November 20, 2007

Re-elect Ziegler in 2017

So now that Wisconsin Supreme Court Justice Annette K. Ziegler's public hearing is complete, she'll be getting on with the business of the court for the next ten years or so. Some of my colleagues are none too pleased with a remark made yesterday by Judge Ralph Fine, one of the three State appellate judges who conducted the hearing.

Fine said Ziegler's failures to disclose her financial relationship with the West Bend Savings Bank while presiding over actions involving it as a party “hardly register as 'a blip on the screen,'” as the Journal-Sentinel reported.

One of the problems with this observation is that there were 11 blips. And then some more. Another is it closely parallels, in terms of dismissiveness, Ziegler's now-infamous excuse of having performed a “gut check” in determining whether or not she needed to violate judicial ethics guidelines by not disclosing the relationships.

So now we have a judge's duty to disclose potential conflicts of interest that make her almost an adversary to a party before her being characterized in terms of gut checks and blips on ethical screens.

While Fine may be correct that Ziegler's numerous lapses pale in comparison to other (unspecified) judicial misconduct, it's not his function to perform that analysis. It's for the members of the Supreme Court — to whom Fine et al are reporting — who will determine what, if any, sanction Justice Ziegler is to receive, albeit based on this panel's recommendations.

Speaking of legal analyses, mal contends objects to a law professor's remarks as reported in this State Journal story from the other day:
I would describe the misconduct as significant in the sense that it raises some questions about Justice Ziegler's judgment. But I wouldn't call it serious, in the sense that I think it extremely unlikely that it had any actual impact on any decisions then-Judge Ziegler made.
This is a rough statement of the classic “fair trial” analysis that appeals courts perform when confronted with the question of whether a losing defendant got a raw deal below.

In other words, the system can tolerate a certain amount of ineffective lawyering, or even mistaken rulings at trial on whether to allow certain pieces of evidence, for example, but the question remains as to if the accumulation of error gives rise to a fundamental denial of due process to the losing party.

The trouble here — and where the application of that test arguably fails — is that parties in the subject cases did not even have the opportunity to decide whether or not they wanted to continue proceedings in Judge Ziegler's courtroom, since they were never apprised of the judge's financial relationships with their adversaries.

But what Prof. Kritzer is suggesting is that yes, Ziegler should have disclosed her financial relationships but no, her failure to disclose had no effect on her ultimate disposition in a particular case. The party adverse to the party with whom Ziegler had the financial relationship would have won — or lost — in any event. And, also importantly, Judge Ziegler realized zero personal benefit in ruling as she did.

Doubtless some form of this test will inform the Supreme Court's impending decision that their newest junior associate endure the mildest of reprimands.

As Prof. Benesh of Marquette Law School suggests, the degree of punishment may be measured against the public's trust in the integrity of the system.

To which I might add, the wisdom of subjecting the composition of a State Supreme Court to the whims of the general electorate. That process is by no means as “non-partisan” as the theory — and the State law — would have us believe, as the observations of both Ziegler's defenders and detractors clearly show.

1 comment:

Anonymous said...

So ignorance of the law IS an excuse!

Now they tell me. But if I'm ticketed for speeding again in a zone where I thought the limit was a little bit higher, well, I'm gonna remember the Ziegler defense.

And the Fine defense: "Yer honor, I was just a blip on the radar screen held by the cop. So whaddya say, how about just a slap on the wrist. . . ."

(Silver Lining Department: Clearly, the state high court system could have hit bottom a lot sooner if Fine had been elected a decade ago. The voters used to be pretty smart.)