Warring Ads in Wisconsin Supreme Court Race

Summary

The April 3 face-off between county Judge Annette Ziegler and attorney Linda Clifford for a seat on the state’s highest court has spawned a springtime blizzard of negative ads in the milk-fed Midwest.

Ziegler accuses Clifford’s camp of “lying to law enforcement.” Clifford highlights apparent conflicts of interest in Ziegler’s court rulings. And an outside group zings Ziegler for giving a convicted rapist less time behind bars than his own lawyer asked.

There’s both truth and misleading language in these ads:

• Clifford’s campaign consultants deny they lied to a sheriff’s deputy about why they were taking photos of a public courthouse, and taking photos is perfectly legal anyway.
• Ziegler did give a light county jail term to the rapist – but held a 25-year prison term over his head if he failed to complete a treatment program for sexual offenders. The man eventually served about four years behind bars.
• Ziegler has not denied reports, which first appeared in the Wisconsin State Journal, t hat she has ruled on cases in which one of the parties was a bank at which her husband is a paid director, an apparent violation of Wisconsin’s judicial code. There’s no evidence that the Zieglers got any financial benefit from her rulings.

Election watchers predict the money spent on ads by the candidates and several outside groups could total $5 million, continuing a trend toward big spending in races for state courts.

Analysis

Wisconsin is one of only two states with a supreme court contest in this off year, and it has been as contentious and expensive as many House races. We look at four of the ads.

No Prison Time for a Sex Offender?

Greater Wisconsin Committee Ad:
“You Be The Judge”

Announcer: You be the judge. The Defendant is found guilty of sexually assaulting his step-daughter repeatedly over three years starting when she was 10. The Prosecutor recommends 20 to 30 years in prison. Even the defense lawyer asks for 5 to 7 years. How would you rule?  Judge Annette Ziegler did not send him to prison.  Instead she sentenced him to one year in county jail.
(On Screen: “Judge’s Leniency Makes Crime More Heart-Wrenching” – Milwaukee Journal-Sentinel 2/19/1999)
Announcer: Contact Annette Ziegler. Tell her judges must get tough on child sex-offenders.

In December 1998 a jury found Gary Tate guilty of sexually assaulting his step-daughter repeatedly during a three-year period. Ziegler sentenced Tate to 25 years in prison but stayed the sentence, instead giving him a year in county jail and 20 years’ probation conditioned upon Tate successfully completing a treatment program for sexual offenders. At the time, admission of guilt was a requirement of the treatment program.

According to the  Milwaukee Journal-Sentinel,  Ziegler made this comment at the sentencing:

MJ-S: “I want very much to punish the defendant for what he did,” Ziegler said. “I want very much to protect the community.” Equally important is providing treatment “so this never happens to anyone else again,” Ziegler said.

Tate filed a motion asking for a new trial, but Ziegler denied it. Tate refused to admit he was guilty, which meant he automatically flunked his sexual-offender treatment. His probation was revoked as a result, and he began serving his 25-year prison sentence.

In November 2002, Tate appealed his probation revocation. The case went to the state Supreme Court.  Tate’s lawyers argued that since his sexual-offender treatment required him to incriminate himself and thereby forfeit any possibility of future appeals, the revocation of his parole was unconstitutional. The Supreme Court ruled in Tate’s favor. He was released from prison and is living in Wisconsin, according to the Wisconsin Sex-Offender Registry.

The ad is misleading in implying that Ziegler sentenced Tate to nothing more than a year in county jail. It would have been accurate to say that Tate became a free man just four years after his conviction as a result of Ziegler’s sentence.

Lying to the Law?

Judge Ziegler for Supreme Court Ad:
“Judge Annette”

Announcer: Madison Immigration Lawyer Linda Clifford’s campaign can’t seem to tell the truth. They even got caught lying to law enforcement.
(On Screen: Clifford’s Consultants Misstated Purpose,”…lied to sheriff’s deputies… – West Bend Daily News 3-22-07)
Announcer: And there’s more. The Supreme Court decides how much trial lawyers like Clifford’s husband can sue doctors and businesses for. Asked if she would remove herself from those cases, Clifford said “no.” Meaning she could actually help her husband pocket millions. Linda Clifford. Not a Judge, never taken a criminal off the streets. There’s only one judge and criminal prosecutor. Judge Annette Ziegler for supreme court.

