Wednesday, March 07, 2012

Recalls and Judging

Last night, I got a call from WKOW in Madison about the fact that Judge Flanagan had signed a Walker recall petition and that the Republican Party intends to file a complaint with the Judicial Commission. This prompted me to take a look at the Judicial Code of Ethics in between coverage of Super Tuesday and Championship Week. (Harvard is dancing for the first time since '46!).

I report. You decide.

In Dan Bice's column, Mike Maistelman says that its not a problem because the Governor was not sued in his personal capacity. It's not that easy.

SCR 60.06(2)(a) prohibits a judge from, among other things, participation in the "affairs, caucuses, promotions, platforms, endorsements, conventions, or activities of a political party or a candidate for partisan office" and says that a judge may not "[p]ublicly endorse or speak on behalf of its candidates or platforms."

Has he done either of these? I think it would be a stretch to say that he did the former but less of a stretch to argue that he did the latter. Signing a recall petition could be viewed as a public endorsement of a partisan position. If the purpose of the rule is to prevent judges from publicly injecting themselves into partisan elections, he can be said to have done that.

It is possible (although also a bit of a stretch) that he simply thought the voters should have a chance to vote in a recall election. He might also argue that signing a recall petition is, in any event, more like a general indication of support such as affiliation with a party. The rules prohibit that, too, but that prohibition was held to be unconstitutional in a case called Siefert v. Alexander. The Siefert court held that, absent some specific and individualized relationship, the relationship between simply announcing party affiliation and the potential for bias was insufficiently close to justify the rule's restriction on speech.

But the Siefert court upheld the rule against endorsement. The state does have an interest, it said, in preventing judges from injecting themselves into partisan elections. But maybe a signing a recall petition does differ in material ways from an endorsement. The signature of any one individual is normally not used to promote a candidate or partisan platform.

One can argue - and I have - that ethical rules should be construed in a way that gives those who are subject to them clear notice of what is requirend and which minimizes interference with constitutionally protected rights.

But there are two more rules to worry about.

SCR 60.05(a) says that a judge "shall conduct all of the judge's extra-judicial activities" so they do not "cast reasonable doubt on the judge's capacity to act impartially as a judge. " Here is where Brother Maistelman's point might have some weight but it's hardly dispositive. Walker was, as he notes, sued in his official capacity. But the recall petition is aimed at removing him from that capacity for acts undertaken in that capacity. The voter ID law has been one of his more prominent legislative accomplishments.

If a judge signs a recall petition and then sits on a a case challenging a key legislative accomplishment of the targetted politician in which the politician is a defendant, might a reasonable person question his capacity to act impartially? Is it reasonable to be concerned that the judge, who has publicly stated that he wants that politican out of office might be tempted - however subtly -  to help that process along by holding that the politician has promoted and signed into law an unconstitutional act?

In answering that question, is the concern underlying SCR 60.06(2)(a) - the idea that judges should not inject themselves into partisan politics - instructive?

Similarly, SCR 60.04(a) provides that "a judge shall recuse himself or herself in a proceeding when the facts and circumstances the judge knows or reasonably should know establish one of the following or when reasonable, well-informed persons knowledgeable about judicial ethics standards and the justice system and aware of the facts and circumstances the judge knows or reasonably should know would reasonably question the judge's ability to be impartial"

The same question must be asked and answered. Keep in mind that the recusal question here is a bit different than when asked at the Supreme Court level. The Supreme Court is a collegial law developing court of last resort. Justices who recuse themselves are not replaced. Recusal raises a whole set of issues that simply don't exist at the trial court level where a judge who steps aside is simply replaced by another.

But keep in mind as well that it is not enough to say that he exercised poor judgment or should not have signed the petition. That his signature would become public and that people would raise hell was perfectly foreseeable. For him to sign a recall petition and then proceed to sit on a case involving one of the Governor's more prominent policy initiatives was certainly to sow the wind. But even if that makes signing a poor choice, that alone does not make it a violation of the ethical rules.

So what do you think?


Lizzie said...

