WJC v. Hon. Scott C. Woldt , 2021 WI 73 ( 2021 )

2021 WI 73SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP1028-J
COMPLETE TITLE: In the Matter of the Judicial Disciplinary
Proceedings Against Scott C. Woldt:
Wisconsin Judicial Commission,
Complainant,
v.
The Honorable Scott C. Woldt,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST WOLDT
OPINION FILED: July 13, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
Per Curiam. REBECCA GRASSL BRADLEY, J., concurs in part and
dissents in part, in which ROGGENSACK, J., joined.
NOT PARTICIPATING:
ZIEGLER, C.J., and HAGGEDORN, J.
ATTORNEYS:
2021 WI 73NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2020AP1028-J
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of the Judicial Disciplinary
Proceedings Against Scott C. Woldt:
Wisconsin Judicial Commission, FILED
Complainant, JUL 13, 2021
v. Sheila T. Reiff
Clerk of Supreme Court
The Honorable Scott C. Woldt,
Respondent.
JUDICIAL disciplinary proceeding. Judge suspended from
office.
¶1 PER CURIAM. We review, pursuant to Wis. Stat.
§ 757.91 (2019-20),1 a Judicial Conduct Panel's2 (the Panel)
1All subsequent references to the Wisconsin Statutes are to
the 2019-20 version unless otherwise indicated. Wisconsin Stat.
§ 757.91 provides:
The supreme court shall review the findings of
fact, conclusions of law and recommendations under
s. 757.89 and determine appropriate discipline in
cases of misconduct and appropriate action in cases of
permanent disability. The rules of the supreme court
applicable to civil cases in the supreme court govern
the review proceedings under this section.
No. 2020AP1028-J
findings of fact, conclusions of law, and recommendation for
discipline for the Honorable Scott C. Woldt, a judge for the
Winnebago County circuit court. In a Joint Stipulation as to
Findings of Fact and Conclusions of Law (the Joint Stipulation),
Judge Woldt admitted to all of the facts in the Wisconsin
Judicial Commission's (the Commission) complaint and agreed
that, based on those facts, he had violated the Code of Judicial
Conduct (the Code). Based on the Joint Stipulation, the Panel
found that the facts alleged in the complaint were established
as true and determined that those facts supported the legal
conclusion that Judge Woldt had willfully violated several rules
of the Code, which constituted judicial misconduct under Wis.
Stat. § 757.81(4)(a).3 After receiving memoranda from the
parties regarding the appropriate level of discipline, the Panel
recommended that this court suspend Judge Woldt without pay for
a period of not less than seven nor more than 21 days.
¶2 After carefully reviewing this matter, we adopt the
Panel's findings of fact, and we agree that those facts
demonstrate that Judge Woldt committed judicial misconduct. We
conclude that as discipline for that misconduct, Judge Woldt
2 Pursuant to Wis. Stat. § 757.87(3), Judges JoAnne F.
Kloppenburg, Thomas M. Hruz, and Mark A. Seidl of the court of
appeals were appointed to serve as the Judicial Conduct Panel,
with Judge Kloppenburg acting as the presiding judge.
3 Wisconsin Stat. § 757.81(4)(a) states that judicial
misconduct includes "[w]illful violation of a rule of the code
of judicial ethics."
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No. 2020AP1028-J
should be suspended without pay for a period of seven days,
commencing August 2, 2021.
¶3 Judge Woldt has been a circuit court judge since his
appointment to the bench in 2004. He was subsequently elected
to six-year terms in 2005, 2011, and 2017. He has never before
been the subject of public or private judicial discipline.
¶4 On June 17, 2020, the Commission filed a complaint in
this court against Judge Woldt alleging that he had willfully
violated Supreme Court Rules (SCRs) 60.02, 60.03(1),
60.04(1)(d), and 60.04(1)(hm) in connection with six separate
incidents. At the same time that it filed its complaint, the
Commission also filed the Joint Stipulation, in which Judge
Woldt not only agreed that the factual allegations in the
Commission's complaint were true, but also that those facts
demonstrated that his conduct in each of the six incidents
described in the complaint "violated the Code of Judicial
Conduct" with respect to the particular provisions of the Code
set forth in the complaint. Joint Stipulation ¶¶3 and 15. The
parties jointly requested that they be permitted to submit
memoranda to the Panel with respect to the issue of the proper
level of discipline.
