Monday, March 05, 2007

Constitutional chameleon

Once again, I am not connected in any way to any candidate for the Supreme Court, but Linda Clifford's statement that "I am willing to let the (state) constitution breathe and reflect what society needs in any given context ...." is a teachable moment.

At first blush, this might seem reasonable. Why not give society "what it needs?" (Or, more accurately, what Linda Clifford thinks it needs.)

The problem, of course, is that we generally expect judges to apply the law and the legislature to make it. Although the constitution can trump legislation, we accept that because, at some point, the constitution was consented to by the people. The people decided to place certain limitations upon their elected representatives.

If you allow the constitution to "breathe" (i.e., "change") to reflect what you think society needs, you have lost the legitimacy that the consent of the people confers. They never agreed to whatever it is you think the constitutional document is exhaling today. You have substituted your judgment for theirs.

We could have chosen to be governed this way. We could have said that we'll just elect seven wise people to do whatever they think is right. But we didn't. We chose democracy and a judiciary that applies the rules (statutes and constitution) that the people make.

Of course, there are nuances, subtleties and matters of degree involved here. We can make it as complicated as it needs to be, but, at the end of the day, this isn't lawerly inside baseball. It goes directly to who gets to make the decisions that govern our common life. If you want to be ruled by judges, then a living, breathing and mutating constitution is a good thing. If you don't, it's not.

You decide.


Anonymous said...

Maybe Judge Annette is letting the law "breathe" when she apparently ignores the rule that she not act in cases where a member of her family is an officer of one of the parties before her?

At some point you are going to have to comment on this apparent law violation by the candidate whose warts you heretofore ignore...

Mar 4, 7:37 PM EST

Analysis: Judge didn't disclose potential conflicts of interest

MADISON, Wis. (AP) -- Circuit Judge Annette Ziegler, a candidate for the state Supreme Court, failed to disclose potential conflicts of interest in at least four cases involving a bank on whose board her husband is a paid member, an analysis of court records found.

Mark Graul, Ziegler's campaign spokesman, said Ziegler wasn't always able to inform litigants of the potential conflict because some cases were handled by mail or telephone. But a number of defendants say Ziegler still should have told them, and at least one defendant said he would have requested a different judge had he known.

All four cases involved people sued in 2006 by West Bend Savings Bank, according to an analysis by the Wisconsin State Journal. J.J. Ziegler, the husband of the Washington County Circuit judge, sits on the bank's board.

The defendants in those cases told the Madison newspaper that Annette Ziegler neither withdrew from the cases nor disclosed her conflict, as required by state Supreme Court rules.

In one case, the bank sought to recover a $12,000 debt from Greg Kottke, owner of Lomira-based Blackhawk Repossession, Investigation and Towing Services. Ziegler allowed the bank to repossess three assets from Kottke's company despite his request that the bank repossess only a single truck worth more than the debt.

"If she would've said she was involved with West Bend Savings Bank ... we would've said we want a different judge," Kottke said. "You want it at least to be fair."

In a statement, Ziegler said everyone who enters her courtroom is treated fairly.

"I am proud of my record as a judge and am certain any objective review of the cases I have heard will indicate no bias towards any party," she said.

James Alexander, executive director of the Wisconsin Judicial Commission, said judges facing a potential conflict of interest should step down from the case or inform both parties and continue only with explicit permission from each.

Graul, the judge's spokesman, noted that the West Bend bank is owned by the deposit holders, not the board.

"The Zieglers don't gain any financial benefit from West Bend Savings Bank's legal proceedings," Graul said.

But Alexander said according to conflict-of-interest rules, it's irrelevant whether a judge benefits financially from a relationship. He declined to say whether the state commission would investigate Ziegler's conflicts

Judges who violate Supreme Court rules are subject to reprimand, censure, suspension or removal.

Ziegler faces Madison attorney Linda Clifford in the April 3 election for a 10-year term on the Wisconsin Supreme Court. Ziegler, who has been on the Washington County bench for 10 years, was the top vote-getter in the three-way primary last month.


Information from: Wisconsin State Journal,

Rick Esenberg said...

I am not sure why I do in that I am not part of either campaign. If what has been reported is accurate, then Ziegler dropped the ball on these cases. SCR 60.04(4)(e)(1) and the waiver provisions are pretty clear on that. Whether there are pertinent unreported facts or disputes about what is true, I don't know. Whether these cases are part of a larger pattern or isolated examples of sloppiness (neither seems to have been very important or to have defenses that another judge might have accepted undercutting the notion that Ziegler was out to protect the bank), I can't say. Voters will have to weigh this against their views of Clifford's judicial philosophy and whether they think it is consistent with how you think our government is supposed to work.

Anonymous said...

As a lawyer and a law professor, do you teach students that its okay to not follow the rules of the judicial system?

Don't you think Judge Ziegler should be investigated by the Judicial Commission?

Anonymous said...

I think that Clifford is being honest, and that people who claim to be "originalists" or their ilk are the ones not being honest. There is as much judicial activism on the conservative side as there is on the liberal side. Justices are human beings who are obviously influenced by their environment, training, and beliefs. Scalia is about as activist of a Justice as the COurt has ever seen. You just don't think so, because his activism tilts your way.

While the supreme court owes deference to the legislature, it is also true that we created the courts to act as a check on the legislature when appropriate. Of course, over time, what is considered appropriate to check changes. For a simplistic example (no room for a dissertation here), look at civil rights cases. COurts originally supported the political branches' right to institute laws discriminating against citizens on the basis of their race (Dred Scott lost innumerable cases). At some point, the tide began to turn but legislative bodies were not responsive to calls for change. It took the courts--both state and federal-- to recognize that discrimination was unacceptable in our nation and under our constitution. The legal action had to be taken before legislative action was taken in most cases, because of gutless politicians. I think that is what Clifford means when she talks about letting the constitution breathe. In cases where the legislature refuses to act to protect the rights of citizens, the court has an obligation to step in. Those situations should be extremely rare, but to deny that they exist is to deny the founding fathers reasoning for a 3 branch system of government.

I guess here I'll end by stating back to you, we could have chosen to be governed without the participation of the courts, but that is not what we chose. We chose a system of checks and balances such that no single entity can impose its will without the potential check of another entity.You seem to suggest another form of government, in which th ewiull of the people (also known as direct democracy) rules. Not so. When the legislature does not have the guts to say what is popular is not justified under the constitution, then the court must step in.

Anonymous said...


dmec n " tn 91