A budget proposal by Gov. Scott Walker to put the currently independent Judicial Commission under the control of the state Supreme Court has some worried that the independent ethics panel will come under political control.
"I strongly believe that the Judicial Commission has to be an independent agency, independent of the courts which it is tasked to investigate," said Donald Bach, a former member and chair of the commission, which enforces judicial standards and behavior.
In recent years the Judicial Commission has investigated three Supreme Court justices, issuing a warning to one and filing formal complaints against the other two. All three are considered members of the conservative wing of the court and one, David Prosser, has been closely tied to the Republican governor. Prosser served with Walker in the Legislature and narrowly won reelection in 2011 at the height of protests against Walker's ultimately successful bid to curb collective bargaining rights for most public employees, despite attempts by liberals to paint him as a Walker lackey.
Prosser has publicly accused the commission of being biased.
Walker spokeswoman Laurel Patrick said the transfer of the Judicial Commission to the Supreme Court was merely an "administrative change."
"The structure and mission of the Judicial Commission remain the same," she said.
Former commission member Jennifer Morales said the move could chill future commission proceedings against justices were they warranted.
"I would guess that that would be one of the outcomes," said Morales. "I can’t speculate on what the motivation is, but intended or not I do believe that would be one of the outcomes — that sort of hesitance to essentially use this oversight body to investigate or recommend consequences for one of their own."
Under the current system, the Supreme Court is the final arbiter of disciplinary cases brought by the commission. But the court's involvement doesn't occur until the end of the process, and then only in cases formally prosecuted by the commission.
But Morales said giving administration of the commission to the Supreme Court could give justices influence over the commission at the front end of an investigation.
"They were at the end of the process, but our investigations, our deliberations, our interviews of judges that may have engaged in misconduct were all done independently of the Supreme Court," she said. "And I think that does reassure the public that someone is looking at judicial behavior without a sort of constant pressure to perhaps come up with a particular answer."
The commission had previously been administered by the Supreme Court. But during a comprehensive reorganization of the state court system in 1978 it was made an independent body, specifically to remove questions about conflict of interest.
The commission had investigated three conservative members of the court in five years, most recently Prosser in 2011. The commission filed a complaint with three charges against Prosser for violating the state's judicial code of conduct. Those charges stemmed from an incident during which Prosser allegedly put his hands around the neck of fellow Justice Ann Walsh Bradley during a heated exchange, and for an earlier exchange during which he called Chief Justice Shirley Abrahamson a "total bitch." The case fell to Prosser's colleagues to decide whether he should be disciplined, but since three of the justices recused themselves for being material witnesses in the Bradley incident, the court lacked a quorum to proceed.
In 2008 the commission filed a complaint against Justice Michael Gableman over an advertisement used during his 2008 campaign against then-Justice Louis Butler. Gableman’s fellow justices eventually heard the case but deadlocked 3-3 and no action was taken.
In 2007 Justice Annette Ziegler was warned by the commission over conflicts of interest for presiding over cases involving companies in which she owned stock.
Walker also has proposed eliminating the Judicial Council, a longtime panel that has been instrumental in developing court practices for nearly 50 years.
The Judicial Council was formed in 1951 to study and develop proposals to improve the administration of justice. Among the 21-member panel’s accomplishments was the development of state procedures regarding civil and criminal procedure and rules of evidence. The council includes academics, judges, members of the Legislature, Department of Justice representatives, a Supreme Court justice, state court system officials and governor’s appointees.
“I think it is an absolutely great institution,” said David Schultz, a UW law professor, and a 30-year member and former chair of the council. “It does an awful lot at a very low cost to the state and I see absolutely no sense in getting rid of it.”
Schultz said the council is currently in the process of revamping civil procedure rules, which it originally developed in 1969. The council has also been involved in updating court procedures to conform with new technologies, he said.
The State Bar of Wisconsin also opposes the move.
"I think they serve an important function," said state bar president Patrick Fiedler. "The state bar values the council and would support its continuation."
Walker spokeswoman Patrick said eliminating the council "is aimed at streamlining court operations."
"The overall focus of Governor Walker’s budget proposal is to make state government more efficient, more effective and more accountable," she said.
Walker’s budget called for the elimination of $70,400 in state revenue that funds the council. The Wisconsin Court System is also authorized to fund the council up to $58,000 a year for expenses, last year providing about $45,000, according to attorney April Southwick, the council's only staffer.
It’s not the first time the council has had a nemesis in the governor’s office. In 1995, when Republican Tommy Thompson held the office and Schultz was chair of the council, the council lost its funding. But it remained in existence and “struggled along,” Schultz said.
Funding for a staffer was restored in 2007.
“There’s a number of projects underway,” Schultz said. “There’s a number of petitions pending in the Wisconsin Supreme Court right now asking for rule-making changes. And if the council is put out of business on June 30, I guess there’s a question mark on how any of those things would be maintained.”