¶5 After the appointment of its members, the Panel
established a briefing schedule for the submission of memoranda
regarding the appropriate level of discipline. Judge Woldt
subsequently requested that the Panel hear oral argument in this
matter, which the Commission opposed. The Panel denied Judge
Woldt's request, concluding that oral argument was unnecessary
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in this matter in light of the stipulated nature of the facts
and the legal conclusions of violations of the Code.
I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
¶6 We now turn to the facts and legal conclusions as
stipulated by the parties and as found by the Panel. Both the
complaint and the Panel's report numbered and addressed the six
incidents at issue in this proceeding in reverse chronological
order. We maintain the numbering system used by the complaint
and the Panel's report to avoid confusion, but we address them
in chronological order to demonstrate the continuity of Judge
Woldt's behavior over an extended period of time.
Incident Six (February 27, 2009)
¶7 The first incident at issue in this proceeding
occurred during a sentencing hearing that took place on February
27, 2009, in State v. Williams, Winnebago County Case No.
2008CM1517. The criminal charges in that case resulted from an
altercation between Williams and his girlfriend. Williams pled
guilty to one count of disorderly conduct as an act of domestic
abuse. A second charge that also related to domestic abuse was
dismissed and read in for sentencing purposes.
¶8 At the beginning of the sentencing hearing, the victim
made the following statement: "I was just hoping that he could
get a fine and community service instead of 18 months' probation
because we are trying to work things out and things have been a
lot better." During the hearing Judge Woldt asked questions of
the defendant that clearly conveyed he did not believe the
defendant. He then stated that "[t]he answers to my questions
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No. 2020AP1028-J
clearly tell me that you need counseling, plain and simple."
Judge Woldt then imposed and stayed a 30-day jail sentence and
placed Williams on probation for one year with a number of
conditions. After concluding his sentence of Williams, Judge
Woldt addressed the following comments to the victim:
And ma'am, if you come in here and tell me that you
just want a fine, everything's fine, then don't pick
up the phone and dial 911, don't call the cops. I
mean if you think you want to handle it, then you
handle it; but if you want to pick up the phone and
call the police, we're going to get involved and we're
going to make him get the counseling which he needs.
I'm just sick and tired of victims coming in here and
they call the cops when they need 'em but then later
on they come and say: Oh, no, this person's an angel.
I'm sick and tired of hearing it.
¶9 The Commission's complaint alleged that Judge Woldt's
comments to the victim had violated the Code. The Panel agreed
that Judge Woldt's statement to the victim had constituted
willful violations of three SCRs: SCR 60.02,4 SCR 60.03(1),5 and
SCR 60.04(1)(d).6
4 SCR 60.02 provides:
An independent and honorable judiciary is
indispensable to justice in our society. A judge
should participate in establishing, maintaining and
enforcing high standards of conduct and shall
personally observe those standards so that the
integrity and independence of the judiciary will be
preserved. This chapter applies to every aspect of
judicial behavior except purely legal decisions. Legal
decisions made in the course of judicial duty on the
record are subject solely to judicial review.
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No. 2020AP1028-J
Incident Five (May 29, 2015)
¶10 Judge Woldt presided over a sentencing hearing in
State v. Krebs, Winnebago County Case No. 2014CF466. Krebs, who
was 18 years old at the time of the crime, pled no-contest to
one count of second-degree sexual assault of a 13-year-old girl.
Krebs was asked by another young man to take him to a small
gathering to see the young man's girlfriend. There were a
couple of other younger girls also present at this outdoor
gathering. According to the criminal complaint, Krebs and one
of the younger girls were kissing. Krebs then put his hand into
the girl's shorts, penetrated her vagina with his finger, and
tried to push her head down toward his penis.
¶11 During the sentencing hearing, defense counsel tried
to explain Krebs' state of mind and to portray him as a young
5 SCR 60.03(1) provides: "A judge shall respect and comply
with the law and shall act at all times in a manner that
promotes public confidence in the integrity and impartiality of
the judiciary."
6 SCR 60.04(1)(d) provides:
A judge shall be patient, dignified and courteous
to litigants, jurors, witnesses, lawyers and others
with whom the judge deals in an official capacity and
shall require similar conduct of lawyers, staff, court
officials and others subject to the judge's direction
and control. During trials and hearings, a judge
shall act so that the judge's attitude, manner or tone
toward counsel or witnesses does not prevent the
proper presentation of the cause or the ascertainment
of the truth. A judge may properly intervene if the
judge considers it necessary to clarify a point or
expedite the proceedings.
