July 8, 2010

WMC authors the Wisconsin judicial ethics rules

Excerpted from testimony before the Wisconsin Supreme Court, with emphases supplied:
The rule in [Caperton v. Massey] was that due process requires a judge to recuse where the judge's impartiality is in question. And in that case, the rule there is that a court must take into account all of the facts and the circumstances surrounding — whether it's spending or a contribution — or whatever other facts are present that are challenging that judge's ability to be impartial.
— Counsel for Wisconsin Realtors Association, 10/29/09
As difficult as it may be to believe, the notorious business outfit Wisconsin Manufacturers & Commerce and the Wisconsin Realtors Association wrote three rules of judicial ethics that were ordered effective by four members of the Supreme Court yesterday.

The order came attached with some more of the court's "writings," this time featuring Justice Bradley squaring off against Justice Roggensack, the latter having helped formed the majority along with Justices Prosser, Ziegler, and Gableman ("the conservatives").

WMC contributed millions to the political campaigns of Justices Ziegler and Gableman, but Wisconsinites needn't pay any mind to the troubling perceptions created thereby, the majority teaches today.

One of the WMC/court's new rules is 60.06(7), which dictates that a judge is not required to stand aside from hearing a case "based solely on any endorsement or the judge's campaign committee's receipt of a lawful campaign contribution, including a campaign contribution from an individual or entity involved in the proceeding."

The other newly created rule is 60.04(8), which confers the same protection upon a judge when an "independent communication" (e.g., one of WMC's infamous issue advocacy advertisements) is produced by a party to the case, or where a party to the case contributed to the production costs of the "independent communication."

(The latter "individual[s] or entit[ies]" are more often than not operating behind a veil of anonymity anyway.)

Amended by the WMC/court is 60.06(4), which already had purportedly prohibited judges from personally soliciting campaign contributions, directing them instead to gathering up cash monies through a committee. Although: "A judge, candidate for judicial office, or judge-elect may serve on the committee but should avoid direct involvement with the committee's fundraising efforts." Emphasis added. It's one of those "aspirational" rules.

Significantly, the amendment allows a judge's fundraising committee (with whose activities a judge aspirationally "should" avoid direct involvement) to drum up cash from contributors "even though the contributor may be involved in a proceeding in which the judge, candidate for judicial office, or judge-elect is likely to participate."

The meaning and potential effect of the latter provision isn't entirely clear. As Justice Bradley (joined by Chief Justice Abrahamson and Justice Crooks, "the liberals") points out:
[U]nder the majority's new rules, which mark a substantial departure from our current practice, judges' campaign committees and perhaps someday even judges themselves will be able to ask for and receive contributions from litigants before the trial has begun and before the judge makes a decision in their case. . . .

Justice Prosser clarified at the January 21, 2010, open administrative conference that indeed the intent is to allow for the solicitation and receipt of a contribution from a litigant with a case currently pending before the judge.
Justice Roggensack, without a hint of irony, pronounced that "Justice Bradley's dissent is a political statement that will foster disrespect for and distrust of the Wisconsin Supreme Court as an institution."

Roggensack criticized Bradley for citing a number of newspaper editorials (nine of them, to be exact, all in substantial agreement) which expressed concern over the majority's move to adopt verbatim rules written by organized corporate interests, effectively "thumb[ing] their noses at the perception of connections between large campaign contributions and the court's integrity, objectivity and credibility," as the Milwaukee Journal-Sentinel had put it.

The majority appears to be largely unconcerned about those public perceptions, and moreover the majority appears unconcerned that those concerns even exist, let alone for those concerns' validity. Nevertheless, perceptions about the courts' objectivity play a substantive role in evaluating due process of law challenges.

A party to a lawsuit is placed in an uncomfortable position where the presiding judge's campaign committee (again, with which the judge "should" not — as opposed to "must" not — be involved) is actively soliciting cash money from the other party. Yet that is precisely a situation the majority's order contemplates and, seemingly, allows.

Justice Roggensack, somewhat inexplicably, claims the new and amended rules are grounded in the right to vote in elections.

But see the well (and rightly so) respected Michael B. Brennan:
Although the judiciary is elected in Wisconsin, it was never intended to directly carry out the wishes of the voters.
The court's remarkable order is available here (.pdf; 28 pgs.).

As usual, more later.

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