Wisconsin judicial complaints: a one-man show

By Alexandria Staubach

For the past decade, one individual has screened all judicial complaints in Wisconsin. He is equipped with unilateral authority to determine what complaints merit further investigation.

Whether initiated by a litigant, member of the press, or other interested party, a complaint about a judge goes to the Wisconsin Judicial Commission as an “initial inquiry.” According to the commission’s most recent annual report, in 2023, there were 644 reports of judicial misconduct or disability.

Most of these inquiries were resolved solely by the commission’s staff, which includes the commission’s executive director and a paralegal.

Attorney Jeremiah C. Van Hecke has served as executive director since 2013.

“Commission staff reviews all allegations against judicial officials to determine whether they are within the jurisdiction of the Commission and are not patently frivolous or unfounded. Allegations that do not meet these criteria may be administratively dismissed by the Commission’s Executive Director with an appropriate referral, when possible,” says the 2023 report.

Of the 644 initial inquiries in 2023, all but 42 resulted in dismissal by staff.

Wisconsin law does not provide a mechanism for appeal of such dismissals. According to the 2023 report, “a sample” of the dismissed inquiries are reviewed by the commission’s screening committee.

In an email, Van Hecke verified to WJI that “there is not an appeals process regarding the dismissal of an initial inquiry made to the Commission,” and “(o)nce a year, the Commission's chair appoints Commission members to the Screening Committee, which reviews a random sample of decisions made by Commission staff regarding initial inquiries for appropriateness and consistency.”

According to Van Hecke, “initial inquiries include, but are not limited to, complaints of judicial misconduct filed with the Commission. They could also include initial substantive contacts that do not result in the actual filing of a complaint." He added that “(t)o the extent that initial inquiries amount to a complaint against a judicial official,” dismissal decisions regarding those inquiries are primarily made” by him as executive director, though on occasion some are addressed by the Screening Committee.

All Wisconsin judges, from the Supreme Court to former judges who serve in a reserve capacity and municipal judges, are subject to the Code of Judicial Conduct. Since 1978, the commission has existed as an independent agency within the judicial branch to oversee adherence to that code. Court commissioners also came under the commission’s jurisdiction in 1992.

The Judicial Commission consists of nine members: one circuit court judge, one court of appeals judge, and two attorneys, all appointed by the Supreme Court, plus five nonlawyer members nominated by the governor and appointed with the Senate’s consent.

Initial inquiries are confidential by law unless the judge who is the subject of a complaint waives confidentiality. Under Wisconsin law, if an individual or entity “breached the confidentiality of the investigation, the commission may dismiss the allegation, admonish the person or take other action.”

Last year, former state courts’ director Randy Koschnick made national headlines after going public with a complaint he filed against four Wisconsin Supreme Court justices, including then-newly elected Justice Janet Protasiewicz, related to his firing. Three of the justices wrote a letter to the commission accusing Koschnick of a publicity stunt and criticized the commission for failing to admonish Koschnick for going public.
 
So what happens to initial inquires that survive Van Hecke’s screening?

The commission opens an investigation and requests more information from the judge or others. The executive director then prepares a report for the commission to consider. The complaint can be dismissed at that point, too, based on what the inquiry shows, whether the complaint involves a disappointed litigant questioning the merits of a judge's decision, whether the allegation involves a single and minor violation, or whether the judicial official has already taken corrective action or no longer holds office.

Of the 42 cases that survived Van Hecke’s screening in 2023, 33 were dismissed after preliminary investigation.

If the commission decides the matter should continue after preliminary investigation, the judge is notified and permitted to respond. The commission may then dismiss the complaint or initiate a public disciplinary action in the Wisconsin Supreme Court.

In the public disciplinary action the commission presents its case to a three-judge panel (including at least two appeals court judges), and the panel reports its conclusions and recommendations to the Supreme Court for final decision.

Since 1978, only 34 complaints have resulted in public disciplinary cases. Just two public disciplinary cases have occurred in the last five years.

Prior to his appointment as Judicial Commission executive director in 2013, Van Hecke was a Milwaukee County assistant district attorney.