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Pay no attention to the people behind the curtain

Sunday, March 25, 2007

McIlheran Watch: What's the "plain meaning" of this?

by folkbum

Patrick McIlheran writes today about the state supreme court race, and he throws in this:
Ziegler has gone to pains to say she'd stick to the law, saying it's courts' job to interpret laws "according to their plain meaning."
This is another way of saying that Ziegler won't be an "activist" judge, which, of course, is the cruelist insult a conservative could hurl at a judge. Ziegler insists, and McIlheran believes her, that she will follow only the "plain meaning" of the laws as written.

So here's my question: What's the "plain meaning" of this (scroll to .04 (04) )?
(4) Except as provided in sub. (6) for waiver [when the parties to a case are informed of a conflict and agree to waive the judge's recusal], a judge shall recuse himself or herself in a proceeding when the facts and circumstances the judge knows or reasonably should know establish one of the following or when reasonable, well-informed persons knowledgeable about judicial ethics standards and the justice system and aware of the facts and circumstances the judge knows or reasonably should know would reasonably question the judge's ability to be impartial: [. . .]
(d) The judge knows that he or she, individually or as a fiduciary, or the judge's spouse or minor child wherever residing, or any other member of the judge's family residing in the judge's household 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.
(e) The judge or the judge's spouse, or a person within the third degree of kinship to either of them, or the spouse of such a person meets one of the following criteria:
  1. Is a party to the proceeding or an officer, director or trustee of a party.
  2. Is acting as a lawyer in the proceeding.
  3. Is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding.
  4. Is to the judge's knowledge likely to be a material witness in the proceeding.
That's the text of a section of the state's code of judicial conduct. I think the "meaning" in both (d) and (e) that I've quoted here is pretty "plain": If a judge has anything other than a "de minimis" financial stake in the outcome, or--and this is more damning, I think--if a judge's spouse is on the board of directors of one of the parties, the judge must step aside. "Shall recuse" herself is the wording, and that leaves no room for wriggling.

We can wriggle over the definition of "de minimis," since the code's definition actually leaves a lot to be desired: "an insignificant interest that does not raise reasonable question as to a judge's impartiality or use of the prestige of the office." But you can wriggle too far; I think Dad29 misses the boat here when he tries to define "de minimis" in terms of a benefit to the company, rather than the judge.* He also misses the boat here when he points out that a small-claims case here or there isn't going to make Judge Ziegler--who may or may not own any shares of West Bend Savings Bank--or her husband--who is on the board of directors of that bank--any richer. I'll concede that, but Dad29 ignores the second part of the definition of "de minimis": Does judge Ziegler's financial ties to West Bend Savings Bank "raise reasonable question as to a judge's impartiality or use of the prestige of the office"? I say yes, Dad29 and Patrick McIlheran may say no. If that were all, we could just leave it to the voters to decide.

But there's so much more. For one, there's a (non-binding, but still) decision from the state's Judicial Conduct Advisory Committee a few years back defining "de minimis" as owning $20,000 in stock. judge Ziegler ruled, by the Wisconsin State Journal's account, in 22 cases in which she owned at least $50,000 in stock in one of the parties. And while many people, including Patrick McIlheran in the column that set me off today in the first place, will point out a Milwaukee Magazine study showing that a lot of judges don't disclose their financial ties, don't you think someone running to be a justice on our state's highest court should be held to a slightly higher standard? And how many of those judges send their campaign managers out to lie about it?

Oh, but there's still so much more, and it's paragraph (e) that I quoted above. (Dad29 helpfully critiques me for not quoting the code previously, ironically forgetting to quote paragraph (e) himself.) Read it again:
(4) [A] judge shall recuse himself or herself in a proceeding when the facts and circumstances the judge knows [. . .]
(e) The judge or the judge's spouse, or a person within the third degree of kinship to either of them, or the spouse of such a person meets one of the following criteria:
  1. Is a party to the proceeding or an officer, director or trustee of a party.
Okay, I stopped after number one, since we don't need to go beyond it. Got it? A judge shall recuse herself from a case when her husband is on the board of directors of a company in her court. Her husband is on the board of West Bend Savings Bank. The "plain language" of the code--which was adopted a decade ago, right around the time she was appointed to the bench so you know she was probably paying attention as the code was being formulated--says a judge shall recuse herself.

The code says nothing about a "gut check." The code says nothing about other judges' doing it making it okay. The code says nothing about how we should overlook it if we don't like a judge's opponent's judicial philosophy. The code says a judge shall recuse herself. Period. That's the "plain language."

How can we trust a judge who says she'll follow the "plain langauge" of the law when she has a history of violating it? It's that simple. Vote Linda Clifford on April 3.

Update: See the Motley Cow.

* Dad29 points out that a $10,000 claim is only .4% of West Bend Savings Bank's worth. But Ziegler withdrew herself from a case concerning Wal*Mart, and I have a hard time believing the stakes in that case are anywhere near .4%--maybe not even .004%! If we apply the Wal*Mart standard and Dad29's logic, Judge Ziegler should have recused herself.

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