6
No. 2020AP1028-J
man who was confused and afraid due to the situation (kissing a
girl), didn't really know what he should do, and got caught up
in the moment, as opposed to an experienced man who sought out a
young victim in a predatory fashion. Judge Woldt interrupted
defense counsel with the following exchange:
The Court: I know when I'm paralyzed by fear the
first thing I want to do is stick my "dick" in some
girl's mouth.
Mr. Edelstein: Well –
The Court: Everyone else the same way? (No
response.)
The Court: I mean that's a stupid argument.
. . .
Mr. Edelstein: I'm not saying it wasn't a two-way
street, but it's not as if we have an individual who
set out in a predatory fashion to meet up with someone
knowing that his friend was going to a party with
these young girls here. That's not what happened.
¶12 Later in the hearing, after telling defense counsel to
"jump to the chase," Judge Woldt asked Krebs if he had anything
to say (in allocution). Krebs paused, and before he could get
any words out, Judge Woldt jumped back in with the following
exchange:
The Court: Here's the deal. People who practice in
front of me a lot know that I don't like being late.
That's why all these signs around here say, "Don't be
sorry, be on time." I don't like being late. And
attorneys that practice in front of me a lot know,
that when things are getting behind, they know the
best thing they can do is to shut their "pie holes"
and get to the point, and Mr. Edelstein doesn't get
that. But I understand he has – feels that he has to
say what he has to say on behalf of his client and get
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No. 2020AP1028-J
the best deal. So what I always say to people is, "Is
there anything you want to do to mess this deal up?
Is there anything you want to say?"
The Defendant: No.
The Court: You're a very smart man. You would be
amazed at the amount of defendants that come in and
say, "Yeah, there is," and then they continue to go
on.
I don't think for a minute that you're the type of kid
that's going to come back here. You're a low risk to
reoffend. Everything in the PSI says you're a low
risk to reoffend. I think you got into a situation
where you were taken advantage of and you returned the
favor by taking advantage of someone else. What tells
me a lot is the fact that the victims in this case had
no contact whatsoever with return phone calls to the
agent. That tells me that there's something with this
so-called victim in this case.
¶13 The Commission alleged, and the Panel found, that
Judge Woldt's comments and behavior during this sentencing
hearing had constituted willful violations of the following four
provisions of the Code: SCR 60.02, SCR 60.03(1),
SCR 60.04(1)(d), and SCR 60.04(1)(hm).7
7 Judge Woldt's comment to the defendant discouraging him
from exercising his right of allocution violated this rule.
SCR 60.04(1)(hm) provides:
A judge shall uphold and apply the law and shall
perform all duties of judicial office fairly and
impartially. A judge shall also afford to every person
who has a legal interest in a proceeding, or to that
person's lawyer, the right to be heard according to
the law. A judge may make reasonable efforts,
consistent with the law and court rules, to facilitate
the ability of all litigants, including self-
represented litigants, to be fairly heard.
8
No. 2020AP1028-J
Incident Four (June 4, 2015)
¶14 This incident occurred during a postconviction motion
hearing in State v. Grant, Winnebago County Case No. 2014CT413,
in which the defendant argued that his trial counsel had
provided ineffective assistance by failing to file a motion to
suppress evidence. After hearing testimony from trial counsel,
Judge Woldt denied the motion. He then added the following
comments:
The Court: . . . I would have denied the motion in
the first place if Mr. Szilagyi would have followed –
filed it and I probably would have done so forcefully,
not that I wouldn't like to grant this motion because
I really would. I would love to grant this motion, I
would love to have a trial on this issue, I'd love
that he get found guilty, and I'd love to give him a
year in jail for wasting my time today. I would love
to do that, but unfortunately I can't. . . .
¶15 The Panel found that this comment had constituted a
willful violation of the following provisions of the Code:
SCR 60.02, SCR 60.03(1), and SCR 60.04(1)(d).
Incident Three (June 5, 2015)
¶16 This incident occurred during a sentencing hearing in
State v. Shaffer, Winnebago County Case No. 2014CF509. In that
case the defendant was charged with burglary of a neighbor
family's house and with stalking (with a previous conviction for
a violent crime). Pursuant to a plea agreement, the defendant
pled no contest to the stalking charge, and the burglary charge
was dismissed and read in.