I have a question, Judge Flanagan is on the April 3 spring ballot, unopposed, but still on it any how. How can he make a ruling that directly affects an election in which he is on the ballot?

George Mitchell said...

Is it correct that defendants in the case could have substituted and brought another judge in? Perhaps if Judge Flanagan had disclosed his recall position they would have done that. But then there is the question of whether the next Dane County judge on the case would have done anything different.

Rick's discussion of the legal nuances does not trump the fact that this is a p.r. blunder.

And then there is the UW "expert" who claims >200 thousand people are disenfranchised. We pay this guy.
He must have tenure.

Anonymous said...

Careful there, George. So much better to call in an "expert" who is an untenured adjunct in a law school? You wouldn't say so about this blogger, so the type of campus and status -- or lack thereof - in terms of tenure does not necessarily weight the expertise, does it?

Peter said...

It would surely be interesting to read Meyer's report yet it doesn't seem to be available online.

Surely, if this report is the basis for the ruling it should be available for public comment and criticism?

Steven said...

Assuming it's a public record in Wisconsin that a person voted, and that the judge voted in the 2010 election, it is probable that he voted either for or against Walker. The public may not know from that which way he leans, but the fact that he voted may be enough to suggest that he has some rooting interest in the case. The rule can't be construed broadly enough that no judge who votes can sit on a case involving an official elected state-wide.

Voting for or against a politician may be less indicative of partiality than signing a recall petition, and maybe that's enough of a difference to distinguish the cases. But is there some reason it should make a difference that signing a recall petition tells us in which direction he might be impartial, while if he had voted we would only know that he had formed an opinion about Walker at some point but not whether that opinion was positive or negative?

Anonymous said...

Judge Flanagan, as a private citizen, can sign any damn petition he wants, regardless if he leans left or right.

This so called "p.r. blunder" is manufactured by conservatives in this "dare" a sitting liberal judge who had executed his constitutional right issue a ruling to benefit his private cause!

You want to take the judge to task because of his legal rationale, fine. Have at it. But people calling for his recusal just because his signature is on a piece of paper, that this action alone is grounds for him not to rule on the case is absolutely ridiculous.

George Mitchell said...

anon 4:43

The notion that nearly a quarter of a million otherwise "eligible" voters can't get an ID is not credible.

anon 6:45

Yes, he has the "right" to sign the petition. It was dumb. What next? Will you claim some want him "disenfranchised"? That we are suppressing the "recall rights" of judges?

The law will be sustained.

Looks like his order was not exactly a textbook case of judicial grammar or accuracy.

George Mitchell said...

" the type of campus and status -- or lack thereof - in terms of tenure does not necessarily weight [sic] the expertise, does it?"

Yes, it does. He has used a tortured interpretation of 10-year old data to make a ludicrous claim and he is paid by all of us as a member of a supposedly prestigious faculty.

As for your (anonymous, or course) cheap shot at Rick, his credentials make you the fool. Debate his content and skip the ad hominem stuff.

Mike Maistelman said...

Brother Esenberg, great piece. Go Crimson!


Mike Maistelman said...

Brother Esenberg, great piece. Go Crimson!


Anonymous said...

"Debate his content and skip the ad hominem stuff."

Follow your own advice, first, George!

"Yes, he has the "right" to sign the petition. It was dumb."

No, there is no "right", it is a RIGHT. Period. And since when is exercising that RIGHT "dumb"? What, only if it is deemed a "proper" exercise of that right?

George Mitchell said...

anon 11:08

As a radio call-in person noted this morning, a signer of the recall petition likely would not be qualified to sit on the jury in this case (were there to be a jury trial).

If the word "dumb" bothers you, then consider that Judge Flanagan used poor judgment in signing the petition given the responsibilities to the public of his job.

Anonymous said...

Indeed, Mr. Mitchell. Do please take to heart the advice to debate content and skip the ad hominem stuff, and not only on this thread. Now, what does the content have to do with the source of his pay at what you consider a "supposedly prestigious" institution?

Anonymous said...

I hear from judges that many other judges signed the recall petition, especially in Dane County.

