Milwaukee judge wants a party

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Milwaukee County Circuit Court Judge John Siefert wants to join the Democratic Party.
Wisconsin’s judicial code of ethics says he cannot.

On March 3, he filed a federal lawsuit in Madison challenging the prohibition.

More Political?

Siefert’s purpose for bringing the lawsuit is simple: honesty.

“Why not be open and honest about it? The party affiliations of judges who are former office holders are very clear – everyone knows that Wisconsin Supreme Justice [David T.] Prosser was the Republican speaker of the Assembly, and many people know that I was treasurer for the Democratic Party in Milwaukee,” he said during an interview.

Voters have a right to know a judicial candidate’s politics, he adds. And, with regard to soliciting funds for campaigns, he said that the current system, whereby judges use committees to raise money, is merely a “subterfuge.”

Siefert does not think a rules change would improperly inject politics into judicial campaigns, thereby compromising the independence of the judiciary — “because at the appellate levels, the races are already highly political charged,” he observes. “There are many states where judges have open party affiliations, and no one questions the impartiality of those judges.”

He does not fear that, should he prevail in the case, he would be labeled as a “liberal Democrat,” presumably to his political detriment.

“I think that would be pretty hard to do for a former veteran police officer,” Siefert said.

What’s It All About?

The lawsuit will require U.S. District Court Judge Barbara B. Crabb to probe portions of the Wisconsin Judicial Code of Conduct.

Siefert alleges in his complaint that the ethics rules for Wisconsin’s judges and judicial candidates violate his rights of free speech and free association. Specifically at issue are three portions of the state judicial code:

1. SCR 60.06(2)(b)(1), the political affiliation clause, which prohibits a judge or judicial candidate from being a member of a political party;

2. SCR 60.06(2)(b)(4), the endorsement clause, which prohibits judges and judicial candidates from endorsing or speaking on behalf of candidates or political party platforms; and,

3. SCR 60.06(4), the solicitation clause, which prohibits judges and judicial candidates from personally soliciting contributions for their own campaigns.

Siefert seeks declaratory relief striking them down, injunctive relief so that the rules may not be enforced against him, and fees and costs. Should he be allowed to engage in these activities, Siefert said he would not be biased against particular parties or any class of parties, nor would it impair his ability to be open-minded. The complaint further states that, when the rules were last examined by the Wisconsin Supreme Court in 2004, three members, Justices Patience Drake Roggensack, David T. Prosser Jr. and Louis B. Butler Jr., dissented to the affiliation and endorsement clauses.

The defendants are James C. Alexander, executive director of the Wisconsin Judicial Commission, and its 10 members. Alexander did not wish to comment on the case, saying only that it had been referred to the Wisconsin Department of Justice. The DOJ said that until a responsive pleading is filed, it has no comment, and that no attorney of record has been assigned yet.

Looking Ahead

Siefert does not expect a ruling before this year’s judicial elections. He estimated it might take as long as three years before the matter is concluded.

His legal counsel, however, is more optimistic for a speedier outcome.

Siefert is represented by James Bopp Jr. of Bopp, Coleson & Bostrom in Terre Haute, Ind. Bopp said that he has already successfully challenged a number of portions of the Wisconsin Judicial Code in Duwe, et al. v. Alexander, et al., 06-C-0766-S.
Last May, Judge John C. Shabaz of the Western District of Wisconsin declared unconstitutional SCR 60.04(4)(f), which prohibited judges and judicial candidates from making statements that committed or appeared to commit them on a proceeding. He also enjoined enforcement of SCR 60.06(3)(b), which prohibited judicial candidates from making “promises or commitments” regarding pending cases or cases likely to come before the court.

No appeal followed in Duwe, and a plaintiff’s ruling, sans appeal, is likely in Siefert’s case, too, Bopp said.

Supreme Success

Bopp successfully argued Republican Party of Minnesota v. White, 536 U.S. 765 (2002), where the U.S. Supreme Court justices held, 5-4, that "announce clauses" of judicial ethics codes, which prevent judicial candidates from announcing their views on how cases should be decided, are unconstitutional.

From there, he successfully argued Dimick v. Republican Party of Minnesota in 2005, where the U.S. Court of Appeals for the Eighth Circuit, en banc, struck down Minnesota rules prohibiting judicial candidates from personally soliciting campaign funds or from engaging in partisan political activities. The U.S. Supreme Court did not take the case.

In addition, Bopp has successfully challenged judicial canons in Kentucky prohibiting judicial candidates from stating their political affiliations and personally soliciting funds for their campaigns in 2006 in Carey v. Wolnitzek, et al. Also, in 2006 in Kansas Judicial Watch, et al. v. Stout, et al., a federal district court in Kansas ruled that its state judicial canons preventing judicial candidates from effectively announcing their views on disputed legal and political issues and from personally seeking public support and contributions are unconstitutional.

Bopp said that Siefert’s case, in part, is about him wishing to state a political affiliation — “shorthand for a judicial philosophy,” which the U.S. Supreme Court said he may communicate in Republican Party of Minnesota v. White.

Bopp reasons that judges have political opinions like every other citizen, and under the status quo, these opinions are being unfairly hidden from the general public. Only political insiders and members of the press tend to know about them.

“I don’t see any point in keeping true, relevant information from the voters,” Bopp said.

“Judicial elections are intended to sort out what judges are going to be elected and which are not, and there’s nothing more important to making that determination than judicial philosophies. Elections ought to be over whether a candidate is a liberal judicial activist who should be defeated, or is a conservative strict constructionist who is going to actually properly fulfill the judicial role and should be elected.

The case is Siefert v. Alexander, 08-CV-126.