As the various and sundry readers of this blog know, I am very interested in the issues of judicial activism and restraint. To that end, I am working with the Federalist Society on an educational project concerning those issues (I wrote a white paper that will be released next week) and the Fed-Soc has engaged a media firm to handle publicity that has also done such dastardly things as work for the Swift Boat veterans and promotion of Ann Coulter's books. Despite what this guy says, none of us are part of the Ziegler campaign. I am all about judicial restraint and not any particular candidate.
But I also think that one of the purposes of this blog (with its small, but elegant and influential readership) is to provide commentary on local legal issues. I have commented on allegations that Ziegler acted on cases when she had a conflict of interest. More facts have come out and, although the reportage has not been awful, there is a "he said, she said" quality about it that obscures key points - some in a way that is favorable to Judge Ziegler and other in a way that is not.
First thing, if the facts are as reported then Judge Ziegler was wrong in not recusing herself or obtaining waiver in cases involving West Bend Savings & Loan. SCR 60.04(e)(4)(1) makes recusal or waiver mandatory when, among other things, a judge's spouse is a director of a party. No judgment call to make.
In that sense, my Backstory colleague Jim Rowen and Jay Bullock would be right in that an argument that recusal should be decided based upon "a gut check" has a certain "truthiness" about it. It might seem right, but it is wrong.
(I think you could argue that this even applies to defaulted matters, but processing them is generally so close to clerical that I suppose no one really cares.)
But there is a slightly different test when the question is whether you should recuse yourself because you own stock in a party. That is not automatic. In that case, recusal or waiver is required when a judge "has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis interest that could be substantially affected by the proceeding. "
This does bring us back into the realm of the gut check so statements that recusal is "mandatory" whenever there is a "conflict" may serve for the West Bend Savings matters but not for other matters under examination. For example, in cases involving United Health Care (in which the Zieglers apparently own stock), she may well have decided that her interest could not be substantially affected by the matter. In some cases, the idea that the judge must make a judgment call is not "truthy." It is the truth.
There is irony, however, in the fact that Jim and Jay roll out Colbert's concept of truthiness (following your gut over the facts) to criticize a judicial candidate for, as Jim put out, "listen[ing] to [the] gut instead of pesky, bookish facts - - like, say, those in a published code of conduct - - to get to the truthiness of correct official behavior?"
They are doing this in support of a candidate who says she wants to let the state constitution "breathe" in order to reflect "what society needs." Isn't that "truthiness" as a rule of decision?