A spot put up by Ziegler accuses Clifford’s “campaign” of “lying to law enforcement.” A headline on screen, from the March 22, 2007 edition of The Daily News of West Bend, reads “Clifford’s consultants misstated purpose” and cites a fragment of the story: “. . .lied to sheriff’s deputies. . .”  In fact, the story actually reads “. . .allegedly lied to sheriff’s deputies. . .” (our emphasis).

In the incident in question, two Clifford campaign consultants were photographing the Washington County courthouse where Ziegler works when a sheriff’s deputy approached them and asked them why they were taking pictures. That much is undisputed. But according to the deputy, the pair said they were from a Madison newspaper, which of course was not true. Clifford has backed her aides’ version of events, which is that they said they were taking the pictures for publication but never claimed they were reporters or named a newspaper. Photographing the courthouse is not illegal. “I think this is much ado about nothing,” Clifford said.

The same ad shows the words “Linda Clifford, ruling against caps so her husband can pocket millions.” The reference is to caps on damages for pain and suffering and other non-economic damages in malpractice and other cases against doctors and businesses, a much-debated topic on which the Wisconsin Legislature and Supreme Court have both pronounced in recent years. Clifford’s husband, a trial lawyer, could see his income curtailed if caps are set low. “Asked if she would remove herself from those cases, Clifford said no,” says the narrator.

Clifford, who, as Ziegler often points out, is not a judge, has obviously never ruled on caps, despite the inference of the ad’s text. Likewise, she never said a flat “no” when asked if she would recuse herself if a case involving caps came before her. What she has said is that it was premature to recuse herself from cases that don’t exist yet. “I think it’s a fake issue,” she said.

To Recuse or Not To Recuse

Clifford’s campaign gave as good as it got, and aired an ad claiming Ziegler failed to recuse herself from 46 cases that involved the West Bend Savings Bank. All of the cases took place while the bank was paying her husband, J.J. Ziegler, to serve as a member of the board. The number comes from a March 6th Wisconsin State Journal report:

Wisconsin State Journal: …as a Washington County circuit judge, Ziegler remained on at least four cases involving West Bend Savings without notifying the parties of her financial and personal ties to the bank. A State Journal review Monday of 42 more case files at the Washington County Courthouse in West Bend revealed the same pattern: no indications that Ziegler withdrew from West Bend Savings cases, and no notices to the parties of any conflict.

The ad also claims that “90% of the time she ruled in the bank’s favor.” That statistic is borrowed from the liberal group One Wisconsin Now Action Committee. But Ziegler actually ruled in the bank’s favor more often than the ad claims. In a press release issued March 22, the group calculated that 97 percent of her decisions favored the bank. The 90 percent figure refers to her rulings in cases involving either the bank or companies in which she held stock valued at $50,000 or more.

The Wisconsin Democracy Campaign, a “nonpartisan political watchdog group,” requested that the Wisconsin Judicial Commission investigate Ziegler for potential ethical violations. Mike Buelow, a research director for the group told FactCheck.org that the Commission will review the request at their April 20th board meeting.

The Wisconsin Code of Judicial Conduct says that a judge must recuse him or herself or notify both parties when the judge’s spouse or close relative “is a party to the proceeding or an officer, director or trustee of a party.” The code also dictates that if a judge has any more than an “insignificant” financial interest in the case they must seek recusal.

In 2000, the Wisconsin Judicial Conduct Advisory Committee issued an opinion stating that a judge had a “duty to recuse” himself from cases involving a corporation in which he held $20,000 in stock. Ziegler owned stock worth $50,000 or more in companies involved in 22 cases over which she presided, according to the Wisconsin State Journal.

On another matter, the same ad quotes a Beloit Daily News editorial out of context. The editorial in that paper clearly favors Ziegler over Clifford:

Beloit Daily News: Though some of the mud stuck, we believe Ziegler will be more respectful of the law and less likely to legislate from the bench.

