Tuesday, June 21, 2011

Madison Attorney Peter McKeever: "The Tragedy of Wisconsin's Less-Than-Supreme Court" Ruling

I had thrown out questions about judicial ethics in light of last week's State Supreme Court ruling upholding Scott Walker's controversial collective-bargaining diminution bill, and among the responses I have received is this finely-tuned reply by Madison lawyer Peter McKeever. Here it is in full:

                   The Tragedy of Wisconsin’s Less-Than-Supreme Court

As we watch the Wisconsin Supreme Court squander the respect for its integrity and intellectual excellence it has enjoyed nationwide for generations, it is instructive to take a look at the state’s Judicial Code of Ethics:

SCR 60.04 A judge shall perform the duties of judicial office impartially and diligently. The judicial duties of a judge take precedence over all the judge's other activities. The judge's judicial duties include all the duties of the judge's office prescribed by law.
(1) In the performance of the duties under this section, the following apply to adjudicative responsibilities:

(b) A judge shall be faithful to the law and maintain professional competence in it. A judge may not be swayed by partisan interests, public clamor or fear of criticism. (emphasis added)
The haste with which the decision to uphold the budget repair bill was made, the clear abandonment of the court’s traditional deliberative and careful approach, and the substance of the decision itself can lead reasonably one to conclude that perhaps some members of the court were swayed by partisan interests, public clamor, and fear of criticism.

 (e) A judge shall perform judicial duties without bias or prejudice. A judge may not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice, including bias or prejudice based upon race, gender, religion, national origin, disability, age, sexual orientation or socioeconomic status, and may not knowingly permit staff, court officials and others subject to the judge's direction and control to do so.

(g) A judge shall accord to every person who has a legal interest in a proceeding, or to that person's lawyer, the right to be heard according to law. A judge may not initiate, permit, engage in or consider ex parte communications concerning a pending or impending action or proceeding…… (emphasis added)

The circumstances leading up to the release of the decision certainly can lead one to wonder whether a biased member of the court or a staff person with knowledge of the Court’s deliberations notified Republican legislative leaders that a favorable decision would be forthcoming on Tuesday.

The tragedy is not the decision itself, but the fact that the Court has, with this decision and with its past actions and statements and those of some of its members (“You are a bitch”), significantly undermined public confidence in the judiciary and in the Court.There is a strong public perception that we no longer have a respected Court that makes decisions based on the facts and the law and that instead we have a Court which is partisan, political, deeply and bitterly divided, and unable to make decisions based just on the facts and the law. The legitimacy of the judicial process in Wisconsin is in shambles; the Court has done it to itself.


gnarlytrombone said...

Unfortunately, the ultimate arbiter of the Code of Judicial Conduct is... the Supreme Court.

Paul Trotter said...

The constitution allows for recalls of supreme court justices. Something to seriously consider after Walker is gone. Yes Wisconsin Mr. Vos will have year around elections under Walker.

Anonymous said...

To the adjectives "partisan, political, deeply and bitterly divided, and unable to make decisions based just on the facts and the law," we must definitely add, "bought and paid for." That is the most tragic of all. One side of the ideological spectrum literally owns this court.

The Wisconsin Hypothesis said...

A well-written letter by Peter McKeever.

It is worth clarifying: It was Justice Prosser who said "you are a total bitch" to Chief Justice Abrahamson.

To add insult to insult, Justice Prosser blamed Chief Justice Abrahamson for his abuse and minimized his vulgarity: "... it was entirely warrented. They are masters at deliberately goading people into perhaps incautious statements."

From AVAIL, Inc. Facts About Abuse
Minimizing, Denying, Blaming: making light of the abuse and not taking her concerns about it seriously, saying the abuse didn't happen, shifting responsibility for abusive behaviors, saying she caused it.