Friday, September 07, 2007

The end of l'affaire Ziegler

In yesterday's legal news, the Judicial Commission has issued a complaint against Justice Anette Ziegler for failing to recuse herself from some cases involving West Bend Savings & Loan of which her husband is director. I haven't seen the papers but apparently the Commission and Ziegler have agreed to recommend a public reprimand.

I occasionally review these things with respect to attorneys as a court appointed referee. Here the recommendation will be reviewed by a three judge panel. As in attorney discipline cases, the panel will make a recommendation to the Court. Neither the panel nor the Court has to accept the recommendation. At least in attorney discipline, most consensual reprimands are accepted.

I think the recommendation is about right. She has no prior discipline and it appears that the error was a result of carelessness rather than any malicious intent. No one was injured and she seems to have expressed the appropriate contrition.

Yesterday, during Backstory on Eric Von's show, Eric suggested that the discipline should be affected by the fact that she is on the Supreme Court. He argued that "we ought to expect more" of such people. I suppose that could be a pertinent consideration. One of the purposes of attorney and judicial discipline is to protect the public from lawyers and judges who cannot or will not conform their conduct to professional standards.

But, as I pointed out, we can't lose sight of the fact that our state Constitution provides for an elected judiciary and to remove or suspend a sitting Justice of the state Supreme Court is to interfere with a choice that the voters have made. While circuit court judges are elected too, there is no expectation that each will sit on all cases that come before the circuit court. In that sense, the fact that she is now on the Supreme Court could actually cut against harsher discipline. (I also think that there can be a different recusal calculus on the Supreme Court in situations where recusal is a judgment call.)

39 comments:

Anonymous said...

She's still an embarrassment to this state -- and she always will be.

So, no, it ain't over. Not for us, not for her, and not for a judicial system that is supposed to earn our respect. And any lawyer that thinks this slap on the hand is about right -- and any teacher of law -- might think that matters.

Anonymous said...

Has the Judicial Commision ever recommended any effective penalty for a judge breaking the rules or being unfair?

What a joke.

Joe Cisewski said...

"[T]o remove or suspend a sitting Justice of the state Supreme Court is to interfere with a choice that the voters have made."

Although I am surprised that anyone would be arguing for a supreme court justice's removal on these grounds, I am not sure I agree with your reasoning above. The same logic could be used, for example, to prevent the removal of any politician for any misdeed, as such removal, however justified, is essentially interfering with the electorate's decision.

In the abstract, let's say an elected politician threatened the lives of constituents or made quid pro quo deals with businesses in his district. Shouldn't we reserve the right to remove this fictional character from office?

Anonymous said...

I think the recommendation was inevitable. It is a result solely of the impossibility of suspending a supreme court judge.

Rick, you've long minimized these violations and I think its sleazy. Yeah, she was not out to throw cases for her husband's business. Not a terribly profound basis to find the charges to be minor. She repeatedly violated the conflict rules.

And, "oops" doesn't help judges like it might help others - she had an affirmative responsibility, frankly a strict responsibility. And she ignored the issue as a matter of course.

I also think the fact that she issues a press release once again minimizing her conduct - the day the recommendation is made public - is revolting; it shows bad judgment and a lack of any appreciation for these issues.

Joe Cisewski said...

Anon 12:22,

I am with you on the press release comment.

---

On a side note, when will our elected officials bring back good scandals?

I remember listening to Congressman James Traficant tell a congressional ethics committee that he believed opposing counsel "should be handcuffed, chained to a fence and flogged." He followed that up with his famous threat to "kick them in the crotch."

I expect most would consider this something short of contrition, but I say we all grieve differently.

Rick Esenberg said...

Joe

We rarely remove elected officials from office. Certainly she could commit an offense that warrants that - or a suspension. She didn't.


Anon-

I don't think she was sleazy. I agree that this is embarassing for her and does not reflect well on her abilities, although I am reluctant to place too much weight on any one thing in judging someone and I don't think it's enough to, in effect, reverse the outcome of the election.



We don't generally hang peopl

Anonymous said...

I don't know about hanging her for this, but ethics violations are serious and should not be so swiftly forgiven.

Having known her personally (I won't say from where, but let's say she's an embarrassment, even though politically we tend to be on the same side - which is even more of an embarrassment).

