Chief Justice Annette Ziegler Appears Ready to Lead the Wisconsin Supreme Court in a More Conservative Direction
Chief Justice Ziegler's recent actions - including not reappointing Chief Judge Lisa Neubauer - show she's determined to lead the Wisconsin Supreme Court further into the abyss.
Less than three months into her first term as chief justice of the Wisconsin Supreme Court, Annette Ziegler appears ready to lead the state’s highest court in a more conservative direction—and go even further than her conservative predecessor, current Wisconsin Supreme Court Justice Patience Roggensack.
Two weeks ago, for example, the Wisconsin Supreme Court decided not to reappoint Lisa Neubauer as chief judge of the Wisconsin Court of Appeals. Instead, in a cryptic one-page court order signed only by Chief Justice Ziegler, the state supreme court unexpectedly appointed Wisconsin Court of Appeals Judge William Brash, III, to replace her.
Judge Brash, III, will begin his three-year term as chief judge of the Wisconsin Court of Appeals on August 1st.
Shortly after Justice Roggensack became chief justice of the Wisconsin Supreme Court in the spring of 2015, the court appointed Neubauer as chief judge of the Wisconsin Court of Appeals. The state supreme court then reappointed Neubauer as chief judge in 2018. Her second three-year term as chief judge concludes at the end of the month.
Chief Judge Neubauer’s immediate predecessor, Richard Brown, served as chief judge of the Wisconsin Court of Appeals for eight years—and was only replaced by her because of his retirement from the state court of appeals. And the two chief judges before Brown each served for nine years respectively.
The Wisconsin Supreme Court’s three more liberal justices—Ann Walsh Bradley, Rebecca Dallet and Jill Karofsky—predictably raised concerns about their colleagues’ decision not to reappoint Chief Judge Neubauer in an email sent to all 16 judges serving on the Wisconsin Court of Appeals on June 30th, according to the Wisconsin Examiner.
“Why has her term expired after serving only two terms, comprising six years of service?” asked the three justices. “If there is to be a newly imposed limit on the number of terms, what propels the need for immediate change? Why now?”
The Wisconsin Supreme Court’s order failed to provide a specific reason for its decision not to reappoint Chief Judge Neubauer, who had run unsuccessfully for a seat on the Wisconsin Supreme Court in the 2019 spring election against her more conservative opponent, then-Wisconsin Court of Appeals Judge Brian Hagedorn. But the motivation behind the state supreme court’s decision seems crystal clear: to reduce Chief Judge Neubauer’s perceived liberal influence on the state’s intermediate appellate court by replacing her with a more conservative judge—in this instance, Judge Brash, III.1
The chief judge of the Wisconsin Court of Appeals is ultimately responsible for overseeing the smooth administration of the state’s entire intermediate appellate court system—and wields significant power that is often overlooked by many outside the legal profession.
First, the chief judge of the Wisconsin Court of Appeals is responsible for appointing a deputy chief judge—who assists the chief judge in the performance of their administrative duties, and serves at the pleasure of the chief judge. Second, the chief judge is responsible for appointing a presiding judge—who serve two-year terms—in each of the four geographical judicial districts of the Wisconsin Court of Appeals; these judges are responsible for the efficient management of their respective judicial district’s caseload. Third, the chief judge is responsible for appointing staff attorneys to the court; these attorneys primarily make recommendations regarding the disposition of various motions and draft judicial decisions for the judges. Fourth, the chief judge ultimately determines when an appeal that would otherwise be decided by one court of appeals judge is to be decided by a three-judge panel. Finally, the chief judge of the Wisconsin Court of Appeals is responsible for selecting the judges who will serve on a specific judicial conduct panel—which makes an initial recommendation regarding the appropriate level of discipline a judge should receive for engaging in judicial misconduct.
Once he takes over as chief judge of the Wisconsin Court of Appeals, Judge Brash, III, can take various measures to quickly move the state court of appeals in a more conservative direction. This includes the potential to immediately replace Lisa Stark, deputy chief judge of the Wisconsin Court of Appeals, with a more conservative state court of appeals judge, such as Mark Gundrum or Thomas Hruz.
Just one day after the Wisconsin Supreme Court declined to reappoint Chief Judge Neubauer, Chief Justice Ziegler also dissented from the state supreme court’s per curiam decision to grant a woman admission to the state bar who was convicted for transporting 114 pounds of marijuana across state lines prior to attending law school.
