Thursday, September 27, 2007

Ruminations on the Ziegler case

I haven't thought this through but I think it's interesting.

One of the requests for information by the panel reviewing the Judicial Commission's recommendation of a reprimand for Justice Annette Ziegler strikes me as intriguing. The panel wants to know when Justice Ziegler conceded that she had violated a rule requiring her to recuse herself from cases involving West Bend Savings & Loan.

On the one hand, this seems unexceptional. One factor commonly considered in attorney discipline is the degree to which the lawyer was forthright in response to allegations of wrongdoing and what that tells us about whether he or she understands what happened. Why should it be different with judges?

But in the run of cases, this involves conduct with clients and the Office of Lawyer Regulation - the agency that investigates and brings charges of attorney misconduct. It tends not to involve what people say in an election campaign.

My recollection is that candidate Ziegler did not comment directly on the allegations of a rule violation. She said she welcomed an investigation and jumped to the claim that the cases were decided properly, i.e., the plaintiff and defendant eventually got the right result. If by result, one means the ultimate judgement in the case, that seems right as far as anyone can tell. She characterized the whole thing as "no scandal" which isn't quite the same thing as saying that she did not violate the rule (although I suppose one could argue that it bears upon her understanding of the rule).

Could the panel (and Supreme Court) now take into account the fact that she did not concede a violation during the campaign in deciding upon discipline? Would that raise First Amendment concerns in that it would penalize her for not engaging in certain types of speech in a context other than responding to regulatory authorities? We know that not all aspects of the Judicial Code may withstand First Amendment scrutiny. Judge Shabaz recently held that construction of the code to prohibit judicial candidates from answering questions about generic issues like the death penalty is unconstitutional. Should the discipline of a judicial candidate be affected by the fact that he or she may have avoided admitted a rule violation during a campaign?


Anonymous said...

My answer is yes because they are running for an office that requires exceptional public trust.

Had she been forthright and honest the outcome of her election may have been quite the opposite, my "gut check" tells me.

Anonymous said...

Agreed. If she delayed the admission because she really thought she was innocent, that's one thing.

But if she delayed the admission for political reasons, that's unethical -- and ethics is what this is about.

A definition of ethical behavior by a member of a profession is about anticipating all the consequences -- more than "gut checking" -- of one's actions, and then acting correctly based on the consequences for one's profession, not just for oneself.

In this case, there was an even higher bar than consequences for the bar -- it was consequences for the highest court in the state. That raises the bar considerably.

Anonymous said...

One of the problems with your rumination is that Ziegler went farther than saying "no scandal." The LaCrosse paper reported "Ziegler denies wrongdoing in court cases" and the River Falls paper reported "Supreme Court candidate Annette Ziegler denies a conflict."

She misled voters before the election and the panel is right to take this into consideration.

Anonymous said...

You can't recall?
Not quite a Gonzo moment, but you could have researched her statements.

The Stipulation ORdering a Reprimand has the very first item as:
1) Judge Ziegler admits the allegations in the Complaint filed by the Commission.

Anonymous said...

I'm enjoying the imagined argument that her "gut" would tell her it would have been violating her First Amendment rights to tell the truth when running for the high court.

And may the original intent of the Founders be with you, too!

But you better hand them a hanky first, as this is enough to make the Founders weep.