If nothing else, I'd love the excuse to rid the court of someone who all of us who know her realize is clearly an intellectual inferior to most of the other Justices. Even those with whom I disagree - Chief Shirley, for example, far exceed Ziegler's mediocre abilities. She (and her husband) bought her seat on the high court and it'd be great to see her brought down as swiftly as she went up.

For whatever inane reason, the electorate bought the lie that she, as a circuit court judge, was more qualified to be a Supreme Court Justice, than someone who actually had relevant experience practicing before the Court. Of course, any lawyer who has seen the inside of a court room (especially one with appellate experience) knows that appellate courts (as interpreters of law) are as different from circuit courts (which are, primarily, fact finders) as apples are from flank steaks.

Joe Cisewski said...

Does anyone have the facts on her rulings in cases where she should have recused herself?

I have heard that she ruled in both directions, both for and against her interest. What are the actual numbers?

joe cisewski said...

Anon said, "I'd love the excuse to rid the court of someone who all of us who know her realize is clearly an intellectual inferior to most of the other Justices."

I don't think we should be seeking "excuses" to remove someone rightfully elected to office simply because they are allegedly less bright than others in that office.

Anonymous said...

Rick Esenberg said...
“Joe

We rarely remove elected officials from office. Certainly she could commit an offense that warrants that - or a suspension. She didn't.”

Lets see, Senator Craig was just forced to resign from office without a fair hearing. The DA in the Duke case was forced to resign. Maybe it's just Wisconsin that has problems with this.


We are supposed to believe that nothing important was wrong when all the West Bend Savings cases were all funneled to Ziegler (not the other three judges) and when she did not reveal or recuse herself from any?

Is protecting rulebreaking judges more important than citizens and the constitution that the rules are suppose to protect?

Anonymous said...

Ah, anon 4:21, there is a qualifier to the statement that we don't remove officials from office here.

Sure, we do, as our blog host certainly oughta know.

See CRG's recent record alone. It's just that we only remove Dems from office here.

Joe Cisewski said...

"Is protecting rulebreaking judges more important than citizens and the constitution that the rules are suppose to protect?"

I don't think Rick's judgment that Ziegler’s sanction is commensurate with her wrongdoing is, in itself, protecting "rulebreaking judges."

For example, I would hope that I could argue for the adequacy of a criminal sanction without being accused of protecting criminals.

Anonymous said...

Joe - when the sanction dilutes the importance of the rules and constitution and does not serve as a deterrant for other judges not to do the same, it is protecting the rule breaking judge.

Joe Cisewski said...

(1) I do not believe that the imposition of a commensurate penalty in any way dilutes "the importance of the rules and constitution," and, in fact, commensuration is itself a constitutionally-protected value.

(2) I think the deterrence argument suffers a fatal utilitarian flaw, which is that it can be used to justify all sorts of draconian penalties. After all, harsher penalties, all things being equal, will have a greater deterrent effect than lighter ones.

It is possible that her "public reprimand" was lenient, given the number of violations, but I was not on the ethics commission and did not hear the evidence.

A judgment as to the adequacy of the penalty is not the equivalent of "protecting" the accused. I might entertain it as such, if you can point out a prior incident with similar facts in which the person who made the judgment called for a much harsher consequence.

Anonymous said...

Joe -

We are not talking about school children here, we are talking about Judges that should already know right, wrong and consequence.

The penalty here should be based on the importance of the rule broken. I happen to think that this is one of the most important rules a judge must follow. It's a common rule and not something that could be broken unknowingly. What could be more important to a fair trial than first deciding if the judge should be presiding over it.

The rules said she shouldn't and both the Ethics Board and the Judicial Commission said she broke the rules. Further evidence is not needed.

In deciding the punishment, it should be decided in comparison to what rule a judge could break that would get them suspended or terminated. What rules are more serious than this? And, what rules are less serious. The judicial commision should reveal this info but to my knowleged, hasn't. The Supreme Court will have to make this determination.

In my view and I think that of others, the Commision recommends the least penalties for one of the most important rules. Diminishing the rules to protect a judge is also diminishing the value of our judicial system.

Anonymous said...