¶17 The defendant, who was then in his mid-20s and
suffered from substantial cognitive deficiencies, removed the
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No. 2020AP1028-J
garage door opener from the neighbors' car and used the opener
on a subsequent date to enter the neighbors' house. He took
some of the wife's underwear, which he later returned, along
with the opener. The defendant had a previous conviction in
2009 for sexual contact with two seven-year-old girls who were
in his mother's daycare business.
¶18 At the sentencing hearing, the husband victim spoke
about how the defendant's actions had undermined the family's
sense of safety in their home, especially in light of the fact
that they had two young children.
¶19 During his subsequent sentencing comments, Judge Woldt
told the husband and wife victims that he understood their fear
as a result of the defendant's actions. He then proceeded to
give a rather lengthy soliloquy about his views on courthouse
security before returning to what an appropriate sentence should
be. We include an extended excerpt of Judge Woldt's comments
below because it is important to understand the full context:
By the same token, I understand the fear of the
victims in this case. When I judge people and I make
decisions, the people of this county elected me, and
when they elected me they elected me and my beliefs,
my thoughts, and they reelected me because they agree
with my beliefs and my thoughts and my experiences.
Just an example is I've been trying to get security
into this courthouse. There is none. Any one of you
could have walked in today with a gun. None of us
would ever know. Because I sit here and I – this
isn't the most safest place in the world, I don't deal
with the upper echelon of the community, a lot of
people I meet do pretty bad things, I send people to
prison – or I should say they send themselves to
prison but they think I do – so I have a concern with
that. So I have that fear too. So what can I tell
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No. 2020AP1028-J
you to do with that fear? I have tried the County
Board, I have tried everything to get people to do
something to keep guns out of this courthouse, and
nothing happens, so you know, you got to protect
yourself. I can tell you what I do now. This is what
I do – (the court holds up a gun.) That I keep up
here on the bench just because I want to protect
myself. Now, I'm not saying you should do that but if
I was in your – if I was in your situation, I'd have
it on my side all the time. With today's laws with
the Castle Doctrine, you're lucky you're not dead
because, if you would have come into my house, I keep
my gun with me and you'd be dead, plain and simple,
but that's what makes this so scary. So –
And everyone says I can't believe this happened, it's
not like him, that's not like him. I get one letter
from Attorney Reff, and I'm reading the letter, and it
just boggles my mind. He's a nice kid. He won't do
this. Don't put him on probation because he doesn't
do well on probation because he doesn't like telling –
people telling him what to do and it's just not going
to do him any good. Don't put him in prison because
prison is for bad people, [and] he's not a bad person,
it's not going to do him any good. Well, then what
the hell am I supposed to do? Just say – (the court
swishes hands together) – I give up, nothing, because
probation's not going to work, he doesn't listen to
anybody, prison's not going to work because that's
only for bad people, he's not a bad person.
So I agree, what do you do? Everyone today was saying
who knows, who knows what to do. I think even the
people that were talking on [the defendant's] behalf,
who knows, said it twice, who knows, who knows. Who
knows what to do with him? If no one knows what to do
with him, the only thing I can do is judge his past,
what he's done in the past, the fact that we tried to
help him and he continues to do that, so that I have
to take as the Gospel, that's the way it's done, so
the only thing I can do at this point is look at one
thing, and that's protection of the public, so what
can I do to protect the public from him because he's
not going to change, and that's incarceration. That's
the only thing I can do is take him out of society by
doing it, but I can also do some things also to
hopefully make the victims feel more at ease 'cuz I
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No. 2020AP1028-J
agree with you with respect – I agree – I agree with
you, partly because I am an idealist also. Damn it,
it's my house. It's my first house, and I don't want
to move. Why should I have to move if I haven't done
anything wrong? I understand that, but I also
understand that I don't give a shit about my
idealistic beliefs, if it comes down to my family's
safety I'm moving my ass out of there. It goes both
ways.
¶20 This excerpt indicates that at one point during his
lengthy statement, Judge Woldt held up a handgun. The
Commission's complaint alleged, and the Panel found, that during
the hearing, Judge Woldt had a Glock Model 43 handgun in a
holster on his right hip concealed under his judicial robe. The
gun was loaded with a round in the chamber and a full magazine.
