The state watchdog commission that has brought ethics complaints against three members of the state Supreme Court’s conservative majority is standing up to Republican Gov. Scott Walker’s plan to place it under the court’s budgetary and administrative control.
Walker defended the move as a way of making the Wisconsin Judicial Commission more efficient in carrying out its responsibilities of investigating complaints against state judges, including Supreme Court justices.
But the commission says placing it under the state Supreme Court’s control would create both the appearance of impropriety and real conflicts of interest both for commission members and the court.
The commission was created by the Legislature nearly 40 years ago as an independent body to conduct unbiased investigations of judges.
Its roughly $300,000 budget and authority for two employees come directly from the Legislature. Walker proposed changing that in the 2017-19 budget he submitted this month to lawmakers.
The nine-member Judicial Commission voted unanimously on Feb. 15 to oppose the change. Five of the commission’s members were appointed by Walker. The other four were appointed by the state Supreme Court.
“The proposed budget degrades the independence of the Judicial Commission by transferring the budgeting and position authority over the Commission from the legislature to the Supreme Court,” commission executive director Jeremiah Van Hecke said in a Feb. 20 letter to the director of the state court system.
The governor’s budget proposal doesn’t claim the move would save money, but he said it would create “administrative efficiencies.” Van Hecke said it wouldn’t create any such efficiencies.
Walker spokesman Tom Evenson said Friday the change would make more resources available to the commission, but he didn’t respond when asked for examples. Evenson said the commission’s independence would be protected because its responsibilities are defined in state law.
“The (commission) budget request would be made by the Supreme Court, but as I said, the budget is still set by the governor and the legislature,” Evenson wrote in an email.
But critics said change would raise questions about whether the commission was truly independent of the Supreme Court, and whether the court’s administration of the commission was being handled in an unbiased way.
Van Hecke said public confidence in the courts would be undermined by the appearance of impropriety and the creation of conflicts of interest for the commission and the court.
The Judicial Commission considers 400 to 500 complaints against state and municipal judges and court commissioners each year. If the commission investigates and finds probable cause of misconduct, it can issue a warning or caution to the judge, or it can seek disciplinary action before a three-judge panel. The Supreme Court ultimately decides whether or not to reprimand, censure, suspend or remove a judge from office.
In the past 10 years, the Judicial Commission has alleged misconduct against three Supreme Court justices. The court approved disciplinary action in only one of the cases.
- In 2007 the court reprimanded newly elected Justice Annette Ziegler for “serious and significant” misconduct because she failed to avoid conflicts of interest when she was a Washington County circuit judge. Ziegler presided over nearly a dozen cases involving West Bend Savings Bank when her husband was a bank board member.
- In 2010 the court deadlocked 3-3 on whether Justice Michael Gableman violated the judicial code of conduct by running a potentially misleading and race-baiting campaign ad on his way to being elected in 2008. Gableman recused himself. The other three conservative justices said the ad was distasteful, but “objectively true” and protected by the First Amendment.
- In 2012 the court never acted on allegations that Justice David Prosser placed his hands on the neck of Justice Ann Walsh Bradley during a heated argument. Six of the seven justices were present when the incident occurred, and Prosser formally called on them to recuse themselves because they were witnesses. Prosser’s three conservative allies on the court joined him in withdrawing, and the court couldn’t act without a quorum of four justices participating.
Walker’s spokesman said the disciplinary cases brought against the three justices played no role in his decision to propose the change for the Judicial Commission.
The state Supreme Court has backed Walker in high profile cases. It upheld his 2011 legislation stripping union rights from most public workers, and in 2015 it ended a John Doe investigation into allegations that Walker was involved in illegal campaign fundraising involving the same pro-business groups that have donated large sums to elect the court’s conservative majority.
2015 proposal rejected
Walker made the same Judicial Commission proposal in 2015, and it was rejected by the Legislature.
At that time, Ziegler told a newspaper she opposed the change.
“I’m not convinced the Supreme Court budget is the best place for the commission, with all due respect to the governor,” Ziegler told the Milwaukee Journal Sentinel in 2015. “It looks like the commission is under our authority and control when frankly it shouldn’t be.”
Last week, Ziegler and Chief Justice Patience Roggensack declined to comment, saying the court was still reviewing Walker’s proposal, said court spokesman Tom Sheehan.
Sen. Lena Taylor, a Milwaukee Democrat on the Legislature’s budget committee, said diluting the independence of the Judicial Commission would only serve to make the judiciary less transparent and less accountable to voters.
“It’s kind of like turning the watchdog into a lapdog,” Taylor said. “When we want justice to be blind, when we want justice to be fair, (this) leaves an impression of a lack of accountability.”
The commission is authorized to investigate allegations that judges improperly communicated with one side in a case and not the other, as well as “conflicts of interest, displays of injudicious temperament, persistent neglect of duties, racist or sexist remarks, prohibited political or campaign conduct, abuse of power, acceptance of gifts from litigants or lawyers, and serious personal misconduct,” according to the commission’s annual report.