Ziegler Hearing

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The facts are undisputed and the punishment agreed upon by both sides in the violation of judicial ethics case brought by the Wisconsin Judicial Commission against state Supreme Court Justice Annette K. Ziegler.

But the seemingly black-and-white case bore shades of gray during a Nov. 19 hearing in front of an appointed panel of three appellate judges.

The panel raised questions concerning the severity of the infringement, its impact on public confidence in the judiciary and whether Ziegler should have known to recuse herself from 11 cases pertaining to West Bend Savings Bank, where her husband sits on the Board of Directors.

James R. Troupis, counsel for Ziegler and James Alexander, chairman of the Judicial Commission affirmed their stances that a public reprimand was satisfactory punishment, but the panel will deliver its own recommendation to the Supreme Court.

No timetable has been set as to when the recommendation will be submitted.

During the hearing, presiding Judge Ralph A. Fine said Ziegler’s admitted improper involvement in the 11 cases brought forth in the complaint, “pales in relation to what other judges were found to have done” in past cases.

He went on to infer that the level of misconduct was a “blip on the screen” compared to prior incidents where judges have “lied to investigators or worse.” The parties involved agreed that there was no intent behind Ziegler’s actions, but Alexander said that the violations, inadvertent or not, should have been realized by the then circuit court judge and were a “serious matter.”

Outside Observations

Attorney Raymond M. Dall’Osto, who represented Municipal Court Judge Daryl W. Laatsch in a 2004 ethics case in front of the Supreme Court, said that inadvertence versus intent can be a mitigating factor as to the potential sanction, but not an excuse.

Laatsch was reprimanded by the Supreme Court for his failure to recuse himself from traffic cases involving his niece, his nephew and a former client.

“A judge is most prudent if he or she discloses in advance economic, investment, family or personal interests if a party may be affected,” said Dall’Osto, of Gimbel, Reilly, Guerin & Brown in Milwaukee. “When in doubt, get out and recuse. It beats having to defend a Judicial Commission complaint.”

Another potential factor in the relatively lenient viewpoint expressed by Fine is the nature of the cases contained in the complaint. As indicated by Troupis at the hearing, several of the cases were small claims matters, involved pro se litigants or defendants who did not appear.

“The thing that struck me as I looked at the complaint and the 11 cases is that in most of them the opposing party conceded liability,” said attorney Ralph A. Weber of Gass Weber Mullins LLC, in Milwaukee. “They were pretty perfunctory and in none of the cases would you say the judge played a significant role in finding facts.”

In 1998, Weber represented Milwaukee Circuit Court Judge Louise Tesmer who was reprimanded by the Supreme Court, 5-2, for getting help from a law professor to write her legal decisions.

The panel referenced the Tesmer case as a significant violation of the ethics code, although two justices dissented on the sanction. In that instance, the Judicial Commission had recommended a six-month suspension for Tesmer, but the panel submitted a recommendation for only a reprimand.

While Weber did not comment on his ex-client’s case, he said that based on the 11 charges before the Ziegler panel, a reprimand seemed an appropriate action.

“Of course principle is important, but when applying that principle, you have to look at individual cases,” said Weber. “They don’t seem to cry out for a response more than a reprimand.”

In a Sept. 26 order, the panel indicated it would seek additional information addressing several questions including media reports, which had asserted Ziegler’s involvement in “more than 45 cases involving West Bend Savings Bank, while her husband was a director of the Bank.”

But panel members only discussed the 11 cases contained in the complaint and never mentioned Ziegler’s involvement in any other cases where she should have recused herself.

In its initial call for an investigation, the Wisconsin Democracy Campaign cited only seven cases as examples of Ziegler improperly presiding over cases while her husband was on the board.

Neither Dall’Osto nor Weber could speculate as to why the panel did not question Troupis on the other cases, beyond those outlined by in commission’s complaint.

Judicial Confidence

The allegations against Ziegler have been on the public’s radar since surfacing during the spring Supreme Court race.

That fact prompted panelist Judge Charles P. Dykman to question what impact sanctions, if any, will have on future public perception of judges.

“I’m worried about the person looking at the judiciary asking, who are the people here elected as judges and can we trust them?,” said Dykman who admitted that the majority of Judicial Commission complaints are handled confidentially and often result in no sanctions being applied at all.

“So the very same act, under more usual circumstances, is likely to result in no sanction at all and because of this campaign, I guess, results in us all being here today,” said Dykman. “That has bothered me.”

Troupis and Alexander differed on what the likelihood was of a complaint being filed had Ziegler not been running for Supreme Court.

“If she were simply a circuit court judge, would anybody have gone through the trash, through 32,000 cases to hunt down those 11? I don’t think so,” said Troupis.

Alexander maintained that the commission still would have likely called for a reprimand and that any publicity generated by the election should not have any bearing on imposed discipline.

Dall’Osto agreed that peripheral factors should not play any role in determining sanctions, but did admit that the outcome could have differed had Ziegler not been involved in an election.

“The Judicial Commission has been sensitive to such situations and in my experience, has been appropriately responsive,” said Dall’Osto, who represented Laatsch during an election. “While there may have been some election consideration in the complaint against Ziegler, the basis for the complaint seems to have been appropriately grounded in the ethics code.”

Regardless of sanctions, Fine admitted that the nature of the case has “heightened sensitivity of judges around the state,” but to what extent is yet to be determined.

The Supreme Court will ultimately decide whether to remove, suspend, censure, reprimand or do nothing to Ziegler. This will be the first time the state’s high court will have taken up discipline of a seated justice.