What about this ethics board complaint?

A couple of thoughts on Annette Ziegler's petition to the supreme court, asking it to dismiss the Ethics Board complaint against her.

First, she is not contending that her actions ought to be free of scrutiny and, if she succeeds here, she will not have accomplished that. It would not mean that she is "above the law." Although state ethics law, by its terms, applies to judges, that doesn't resolve the question. Her argument is that the constitutional doctrine of separation of powers requires that the judiciary discipline itself, i.e., through the judicial commission. If she is right, the constitution trumps the stature.

This is not a clear winner, but there is some authority supporting her position. For example, the supreme court has held that, although the legislature can prescribe rules regarding the time in which judges should decide cases, it cannot prescribe that a judge's salary be withheld for failure to follow them.

Second, - and somewhat ironically - the rules that the judicial commission would presumably apply, i.e., the state judicial code, is arguably tougher for her than the general state ethics code. Sec. 19.46(1)(a) prohibits a state official from substantially affecting a matter in which a member of her family has a "substantial financial interest" or in which an organization with which the official is associated has a substantial financial interest. (The term "associated" is defined in a way which should capture her husband's directorship.) While I presume that West Bend can be said to have had a "substantial financial interest" in those matters, the board will have to establish that. The applicable part of the judicial code has no such requirement. Thus, if she is found to violate the 19.46(1)(a), she will certainly have violated the judicial code, suggesting that the ethics board proceeding is superfluous.

Third, apparently all this can result in for Ziegler is a fine. The Ethics Board cannot suspend her or remove her from office.

Fourth, should Justice Prosser (who contributed to Ziegler's campaign) and Justice Wilcox (who endorsed her) recuse themselves from the petition? I don't think so. If a justice cannot sit on this matter because they supported Ziegler, then there is no reason why a justice who supported her opponent should not also step down. The fact that this support was not public ought not to matter. If Prosser and Wilcox should not sit, then only justices who did not vote and had no opinion as to the race to replace one of their colleagues ought to sit.

Fifth, the answer to the recusal question has significance beyond the ethics board complaint because, if the judicial commission files a complaint, the state supreme court is the body that will ultimately rule on it.