The Wisconsin Board of Bar Examiners initially declined to certify that Abby Padlock, a recent graduate of the University of Wisconsin Law School, had established the necessary moral character and fitness to practice law in Wisconsin, reasoning that her failure to include more specific details on her law school and bar applications about the surrounding circumstances of her 2016 conviction showed she had “repeatedly minimized her criminal conduct surrounding her illegal transportation of marijuana across state lines,” and had “not demonstrated a sufficient effort towards or provided any significant evidence of rehabilitation” since her criminal conduct occurred.
While noting that “[t]his was not an easy case” to decide, the Wisconsin Supreme Court ultimately disagreed with the Board of Bar Examiners’ determination that Padlock had failed to establish the necessary moral character and fitness to practice law in the state.
First, based on the record—which showed that Padlock regularly volunteered at the Madison Veterans hospital to provide legal assistance to veterans, and also provided legal assistance to incarcerated individuals through a law clinic at the University of Wisconsin Law School—the Wisconsin Supreme Court held that the Board of Bar Examiners’ factual finding that Padlock had not “provided any significant evidence of rehabilitation” since her criminal conduct had occurred was clearly erroneous. Second, while taking in consideration the Board of Bar Examiners’ view that Padlock had repeatedly “minimized her misconduct” on her law school and bar applications, the Wisconsin Supreme Court gave “more weight to the testimony of her faculty supervisors”—who testified that their experience with Padlock demonstrated she was a suitable candidate for admission to the state bar—“than did the Board [of Bar Examiners].” The court ruled that denying Padlock admission to the state bar “is simply too harsh a penalty under the circumstances presented.”
In her dissent, which was joined by Justices Roggensack and Hagedorn, Chief Justice Ziegler contended that the Board of Bar Examiners’ initial decision should be affirmed by the Wisconsin Supreme Court.
Chief Justice Ziegler argued that “Padlock's inadequate disclosures reflect dishonest and deceptive behavior, which demonstrates that Ms. Padlock has acted in a manner that is not honest, diligent, or reliable.” According to Chief Justice Ziegler, Padlock’s repeated minimization of “her criminal conduct surrounding the illegal transportation of drugs across state lines” was evidence of her lack of “honesty and integrity, both of which are essential characteristics for admission to the bar in this state.”
Apparently, Chief Justice Ziegler has no sense of irony. Shortly after becoming a Wisconsin Supreme Court justice more than a decade ago, she infamously became the first sitting justice on the state’s highest court to be disciplined by her judicial colleagues.
While previously serving as a circuit court judge in Washington County, Ziegler presided over 11 cases involving West Bend Savings Bank, where her husband received an annual salary of $20,000 to serve on the bank’s board of directors.2 Although Ziegler provided this information on her annual statement of economic interests to the Wisconsin Ethics Board—now called the Wisconsin Ethics Commission3—she inexplicably failed to recuse herself in those cases, which occurred over a five-year period. In doing so, she clearly violated the Wisconsin Code of Judicial Conduct, which requires a judge to recuse themselves in cases in which the judge’s spouse is a director of a party to the proceedings4—unless all of the parties in a case voluntarily agree for the judge to participate in the proceedings.5
When running for a seat the Wisconsin Supreme Court, however, Ziegler refused to concretely address whether her failure to recuse herself in those cases was improper in a meeting with the Wisconsin State Journal’s editorial board.6 Instead, it appears she only admitted to violating the Code of Judicial Conduct once she was elected to the state supreme court—and after she was interviewed by the Wisconsin Judicial Commission in connection with allegations that she had violated the Code Judicial Conduct.7
According to the judicial conduct panel that made an initial recommendation as to the appropriate level of discipline the newly elected justice should receive, given Ziegler’s knowledge about her husband’s position as a director of West Bend Savings Bank, “red flags of danger were prominently flying,” but Ziegler nonetheless “did not see them.” And as someone who had previously served as deputy chief judge of the Wisconsin Third Judicial Administrative District and on the faculty of the Wisconsin Judicial College, Ziegler should have known her actions constituted judicial misconduct; otherwise, she should not have been serving in these important judicial positions in the first place.8
When reviewing the initial recommendation made by the judicial conduct panel as to the appropriate level of discipline Ziegler should receive, the Wisconsin Supreme Court noted that her “failure to recuse herself . . . or obtain a waiver [in violation of the Code of Judicial Conduct] diminishes public confidence in the legal system” because “people would [reasonably] question the impartiality of a judge who presides over a case in which the judge’s spouse is a director of a party to the proceedings.”
