Monday, April 30, 2007

Remember the separation of powers?

There is a lot of misunderstanding regarding the argument that Annette Ziegler is making regarding the Ethics Board complaint against her. I am not sure she will win, but her point stems from high school civics. We have a tripartite system of government with power divided between the executive, legislature and the judiciary. The Wisconsin Supreme Court has long recognized that this is so for Wisconsin as well as the federal government, relying on the creation of the legislative, executive and judicial branches in Articles IV, V and VII of the state's constitution.

If certain powers are reserved exclusively to the judiciary, then it follows that the exercise of those powers are, to one degree or another, immune from legislative control. For example, in a case called Complaint Against Grady, 118 Wis.2d 762, 348 N.w.2d 559 (1984), the court held that a law which called for witholding the salary of judges who did not decide cases within a specified time frame was a violation of this principle. In deciding the case, the court noted that it had invalidated a host of legislative regulations of the judiciary:

For more than a century, this court has been called upon to resist attempts by other branches of government to exercise authority in an exclusively judicial area. These have included an attempt to remove and replace a court employe, In re Janitor, 35 Wis. 410 (1874); an attempt to dictate the physical facilities in which a court was to exercise its judicial functions, In re Court Room, 148 Wis. 109, 134 N.W. 330 (1912); an attempt to legislate what constitutes the legal sufficiency of evidence, Thoe v. Chicago M. & St. P.R. Co., 181 Wis. 456, 195 N.W. 407 (1923); An attempt to regulate trials in the conduct of court business, Rules of Court Case, 204 Wis. 501, 236 N.W. 717 (1931); bar admission and regulation of attorneys, In re Cannon, 206 Wis. 374, 240 N.W. 441 (1932), Integration of Bar Cases, 244 Wis. 8, 11 N.W.2d 604 (1943), 249 Wis. 523, 25 N.W.2d 500 (1946), 273 Wis. 281, 77 N.W.2d 602 (1956). In each of these cases we recognized areas of authority exclusive to the judicial branch and, therefore, free from intrusion by another branch of government.

118 Wis.2d at 778. (The links won't work since I cut this from Westlaw.) More recently, in a case called Barland v. Eau Claire County, 216 Wis.2d 560, 575 Wis.2d 691 (1998), the court held that judge's assistants could not be unilaterally removed even though it was required by the terms of a collective bargaining agreement signed by the county.

It does not seem at all preposterous to me to suggest that this precludes application of the ethics rules to a judge's failure to recuse herself. This is particularly true given that the applicable rule in the judicial code permits the judge to sit if the parties waive the conflict. The ethics rule does not - at least not in any readily exercisable way.

Of course, Judge Ziegler is still subject to discipline through the judicial commission. But I fear there is also a misunderstanding among our friends on the left as to the likely denouement of either that process or the proceedings initiated by the ethics board. She might get fined. She might get reprimanded. But the chances that she will not assume office are about on a par with the likelihood that I will ever grow a full head of hair again.

Sorry, guys, but Christmas won't come this summer.


Anonymous said...

I agree that nothing will come of the ethics charges, however I'm not sure about the seperation of powers argument.

In fact, you could argue that seperation of powers requires that each branch must be policed not by itself, but by a different branch; for example, giving Congress the power to impeach the President.

Anonymous said...

Let me begin where you end. I agree, Ziegler will end up on the Supreme Court, battered and wounded but present. And, anyone actually concerned about the integrity of the system and public/litigants' perception will know that this is a bad thing.

Having said that Rick, the only point you make is that there is something called the separation of powers. As an aside, I love to hear about the doctrine from a "strict constructionist" because I love irony. As a further aside, one of my problems with the nonsense marketed as "strict constructionism" is that it rests in large part on the notion of the superiority/primacy of the "elected" branches, meaning the legislature and the executive, believing that the judicial branch is somehow inferior. This is a wildly dangerous proposition given the structure of the constitution and, specifically, its protection of rights and liberties from the majority.

But I digress. There is no misunderstanding of her argument, she is claiming that the state statutes known as the ethics code cannot apply to judges, i.e., that the legislature cannot regulate judges' [un]ethical conduct.

This isn't a close one, its insane, legally and politically. I raised the question of the bribery statute and you tried to distinguish arguing that taking a bribe is ultra vires. So is taking official action that affects an organization with which the official is associated.

And then we have legislatively regulated judicial elections, campaign finances, etc.

