State's system of electing justices called 'troubling'
The TV and radio ads that saturated the airwaves this spring left no doubt that Wisconsin's largest business group liked Supreme Court candidate Annette Ziegler - although Ziegler neither solicited nor welcomed that support.
Wisconsin Manufacturers and Commerce spent $2.2 million "educating the public" about the Washington County Circuit Court judge's strengths and what it said was the lack of experience and wrongheaded philosophy of her opponent, Madison attorney Linda Clifford.
On Thursday, Ziegler, the newest member of the Supreme Court, sat with her six colleagues on an appeal financed by WMC that could save Wisconsin businesses $350 million a year. Justice Louis Butler also took part, even though a member of his campaign's finance committee was the attorney for Menasha Corp., the company involved in the tax dispute with the state.
Some observers reacted strongly, saying both Butler and Ziegler should have withdrawn from the case - but Wisconsin's ethics rules offer little guidance about when judges should step aside from a case when a campaign supporter is involved.
In the tax case, the Wisconsin Democracy Campaign's Mike McCabe said Ziegler's and Butler's participation made it appear that "justice is on the auction block."
WMC spokesman Jim Pugh countered that his group exercised its constitutionally protected right to free speech "which has nothing to do with whether or not somebody would be involved in sitting on a case."
"To say that we spent $2 million on (Ziegler's) behalf is patently false," Pugh said. "WMC ran TV ads to educate people about the issues surrounding the Wisconsin Supreme Court."
Nevertheless, the furor helped prod Gov. Jim Doyle on Friday to call a special session of the Legislature to consider campaign-finance reform including:
o Full public financing of Supreme Court races;
o Disclosure of the source of money for independent efforts, such as that launched by WMC;
o Funds to help candidates counteract independent spending, which under the law can't be limited.
Until recently, Wisconsin Supreme Court races have been "sleepy affairs" drawing little money or attention, McCabe said. But this spring, candidates and interested groups dropped $6 million on the race for Supreme Court, including the left-leaning Greater Wisconsin Committee which spent an estimated $400,000 in an independent effort aimed at boosting Clifford's campaign.
"We've never had a race like we had last April," McCabe said, adding that the Ziegler-Clifford matchup was four times more expensive than any previous judicial race. "This mold has been shattered. The way judges are being elected has changed, and it's changed forever."
James Alexander, executive director of the Wisconsin Judicial Commission, said judges make their own decisions about when campaign ties create an appearance of impropriety. He said judges should weigh how big the contribution is compared to the total raised. As for independent expenditures, Alexander said, judges don't solicit or control those activities so they probably don't need to be taken into account when judges decide whether to recuse themselves from cases.
Writing a blanket rule would be difficult, he said. Requiring judges to step off any case involving a campaign supporter could create havoc, especially in small counties where many of the attorneys contribute to judicial campaigns. "It would be a nightmare," Alexander said.
Attorney Waring Fincke praised the fact that Ziegler notified the state and Menasha of WMC's support during the campaign, part of a policy she adopted to flag potential issues after acknowledged conflicts of interest she had as a circuit judge. Since neither side asked her to step aside, Ziegler didn't need to recuse herself, he said.
But if he were an attorney in the case, "I would be very concerned about Justice Ziegler's impartiality given the actions of WMC," said Fincke, a spokesman for the Wisconsin Association of Criminal Defense Lawyers who practices in Ziegler's hometown of West Bend.
Even those who supported Ziegler's decision to stay on the Menasha case called the current system of electing Supreme Court justices using private campaign funds "troubling."
Retired Justice Jon Wilcox, who endorsed Ziegler as his successor on the court, said questions about the influence of money on judges' decision-making are inevitable in an elective system - and growing as the cost of campaigns balloons.
"If you have an elective system, you're going to have campaign contributions," Wilcox said, adding that he had more than 3,000 donors. "If you recuse yourself with every campaign contribution, you wouldn't be able to act at all.
"Maybe we should think about another system."
Wilcox has felt the sting of public criticism after his campaign manager acknowledged illegally working with a pro-school choice group that spent $200,000 on a purportedly independent effort to elect Wilcox in 1997. Although the state Elections Board found Wilcox wasn't involved, the incumbent justice agreed to pay $10,000 to settle the case.
Before the group's identity was revealed, Wilcox voted with the 4-2 majority to uphold Milwaukee's school choice program. A 3-3 vote would have invalidated the law.
"I was snookered," Wilcox said.
Across the United States, as judicial races become more expensive and the rhetoric more heated, the public is increasingly suspicious that campaign money and support sway judges, said Matthew Streb, an assistant professor at Northern Illinois University in DeKalb who edited the 2007 book, "Running for Judge."
Streb said there's little empirical evidence that judges' decisions are influenced by campaign contributions and endorsements. However, "the public has concerns - even judges have concerns" that campaign money has a "corrupting influence" on the judiciary, he said.
He said Ziegler's decision to sit on a case backed by a group that invested heavily in touting her candidacy naturally raises questions in the public's mind about her ability to be fair. He likened it to a professor whose project is funded by a wealthy couple, and then their child takes a class from the professor.
"Even the most ethical professor is going to be influenced by that," Streb said.
Milwaukee attorney Robert Jaskulski, who finished his term as president of the Wisconsin Academy of Trial Lawyers on Friday, said his organization would welcome reform. Having litigants and attorneys who support judges' campaigns appear before those judges is a "bad system," he said, adding that his group also favors measures to blunt the effects of independent spending on judicial races.
Wilcox said he believes something must be done to restore public confidence in the state's highest court. He and Streb both favor merit selection of Supreme Court judges but acknowledge that the public likes to vote for its judges, even if - as a recent poll showed in Wisconsin - few know who they are.
Said Wilcox: "These (rancorous) races wash over onto the whole system of justice. It hurts the Supreme Court itself. It hurts the institution. The integrity of the court is at stake."