Wednesday, March 07, 2007

A primer on judicial conflicts

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?


Anonymous said...

You should be ashamed of yourself if your planning to white-wash what Judge Ziegler has done.

There obviously is a serious problem up in Washington County Courthouse that also affects conservatives.

I've been a conservative since you've been inhaling and I am offended that you would think we would want injustice in our courts.

Anonymous said...

Not sure what anon #1 was talking about, but here is my take, for what it is worth.

I am an attorney in a large law firm in Madison. One of my colleagues is related by marriage to a judge (as an "in-law"). While that colleague has a practice area which makes it extremely unlikely that he would ever have anything to do with a case involving a state court, the judge discloses that relationship and offers to recuse herself or hold a hearing in literally every case that involves any attorney from our firm. The judge does that in order to avoid the appearance of a conflict, even though any rational person upon reviewing the facts would recognize that there is no actual conflict. THat notice is required by judicial ethics and general legal ethics (e.g., we would disclose if for some reason the judge did not).

Ziegler utterly fails to understand this requirement and has made excuse after excuse for not following it. From your post, I gather you agree that Ziegler had this responsibility, and there is no "gut-test" for this area of ethics. What alarms me as an attorney is that this is a very basic requirement of judges. For Ziegler to not understand that fact makes one wonder what else she does not understand about the law and ethics. Truly scary stuff.

On to the next point, which has to do with matters that could impact the economic interests of the judge. As you point out, this rule appears to have a less mandatory character. But if reports are accurate--that Ziegler had $50,000 in stock-- I think that crosses the line into at least the appearance of a conflict of interest. Does she have blinders on such as those established by politicians so that she has no idea where her money is invested? It does not seem so. Then I think it does fall back into at least the appearance of economic interest. And I can tell you that as a lawyer, I want to know if my judge has substantial stock in the entity I am suing. It may or may not impact my decision to ask for a recusal, but I damn sure want to know.

Again, the utter failure to consider this a problem shakes me to my legal core. I think we're setting up a situation in which a supreme court justice could be sanctioned by the OLR. In my opinion, Zieglers actions are much worse than her former adversary's Joe Sommers.

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