Wednesday, April 04, 2007

Abandon all hope

Jay Bullock is keeping hope alive on this supreme court thing:

There also remains the possibility of the complaints against Ziegler working their way far enough up that she may have to resign; remember, we're talking now upwards of 100 or 150 cases in which she violated both the spirit and the plain letter of the state's judicial code of conduct. I realize that chance is remote--and, if it happens, it will look unfortunately like partisan wrangling rather than a necessary step against an unethical judge--but that's one small light we can cling to.

Turn out the lights. The chance isn't even remote. Jay makes the same mistake as Linda Clifford did. This was a real issue, but it wasn't the hanging offense that they imagined it to be.

He wants to know why Ziegler's alleged failure to comply with the judicial code is not the same as Robert Zellner fishing for porn on a school computer. He can't understand why anyone would refer to the Justice-elect Ziegler's handling of these matters as mere "sloppiness."

We've been through this again and again, but it is a huge (and wildly unfair) thing to compare an elected justice of the Wisconsin Supreme Court to a guy who cruises for porn on a school computer, so I will explain it one more time.

There are two categories of cases. Most of the "scores" Jay refers to involved cases in which she held stock in a party (mostly United Healthcare, no?). The rules say she has to recuse if 1) she has a more than a de minimis interest that 2} could be substantially affected by the outcome of the case. The Judicial Commission issued an an advisory that sets 20k as a threshold for recusal, but there are lots of judges that don't follow it as both the Wisconsin State Journal and Milwaukee Magazine recently pointed out.

Maybe they should (although I don't see this as self evident). Maybe the rule should be changed and the advisory should become mandatory. But all the rule calls for is the kind of "gut check" that she claims to have undertaken. As far as I am aware, none of those cases was likely to have the slightest impact on share value, so her conclusion that she could proceed is not unreasonable - given the limitations of the rule.

The West Bend cases are different. There, because her husband was a director, she had to recuse or get a waiver, but, as I understand it, the overwhelming majority defaulted. While I think that the rule still technically applies, there was no one to get a waiver from and really nothing for the judge to do. Processing the case is largely clerical. It's hard to get worked up about those.

There were a few (two or three to my knowledge) that were not defaulted and the question becomes: Did she intentionally disregard the rule? That is implausible. None of these cases were material to West Bend and none would have been handled any differently by any other judge. The defendants showed but they had no defense. Why would she intentionally disregard the rule if it would not benefit her or West Bend? Hence, the reference to sloppiness. She seems to have made a subjective judgment when she should not have. Not good, but few of us have not fumbled sometime along the way.

As for Zellner, maybe he did not know he was going for porn. Or maybe he didn't appreciate that it was against the rules. Or maybe the rule only prohibited viewing what was, in the teacher's judgment, really hard core porn. In that case, there might be some similarity.

I really don't have much of an opinion on Zellner, but the voters of Wisconsin did not elect an unethical person to the Supreme Court.


Jay Bullock said...

De minimis has a second part to its definition, which is all about whether a conflict raises "reasonable question" about a judge's impartiality. It's hard not to question that impartiality when you hear about cases like Jeannie Kidd's. When Kidd asked for a continuance so she could come back to the state, Ziegler said no, you'd better appear by phone. So Kidd calls in. Ziegler's there, too. No bank.

And rather than hold the bank to the standard Ziegler held Kidd to, she granted a continuance for the bank and later Kidd lost her car. She never granted adjournments for defendants who didn't show, only the bank, and she never told those defendants about her relationship to the bank and never asked for a waiver (despite Graul's initial claims to the contrary).

The code of judicial conduct is crystal clear. SCR 60.04 (6) explains the procedure for getting a waiver from the parties. SCR 60.04 (4) says that, unless granted a waiver under 60.04 (6), a judge shall recuse herself from cases with conflicts.

It does not say "unless she does a 'gut check' "; it does not say "unless everyone else is doing it"; it does not say "unless the cases are default judgments." It says unless she gets the waiver, she shall recuse herself. Period.

Anonymous said...

"You can break the law as long as you don't financially benefit from it" is the new judicial philosphy by the far right (beyond conservative), thanks to Ziegler.

Rick, you sound like the guys that tried to cover up the watergate scandal. It's going to irridate alot of people that no better.

Jay appears to be saying that what Ziegler did is far worse than the school teacher because we give judges far more power than school teachers. He also said the teacher should be fired.

Zieglers election and insiders should not influence the Judicial Commissions action.

Rick Esenberg said...


You are conflating two things and changing the subject.

First, the conflation. I said that a judge's exercise of discretion ("gut check", if you will) applies to the shareholder cases. It was with respect to those cases that I made the point about other judges not following the 2000 advisory.

For the 196th time, I agree that she was wrong on the West Bend cases. It does not really respond to my post to reiterate that point.

I also said I think the rule applies to defaults although that most of them were defaults is relevant in assessing what really happened. Go down to small claims court in Milwaukee some day and watch how those are handled. (I suggest small claims because that's done in open court.) There is no judge involved. Just a clerk stamping files when the defendant doesn't show. (And, rightly or wrongly, they don't call the cases until the lawyer for the bank shows up.)

Here's the change in subject. As to the West Bend cases, the question that you posed is whether she decided to ignore the rule to benefit herself or West Bend, i.e., that she is "unethical" and, therefore, was not merely "sloppy." I still haven't seen a case made for the former.

As for Jeannie Kidd, assuming that there are no other relevant facts. the case does reflect something that is true about most judges. They are more forgiving to lawyers than unrepresented parties. But two things ought to be kept in mind. First, it was a replevin action, i.e., the bank was going after mobile security (i.e., the car). Continuances for the party who controls the security are unlikely to be granted. Second, Jeannie Kidd lost "her car" because she did not pay for it, not because Annette Ziegler mishandled her case.

Anonymous said...

Apparently, you can break the law and financially benefit from it, if your liberal. See Jim Doyle and friends.

Anonymous said...

james - if that is true, they also should be prosecuted.

Advocating the abuse of power by anyone is wrong, especially judges.