The Panel found that Judge Woldt was legally carrying the
concealed gun pursuant to Wis. Stat. § 175.60(16)(b)(2). The
complaint further alleged and the Panel found that, when the
transcript indicates that Judge Woldt "[held] up a gun," he (a)
removed the handgun from its holster beneath his robe, (b)
ejected the loaded magazine, (c) racked the handgun's slide to
eject the bullet from the gun's chamber, and then briefly
displayed the gun "as a 'prop'" to those present in the court.
Although the Commission stipulated that the gun was not loaded
when Judge Woldt held it up for those in the courtroom to see,
he did not state that fact to those individuals. In addition,
the parties stipulated that no one asked Judge Woldt whether he
carried a firearm or whether he would display his gun and that
Judge Woldt was not in fear for his safety. Based on the Joint
Stipulation, the Panel's findings also contained a paragraph
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No. 2020AP1028-J
that stated that when Judge Woldt displayed his handgun during
this hearing, he (a) did not have his finger on the trigger or
inside the trigger guard and (b) did not point the gun at any
person in the courtroom.
¶21 Given these facts, the Panel concluded that during
this sentencing hearing Judge Woldt had willfully violated the
following provisions of the Code: SCR 60.02, SCR 60.03(1), and
SCR 60.04(1)(d).
Incident Two (January 25, 2016)
¶22 This incident did not occur during a hearing in a
case. Instead, this incident occurred when a group of high
school students visited Judge Woldt's courtroom during a
Government Day event. Consequently, there is no transcript for
this incident.
¶23 As with Judge Woldt's display of his Glock handgun
during the Shaffer sentencing hearing described in Incident
Three above, he also displayed his handgun to the students. The
Commission's complaint alleged, and the Panel found, the same
facts as in Incident Three regarding the holstering of the fully
loaded and concealed gun, the removal of the magazine and the
round in the chamber, and then the brief display of the gun to
those present in the courtroom. According to the Panel's
finding, Judge Woldt displayed the gun "as a 'prop'" when
responding to a student question about courthouse security
generally. The question did not ask him whether he carried a
firearm, and no one asked him to display a gun. Further, as was
the case with Incident Three, Judge Woldt had no fear for his
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No. 2020AP1028-J
safety at the time he displayed the gun to the high school
students.
¶24 The Commission alleged, and the Panel concluded, that
Judge Woldt's conduct at the Government Day event, including the
display of the handgun, had willfully violated SCR 60.02 and
SCR 60.03(1).
Incident One (April 18, 2016)
¶25 This incident arose out of a custody/placement
modification hearing in Wadleigh v. Wadleigh, Winnebago County
Case No. 2009FA594. During the hearing counsel for the
petitioner, Attorney Gordon Stillings, cross-examined the
director of the Winnebago County Family Court Services. Judge
Woldt did not care for a line of Attorney Stillings' questions.
He had not expressed his displeasure previously and no objection
had been made, but Judge Woldt interrupted the cross-examination
with the following exchange:
The Court: Counsel, there's a thin line between being
an advocate and being a "dick" – thin line – and
you're blurring it.
Mr. Stillings: Can you be more specific? I'm not
understanding –
The Court: I'm not going to play your games with you,
okay? I'm not going to play your games with you.
You're being very argumentative with this witness, and
you're playing games.
¶26 Shortly thereafter, Judge Woldt again interrupted
counsel and stated that counsel's question was not relevant.
During the following exchange, when the attorney began to state
that he was trying to figure out something, Judge Woldt
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No. 2020AP1028-J
interrupted again and said that counsel was "trying to go back
to the way I said you were a couple minutes ago." Judge Woldt
then threatened to find a woman in the courtroom in contempt if
she gave him "that look one more time."
¶27 In the discussion section of its report, the Panel
found that Judge Woldt had "impliedly labelled" counsel a
"dick." It concluded that, even if Judge Woldt had been
frustrated with the attorney, as he argued in his sanction
memorandum, Judge Woldt's comments at the hearing, including his
use of the profanity directed at Attorney Stillings, had
willfully violated SCR 60.02 and SCR 60.04(1)(d).
¶28 The Panel's final legal conclusion was that Judge
Woldt's conduct in the six incidents, as described in the
preceding paragraphs, constituted willful violations of the
specified SCRs, which therefore constituted judicial misconduct
under Wis. Stat. § 757.81(4)(a).
