overturn the miscegenation laws and Clifford does? If so, who should one vote for? I say the one courageous enough to be honest about how law actually develops. And no, I have zippo connection to CLifford.

Rick Esenberg said...

The reference to the constitution respirating was actually to Linda Clifford's recent statements. I am fairly certain, in any event, that should the miscegenation statutes return, both women would find them unconstitutional.

While I know you are not referring literally to miscegenation, if your point is that you want judges who will read meanings into the law that the text will not support because contemporary conditions "demand" it, we disagree. If you believe that judges are the people who are annointed to make sure that our laws reflect contemporary conditions, we differ.

I don't think that compels me to say that the pre-1954 interpretation of the 14th amendment was correct or should not be overturned.