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State Bar board defers filing of brief in Siefert case

ImageAt its September meeting, members of the State Bar of Wisconsin’s Board of Governors verbally expressed support for an independent judiciary and the current code of judicial conduct, but declined a more specific request by Attorney General J.B. Van Hollen to put it in writing, at least until the facts of the case unfold.

By a 30-14 vote, the board decided to delay drafting an amicus brief directly supporting the Wisconsin Department of Justice’s position as the defendant in the case filed by Milwaukee County Circuit Court Judge John Siefert (Siefert v. Alexander, Case No. 08-CV-00126-BBC).

Siefert is challenging three aspects of SCR 60.06, which forbids judges from joining or publicly endorsing a political party, or personally soliciting campaign donations.

Board members were unified in their backing of an independent judiciary and the existing Judicial Commission rules, which provide ethical guidance for judges.

But after lengthy discussion and analysis of feedback from constituents, the board could not come to a consensus on what immediate benefit a brief would provide. One could still be forthcoming, if and when the case is decided in the district court and appealed in the 7th Circuit.

State Bar President Diane S. Diel said the board was very clear about its support for an unbiased judiciary and also hesitant to draft a detailed brief at this point in the proceedings.

“I think there was a fair amount of consensus about the position that we should not be in the mix with a brief until a record of fact is established,” said Diel.

No Dog in the Fight

Reports from a number of State Bar section leaders, along with a sampling of more than 500 comments from members revealed an almost equal amount of support for and against filing of a brief.

The split stance of respondents prompted President-elect Douglas W. Kammer to suggest the board remain neutral on the issue.

“I have a sense that members feel strongly on both sides, so we should not do anything,” said Kammer. “I don’t think we have a dog in this fight.”

Similarly, Gov. Kevin J. Lyons questioned what additional insight bar leaders could inject into the case at this point, given that members appeared divided on the issue.

“I don’t know that we have any special expertise on this issue,” said Lyons, who noted that board members are not professional politicians. “In the end, I would tell the board to do nothing.”

But several board members insisted that the bar has an obligation to weigh in on the issue, because of its ramifications.

“The comment was made that we don’t have a dog in this fight,” said Gov. Marla J. Stephens. “I honestly feel that lawyers are the dogs in this fight.”

In her May 30 ruling on a request for a preliminary injunction, U.S. District Court Judge Barbara B. Crabb noted that “granting plaintiff’s motion now could cause significant disruption to the legal community in the state.”

Past-president Thomas J. Basting Sr. favored filing a brief, not purely as an aid for the DOJ, but more as a response to Crabb’s comment.

“I think it’s important for Judge Crabb to hear from the State Bar as to what impact this case could have on the legal community,” said Basting.

As part of the adopted motion, the board will submit a formal letter to the district court, stating its support of an independent judiciary and of the current code of conduct.

Judicial Commission Executive Director James Alexander applauded the action taken by the board, but declined to comment on whether he expects the board will file a brief in the future.

Case to be Made

Although attorneys for Siefert filed a motion for summary judgment in July, former Judicial Commission Chairman Donald Leo Bach indicated the plaintiffs would likely respond sometime between Siefert’s deposition on Sept. 18 and the Oct. 15 deadline.

Given that Crabb has yet to rule on the merits of the case, Diel said the State Bar has time to determine when and if a brief is necessary.

“With an eye towards what I would do in terms of the procedure for filing a brief and content, I’m a little mystified as to what that would be myself,” said Diel.

Lyons suggested that the board should wait for Crabb’s ruling and for the DOJ to formulate its defense before jumping into the fray.

“[Judge Crabb] never asked us for a brief,” said Lyons. “One litigant has said go spend time and money to develop the factual record we need to make our case.”

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