II. RECOMMENDATION AS TO DISCIPLINE
¶29 Although the parties had entered into a Joint
Stipulation that the facts set forth above were true and that
Judge Woldt's conduct in the six incidents had violated the
specified provisions of the Code of Judicial Conduct, the
sanction memoranda that the parties filed with the Panel showed
that they strongly disagreed with the way these six incidents
should be characterized. Judge Woldt's sanction memorandum
generally alleged that the Commission's descriptions of the
incidents were incorrect and failed to acknowledge the context
in which the incidents occurred. For example, Judge Woldt
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No. 2020AP1028-J
denied the Commission's statement that he had called Attorney
Stillings a "dick" in Incident One, saying that he had said only
that Attorney Stillings was getting close to crossing that line
and that his statement was an attempt to exercise his discretion
to control the mode of interrogation and protect the witness
from undue harassment or embarrassment. As another example,
Judge Woldt disputed the Commission's statement that in Incident
Three his crude language had been directed toward the victims
and that his display of his gun had been intended to instill
fear in the defendant. He claimed that he was simply trying to
show empathy with the victims and that his display of the gun
occurred while he was showing empathy to the victims—not when he
was addressing the defendant. With respect to Incident Five,
Judge Woldt argued that his comment about the defendant was an
"impulsive reaction" to a meritless argument by defense counsel
and that his use of the phrase "so-called victim" was not
directed toward the victim, as the Commission alleged, because
she was not in the courtroom that day.
¶30 The Panel's discussion regarding the level of
discipline to be recommended focused, in large degree, on
factors that this court has indicated may be considered in
determining the appropriate level of discipline. See In re
Judicial Disciplinary Proceedings Against Ziegler, 2008 WI 47,
¶43, 309 Wis. 2d 253, 750 N.W.2d 710. Those factors include:
(1) Whether the misconduct is an isolated instance or
evidenced a pattern of misconduct;
(2) The nature, extent and frequency of occurrence of
the acts of misconduct;
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No. 2020AP1028-J
(3) Whether the misconduct occurred inside or outside
the courtroom or courthouse;
(4) Whether the misconduct occurred in the judge's
official capacity or in his or her private life;
(5) Whether the judge has acknowledged or recognized
that the acts occurred;
(6) Whether the judge has demonstrated an effort to
change or modify his or her conduct;
(7) The extent to which the judge exploited his or
her position to satisfy personal desires;
(8) The length of the judge's service on the bench;
(9) Whether prior complaints were filed against the
judge; and
(10) The effect the misconduct has upon the integrity
of and respect for the judiciary.
Id. (citing In re Inquiry Concerning Patrick C. McCormick, 639
N.W.2d 12, 16 (Iowa 2002)).
¶31 The Panel found that in this case these factors
weighed in both directions. It concluded that some factors were
mitigating considerations, including Judge Woldt's admission
that he had engaged in judicial misconduct, the lack of any
personal benefit from his misconduct, his history of service on
the bench, and the lack of prior formal complaints against him.
The Panel also noted later in its discussion that three of the
incidents had occurred within a one-week period of time, which
Judge Woldt had described as a tumultuous time in his family
circumstances.
¶32 On the other hand, a number of these factors were
aggravating and called for a more severe sanction. These
aggravating factors included that Judge Woldt's misconduct was
far removed from any judicial purpose; that his misconduct
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No. 2020AP1028-J
occurred in the courtroom and, with one exception, in the middle
of court proceedings; that his misconduct occurred in his
official capacity as a representative of the judicial system;
and that his misconduct had a substantial impact on the
integrity of and respect for the judiciary.
¶33 The Panel also discussed separately whether Judge
Woldt's six instances of misconduct constituted an aggravating
pattern. Ultimately, the Panel believed that the 2009 incident
was not part of a pattern because of the period of time between
that incident and the other five incidents, but it determined
that the five incidents that occurred in just under a year (May
2015-April 2016) did constitute an aggravating pattern of
misconduct, rather than a number of isolated incidents. In
addition to the closeness in time, the Panel emphasized that all
of the incidents of misconduct involved inappropriate demeanor
in the courtroom.
