Wisconsin Lawyer
Vol. 79, No. 4, April 2006

Judging the Judges: Wisconsin Judicial Commission 2005 Annual Report

Figures:

• Figure 1: Survey of Contacts and Dispositions During the Investigation Process, 2005 – 2000
• Figure 2: Results of Commission Investigations, 2005 – 2000

by Hannah C. Dugan

s an elected branch of Wisconsin government, the judiciary overwhelmingly comports itself with all the integrity and impartiality that the public expects. However, when judicial conduct adversely affects public confidence in the judiciary and the administration of justice, the Wisconsin Judicial Commission addresses the conduct by applying the Code of Judicial Conduct. This article provides an overview of Wisconsin Judicial Commission operations and highlights portions of its calendar year 2005 Annual Report.¹

Authority and Jurisdiction

The current judicial disciplinary process is two-tiered: the Judicial Commission prosecutes and the Wisconsin Supreme Court adjudicates. The commission is a creature of two branches of government. The Wisconsin Legislature created the Wisconsin Judicial Commission, effective Aug. 1, 1978, as an independent agency within Wisconsin's judicial branch.² In 1977, through constitutional amendment,³ the supreme court was given disciplinary powers to reprimand, censure, suspend, or remove judges for cause or for disability.⁴ The amendment further provided that this power would be exercised though procedures established by statute.⁵ Included in the Wisconsin Administrative Code is a chapter entitled "Judicial Commission," which identifies the commission's authorization and definitions, its organization, general provisions relating to the commission, and the procedures and standards it is to use in complaints of judicial misconduct and judicial disability and in cases necessitating prosecution.

The supreme court adopted the Code of Judicial Conduct (the Code), SCR Chapter 60, against which appropriate conduct is measured.⁶ Wisconsin's Code is based on, but different from, the American Bar Association (ABA) Model Code of Judicial Conduct. The ABA code for judges is undergoing a major revision, with amendments expected to be formally proposed and adopted during 2006. The supreme court appoints the Judicial Conduct Advisory Committee "to render formal advisory opinions and give informal advice concerning the compliance of contemplated or proposed future conduct with the code of judicial conduct."⁷

As stated in Wisconsin's Preamble in Chapter 60, the Code provisions are "rules of reason. They should be applied consistent with constitutional requirements, statutes, other court rules and decisional law and in the context of all relevant circumstances."

The Code gives guidance, provides structure for disciplinary agencies, governs conduct, and is binding on judicial officers. The supreme court has supervisory duties over Wisconsin's independently elected and appointed judicial officers; it performs those duties by conditioning each judge's continued exercise of office on the judge's compliance with the Code's standards regarding misconduct or unacceptable conduct due to a medical disability.

The commission's duties and responsibilities extend to more than 850 members of Wisconsin's judicial branch - the approximately 500 members who serve on the supreme court, the court of appeals, circuit courts, or municipal courts or who sit as reserve and temporary judges, and the approximately 350 members who serve as full-time or part-time court commissioners.

Membership and Staff

All three branches of Wisconsin government participate in the appointment of Judicial Commission members. The supreme court appoints two licensed lawyers, one circuit court judge, and one court of appeals judge.⁸ The governor's five appointees must be nonlawyers, whose confirmation depends on the state senate's advice and consent.⁹ Each member is appointed to a three-year term, may serve no more than two consecutive terms, and must reside in Wisconsin. Members receive a small stipend for attending meetings, which are held in Madison. Six regularly scheduled meetings are planned each year. Each meeting consists of two parts: an open segment during which administrative matters are discussed and a closed segment during which confidential matters and complaints are reviewed and decided. The nine members reside throughout the state and hail from various disciplines.

By statute the commission appoints an executive director who must be a Wisconsin-licensed lawyer. James Alexander has served as the executive director since 1990. The executive director is responsible for all of the administrative, financial, and operational aspects of the Judicial Commission and of the Judicial Council. The executive director acts as legal counsel to the commission and leads judicial ethics and conduct training sessions. The statute provides for the hiring of one administrative assistant and for retaining investigators and special counsel.

