The Continuing Deterioration of Wisconsin’s Judicial System - Part Three
Circuit Court Judge Gregory Gill, Jr.’s recent electoral victory for a seat on the Wisconsin Court of Appeals demonstrates why enacting basic court reforms in the state remains an elusive task.
In this dispiriting context, I decided to run for a judgeship on the Wisconsin Court of Appeals—District Three, where I had previously served as a judicial law clerk for the 2016-17 court term.
Yes, I was only in my early 30s. And if elected, I would become the youngest appellate state court judge in Wisconsin history. Just slightly younger than when Richard Brown, former judge on the Wisconsin Court of Appeals, became an appellate court judge in 1978 at the age of 32.
Nonetheless, I believed I had the necessary experience, competence, and temperament for the position. Moreover, I could see the sempiternal problems plaguing Wisconsin’s judicial system—and I had come up with a concrete plan to address those issues.
So, on July 6, 2020, I formally announced my candidacy for the Wisconsin Court of Appeals in the 2021 spring election. Knowing that appellate court races in Wisconsin had generally become more partisan over the last two decades, I decided to focus my campaign on what I consider two exceptionally important—and nonpartisan—issues currently affecting Wisconsin’s court system: (1) the inappropriate influence of outside monetary contributions in judicial elections; and (2) the lack of necessary support staff throughout the state’s judicial system—including the Wisconsin Court of Appeals.
First, I promised my campaign would not accept any outside financial contributions—and that I would impose an $800 limitation with regard to my own financial contributions to the campaign. When making this promise to voters, I noted that nearly 150 years ago, Edward George Ryan, who would go on to serve as chief justice of the Wisconsin Supreme Court, gave a speech before graduates of the University of Wisconsin Law School, where he warned them about the deleterious influence wealthy individuals and corporations could exert on political and legal institutions.
Second, I promised to advocate for immediate implementation of the recommendations contained in the October 2001 report conducted by the National Center for State Courts about the Wisconsin Court of Appeals’ caseflow management, including the addition of more staff attorneys, law clerks and, with regard to the Wisconsin Court of Appeals—District Three, the report’s implicit recommendation for the addition of a new judgeship. And given the passage of time since the report, I also promised to advocate for the commission of a new independent study to provide an update on caseflow management in the Wisconsin Court of Appeals. Furthermore, as a potential interim measure to better preserve the Wisconsin judiciary’s scarce resources on meritorious appeals, I promised to explore the increased use of sanctions in cases where attorneys egregiously violate the Wisconsin Rules of Appellate Procedure, including the imposition of a penalty or costs on counsel (through the use of orders to show cause), dismissal of the party’s appeal, and summary reversal.
Finally, when deciding cases as a judge, I promised to abide by the law—regardless of my personal views. Most appellate court candidates in Wisconsin, especially self-identified “originalists” and “textualists,” make a similar pledge to voters: a commitment to interpret the law as it is “written,” even if such an interpretation is anathema to the judicial candidate’s personal views regarding public policy. Unfortunately, though, once they formally make the transition to judge, a substantial number of these candidates seem to forget their public pledge to apply legal text as “written”—including binding appellate court precedent they personally find repugnant.
For example, when the Wisconsin Supreme Court decided State v. Shata in 2015, the court held that a noncitizen criminal defendant’s trial attorney does not necessarily provide constitutionally deficient performance when failing to advise the defendant that pleading guilty to a drug-distribution offense would make the client subject to automatic deportation under federal immigration law. According to a majority of the court, in an opinion authored by then-Justice Annette Ziegler—who recently took over as chief justice of the Wisconsin Supreme Court—it was sufficient for the defendant’s attorney simply to advise the defendant that pleading guilty to a drug-distribution offense would carry a “strong chance” of federal deportation consequences. However, as Justice Ann Walsh Bradley’s noted in her dissent in that case, such a holding conflicts with the United States Supreme Court’s 2010 decision in Padilla v. Kentucky, which requires criminal defense attorneys to clearly advise their noncitizen clients—in the context of drug-distribution offenses—that pleading guilty would make the client subject to automatic deportation under federal immigration law.
Several years later in Shata v. Symdon, the United States District Court for the Eastern District of Wisconsin ultimately vindicated Justice Ann Walsh Bradley’s dissenting view. The federal district court concluded that the Wisconsin Supreme Court’s decision on this point involved an unreasonable application of clearly established federal law. As a result, the federal district court granted Hatem Shata’s petition for a writ of habeas corpus.