¶34 The Panel considered two other judicial disciplinary
proceedings where the misconduct had similarly stemmed from
improper judicial demeanor: In re Judicial Disciplinary
Proceedings Against Gorenstein, 147 Wis. 2d 861, 434 N.W.2d 603(1989), and In re Judicial Disciplinary Proceedings Against
Breitenbach, 167 Wis. 2d 102, 482 N.W.2d 52 (1992). In both of
those proceedings, the respondent judge no longer held office at
the time of the court's disciplinary proceeding. In each
proceeding, the judge was found to have demonstrated over a
period of five years a pattern of insensitivity and disrespect
to litigants, witnesses, attorneys, and others. This court
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No. 2020AP1028-J
determined that each judge's pattern of sarcastic, demeaning,
and intemperate behavior was serious enough to warrant imposing
a two-year suspension during which the judge was prohibited from
serving as a judge of any court, including serving as a reserve
judge.
¶35 The Panel stated that the decisions in Gorenstein and
Breitenbach confirmed that incidents of improper judicial
demeanor can warrant serious discipline. It concluded that
Judge Woldt's violation of four different sections of the Code
and the multiple occasions on which the violations occurred
required the imposition of a suspension in order to foster
"public confidence in the sanctity of a fair and impartial
judiciary." Noting that Judge Woldt's incidents of misconduct
were less numerous than those committed by Judges Gorenstein and
Breitenbach and weighing the aggravating and mitigating factors,
the Panel recommended that Judge Woldt be suspended without pay
for a period of not less than seven days nor more than 21 days.
III. REVIEW OF PANEL REPORT AND ANALYSIS
¶36 Neither party has sought to appeal from any portion of
the Panel's findings of fact, conclusions of law, or
recommendation for discipline. Nonetheless, we must review the
Panel's findings of fact to determine if they are clearly
erroneous, and we must review de novo the Panel's conclusions of
law regarding whether those facts demonstrate judicial
misconduct. Wis. Stat. § 757.91; see also In re Judicial
Disciplinary Proceedings Against Crawford, 2001 WI 96, ¶10 n.5,
245 Wis. 2d 373, 629 N.W.2d 1; In re Judicial Disciplinary
19
No. 2020AP1028-J
Proceedings Against Aulik, 146 Wis. 2d 57, 69, 429 N.W.2d 759(1988). As this court holds the constitutional responsibility
for maintaining the proper administration of justice in the
courts of this state, we independently determine the appropriate
level of discipline to be imposed in light of the particular
misconduct and the other facts of each case, benefitting from
the Panel's analysis and recommendation.8
¶37 Given the parties' stipulation regarding the facts of
the six incidents, we do not find clear error regarding any of
the specific factual findings set forth by the Panel. We also
do not find any of the inferences drawn from those facts in the
discussion section of the Panel's report to be unreasonable.
¶38 We agree with the Panel that the stipulated facts and
the reasonable inferences from those facts show that Judge Woldt
willfully violated the Code of Judicial Conduct as alleged in
the complaint, and therefore committed judicial misconduct under
Wis. Stat. § 757.81(4)(a).
¶39 Although they concur in the other conclusions of
misconduct and in the imposition of a seven-day suspension, two
8That the decision regarding whether and at what level to
impose discipline is committed solely to this court is also
supported by the fact that the statute acknowledges that a
judicial conduct panel makes only "recommendations regarding
appropriate discipline for misconduct." Wis. Stat. § 757.91
(emphasis added). A recommendation is not a judicial act that
carries any legal effect. It is this court in which judicial
disciplinary proceedings are filed, and it is this court that
enters an order specifying the discipline to be imposed on a
judge who has committed judicial misconduct.
20
No. 2020AP1028-J
justices of this court, Justice Roggensack and Justice Rebecca
Grassl Bradley, conclude that Judge Woldt's display of his
handgun in his courtroom does not constitute a violation of the
Code. It is true that there is an exemption to the statutory
ban on carrying concealed weapons in a courthouse for judges who
are licensed to carry concealed weapons. Wis. Stat.
§ 175.60(16)(a)6 and (b)2. Judge Woldt held a concealed weapon
permit during the incidents at issue in this proceeding. The
authorization for a judge to carry a concealed weapon in a
courthouse, however, does not resolve the question of whether
Judge Woldt's conduct in the two relevant incidents ran afoul of
the Code. The law also does not forbid individuals from
engaging in impatient, undignified, and disrespectful conduct.
Indeed, in most circumstances, the First Amendment to the United
States Constitution protects from governmental sanction speech
that is impatient, undignified, and disrespectful. That fact,
however, does not mean that a judge cannot be disciplined for
impatient, undignified, and disrespectful speech when the judge
directs that speech to participants in a court proceeding over
which the judge is presiding. Indeed, all participating
justices in this proceeding agree that Judge Woldt can be and
should be disciplined for his impatient, undignified, and
disrespectful speech in the incidents at issue here.
