By: dmc-admin//January 14, 2008//
Appropriate, lenient and unprecedented.
The 27-page findings of fact report filed by the Judicial Conduct Panel sparked a variety of responses as to whether its recommendation for reprimand of Justice Annette Kingsland Ziegler was justified.
On Jan. 3, the three-judge panel determined that Ziegler had knowingly broken the rules of judicial conduct, but that she otherwise correctly ruled in 11 cases regarding West Bend Savings Bank and did not financially benefit from the decisions.
“Obviously, the panel’s decision was following along the lines of ours, but they made it clear that the recommendation was made on their own,” said Wisconsin Judicial Commission Chairman (WJC), James Alexander. “I thought they did a great job.”
The ruling largely adhered to the joint recommendation for reprimand submitted by Justice Ziegler and the WJC, but some said the decision revealed a need for possible revisions of the judicial code and stricter sanctions for judges who break the rules.
Scrambled Code
While the state’s Code of Judicial Conduct (SCR Ch. 60) provides the guidelines for acceptable behavior on the bench, attorney Raymond M. Dall’Osto said the Ziegler case has shown a possible need to revisit the rules.
He pointed to the federal statute for judicial discipline (28 USC sec. 455) as a useful tool for Wisconsin to tighten its own requirements, especially when it comes to a perception that a judge may have a financial stake in a case.
“The federal statute says it is mandatory for judges to step down if they are at all financially connected to a case,” said Dall’Osto. “Wisconsin is similar, but if a judge has stock ownership in a party appearing before them, what kind of message does that send?”
Even though she did not profit from her decisions, the panel stated that, given Ziegler’s knowledge of her husband’s position on the board of directors of the bank, “red flags of danger were prominently flying.”
But despite detailing that Ziegler should have known better, the panel declined to impose more than a reprimand. That decision only perpetuated the negative history of judicial discipline in the state, according to Michael McCabe, executive director of the Wisconsin Democracy Campaign (WDC).
“It says that judges don’t really need to take judicial ethics rules seriously, because not much will happen if you break the rules,” said McCabe. “Obviously, past punishments [of judges] didn’t make much of an impression on Ziegler.”
The panel cited several previous cases of judicial misconduct in its report and drew on the penalties imposed in two to help determine suitable sanction for Ziegler. Judge Lee S. Dreyfus Jr., received a 15-day suspension for falsely claiming he was current on his case decisions and Judge Frank Crivello received a reprimand for beating his wife while intoxicated.
“Crivello and Dreyfus are bookends that set the boundaries of appropriate discipline,” wrote the panel.
McCabe called the panel’s recommendation “weak” and contended that had stiffer penalties been imposed in the past, Ziegler may well have avoided her current situation.
“In the past, had judges who ran afoul of rules been more severely punished, [Ziegler] would have been much more likely to observe them,” said McCabe.
Dall’Osto said that Ziegler likely learned her lesson and had taken preventative measures prior to leaving the circuit court. Ziegler changed her policy on reporting conflicts of interest and placed her investments into a blind trust.
“In the scope sense of seriousness, the panel said it fell between minimal suspension and reprimand,” said Dall’Osto. “The moth has flown close the flame and will be less likely to do that again.”
Final Say
Ziegler’s fate is now in the hands of her fellow justices, who will determine if she should be reprimanded, suspended, censured or removed from the bench.
Whatever the court decides, McCabe said the circumstances are unprecedented.
“It seemed bizarre that the judges on the panel didn’t even acknowledge that this is a situation which has never happened before,” said McCabe. “They talk about applying past cases, but there is nothing we can look at to give us an indication of what should be done here.”
McCabe added that the court should explore more practical solutions to help deter future judges from making the same mistakes Ziegler did.
Dall’Osto expects the Supreme Court will likely adopt the panel’s recommendation.
“It could go up, but I don’t see them going down with what they decide,” said Dall’Osto. “I don’t get that sense and I think they may want to close the book on this one and do something more proactive on education and rules changes in the future.”
On Jan. 7 the Supreme Court issued its request for further briefs to be filed. On the same day, Ziegler’s attorneys submitted a letter to the court which indicated that no additional briefs would be filed on behalf of the justice.
“As the record now contains those Findings (of Fact), as well as comprehensive briefs by the parties, we believe that it will not be necessary for the parties to submit additional materials to the court,” wrote Ziegler’s attorneys, James R. Troupis and Jon P. Axelrod.
According to the Supreme Court, both sides have decided not to submit further briefs. Court Information Officer Amanda Todd indicated, “The 6 participating justices will decide the case in due course. … There is no timetable or deadline.”