Of course, while I primarily focused my campaign message on important nonpartisan issues affecting the Wisconsin judicial system, I did not forgo highlighting my educational and legal experience, which includes many of the traditional qualifications associated with becoming an appellate state court judge in Wisconsin. For example, as an undergraduate student at Northern Michigan University, I received the 2012 NMU Political Science Outstanding Graduating Senior award. Then, when I attended the University of Wisconsin Law School, I served as a managing editor of the Wisconsin Law Review, where I gained valuable experience as a legal writer and editor. Additionally, I have significant experience working throughout the Wisconsin judicial system in important support roles—both as a judicial law clerk and a staff attorney. In these positions, I assisted judges with legal research and drafting their judicial decisions. Furthermore, my legal writing has been published in a variety of forums since graduating from law school, including the Wisconsin Lawyer magazine and the DePaul Journal for Social Justice.
Besides underscoring my educational and legal experience, I also emphasized my history of consistently advocating for reforms needed to improve people’s lives in general—and the Wisconsin court system in particular. For instance, after completing my judicial clerkship at the Wisconsin Court of Appeals, I filed an administrative rule petition and accompanying memorandum with the Wisconsin Supreme Court to reform the illegal and intrusive process Wisconsin utilized when evaluating prospective lawyers’ character and fitness to practice law—a process which contravened federal regulations promulgated pursuant to the Americans with Disabilities Act. As I explained separately in a blogpost at the time, the impetus for filing the petition was my personal and negative experience of being required to describe my treated mental disorders, including complex post-traumatic stress disorder, to state board of bar examiners—solely on the basis of my status of having a mental disorder, and without regard to how my mental disorders actually affected my ability to practice law in a competent and professional manner. After submitting my petition, the Wisconsin Board of Bar Examiners removed the illegal questions from its bar applicant questionnaire and affidavit and, as my memorandum implicitly suggested, focused instead on a prospective lawyer’s conduct, rather than a prospective lawyer’s mental health status, when evaluating his or her character and fitness to practice law. Then a year later, when I served as a staff attorney at the Dane County Circuit Court, I testified before the Dane County Board of Supervisors’ Public Protection and Judiciary Committee about inadequate staffing levels throughout the Wisconsin court system as a whole, including at the Dane County Circuit Court—even though I knew my decision to do so placed my burgeoning legal career in jeopardy.
Once I announced my candidacy for the Wisconsin Court of Appeals—District Three, I didn’t know exactly what to expect. Beneath the surface, though, I felt a mixture of exhilaration and apprehensiveness.
Although my anxiousness was multifactored, it was primarily caused by not knowing who my opponent (or opponents) in the upcoming election would be—or whether there would be one at all. When I decided to run for the seat currently held by Wisconsin Court of Appeals Judge Mark Seidl, I was not aware whether he planned to run for re-election. Although I had served as his judicial law clerk for the 2016-17 court term, I had not communicated with Judge Seidl since my clerkship with him ended—for reasons that will later become apparent.
Intertwined with my nervousness was a feeling of delirium. As the first Wisconsin appellate court candidate in at least two decades to publicly provide a tangible plan to address the significant lack of support staff and judicial resources in Wisconsin’s judicial system, the prospect of enacting long-overdue court reform in Wisconsin filled me energizing optimism.
Nonetheless, a campaign of substance does not assure electoral success. In fact, six months after I announced my candidacy for the Wisconsin Court of Appeals, I announced the formal end of my campaign. I had failed to collect enough signatures by the January 5th deadline to be placed on the ballot for the 2021 spring election.
My campaign’s original plan was to utilize traditional signature collecting methods —such as in-person collection at public events with large amounts of people in attendance—to obtain the necessary signatures to obtain ballot access. However, the COVID-19 pandemic made it much more difficult to effectually (and safely) utilize these methods. To help alleviate the large obstacle posed by the pandemic to our in-person collection efforts, my campaign’s contingency plan was to utilize Facebook advertising to help facilitate remote signature collection.
But in October 2020, Facebook announced “plans to prohibit all political and issue-based advertising [on its platform] after the polls close on [November] 3 for an undetermined length of time.” Then after then-President Donald Trump refused to concede the November presidential election to his opponent—Joseph Biden, Jr., former vice-president of the United States—Facebook announced a plan to “extend its ban on political ads in the [United States] for at least another month.” While Facebook did decided to partially end its ban on political advertising by mid-December, it did so only with regard to “Georgia-specific political ads ahead of the [January 5, 2021, United States] Senate and state runoffs.” Moreover, Facebook wouldn’t completely lift its ban on political adverting for another full two months, in early March, long after the January deadline for Wisconsin candidates to submit the necessary signatures to obtain ballot access for the 2021 spring election.