Night and Day

Ziegler has tried to counter the conflict-of-interest accusations with an ad depicting Clifford as a menacing creature who emerges only when the moon is full, interspersed with sunny shots of herself looking judicial. The first black-and-white image of Clifford superimposed on a lunar background labels her “Linda Clifford, Immigration Lawyer.” That’s just one of the six areas of specialty that Clifford’s firm lists for her – others include media, energy and business litigation – but it’s the one that might be expected to generate the most controversy in the current political climate.

“Linda Clifford’s charges aren’t true,” the narrator intones. “There is no scandal.”

The ad doesn’t specify which charges aren’t true, but presumably they are the claims that Ziegler ruled on cases involving the bank on whose board of directors her husband serves, or those involving companies in which she held stock. But those matters weren’t first raised by Clifford, they were raised by the Wisconsin State Journal.  Ziegler has never denied ruling on those cases. As to whether it amounts to a “scandal,” that’s a label that comes pretty cheap these days, and its use in connection with Ziegler’s apparent failure to follow the state’s judicial rules would seem to be justified. We can’t say if it’s true that “Ziegler’s family has never benefited from any case” – there’s no evidence the Zieglers received any financial windfall. The investigation by the Wisconsin Judicial Commission may clear that up, albeit after the election.

Over another terrible black-and-white image of Clifford are the words, “Linda Clifford, not one day as a judge,” which has been a frequent refrain in Ziegler’s campaign. That’s true, but the contrast in experience isn’t so stark as that might imply. The nitty-gritty reality of the civil and criminal trials that a county judge handles is very different from the lofty realm of the Supreme Court,  which deals with broader constitutional issues.

Ziegler portrays her opponent darkly as “Linda Clifford, mud-slinging politician.” We think there’s plenty of blame to go around for the nasty tone of this race.

The next state supreme court contest is in Pennsylvania, where voters go to the polls in November.

– by Viveca Novak, Emi Kolawole and Justin Bank

Clarification April 2: We originally referred to the Greater Wisconsin Committee as “a state-wide political action committee funded by labor, education and healthcare PACS.”  In fact, The Greater Wisconsin Committee describes itself as “a registered non partisan organization that engages in issues advocacy and lobbying on progressive public policy issues,” and does not disclose its donors. The Greater Wisconsin Committee does maintain a PAC funded in part by labor unions, but it was not the PAC that sponsored the ad.

Media

Watch Greater Wisconsin Committee Ad: “You be the Judge”

Watch Linda Clifford for Justice Ad

Watch Judge Zielger for Supreme Court Ad: “Judge Annette”

Watch Judge Ziegler for Supreme Court Ad: “The Judge”

Sources

Rabideau Silvers, Amy. “Stepfather in sex case seeks new trial.” Milwaukee Journal Sentinel 31 Aug. 1999: 1.

Rabideau Silvers, Amy. “Probation revoked in Stepdaughter’s assault.” Milwaukee Journal Sentinel 1 Sep. 1999: 1.

“Stepfather gets probation, jail time for assaulting child.” Milwaukee Journal Sentinel 4 Feb. 1999: 1.

Nichols, Mike. “Judge’s Leniency Makes crime more heart-wrenching,” Milwaukee Journal Sentinel 19 Feb. 1999: 1.

Gary Tate v. David H. Schwarz, 246 Wis. 2d 293 (2002).

State v. Gary J. Tate, Wisconsin Court System Case No. 1997CF000336, 1997.

Hall, Dee J. “Whose job is it to ensure that judges are impartial?” The Wisconsin State Journal 18 Mar. 2007: A1.

Marley, Patrick. “Sheriff’s Office backs report: Consultants say it’s a misunderstanding.” The Milwaukee Journal Sentinel 24 Mar. 2007.

Marley, Patrick and Stacy Forster. “Deputy says consultants lied: 2 said they worked for a newspaper, not Clifford court race.” The Milwaukee Journal Sentinel 23 Mar. 2007:.

Dunn, Al. “Clifford consultants reportedly misstated purpose.” 22 Mar. 2007. gmtoday.com. 29 Mar. 2007.

Treleven, Ed and Dee J. Hall. “Ziegler Owns Stock in Companies Before Her.” Wisconsin State Journal 11 Mar. 2007: A1.

Treleven, Ed and Dee J. Hall. “Ziegler Uses ‘Gut Check’ to See if She Has Conflict.” Wisconsin State Journal 6 Mar. 2007: A1.