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.