Even without with ability to use Facebook advertising, my campaign was still able to collect more than 300 signatures during the month-long signature collection period—and 160 signatures over a single weekend in my hometown. However, it ultimately was nowhere close to the 1,000 valid signatures I was required to submit to the Wisconsin Elections Commission in order to be placed on the ballot for the 2021 spring election.
As a result of my campaign’s failed signature collection effort, I was no longer a candidate for the Wisconsin Court of Appeals. My role was reduced to that of spectator and voter.
So, I spent the next few months watching Outagamie County Circuit Court Judge Gregory Gill, Jr.’s campaign, as he easily coasted to victory.
In 2002, and nearly a decade before he would become a Wisconsin state court judge, Outagamie County Circuit Court Judge Gregory Gill, Jr., graduated from Marquette University Law School. After graduation he served for two years as a judicial law clerk to United States District Court Judge William Griesbach.
With experience as a federal judicial law clerk, Judge Gill, Jr., could have plausibly chosen to practice law in a variety of areas—such as criminal law; family law; and general civil litigation—or he could have decided to do something besides embrace a traditional law practice.
Instead, he rotely joined his family’s law firm, Gill & Gill.
First established in 1946, Gill & Gill is not shy to emphasize on its website that it “was one of the first law firms in Wisconsin, if not the country, to specialize in management representation in labor and employment law matters.” (Emphasis added.) In other words, Gill & Gill publicly markets itself as representing the interests of corporate management in its labor and employment law practice.
After joining his family’s law firm, Judge Gill, Jr., spent the next several years—the entirety of his career as a private practice attorney—assisting his family’s law firm do what it had been doing for decades: zealously advocating for the legal interests of corporate entities. While still at his family’s law firm in 2011, then-Wisconsin Governor Scott Walker appointed him to serve as a circuit court judge in Outagamie County. Since taking judicial office, Judge Gill, Jr., has served without bringing public controversy upon himself. Well, at least until he decided to seek a higher—and more prestigious— judicial office nearly a decade later.
On October 27, 2020, Judge Gill, Jr., informally announced his candidacy for the Wisconsin Court of Appeals—District Three on his campaign’s Facebook page. Days later, Judge Gill, Jr., also informally announced that he had received the endorsements of all three current judges on the Wisconsin Court of Appeals—District Three, writing that the three judges were “excellent jurists” and that he was “honored” to receive their endorsements.
However, I would not classify Wisconsin Court of Appeals Judge Mark Seidl as an “excellent” jurist. As his former judicial law clerk, I don’t say this lightly, either. And while I’m fully cognizant of the ethical duties I owe him, vis-à-vis being his former law clerk, my conclusion on this point does not pose any ethical quandaries because it is premised on publicly available information—and private information I obtained after serving as his judicial law clerk.
Before critiquing Wisconsin Court of Appeals Judge Mark Seidl’s record as a jurist on its own merits, though, it’s helpful to quickly review his record as an attorney before becoming a judge. While not detracting from his record as a jurist on its own accord, it provides helpful context for better understanding his tenure as a state appellate court judge.
Publicly available information clearly shows that prior to obtaining a judgeship, Judge Seidl was—to put it mildly—not a particularly skilled attorney. For example, after a married couple alleged in a lawsuit that he committed professional malpractice by providing deficient legal advice to them regarding the state and federal tax consequences of a proposed corporate dissolution of their dairy farm, Judge Seidl consented to a $38,000 judgment being entered against himself in the case—formally identified as Eau Claire County Circuit Court case No. 1997CV138.
In addition to this instance of providing shoddy transactional legal advice as a private attorney, Judge Seidl often provided deficient legal representation to his clients in his role as an appellate attorney. For example, in many of his appellate briefs (such as this one), he repeatedly failed to abide by the Wisconsin Rules of Appellate Procedure—which generally require that all case citations in legal briefs adhere to The Bluebook: A Uniform System of Citation—and Wisconsin Supreme Court Rule 80.02—which specifically governs the citation of published Wisconsin state court opinions in briefs filed in the state’s appellate court system.
Frighteningly, none of this was able to prevent Judge Seidl from being elected to the Wisconsin Court of Appeals in 2015. According to his campaign finance reports, Judge Seidl raised more than $11,500 during the campaign, and contributions came from a nominally “diverse” group of individuals, which apparently included corporate executives such as John Shoug, president of Marathon Cheese, and politicians such as then-United States Representative Sean Duffy. Judge Seidl ended up spending $5,000 on television advertising; $3,000 on radio advertising; $800 on yard signs and brochures; and $250 on online advertising.
