Gannett Wisconsin Newspapers committed a flagrant act of journalism by reporting that the signers of petitions supporting the recall of Gov. Scott Walker include 29 circuit court judges from 16 counties.

The signers include — surprise! — Dane County Circuit Judge David Flanagan, who overturned the state’s voter ID law earlier this month. (For now. The chances this will end up in the state Supreme Court are as good as the sun’s rising in the east tomorrow.)

This appears to be a flagrant abuse of this line from the Wisconsin Code of Judicial Conduct. which by the way is in state statutes …

No judge or candidate for judicial office or judge-elect may … participate in the affairs, caucuses, promotions, platforms, endorsements, conventions, or activities of a political party or of a candidate for partisan office.

… as well as, reports Gannett, the code’s “general admonitions to avoid ‘the appearance of impropriety in all of the judge’s activities.’”

Signing a petition against the holder of a partisan office with the intent of having that person removed from office certainly seems to fit within the banned activities listed in that paragraph and unquestionably violates the “appearance of impropriety” standard. That’s not just my opinion, that’s the opinion of Marquette University Law School Prof. Janine Geske:

“I believe the judges had the right to sign the petition, but it creates a problem with the appearance of impartiality if and when they may be called upon to decide any issues involving the governor or the Republican party,” Geske said in an email. “We are in a highly politically charged time when many citizens have lost confidence in our governmental bodies. It is critical that judges do everything they can to demonstrate that the judiciary remains independent of the other two branches and will remain free of political influence.” …

Professor Richard Painter of the University of Minnesota Law School questioned why judges would expose themselves to criticism and a potential perception of bias by signing the recall petition, though he acknowledged there might be wiggle room within the judicial code allowing judges to sign.

“State judges often have to decide cases where the governor is a party to a case, less often where state legislators are a party to a case. Sometimes judges have to rule on close elections,” said Painter, who served as chief ethics lawyer in President George W. Bush’s administration and has written a book on ethics reform in American government. “For judges to be getting involved in the question of whether the governor ought to be recalled I think is highly inappropriate. Whether it violates an ethics rule or not in Wisconsin, I think it’s very inappropriate.”

Two Brown County judges engage in reasoning that one would think they would boot out of their own courtrooms if they heard these arguments from lawyers:

The judges who signed the petition made two basic arguments — that signing the petition was merely supporting the electorate’s right to vote, and that the recall petition supports neither a specific candidate nor a political party and is allowable.

‘”I concluded that by signing a recall petition I wasn’t advocating for a particular party, I was advocating for the recall process, which I thought was completely separate and apart,” said Brown County Judge Mark Warpinski. “I didn’t do it lightly. I certainly considered this a very important issue, but in the final analysis I felt that my right to sign a petition didn’t implicate any of the ethical considerations that I knew of.”

Brown County Judge Don Zuidmulder called criticism of judges signing the petition “the beating of the partisan drum.”

“I viewed this simply as a question of whether we should have an election,” Zuidmulder said. “I’m in favor of elections any time, any place.”

Warpinski’s argument is specious in that the electorate’s right to vote comes in regularly scheduled elections, the next of which, in the case of the governor, is in 2014. Zuidmulder’s accusation is just off-the-charts arrogant, and makes one wonder how he’d feel about a recall attempt of himself.

Warpinski’s and Zuidmulder’s judicial colleague got it right:

“When you sign up for this job, to some extent you compromise your ability to express your own political beliefs one way or the other,” said Brown County Judge Marc Hammer. “Some judges don’t think it’s a political statement to sign a recall petition. I just really wasn’t comfortable in doing so. I think if you’re asked to judge the conduct of others, you need to be mindful of what your conduct is.”

The story adds that “The state Supreme Court issued an advisory opinion in 2001 saying judges are allowed to sign nominating petitions so long as the petition language only supports putting the candidate on the ballot and does not imply an endorsement.”

I’m not a lawyer, and I don’t play one on TV, but I would argue that the Supremes got it wrong in 2001. Signing a nominating petition means you believe that person should be on the ballot, which is in fact an endorsement, even though it doesn’t mean you’re voting for that person. Avoiding the “appearance of impropriety” would seem to allow judges to vote, and nothing else.

The revelations about the Not Impartial 29 also demonstrate the changing nature of democracy in today’s Internet age. I assume some of the signers signed without realizing the chance that their signatures would become public information. In a state with a long tradition of open government — including in the judges’ courtrooms — that turns out to have been an incorrect assumption on the signers’ part. (For instance, UW System spokesman David Giroux, who better hope he doesn’t run into a particularly vindictive Republican state legislator, lest his position disappear in the 2013–15 state budget.)

Those who disagree with this analysis should ask themselves this question: Would it be improper for judges to sign petitions for the recall of Democratic Secretary of State Douglas La Follette?  (Assuming anyone figures out what La Follette does other than run for other office, that is.) The answer is: Of course it would be improper.

Socha asks:

If the day ever comes and you would stand before one of these 29 judges, would it be a fair trial? Would you be found guilty even before the court case even begins? These judges are just following their liberal beliefs, they can do anything they want at anytime they want! So much for judicial ethics.

That’s a good question to ask if one of those 29 judges is deciding a case (more likely civil than criminal, because the court system has more civil cases than criminal cases) in which the plaintiff or defendant is a known Republican or conservative. At minimum his or her lawyer should have a recusal request form handy. And for those who equate judges with arch arrogance (a UW journalism instructor once told us that judges have a “God complex” when on the bench), those beliefs have gotten 29 examples of validation.