Yes the gavel's fuzzy, but then so is the judgment of the person on the other end of it.
There is something seriously wrong with the ethical culture of the judiciary in Wisconsin. I suppose this was already obvious, as it is definitely a bad sign when two members of the state Supreme Court accused each other of physical attacks. Nonetheless, the news that 29 of Wisconsin’s sitting judges placed their names on the recall petition for Gov. Scott Walker would seem to settle any remaining doubts.
Is doing this a strict, slam-dunk, violation of the Wisconsin Code of Judicial conduct? No, probably not. It is in a gray area of the Code. Judicial ethics codes prohibit judges from becoming involved in political contests, but a recall petition a judge signs as a private individual (Personally and professionally, I don’t think it is possible for a judge to sign a petition as “a private individual”) don’t fit neatly into the definition of political activity. Other states, such as New York and New Mexico, have allowed judges to sign nominating petitions for candidates on the theory that it is the equivalent of voting, the right to which judges do not give up by ascending the bench.
Still, the judicial codes don’t exactly give a ringing endorsement to this kind of activity, and I would say the better interpretation is that the ethical rules preclude it. The ABA’s Model Judicial Code, for example, says…
RULE 4.1 Political and Campaign Activities of Judges and Judicial Candidates in General
(A) Except as permitted by law… a judge… shall not:
….
(3) publicly endorse or oppose a candidate for any public office.
A judge placing his name on a public petition for the removal of a state governor pretty clearly violates the intent of that prohibition. Similarly, this rule:
RULE 3.1 Extrajudicial Activities in General
A judge may engage in extrajudicial activities, except as prohibited by law* or this Code. However, when engaging in extrajudicial activities, a judge shall not:
(A) participate in activities that will interfere with the proper performance of the judge’s judicial duties;
(B) participate in activities that will lead to frequent disqualification of the judge;
(C) participate in activities that would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality;
A judge who is on record as trying to get a governor sacked is going to be challenged for bias any time one of that governor’s policies or legal controversies comes before him.I would call that undermining his or her independence and impartiality, wouldn’t you? 29 Wisconsin judges don’t see it…and who knows, they may try to choke you if you argue with them.
Wisconsin’s ethics code for its judges doesn’t follow the ABA model and gives its judges more wiggle room; even so, it has this:
SCR 60.05 A judge shall so conduct the judge’s extra-judicial activities as to minimize the risk of conflict with judicial obligations.
…and this:
SCR 60.06 A judge or judicial candidate shall refrain from inappropriate political activity.
As Professor Richard Painter of the University of Minnesota Law School said, the Wisconsin judges are exposing themselves to the potential perception of bias. “For judges to be getting involved in the question of whether the governor ought to be recalled I think is highly inappropriate,” he told RealClearPolitics.
In other words, doing so shows poor judgment. Judges shouldn’t show poor judgement, since showing good judgment is the essence of their jobs as…judges.
You would think the 29 Wisconsin judges could figure this out.
Ethics Alarms 
A rule that judges can not sign initiative or recall petitions goes too far, and is unworkable. A judge merely signing a petition (or voting) would not have a particularized interest in the subject matter. Both federal and state judicial ethical rules unanimously declare that mere voting or petition signing is insufficient for a disqualifying bias, but a more active role, like campaigning for a candidate or ballot initiative, or having a supervisory role in such a campaign, is necessary to have a disqualifying bias.
Necessary to have a legally disqualifying bias? I’ll agree to that. But even if it’s not a legally disqualifying bias, I’m uncomfortable with this behavior. This is in the floating grey area. I go back and forth on it, and if I go back on forth on if a judge should be allowed to do something, they shouldn’t do it, whether they are allowed or not.
tgt, I’m thinking about whether I should agree on this or not. I would respect you more or less if you had the self-confidence to stand or fall by your opinions.
A vote is private, a recall petition is not, and because it is aimed at a sitting executive, it places the judge in opposition to the government in power, when he is required to be neutral. There is a clean and heavy line between merely voting and this.
Laughable, but expected in a state which is known as the birthplace of “Progressivism.” I would be highly surprised if this sort of activity, in the hypothetical presence of a Democrat governor under recall, would be tolerated in South Dakota. As a matter of fact, I doubt there would be a movement to recall in the first place; more likely, the recognition that, absent fraud in the election process, he was elected by a majority with whose principles one may not personally agree. Am I missing something here?
I don’t think so. I think the judges are exploiting an accidental gray area in the law and rules to do something that, among other things, threatens separation of powers.
Agreed, Jack, and for the two main points you mentioned: Separation of powers and a public document. The Wisconsin judiciary reflects a now-common ideological cancer within the legal ranks. They appear to be concerned first with redefining the rules and the laws for the benefit of their political interests, not for the sake of the law’s intent or constitutionality.