Is this what you get when you put a graduate of a third-tier law school on the court? One of the raps against the third-tier law school is that it teaches "black letter law" -- what the law says instead of how to think like a lawyer. Apparently in this case even that was beyond her.

Joe Cisewski said...

"In deciding the punishment, it should be decided in comparison to what rule a judge could break that would get them suspended or terminated. What rules are more serious than this? And, what rules are less serious. The judicial commission should reveal this info but, to my knowledge, hasn't."

I'm with you here. I would like to see this type of comparison as well.

Further, I am still awaiting the numbers on Ziegler's rulings, both for and against her supposed interest.

It seems a little ridiculous that we have all these anonymous postings calling for a supreme court justice's removal and no facts to weigh the propriety of the decision.

Anonymous said...

Joe -

Perhaps the host of this blog could get and share this information with us.

Rick Esenberg said...

I think I blogged on it but I don't have time to find the link. My recollection is that there were a bunch of West Bend cases (I want to say over 40) but, as you'd expect, most were defaults. I think that the rule can be read to apply to defaults but, really, who cares? It's paper pushing.

I think there were five nondefaulted cases but in none of them did the defendant really have a defense. One complained that he had been a victim of an internet scam. Sad, but not relevant. Another said that WB was repossessing more collateral than it needed to cover the loan that he had not repaid but it clearly had the right to do so under the relevant docs subject to an accounting.

My recollection is that she didn't do much although there was some talk around her unwillingness to accomodate a defendant's scheduling request and leniency when WB's missed a, I think telephonic status conference. In short, there really wasn't much in the cases. She just shouldn't have kept them without disclosure and consent.

Anonymous said...

Rick - wrong stuff, we already know she broke the rules.
What we want to know is the value placed on the rules. For example; What is the most important rule that if broken would suspend a Judge from the bench. What is the least important rule that when broken would only recieve a private reprimand.

I feel the rule broken was one of the most important but is recieving the consequence of one of the least important. I don't think Joe took a position but wants to know.

The Judicial Commission must have some type of guage they go by regarding this and prior cases. We want to know this guage or the one that the Supreme Court will use.

Joe Cisewski said...

Well, that was partially the right stuff.

I know Rick is probably too busy to entertain further research, but I'd be particularly interested in finding out (1) how many suspensions were given in Wisconsin last year and the offenses for which they were given, and (2) what other offenses received a public reprimand.

Then we can separate the political from the reasonable.

Anonymous said...

Joe -

I read this morning that Zieglers lawyer said that she should not get anything more than Municipal Judge Latsch got for what they called similar offenses.

Latsch saw some traffic offences that involved relatives and never denied it but said that he never benefited by it. Prior to the Supreme Court ruling he was voted out of the job because of it.

The Supreme Court opinion stated that there was no need of any further discipline because he lost his job. However, it did not state that there would not be any further discipline had he retained the job.

Latsch got a public reprimand when he did not any longer hold office. Thereby, it would follow that Ziegler would get something more because she still holds office, now at a higher level. Her own attorney seems to argue this by saying that she should get the same as Latsch.

Joe Cisewski said...

Anon,

That actually doesn't follow. You said the court "did not state that there would not be any further discipline had [Latsch] retained the job."

The court left the door open, but saying that someone could have received a more significant penalty is not the equivalent of saying they would have received a more significant penalty. It sounds to me like the court dodged the issue altogether.

Nevertheless, that's an interesting suggestion. Did any other language imply that a greater penalty would be warranted?

Anonymous said...

Joe -

Let's start out with what the Judicial Commission itself said to the Wisconsin State Journal on March 17, 2007...

"Just last month, the high court handed down its first- ever disciplinary action for conflict of interest. Mid-Moraine Municipal Court Judge Daryl Laatsch was publicly reprimanded for presiding over matters involving a niece, a nephew and a client of his law practice without notifying the city attorneys prosecuting the three cases of his conflicts.
The Judicial Commission labeled the violations "serious," but recommended no more than a public reprimand because Laatsch was no longer a judge, having lost his re- election bid in 2005, Alexander said. Other actions, including suspension or removal, had become moot."

It appears that the Judicial Commission itself thought that more serious action would have been appropriate had Laatsch still been a judge.

Why are they waffling now?