Anonymous said...

Anony 11:08 p.m. here...

George--I have explicitly cited Dad29 (who I know and respect and whose identity is hardly a secret).

Perhaps among the “in-crowd” of conservatives is Dad29’s identity known. I could care less if he CHOOSES to blog as anony given the nutjobs and crazies out there. Who needs that potential headache in their lives? Kudos for you George for giving your real name. But I look at the content of a person’s posts and disregard whether they are “hiding” or appear to be “gutless” because they are simply “an anony”.

George--“Going forward, barring an obvious factual error by anonymous posters, I am going to pass on responding to them.”

Your choice, but then you are going to miss out on the exchanging of ideas, which is the ultimate goal of a blog. Who cares whether or not one knows their “identity”?

Anonymous said...

Anony 11:08 p.m. here...

George--“As a radio call-in person noted this morning, a signer of the recall petition likely would not be qualified to sit on the jury in this case (were there to be a jury trial).”

As the professor pointed out, it is NOT clear as to whether the judge violated any code of conduct regarding his signing of a petition and justifies recusal, so this point you are making is irrelevant to the specific conversation at hand. Be my guest, George, and conduct an investigation to determine whether the judge’s decision in this case was influenced solely by his choice to sign a petition. Good grief, what nonsense!

Moreover, some are suggesting (rather foolishly, it would seem) that liberal leaning justices are more likely to base their legal decisions on their biases and prejudices compared to conservative leaning justices; therefore, there is a call for recusal for this judge. I would venture to say that, as PEOPLE, conservatives and liberals on the bench are EQUALLY prone to their predispositions and prejudices and may not follow the law or interpret the law accordingly.

Now, what would be the conservative spin had the judge been a Republican and put his name to paper to oust a Democrat? Would some rush to his/her defense and contend the choice is within his/her bounds as a private citizen--which to me is the completely within the right of a judge--and that he/she has the capacity to separate his personal views from his duties as a judge? I wonder...

Furthermore, George, I see that you chose to employ a better argument rather than label the situation as “dumb”. Thank you for recognizing your initial characterizations was wrong. Certainly the judge should have anticipated the potential fallout of his CHOICE to sign a petition; regardless, he is a “big boy” and can handle the scrutiny.

At least in this case he appeared to have refrained from being involved in peppercorn.

Unknown said...

Left unaddressed in your spirited defense of the judge is his direct ties to Walker's potential opponent - Falk.

"... Judge Flanagan also lists Melissa Mulliken, a longtime (adviser) to Kathleen Falk, as his campaign manager on his official campaign web page.

If blocking Voter ID is perceived to benefit Democrats, then this judge remains obviously ethically bound to recuse himself.

Anonymous said...

Unknown--Care to argue my points, rather than simply mischaracterize them as "a spirited defense of the judge"?

"If blocking Voter ID is perceived to benefit Democrats, then this judge remains obviously ethically bound to recuse himself."

A big IF that event he Professor acknowledges is difficult to prove. And suppose we use your reasoning in that the judge's associations should be considered...then Gableman, Mac Davis, etc. would also have been required to recuse themselves. Gableman and Davis also have known GOP operatives as their political advisors.

I suggest that you peruse the criteria for a judge to recuse himself/herself.

Anonymous said...

This exercise is laughable.

The Judge should have stepped aside because he signed the recall petition but Justice Gableman has no ethical problem even though he took free legal advice worth perhaps $10k or more from a lawyer who routinely appears before him.

You folks are hilarious!

Unknown said...

In Wisconsin having a voter prove who he or she is approved of two to one....

The Marquette University Law School poll released Wednesday shows 66 percent of 701 registered voters favor the law. Thirty-two percent oppose it.

Democrats want to use this for racial agitation, not to satisfy the broad voter population who has to show their id's to buy beer at Pick and Save. It was nice running a one-party state and they are going to fight like hell to keep it. Flanagan = tool

Anonymous said...

Unknown, I was unaware that people have a Constitutional right to buy beer at Pick N Safe. Thanks for enlightening us!