Eminent Domain

After reading this editorial in the Milwaukee Journal-Sentinel this morning, I felt a need to comment on the Judge Ziegler recusual situation. I previously said that I wasn't going to comment much on the Wisconsin Supreme Court race, but I've decided to change my mind (as you can tell from my recent posts). I reserve the right to change my mind.

For those of you not up to speed, here's the pithy version of the situation...

State Supreme Court candidate Annette Ziegler has ruled in at least two dozen cases involving a West Bend bank of which her husband, J.J. Ziegler, is a director. And there are no indications that she offered to withdraw from those cases or notified the parties of her conflict.

As a Ziegler supporter, I'm not happy about this. I'm not a judicial ethics expert, but my time interning with a judge has given me a little insight into recusal issues. I'm a big believer in erring on the side of safety. If the complete facts about the situation have been disclosed, I am troubled by Judge Ziegler's decisions in these cases. I'd like to have a more detailed account of the cases involved before passing any judgment though. Ethical issues can be very tricky (anyone who has taken Ethics in law school will attest to that) and very fact specific. Hopefully, more information will become available.

My go-to guy on this race has been Rick Esenberg. He comes through again with this great post tackling this issue. Rick, once again, offers much more insightful commentary than I can muster. Cut me some slack. He's been in practice for a while. Here's Rick...

I have commented on allegations that Ziegler acted on cases when she had a conflict of interest. More facts have come out and, although the reportage has not been awful, there is a "he said, she said" quality about it that obscures key points - some in a way that is favorable to Judge Ziegler and other in a way that is not.

Agreed. The articles haven't been bad, just not as meaty as one would like. Based on the the facts as reported, Rick seems troubled too...

First thing, if the facts are as reported then Judge Ziegler was wrong in not recusing herself or obtaining waiver in cases involving West Bend Savings & Loan. SCR 60.04(e)(4)(1) makes recusal or waiver mandatory when, among other things, a judge's spouse is a director of a party. No judgment call to make.

Rick also mentions that things might be different in default judgments. I think that there is definitely an argument there, but I would have to look deeper into Wisconsin ethics decisions to make a judgment on that.

Rick also highlights the difference in the ethics rules when the judge owns stock in a party...

But there is a slightly different test when the question is whether you should recuse yourself because you own stock in a party. That is not automatic. In that case, recusal or waiver is required when a judge "has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis interest that could be substantially affected by the proceeding. "

This does bring us back into the realm of the gut check so statements that recusal is "mandatory" whenever there is a "conflict" may serve for the West Bend Savings matters but not for other matters under examination. For example, in cases involving United Health Care (in which the Zieglers apparently own stock), she may well have decided that her interest could not be substantially affected by the matter. In some cases, the idea that the judge must make a judgment call is not "truthy." It is the truth.

There are instances where the judge must make a judgment call, or "gut check," about the situation.

As I have said, I'm troubled by the situation. I would like to know more about these cases. And before anyone asks, no, I'm not voting for Linda Clifford now.