Consistent with the joint recommendation of the Judicial Commission and Ziegler, the Wisconsin Supreme Court ultimately imposed a public reprimand against Ziegler because anything “less severe than a public reprimand would not adequately convey the gravity with which this court views [her] violation of a bright-line rule of the Code of Judicial Conduct.”
While Chief Justice Ziegler believed that Padlock’s failure to include more specific details on her law school and bar applications surrounding her illegal transportation of marijuana across state lines in 2015 merited denial of her admission to state bar, Chief Justice Ziegler did not think an analogous sanction (such as suspension or removal from office) should be applied to herself for the judicial misconduct she committed as a circuit court judge in Washington County—even though she refused to explicitly address whether her conduct violated the Code of Judicial Conduct until after she was elected to the state supreme court and formally interviewed by the Judicial Commission.
Unfortunately, it seems like the new chief justice of the Wisconsin Supreme Court will lead the court further into the abyss by adhering to the well-known idiom that is anathema to the rule of law: “Do as I say, not as I do.”
Judge William Brash, III, was initially appointed in 2001 by then-Wisconsin Governor Scott McCallum, a member of the Republican Party, to serve as a circuit court judge in Milwaukee County. More than a decade later in 2015, he was appointed by then-Wisconsin Governor Scott Walker, also a member of the Republican Party, to serve as a judge on the Wisconsin Court of Appeals—District One.
In his capacity as a state court of appeals judge, Judge Brash, III, once authored a decision which inexplicably held—in an example of deft judicial jujitsu—that a defendant did not clearly invoke his constitutional right to self-representation in a criminal prosecution when the defendant said to the trial court judge, “Let me represent myself and have no counsel.” See State v. Egerson, 2018 WI App 49, ¶¶ 6, 27-30, 383 Wis. 2d 718, 916 N.W.2d 833 (Brash, J., joined by Kessler & Brennan, JJ.).
Ziegler’s husband, J.J. Ziegler, was a part-owner of a different business—which coincidentally rented commercial real estate to West Bend Savings Bank beginning in late 2006. Furthermore, he obtained a $2 million commercial loan from West Bend Savings Bank in November 2006, which was secured by a mortgage on the Zieglers’ residential house.
In 2008, the Wisconsin Government Accountability Board assumed the responsibilities of the Wisconsin Ethics Board and the Wisconsin Elections Board. After just eight years, though, the Government Accountability Board was formally disbanded—with the Wisconsin Ethics Commission and the Wisconsin Elections Commission taking its place.
See SCR 60.04(4)(e)1. According to the Wisconsin Supreme Court, the text of this provision of the Wisconsin Code of Judicial Conduct is “clear,” “mandatory,” and sets forth a “bright-line rule.”
See SCR 60.04(6).
In meeting with the Wisconsin State Journal’s editorial board, “Ziegler seemed to suggest she would have done things differently in hindsight. But the closest she came to a direct answer was that the rules should be studied and perhaps clarified.”
As the Wisconsin Supreme Court noted when imposing a public reprimand against Ziegler, it “is clear is that [she] never unambiguously admitted before the election that her conduct violated the Code [of Judicial Conduct].”
As a circuit court judge in Washington County, Ziegler had also served on various committees within the Wisconsin judicial system—including the Wisconsin Criminal Jury Instruction Committee; the Wisconsin Criminal Bench Book Committee; the Wisconsin Circuit Court Access Oversight Committee; the Wisconsin Judicial Education Committee; the Wisconsin Juvenile Justice Advisory Committee; and the Wisconsin Children’s Resource Project Coordinating Committee.
I'm curious how an administrative position like this can "move the court" in a "more conservative" or "more liberal" direction. They don't, as far as you've laid out, get to decide what cases an appeals court accepts, or who actually sits on the court. Ziegler may well be trying to reward her friends and punish her enemies, which is petty, but will it really change the substance of precedent and opinion generated by the courts?