Anonymous said...

And to equate Ziegler's actions to get to the state's highest court with those of a muni judge on the way out . . . well.

The gravity of the offenses -- more than 50, from one story -- is one consideration.

But is the gravity of the position -- on the state's highest court -- of no consideration to the profession?

It certainly is a consideration to many of us watching this who know the proud history of our high court -- willing to stand up to the highest court in the land over the Fugitive Slave Law, for example . . . but not willing to stand up for its own reputation? We'll see.

Joe Cisewski said...

Well, this partially affirms my last post, because the commission found the issue moot.

However, the quote at least suggests that the commission considered significant punishment for a rather insignificant conflict of interest.

And, I agree that if a municipal judge's conflict of interest potentially warrants suspension or removal, then, a fortiori, a supreme court justice's conflict of interest should also warrant suspension or removal.

Unfortunately, the commission never actual ruled or stated that it would rule in favor of suspension or removal. So, I guess my view is that the commission should at leasy consider this "potential" solution, weighing the nature of the offenses, the number of times these offenses were committed, and the penalty for analogous violations by "ordinary" lawyers.

I think this is a measured solution, you? Rick?

Joe Cisewski said...

Another thing.

Ziegler was elected to the Court and the public was well aware of the issue in the election.

Should this unfortunate fact affect her punishment?

Anonymous said...

What is your evidence that the public was well aware? Would this be the same public that thinks that going to war in Iraq would get the attackers on 9/11?

Surveys, please? Polls? Any evidence that even the voting public (in a low turnout) knew about what Ziegler was obfuscating? Lawyers do argue based on evidence, don't they?

I don't think you have the evidence for that. But maybe we could go ask those who know about this recommendation whether they would vote for her now, if you would consider that result a binding reason?

And even then . . . so what? Are ethics to be determined by a popularity contest? (Or a contest based on WMC-funded campaign ads?)

Then why the heck have ethics commissions and so-called self-policing, a criterion of a true profession? With every such post here, in addition to this slap-on-the-hand recommendation, I'm losing respect for the practitioners of the law.

Or maybe the majority of them have spoken out elsewhere than here, through their self-policing professional association. So what has the Wisconsin Bar Association said about this case, anyway?

Anonymous said...

Joe -

Some of the public that elected Ziegler did not re-elect Laatsch because of his conflicts of interest. So, I would say no that public opinion would now be different knowing that it wasn't just a liberal attack.

The average person would not want rule breaking judges on the high court.

The commission said Laatsch offenses were "serious", which was lessor than Zieglers offenses. If the commssion would have considered suspension or removal for Laatsch if he was still a judge in a less significant judicial role, it ceratinly is warranted here.

I think we also need to hear from the voices of the ethics community that try to teach these values to our upcoming leaders. I think the Commissions recommendation is a terrible slap in the face to integrity in all walks of life.

Joe Cisewski said...

Anon 12:01,

Your sentiments are rather undemocratic. The issue was disseminated to the public, and, although I do not have scientific studies to show the effect of opposition ads, I certainly considered the issue when making my vote.

And no, ethics are not a popularity contest. I explicitly argued above that the commission should make efforts to ensure a commensurate penalty is given.

I don't think the profession's failure to adopt a knee-jerk reaction is reason to lose respect for practitioners of the law.

Anon 7:00,

Maybe the commission's ruling will affect the public's choice of justice ten years from now. After all, that's the election scheme Wisconsin has chosen.

If the commission considered (or will consider) the factors I listed above, I am inclined to defer to its judgment. If it did not (and will not), instead choosing to politicize the ethics penalty, I have a problem with that.

For me, the issue is not whether I agree with the commission's decision so much as whether I agree with the process by which the decision was made.

I welcome any details you might provide in this regard.

Anonymous said...

Joe -

You obviously don't believe that the constitution plus one person is a majority in this counrty and that the people that are sworn in must uphold it.

Apparantly you also must not believe that the judicial rules of conduct are constitutional or that mob rule prempts them. Either way you are out in left field with your respect of a judge that has broken those rules and for a commission that is diminishing there value.

You appear to be part of the problem, not the solution.

Anonymous said...

"Your sentiments are rather undemocratic."

Nope. Yours are, since you think what you think is what oughta be.