The commission receives complaints from anyone who alleges violations of conduct standards. It reviews and investigates complaints, determines probable cause regarding misconduct or disability, and files and prosecutes actions. The supreme court adjudicates the matters sent to it by the commission, which remains a represented party to the action while the matter is pending.

Procedure and 2005 Operations

Except for narrow, statutorily defined exceptions,¹⁰ all proceedings before the commission are confidential. A judicial officer who is the subject of a proceeding may waive confidentiality; complainants and other interviewed persons may request that their identities remain undisclosed to the judicial officer.

"Initial inquiries" may be submitted by telephone or by mail. Complaints may be submitted in any format although the commission encourages the use of its standardized form. The form is now available online, to increase accessibility and convenience. While complaints are generated from a variety of sources (for example, from anonymous complainants, reliable sources, media coverage, and referrals from other agencies), the commission also may initiate actions in its own name in some circumstances. Commission staff review complaints to determine 1) whether their content comes within the agency's jurisdiction, and 2) whether they rise above outright frivolousness. The executive director dismisses complaints that are outside the commission's jurisdiction; some are referred to appropriate agencies (for example, the Office of Lawyer Regulation or the State Ethics Board). The Commission Board's Screening Committee conducts a periodic review of dismissed complaints. Judicial officers are not made aware of these complaints or initial inquiries. The commission communicates by letter with the person who submitted the complaint and then places the complaint on file. It remains confidential. Figure 1 shows the increasing number of initial inquiries over the six years from 2000 to 2005.

The increase in initial inquiries runs parallel to an increase in the number of contacts being received from pro se litigants and runs parallel to the commission's outreach efforts, most notably the creation of its Web site and the placement online of its standardized initial inquiry contact form.

If the initial inquiry is not dismissed administratively, the commission opens a "Request for Investigation" (RFI) file based on the complaint. Additional information (for example, copies of referenced transcripts) might be sought from the complainant, from the complainant's attorney, or from others. The judicial officer rarely is asked for a response at this stage of the process. The staff prepares an evaluation report for the commission's collective review at its closed sessions. During the confidential review the members determine by vote whether to authorize an investigation. Figure 1 shows the number of RFIs from 2000 to 2005.¹¹

The number of RFIs remained relatively constant for several years, dipped significantly in 2003, jumped dramatically in 2004, and increased again in 2005. Comparing the respective years' figures for the number of RFIs undertaken as a percentage of initial inquiries reveals that the percentages of inquiries pursued as RFIs have remained consistent over time. The percentage comparison suggests that there has been a jump in complaints being made over which the commission does not have jurisdiction rather than an increase in judicial misconduct. However, even though misconduct cases have not increased, the number of increasing initial inquiries is cause for concern due to the amount of staff time and resources required to process them.

A high percentage of dismissals result from the commission's review of RFIs.¹² The reasons for such dismissals after review include that: the complaint involves dissatisfaction with the judicial officer's decision itself rather than involving judicial misconduct; the complaint is based on a misunderstanding of the judicial process (including judicial roles and discretion) rather than on judicial conduct during the process; resolution of the complaint requires obtaining credible evidence that is difficult or impossible to obtain; or the complaint is based on an allegation that, if true, constitutes a single and very minor violation or is a violation for which the judicial officer has already undertaken corrective action. If the alleged violation is not timely reported or if an investigation is not undertaken while the judge is on the bench or is eligible to assume cases, then the commission no longer has jurisdiction and dismissal is warranted.

Although judicial officers generally are notified of complaints at the RFI stage, the commission may direct that the judicial officer not be notified of a dismissed RFI for several reasons, for example, the complainant seeks confidentiality or anonymity, pending litigation might be at issue, or the complaint's staleness or frivolousness does not merit notifying the judicial officer of the RFI. An RFI that is not dismissed is authorized for investigation. Figure 1 shows the number of authorized investigations during the six most recent reporting periods.