You are simply drinking the kool-aid here. The best part is that your attempt to defend Ziegler's request that the supremes "legislate from the bench" has you sounding the like the result oriented, "make-it-up-as-you-go-along" folks you claim to stand against.

I'll tell you, if I find a conservative willing to say that Ziegler is bad for the state because of her ethics, I'll fall over. Instead, its "she'll decide 'em the way we want" so she can do no wrong. Oh yeah, and her first move is to prove the basis of her campaign to be a lie - she wants to the court to rewrite the laws. The whole thing is disgusting.

Anonymous said...

anon here. And, another thing. You forgot the most recent separation of powers case. There, the executive in the person of Brian Blanchard took over the legislature and started issuing criminal charges based on how he believed that legislators and staff should behave.

The courts said no separation of powers problem. Ziegler's petition is frivolous.

Rick Esenberg said...

Well, don't just say I'm wrong. Look at what the court has said about this.

I think, incidentally, it is wrong to characterize people who favor judicial restraint as committed to the superiority of the elected branches as a principle of decision. That's an oversimplification. If the constitution removes something from the purview of the legislature, that must be honored.

The notion that the idea of separation of powers has consequences for the ability of other branches of government to intrude on the judiciary is hardly revolutionary, although, again, I am not sure how this one will come out.

Anonymous said...

But Rick, you simply declare without elaboration that having a statutory ethics code "intrudes" on the judicial function.

The code neither (1) prevents the judiciary from doing its job or (2) garners for the legislature judicial power.

Again, there is no principled difference between this and bribery or campaign finance.

Anonymous said...

This is not anon 1,

I am not a lawyer but I always thought that "officers of the court" had a duty to uphold the integrity of the judicial branch.

I have read some of your posts, Rick, and I have found that you appear to be doing just the opposite. You have written that many judges are doing it as if that makes it alright for Ziegler. You are now attempting to take the State Ethics board out of the equation making it appear that you support judges breaking ethic rules.

The Ziegler problem will determine the direction of the judicial branch for years to come and if there will be any public confidence in it. The "State Ethic's Board" weighing in is critical to restore confidence in a disabled branch of goverment.

Anon 1 appears to be a lawyer and I hope that there are more that are taking the position that Judges cannot break the rules.

Rick Esenberg said...

Well, it conflicts with the judicial code's rule on recusal in this situation. Under that rule, a judge can ask for a waiver. Here, he or she cannot. It also imposes a fine on a judge for determining that there is not a substantial financial interest at stake when the ethics board believes that there was, i.e., allowing an agency of another branch of government to pass upon a judge's exercise of his or her authority.

I can see arguments on the other side, but she has a reasonably good argument here.

Anon-2, please don't accuse me of saying things that I explicity and carefully said were not so. The question here is not whether judges can break ethics rules but who gets to enforce them.

Anonymous said...

anon 1 here. there is no conflict. the recusal rule covers situations far broader than that covered by the official action/associated organization statute and simply forbids certain action.

The statute does not require doing something the judicial code forbids and vice versa.

the battery statute and the battery by a prisoner statute do not "conflict." Excuse the weird analogy but it was the first one that came to me and it works.

PS your verification system still sucks.

Anonymous said...

Anon 2 here - Rick, I just am calling it as I see it and if this is truley only a matter regarding who should enforce it, then it could also be argued that the Fed's should be involved because it appears to be a serious violation of the 14th amendment of the US Constitution whereby equal protection under the law has been violated.

ANON 1 - the problem with Rick's verification system is our security settings on our own computers. I don't care for it either.

Anonymous said...

Rick -- Any thoughts on Bruce Murphy's take on Judge Ziegler's petition, which he refers to as "preposterous"? (Link below.)

Anonymous said...

I don't have time to get deep into the nitpicky details, but this sounds like yet another case of the law and the rules not applying to lawyers and the judiciary.

There's a difference between another branch's incursion into the operational affairs of the judiciary, and a legitimate check or balance that ensures the lawful operations of the judiciary.

Now, you can argue that ethics are distinct from that, but failure to follow ethical guidelines substantively compromises the ability of the judiciary to mete out justice/resolution.

And in the end, the public sees a) a judge who would not recuse herself, b) who was unaccountable for that and went unpunished, and d) retained the highest position in the state, with nary a whimper from the rest of the legal profession. In short, someone above the law and above any ethical guidelines.

And without adequate checks and balances, what do you have left? I mean, as a strict constructionist so very, very concerned about the rule of law? And about personal responsibility to the public order and social morality?