In the pastweek, the court has passed permissive rules on campaign contributionsrulesthat were written by the state’s biggest special interestsand deadlocked 3-3on whether Justice Michael Gableman should be disciplined for running aknowingly false and race-baiting ad in his 2008 campaign.
Chaired byattorney and state Rep. Gary Hebl (D-Sun Prairie), the Special Committee onJudicial Discipline and Recusal will look into whether justices should opt outof cases in which a major campaign contributor or supporter is involved, andwhether Supreme Court justices should discipline one of their own.
Thecommittee, not yet formally announced, will include members of the legalprofession, lawmakers of both parties and representatives from clean-governmentorganizations. It aims to meet in early August, hold public hearings, anddeliver recommendations by October, Hebl said.
“I wouldlike to take politics out of this and work toward solutions that are apoliticaland are in the best interests of our courts in the state, to make sure that thepublic has faith in our judicial system,” Hebl said.
Hebl hassupport from some members of the state Supreme Court. In a letter to the stateLegislature, Justice Patrick Crooks called for a legislative committee to studyjudicial recusal. And Justice Ann Walsh Bradley, in a sharp critique of thecourt’s lax ethical standards, wrote: “If this court is unwilling or unable tokeep its own house in order, perhaps it will require action by others to stepin and assist in maintaining the integrity of the court and preserving thepublic trust and confidence that Wisconsin judges will be impartial.”
Hebl saidhe’s open-minded about potential solutions for the court and is waiting to hearfrom experts before offering recommendations.
“It may verywell be that there is no better solution than the one that we have now,” Heblsaid.
But stateRep. Fred Kessler (D-Milwaukee), a former circuit court judge who has beeninvited to join the committee, suggested drafting a constitutional amendmentthat would change the way Supreme Court justices discipline fellow justices.The current guidelines, found in the state Constitution, allow only justices toreprimand, censure, remove or suspend fellow justices or judges.
Kessler saidthat asking a justice to discipline a colleague on a collegial court may beimpossible.
“I think wehave to create, probably through a constitutional amendment, a new body thatwill discipline members of the Supreme Court who are accused of violating theJudicial Code of Conduct,” Kessler said.
If anamendment is drafted, it would need to be passed by both houses of the stateLegislature in two consecutive sessions and then be approved by state votersbefore it could be added to the Constitution.
JudgesCan Rule on Campaign Contributors’ Cases
Why arecourt watchers so alarmed about ethical standards of justices?
In this termalone, the state Supreme Court has:
- Publiclyreprimanded Justice Annette Ziegler for deciding cases as a Washington Countycircuit court judge that involved West Bend Savings Bank without disclosingthat her husband served on the board of the bank. It was the first publicreprimand of a sitting Supreme Court justice in the history of the court.
- Split 3-3 onwhether Justice Michael Gableman should be disciplined for personally approvingand airing a false and race-baiting “Willie Horton”-style ad during his 2008campaign.
ExoneratingGableman were his conservative allies on the court: David Prosser, PatRoggensack and Ziegler. Opposing Gableman were Chief Justice ShirleyAbrahamson, Bradley and Crooks.
Lackingresolution by the court, the Wisconsin Judicial Commission has dropped thecase. In a statement announcing that it would suspend the matter, thecommission stated that it felt Gableman violated the state’s Judicial Code ofConduct by airing a false ad: “There is simply nojustification for judges or candidates for judicial office to intentionally andpurposely misrepresent facts concerning an opponent in a judicial electioncampaign.”
Gableman’s term expires in 2018.
- Passed new rulesthat would allow judges at all levels to rule on cases that involved a campaigncontributor or an independent party that sponsored “issue ads” in the campaign.The rules were written by two conservative special-interest groups, theWisconsin Realtors Association and Wisconsin Manufacturers & Commerce(WMC), and approved verbatim 4-3 by the Supreme Court.
Supportingthe rule were Gableman, Ziegler, Roggensack and Prosser.
In 2009,critics blasted the court for allowing Ziegler to rule on a case connected toWMC, the big business lobby that spent $2 million on ads attacking her campaignopponent. Ziegler ruled with Crooks, Prosser and Roggensack and gave a big taxbreak to the Menasha Corp., which was supported in the case by WMC. Theultimate cost to state taxpayers: an estimated $350 million in lost sales taxrevenue from Menasha and other corporations.%uFFFD%uFFFDZieglercould have been asked to remove herself from the case by the opposing partyinthis case, Attorney General J.B. Van Hollen, representing the state. But VanHollen benefited from WMC’s $2.5 million worth of ads attacking his opponent in2006 and he did not challenge Ziegler’s participation.
Under thenew rules, however, Ziegler’s involvement in the case would not be prohibited.
- Passed a new rulethat allows judges at all levels to accept campaign contributions fromindividuals and parties “even though the contributor may be involved in aproceeding in which the judge, candidate for judicial office, or judge-elect islikely to participate.” The rule was written by the Wisconsin RealtorsAssociation and approved by the Supreme Court without study or revision.
Supportingthe rule were Gableman, Ziegler, Roggensack and Prosser. Prosser’s term expiresin 2011, allowing him to be the first to benefit from the rule if he runs foranother term.
- Rejected proposedrules suggested by the League of Women Voters of Wisconsin and retired JusticeWilliam Bablitch that would require judges at all levels to recuse themselvesfrom cases in which a campaign contributor or a major independent supporter isinvolved.
- Split 3-3 on whether Gableman should recusehimself from at least eight criminal cases due to his campaign statementsindicating a bias against criminal defendants. Once again, Roggensack, Prosserand Ziegler sided with Gableman. Lacking a majority, Gableman stayed put.
VastMajority of Wisconsinites Believe Cash Creates Bias
The ethicalquestions hanging over the current court can lead to an erosion of public trustin the legal system, said Andrea Kaminski, executive director of the League ofWomen Voters of Wisconsin.
The leagueproposed one of the recusal rulesrejected by the court in favor of the WMC-writtenrulebecause of a study that showed that 78% of Wisconsinites believed thatcampaign contributions are likely to bias a judge’s decision in a case.
“There’s alack of confidence in the system,” Kaminski said. “We’re concerned about theperception of the court. People will feel that they can’t take a case to courtbecause they won’t get a fair trial.”
An attemptto remove the influence of big money from Supreme Court campaigns was made inthe most recent legislative session. The new Impartial Justice law sets up anoptional public finance system for Supreme Court candidates and also limitsindividual donations to Supreme Court candidates to $1,000 if they do not optinto the public system. But the law does not affect third-party expenditures,which can substantially skew a race toward or away from a judicial candidate.%uFFFD
