In Wisconsin, two Dane County Circuit Court judges, David Flanagan and Richard Niess both issued injunctions against the state GOP’s polling place photo ID restriction (“Act 23”) — Flanagan’s temporary, Niess’ permanent — after finding that the law was in direct violation of the WI state constitution’s guaranteed right to vote. Immediately after the first of those two injunctions, issued by Judge Flanagan in Milwaukee Branch of the NAACP v. Walker, the WI GOP filed an ethics complaint with the WI Judicial Commission, alleging that the judge had violated the WI Code of Judicial Conduct because he had signed a petition to recall Gov. Scott Walker (R) and failed to disclose that fact before issuing his ruling. However, when Flanagan’s temporary injunction was promptly followed not only by Neiss’ permanent injunction one week later, but by a subsequent refusal by an intermediate WI appellate court to stay the temporary injunction, the hard-right, operating under another right-wing billionaire front group, the Landmark Legal Foundation, filed ethics complaints against 29 WI judges who also signed recall petitions. If you can’t beat ’em, hit ’em with ethics violations complaints…
While there is a legitimate question as to whether Judge Flanagan should have revealed his recall signature prior to issuing the injunction, the hard-right claim that a judge cannot sign a recall petition is specious, if consistent with the 50-year plutocratic assault on the rule of law via court packing, the details of which we discussed in “Citizens United: A Case Which Will Live in Infamy”, one of our first responses to that ignominious 2010 ruling by the U.S. Supreme Court. While the WI Code of Judicial Conduct prevents judges from endorsing political candidates, it does not prevent them from voting.
As observed by Marquette University Law Prof. Janine P. Geske — who had served on the WI Supreme Court from 1993 – 1998, before she was succeeded by the controversial rightwing Justice David Prosser — the signing of a recall petition is somewhere between voting and endorsing. In the case of Judge Flanagan, she says, she has no problem with his signing the recall petition because when he did, he had “no reason to know [that he] would end up on [the photo ID] case.” The WI Code of Judicial Conduct does not say that a judge cannot vote or that it would be improper to sign a recall petition. Monroe County Judge J. David Rice, who signed a recall petition himself, states that he did so only after Jim Alexander, the executive director of the WI Judicial Commission, informed him that doing so would not violate the code.