"The issue was disseminated to the public"

That does not mean the message was received by the public, as you presumed. (See models of communication theory.)

"although I do not have scientific studies to show the effect of opposition ads, I certainly considered the issue when making my vote."

An entirely unscientific statement in itself. So again, based on the anecdotal evidence of yourself, you make a sweeping generalization about everyone else.

"And no, ethics are not a popularity contest. I explicitly argued above that the commission should make efforts to ensure a commensurate penalty is given."

Good.

"I don't think the profession's failure to adopt a knee-jerk reaction is reason to lose respect for practitioners of the law."

I didn't ask for a knee-jerk reaction. I don't think that the Bar tends to those, anyway. And after all this time, if what even an assemblage of the lawyers in this state came out with a reaction that was "knee-jerk" . . . well, Joe, that would negate your argument that "everyone knew" many months ago.

Joe Cisewski said...

Anon 3:43,

(1) You said I am "out in left field with [my] respect of a judge that has broken [ethics] rules and for a commission that is diminishing there [sic] value."

My argument rests on my respect for the ethics process, not any particular judge.


(2) You said that I "appear to be part of the problem, not the solution."

We clearly have different problems with the ethics process. I am willing to accept the findings of a commission that exercises due care in making its assessment of the appropriate penalty. You argue for removal of a judge based on your personal belief that the commission's findings were inadequate.


Anonymous 6:00,

(3) You said my sentiments are undemocratic, "since [I] think what [I] think is what oughta be."

I explicitly stated my belief that we should defer to the commission's findings, provided the ethics process was reasonably calculated to achieve the goal of handing down a commensurate penalty.

Thankfully, I am not on the commission.


(4) "That does not mean the message was received by the public, as you presumed."

Your principle, then, implies that we could nullify elections whenever a message is delivered but not "received" by the public.

Who gets to decide when the public has adequately "received" the message, you?


(5) "[A]lthough I do not have scientific studies to show the effect of opposition ads, I certainly considered the issue when making my vote."

This was not designed to be a scientific statement. I was making it clear that the information was available prior to the election.

I recall seeing the "conflict of interest" ad on numerous occasions. Unless Dionne Warwick and the Psychic Friends Network put the issue in my head before it was released, I assume others saw the ad as well.


(6) My “knee jerk reaction” comment does not negate my argument in the least, because the commission's recommendation was immediately followed by calls for the justice’s resignation or removal.

You clearly have no problem with removing ideological opponents from office, even when that requires the reversal of an election. Where this is necessary, I might cautiously endorse the prospect. But, generally, I find that battle cry distasteful.


I appreciate your outrage, but, in my view, you are not considering the full implication of your position.

Anonymous said...

Joe -

You are just giving us a bunch of mush. The election should have nothing to do with the commissions recommendation or with any further proceedings on the matter.

Yes, the importance of the Constitution should pre-empt the election any given day. If you want elections to prevail over the constitution you must use them to change the constitution.

Joe Cisewski said...

Mush.

Well, I guess I am a work in progress. My mind is still being molded into a cold, steel trap.

Anonymous said...

Anonymous 6:22 -- yes, you're right; it's just mush and getting mushier by the message.

Now his words are being thrown back at us as if they're our quotes, and somehow now we are to hold elections only if the public has received the preferred message. (The public that shows up to vote has received some message, you bet, but which one?)

I'm done. It's like debating a drunk in a bar.

Joe Cisewski said...

You clearly did not read my comments closely.

You attribute a position to me that I was arguing against.

Joe Cisewski said...

I am going to refer you to Illusory Tenant's recent post on Mencken:

Let any great nation of modern times be confronted by two conflicting propositions, the one grounded upon the utmost probability and reasonableness and the other upon the most glaring error, and it will almost invariably embrace the latter. It is so in politics, which consists wholly of a succession of unintelligent crazes, many of them so idiotic that they exist only as battle-cries and shibboleths and are not reducible to logical statement at all.

...The ideas that conquer the race most rapidly and arouse the wildest enthusiasm and are held most tenaciously are precisely the ideas that are most insane.

Anonymous said...

Joe -

You haven't given any justification for your position in support of the commssions recommendation, so, let's cut the B.S..