Investigations conducted by staff or by retained attorney-investigators involve interviewing relevant persons, collecting documentary evidence, and using subpoena powers. The commission may authorize expanding the allegations and investigation if, during the investigation, additional misconduct is uncovered or additional complaints are reported.

The executive director reports the investigations to the commission, which determines its next action. Figure 2 shows the options available to the commission under its administrative rules, and the investigation outcomes for the most recent six years. If the commission determines that cause exists to proceed, the judicial officer is sent written notification of the allegation and its factual basis and of the opportunity to respond both in writing and in person or with counsel. If the judicial officer's response resolves the commission's concerns, then the commission members may vote to cease all proceedings on the complaint.

If the commission finds probable cause that misconduct or disability exists, then the commission must initiate public action against the judicial officer with the supreme court. The court appoints a three-judge panel,¹³ which acts as a hearing examiner and applies the rules of civil procedure. The commission bears the burden of proof. The legal standard applied is that the allegations must be established to a reasonable certainty by clear and convincing evidence. The panel reports to the supreme court with a recommended disposition. The court often receives written briefs and hears oral argument from the parties before making its final decision.

The commission encourages judges to seek informal guidance when they have concerns that some contemplated action may be contrary to the Code. As with complaints, the number of "requests for informal guidance" has steadily increased during the most recent six years (see Figure 1).

Nature of Cases before the Commission in 2005

2005 RFI Stage. While more judges are in the municipal judge category than in any other category of judicial officers, municipal judges constituted only nine of the 66 judicial officers who were the subjects of RFIs during 2005. Of the total number of RFI complaints, 52 pertained to circuit court judges, four pertained to court commissioners, and none pertained to supreme court justices or court of appeals judges.

Of the 66 RFIs in 2005, pro se litigants were the sources of about one third of complaints (24), followed by represented litigants (15); attorneys (6); friends or relatives of litigants (5); court personnel, citizen/courtwatcher, and the commission (4 each); judicial officer self referral (3); and a witness in court (1).

Just under one fourth of cases reviewed at the RFI stage arose from criminal cases (15); the remainder arose from domestic relations cases (13), civil court cases (12), noncase issues (10), small claims matters (8), juvenile cases (4), and probate and John Doe proceedings (2 each).

Ninety-eight allegations were contained in the 66 reviewed RFIs. The largest number of cases involved demeanor/injudicious temperament (22), followed by partiality/bias/prejudice (17); conflicts of interest (11); ex parte communication (9); delay (5); misuse of prestige of office, legal error/improper procedure, and charitable/business activity (4 each); denial of fair hearing, failure to uphold the impartiality/integrity of the judicial office, and failure to perform official duty (3 each); denial of access to records, and comment on case (2 each); sexual misconduct/harassment, abuse of power, inattentiveness, prejudgment, altered record, and alcohol/drug abuse (1 each); and other (3).

2005 Investigation Results. Of the investigations completed in 2005, 14 were dismissed with no action and six were dismissed with a letter of concern or warning. Unlike prior years, none of the 2005 investigations resulted in filing of petitions with the supreme court¹⁴ or in judicial resignations.

Significant Issues in 2004 and 2005

On Jan. 1, 2005, amendments made by the supreme court in 2004 to Chapter 60 relating to judges' political and campaign activity became effective.¹⁵ To timely respond to election issues, the commission adopted a policy in 2004 that, during campaign periods, it would convene, after proper legal notice, between regularly scheduled meetings to immediately address misconduct allegations related to strategies engaged in by active judicial campaigns.

The Judicial Commission's compliance review of disbursement and purchasing card transactions received a favorable audit by the State Controller's Office, a Department of Administration office that periodically reviews the expenditures of state entities.

The commission's policy not to accept complaints via email was confirmed as appropriate when the Director of State Court's office updated its procedures for users of court email. The policy clarifies that information transmitted via the Internet is subject to interception and does not have the expectation of privacy. As an entity on the Wisconsin Court computer system, the commission seeks to avoid breaches of confidentiality and therefore will continue its longstanding policy not to use email when communicating about complaint matters.