When describing why he should be elected to the Wisconsin Court of Appeals in 2015, Judge Seidl told Ballotpedia that his 40 years of experience practicing Wisconsin law (including appellate law)—among other things—made him a good candidate to become a Wisconsin appellate court judge. He also genuinely insisted that his “strength has always been legal research and writing, which is the main function” of an appellate court judge.
Judge Seidl’s opponent in the 2015 spring election, then-Eau Claire County Circuit Court Judge Kristina Bourget, chose not to point out that, in fact, he was unable to even follow the basic rules of appellate procedure and established norms regarding citation practices in Wisconsin. Instead, Judge Bourget focused on her own accolades—such as being inducted into the University of Wisconsin Law School’s Order of the Coif, a national honor society, and later becoming a state trial court judge. She also highlighted the numerous judicial endorsements she received—including one from Wisconsin Court of Appeals—District Three Judge Lisa Stark.
However, Judge Seidl won handily—earning more than 57 percent of the vote. Clearly, Judge Bourget’s strategy had badly misfired.
According to her campaign finance reports from 2015, it appears that Judge Bourget spent most of the money she raised on online and newspaper advertisements. And unlike Judge Seidl, she spent no campaign funds on television or radio advertising. In hindsight, that appears to have been a consequential mistake for her campaign.
While Judge Bourget nominally raised more than $10,000 during the campaign—close to the amount of contributions that Judge Seidl’s campaign received— her fundraising haul wasn’t an indicator of popular support. In fact, more than $7,000 of those contributions came directly from herself. Ultimately, neither Judge Bourget being appointed to the bench in 2013 by Governor Walker nor her history of working for a large corporation helped her state court of appeals campaign succeed; if anything, it was an impediment to what should have otherwise been an easy electoral victory.
In any event, after serving as Judge Seidl’s judicial law clerk for the 2016-17 court term, it would become clear to me that Judge Seidl was not an “excellent” jurist—not in the least sense. In fact, even without reference to his record as a private attorney, I would go so far as to characterize his short tenure as a state court of appeals judge as a cataclysmic disaster.
For instance, Judge Seidl has failed to issue a single separate judicial opinion over the entire course of his almost completed six-year judgeship. In contrast, Wisconsin Court of Appeals Judge Paul Reilly (who is located in a different geographical judicial district) has authored a total of 33 separate judicial opinions during that same timeframe: 12 concurring opinions and 21 dissenting opinions. To top it off, Judge Reilly once issued three concurring and three dissenting opinions in just a two-month period. And while the state court of appeals judges located in Judge Seidl’s own geographical judicial district generally issue fewer separate judicial opinions than those in their sister judicial districts, both of his colleagues in that judicial district have each nonetheless issued at least one separate judicial opinion during the past two years. Coupled with his past performance as an attorney prior to becoming an appellate court judge, Judge Seidl’s failure to issue even one separate court opinion over the course of his judicial career illustrates his lack of basic competency in Wisconsin appellate law.
However, Judge Seidl was not just derelict in his judicial duty to assist the Wisconsin Court of Appeals in its function “of law defining and law development” with his lack of separate judicial writings. For a period of several years while serving as a state court of appeals judge, he appears to have also violated Wisconsin campaign finance law.
Shortly after declaring my candidacy for the Wisconsin Court of Appeals, I noticed that Judge Seidl—who is still in public office—did not have an active candidate committee. In fact, he had terminated his candidate committee years ago, on May 20, 2015. But according to Caroline Russell, an ethics specialist at the Wisconsin Ethics Commission, “current officer holders are required to have active candidate committees” under Wisconsin campaign finance law.
So, as much as it pained me to do so, I filed a formal complaint with the Wisconsin Ethics Commission. Notwithstanding my previous professional relationship with Judge Seidl, I thought my decision was proper—as I believe in the rule of law, i.e., “[a] government of laws and not of men.” Ultimately, I hoped the state ethics commission would take appropriate action against him for his longstanding and ongoing violation of Wisconsin campaign finance law.
Inexplicably, though, just eight days after I submitted my complaint to the Wisconsin Ethics Commission, Judge Seidl suddenly activated his campaign committee, which had been terminated for more than five years. And one month after the submission of my complaint, the state ethics commission informed me that it had “decided to exercise its prosecutorial discretion” and dismiss my complaint.
Once again, the Wisconsin legal system coddled a person by virtue of their privileged background, rather than ensure the law is applied equally to all—with no preferential treatment given to a person based on their social connections or socioeconomic background.