Thursday, March 8, 2012

Mr. Torvik is in for a surprise.

In his post discussing the controversy surrounding Wisconsin circuit judge David Flanagan, Mr. Torvik states that he "be very surprised if Judge Flanagan's action of signing the recall petition did not violate" Wisconsin's code of judicial conduct, Specifically, Mr. Torvik thinks that Judge Flanagan violated SCR 60.06(b)(2) which prohibits a judge from participating in the "affairs, caucuses, promotions, platforms, endorsements, conventions, or activities of a political party or of a candidate for partisan office." Judge Flanagan did not violate the provision in question by signing the recall petition.

One might say that the recall is the activity of a political party and thus, the judge can't participate. However, such a reading is inconsistent with the principal of ejusdem generis. "affairs, caucuses, promotions, platforms, endorsements, conventions, or activites of a political party" are properly understood to mean public meetings in which members of the public associate themselves with a political party.  The recall petition is not a political party's meeting.  In fact, the recall petition does not identify the people who sign it as being members of a political party. Indeed, the recall petition does not advocate for a particular candidate. Instead, the recall simply says that there ought to be a vote on whether Scott Walker remains governor of Wisconsin. While that might be construed as participating against a particular candidate, the rule does not prohibit such activities. So, if Mr. Torvik is waiting for Judge Flanagan to be disciplined for violating 60.06(b)(2), he will be in for a long wait.

That said, I think that Judge Flanagan may have violated a different provision of Wisconsin's judicial code of conduct. Judge Flanagan signed the recall petition before he was assigned a case challenging one of the centerpieces of Governor Walker's administration, the Voter ID bill. As former Wisconsin Supreme Court justice Janine Geske told the Fond Du Lac Reporter, Judge Flanagan should have revealed to both parties that he had signed the recall petition.  This is because SCR 60.05(a) says that a judge "shall conduct all of the judge's extra-judicial activities" in such a way that the activities do not "cast reasonable doubt on the judge's capacity to act impartially as a judge." I imagine if Governor Walker had known that the judge had signed the recall petition, he might have reasonably doubted that Judge Flanagan was impartial.

As the Reporter article notes, Judge Flanagan's wife was one of the people collecting signatures for Governor Walker's recall. Every married person can think of an occasion when they signed something or attended something just because it was important to their spouse. Maybe that's what happened here and Judge Flanagan just signed the petition to keep peace in the house. If so, it appears that his plan backfired in spectacular fashion.

Finally, the last reason that it seems unlikely that Judge Flanagan will be disciplined for violating 60.06(b)(2), is that the ethics complaint filed by the Wisconsin GOP against Judge Flanagan does not claim that Judge Flanagan violated the provision.  You can read the complaint here.

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