Finances

The commission's budget is located within the judicial branch's budget, and it is largely fixed by personnel and operations costs. Compared to other states' judicial commissions, Wisconsin's commission runs on a very small budget with a very small staff, especially given the number of judicial officers it oversees and the number of inquiries - both written and telephonic - to which the staff and board respond.

Recent state biennial budgets have reduced appropriations to the commission. In 2004, pursuant to the 2003-2005 biennial budget reductions throughout state operations, the commission's budget was set at $217,300, a reduction of $2,900 or 1.33 percent of the commission's 2004 budget. The 2005 state biennial budget allocated $217,300 to the commission.¹⁶

Of the entire 2004 commission budget, $11,800 or 5.43 percent was designated for the Judicial Council, the "attached" agency that the commission is required to operate pursuant to statutory amendment in 1995.¹⁷ The 2005 budget includes an identical Judicial Council allocation of $11,800, despite increases in ordinary expenses such as mileage reimbursement and postal costs. When attached to the commission during the 1990s, the Judicial Council budget was slashed and the commission's own budget was not increased despite absorbing the additional costs of personnel time and administrative work the council requires. Indeed, under 1995 Wisconsin Act 27, all permanent staff funding for the Judicial Council was eliminated in the budget, and has never been restored.

Public Information and Outreach

Public information and outreach efforts are ongoing to promote understanding of and confidence in the Judicial Commission. In 2004, commission members met with the State Bar of Wisconsin Bench Bar Committee and with the director of the Office of Lawyer Regulation to discuss issues of common interest. The executive director engaged in numerous educational programs including participating in presentations at the annual meeting of the Association of Judicial Disciplinary Counsel, the State Bar's Bench Bar Conference, the Municipal Judge Institute, the Family Court Commissioners Association, the Wisconsin Judicial College, and the U.W. Law School-sponsored Civil Law Seminar for visiting judges from Shanghai China.

The Year Ahead

In 2005 the Wisconsin Supreme Court amendments to the Code of Judicial Conduct with respect to judicial campaign activity became effective. In response to the substantial changes, the commission adopted a policy to more rapidly respond to RFIs that arise out of judicial election campaign conduct, especially to address complaints that become public before the commission's confidential proceedings are concluded. In early 2006 the commission refined the procedure for rapid response to RFIs during judicial campaigns. When a judicial complaint arises during an election cycle the executive director will schedule a telephone commission meeting to evaluate the complaints that become public. The commission members will have at least 72 hours' notice of the telephone meeting, and the meetings to evaluate the RFIs regarding campaign conduct will be held within two weeks of the receipt of the request. If dismissal is warranted, the commission will, with the judicial candidate's permission, announce the dismissal publicly.

Conclusion

During the last several years, the Model Code of Judicial Conduct has undergone review and revision by an ABA Commission. Proposed amendments were to be considered in August 2005. In light of significant federal cases issued during 2005 regarding judicial campaigns, issuance of proposed amendments to the Model Code has been deferred for at least a year. Wisconsin's Judicial Commission will continue to monitor the progress of the ABA Joint Commission and the issues it is raising, especially with respect to election of judges.

The commission strives to timely address the ever increasing number of guidance requests, complaints, information inquiries, and investigations placed before it.

General information about the Wisconsin Judicial Commission is available at www.wicourts.gov/about/committees/judicialcommission/.

Contact the commission at 110 E. Main St., Suite 606, Madison, WI 53703; (608) 266-7637; judcmm@wicourts.gov.

Endnotes

¹The Wisconsin Judicial Commission is mandated to issue, by April 1, an annual report, that contains information prescribed by Wis. Stat. section 757.97. The report is prepared by commission staff, approved by the commission, and distributed in hard copy statewide.

