Restoring Public Confidence in the Judicial System

“[A] lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.”  Taken from paragraph six of the Preamble[1] to the Model Rules of Professional Conduct, this quote sets out our duty to educate the public.

In April 2009, then Wisconsin State Bar President Diane Diel discussed this very quote in a short article published in Wisconsin Lawyer magazine.[2]  The article focused on the negative effect judicial elections have on the public’s confidence in the judicial system — discussing current Justice Michael Gableman’s allegedly unethical ad that aired during his campaign against Justice Louis Butler and his subsequent disciplinary hearing — and the ever-controversial topic of judicial recusals, focusing on whether judges should be required to recuse themselves from deciding cases in which they received campaign contributions from an interested party.

Diel’s article seems to have foreshadowed the current turbulence in the Wisconsin Supreme Court, which has led to plunging confidence in the judicial system.  

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Why Were the Lawyers Wearing Blinders?

In the September 2009 issue of the ABA Journal, the author of the article “Town Without Pity,” Wendy Davis, asked, “Where Were the Lawyers?”  Judge Mark Ciavarella had been giving jail sentences to juveniles that were shocking to the conscience for minor offenses.  All the lawyers in the court system, including the district attorney, knew what was happening, but very few challenged Ciavarella. Barry Dyller, a local Wilkes-Barre attorney quoted in the article, stated that “only the absolute strongest lawyers, who didn’t mind facing his wrath” ever argued with the judge’s decisions. The other defense attorneys, the article notes, appeared resigned to these rulings. Additionally, if there were any lawyers who suspected the judge was taking bribes, there is no record of any stepping forward.

In August 2011, Ciavarella was sentenced to 28 years in federal prison on racketeering charges, among others, in a case that was called “Kids For Cash.”  Ciavarella, along with another Luzerne County judge, accepted bribes totaling over $2.6 million from the builder of juvenile detention centers in exchange for sending thousands of children to newly built facilities in order to ensure the facilities would be adequately utilized. 

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Signing a Recall Petition Does Not Require Judicial Recusal

We live in interesting times.  A segment of the general public is quick to forgive the killing of two young men in Slinger, Wisconsin and Sanford, Florida as the unavoidable consequence of the exercise of a constitutional right.  Yet at the same time, state court judges who have exercised their constitutional right of self-governance by signing a recall petition are being publicly called out by both special interest groups and the media, as if by signing the petition they have transgressed some moral boundary.  These are interesting times, indeed.

The signing of a recall petition is a right guaranteed by Article XIII of the Wisconsin Constitution.  It is a procedure whereby any voter can request that the continuation in office of an elected official in the State of Wisconsin should be put to the vote of the full electorate.  If a sufficient number of voters sign the petition, a recall election is held.  A recall can only succeed in removing the officeholder if both a sufficient number of recall signatures are filed and a majority of the electorate votes in favor of removal.  The Recall is democratic self-governance in its purest form, and along with the Initiative and the Referendum it is one of the three structural vehicles by which Progressive Era voters sought to bypass the influence that special interests hold on elected bodies.

The Wisconsin GOP has filed an official complaint against Dane County Circuit Court Judge David Flanagan with the Judicial Commission on the grounds that the judge should have recused himself in a case challenging the constitutionality of the Wisconsin Voter ID law.  Must judges who have signed a recall petition subsequently recuse themselves from sitting on any case in which the Governor, or Republican legislators, or the Republican Party of Wisconsin asserts that the signing of the petition evidences a bias against them?  The answer is “no.”  There is no explicit provision that prohibits judges from signing a recall petition or that mandates that they recuse themselves from any politically charged case if they have done so.

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