²Wis. Stat. §§ 757.001, 757.81-.99. From 1968 to 1996, the Wisconsin Supreme Court used the Code of Judicial Ethics, which set out the rules and standards "to discipline and correct judges who engage in conduct which has an adverse effect upon the judicial administration of justice and the confidence of the public in the judiciary and its processes." The court created the first Judicial Commission in 1972 to perform both investigatory and adjudicatory functions, with the authority to impose on judges limited sanctions, which were subject to court review.

³Wis. Const. art. VII, sec. 11.

⁴Other methods of removing judges are impeachment (art. VII, sec. 1); address (art. VII, sec. 13); and recall (art. XIII, sec. 12).

⁵Wis. Stat. § 757.001. The Commission is directed to promulgate rules under chapter 227 for its proceedings. Wis. Stat. § 757.83(3). The Wisconsin Administrative Code also includes a chapter entitled "Judicial Commission," which describes the commission and its procedures and standards.

⁶The supreme court adopted the Code of Judicial Conduct rules on Nov. 14, 1967, effective Jan. 1, 1968. They have been amended several times, with recent changes effective on Jan. 1, 2005. The rules originally were designated as standards 1 to 16 and rules 1 to 17. They have been clarified and have been numbered 60.001 to 60.19 for uniformity and convenience.

⁷SCR 60, Appendix, A(2)(a). The State Bar of Wisconsin Professional Ethics Committee is charged to perform comparable duties for attorneys.

⁸During the 2005 report period, the following supreme court appointees began, continued, or completed commission service: attorneys Donald Bach and Hannah Dugan (chair 2004), court of appeals judge Gregory Peterson (chair 2005), and circuit court judge David Hansher.

⁹During the 2005 report period, the following gubernatorial appointees began, continued, or completed commission service: Clifford LeCleir, Michael Miller, Dallas Neville, Ileen Sikowski, and William Vander Loop.

¹⁰See Wis. Stat. § 757.93.

¹¹Includes RFIs carried over from the prior year; excludes RFIs filed but not evaluated before Dec. 31, 2005.

¹²An investigation may include more than one RFI. Those cases that are "dismissed, no action" also include dismissals resulting from judicial resignations after investigations have been undertaken. Cases that are "dismissed with letter of concern or warning" specifically reference issues of concern and warn the judicial officer that if a complaint concerning the officer and the same type of conduct comes before the commission in the future, the future conduct will be reviewed in light of the current complaint. "Complaints filed with the supreme court" seek a judicial determination of misconduct or disability.

¹³The panel must consist of at least two sitting court of appeals judges.

¹⁴In re Laatsch was filed on Nov. 10, 2004. The three-judge judicial conduct panel accepted a stipulated settlement of the matter. The Wisconsin Supreme Court order is pending.

¹⁵Chapter 60.06(3) Campaign Conduct and Rhetoric.

(a) In General. While holding the office of judge or while a candidate for judicial office or a judge-elect, every judge, candidate for judicial office, or judge-elect should maintain, in campaign conduct, the dignity appropriate to judicial office and the integrity and independence of the judiciary. A judge, candidate for judicial office, or judge-elect should not manifest bias or prejudice inappropriate to the judicial office. Every judge, candidate for judicial office, or judge-elect should always bear in mind the need for scrupulous adherence to the rules of fair play while engaged in a campaign for judicial office.

¹⁶The commission's budget for fiscal year 2005 was increased by a state supplement of $3,500. The total funding, therefore, was $220,800. The state budget process includes supplements in order to maintain full funding of salaries and fringe benefits.

¹⁷The Judicial Council, a 21-person board, is comprised of members designated by and from a variety of state government entities, the two Wisconsin law schools, the State Bar, and the general citizenry. Pursuant to Wis. Stat. section 783.13, its principle responsibilities are to study and recommend statutory changes regarding court practice and procedure, and regarding operation, organization, jurisdiction, and administration of Wisconsin courts. Despite operating for years as a separate legislative entity, in 1995 its permanent funding was eliminated. It retained its status as a state entity but was "attached" to the Judicial Commission, which by statute must provide staff services to the council.

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