¶40 It is important to remember what the Commission's
complaint alleged, which is what the Panel found based on the
Joint Stipulation. In Incident Three, the Shaffer sentencing
hearing, the Panel's conclusions of law state that it was "Judge
21
No. 2020AP1028-J
Woldt's display of his gun and comments" (emphasis added) that
constituted the violations of SCRs 60.02, 60.03(1) and
60.04(1)(d). It was not the simple display of a gun; it was the
display of the gun "as a 'prop'" in connection with the
comments. First, Judge Woldt used undignified, discourteous,
and disrespectful language that demeaned the solemnity of the
court proceeding and his role as the person imposing a just
sentence on behalf of society.9 In addition, although that case
did not involve any firearm charges or even the use or threat of
any firearm, Judge Woldt essentially used his sentencing
comments to encourage the victims to take matters into their own
hands and use a gun, as he would do. It was at that point that
he brought out the handgun from under his robe to display it for
dramatic emphasis. As the Panel noted, it was not necessary for
any valid judicial purpose to display the gun and introduce an
element of force into the sentencing hearing. Most importantly,
it was immediately after displaying the gun that Judge Woldt
turned to addressing the defendant, who was a young man with
substantial cognitive limitations. Just two sentences after
holding up the gun, Judge Woldt told this young man that he was
9 Judge Woldt's comments included the following:
Damn it, it's my house. It's my first house, and I
don't want to move. Why should I have to move if I
haven't done anything wrong? I understand that, but I
also understand that I don't give a shit about my
idealistic beliefs, if it comes down to my family's
safety, I'm moving my ass out of there.
22
No. 2020AP1028-J
lucky that he had not entered Judge Woldt's house because Judge
Woldt would have shot him dead on the spot with the gun that he
always keeps with him (and had just displayed). That comment in
connection with the display of the gun served no purpose other
than to menace and frighten the young man. Finally, as the
Panel also noted, "Judge Woldt's comments about his own personal
fear and the display of the handgun served only to personalize
the proceeding and detract from his role as an impartial and
fair decision maker."
¶41 We have no hesitation in concluding that Judge Woldt's
comments, when combined with the unnecessary display of his
personal handgun during the sentencing proceeding, constituted a
failure to observe "high standards of conduct" "so that the
integrity and independence of the judiciary will be preserved."
SCR 60.02. A judge who displays a personal gun as a "prop"
during a court proceeding and then immediately threatens to use
it to kill the defendant if he ever broke into the judge's
residence is not demonstrating the integrity of the judiciary,
SCR 60.02, and is not "promot[ing] public confidence in the
integrity and impartiality of the judiciary." SCR 60.03(1).
Such conduct does not show that the judge is conducting himself
or herself as a respected judicial officer applying the law in a
dispassionate and reasoned manner, as the public expects judges
to do. Judge Woldt's conduct during the Shaffer sentencing
hearing also cannot be described as "patient, dignified and
courteous to litigants, jurors, witnesses, lawyers and others
with whom the judge deals in an official capacity."
23
No. 2020AP1028-J
SCR 60.04(1)(d). The facts of the Shaffer sentencing hearing
adequately prove the three Judicial Code violations alleged in
the Commission's complaint.
¶42 Similarly, Judge Woldt's conduct during the Government
Day event must be considered in context. He was meeting with a
group of high school students. When asked a general question
about courthouse security, he responded by displaying his gun
again as a "prop," apparently to make dramatic his ongoing
courthouse security complaints.10 No one asked him whether he
carried a gun, and no one asked to see the gun. There was no
reason to pull out a gun in response to a question from a high
school student. Although the Joint Stipulation indicates that
the gun was not loaded at the time it was displayed, Judge Woldt
did not disclose that fact to the students. All they knew was
that an adult judge in a black robe sitting on a judicial bench
in a courtroom suddenly pulled out a gun, which for all they
knew could have been loaded. As was the case with the Shaffer
sentencing, Judge Woldt's dramatic introduction of the use of
force in the form of his personal handgun unnecessarily
personalized what should have been an educational discussion
about a topic of civic interest. Drawing a gun in front of a
10 The Panel explicitly found that Judge Woldt had used his
gun "as a 'prop'" when stating his views on courthouse security
in response to the student's question and that he did so to give
dramatic effect to his response. Judicial Conduct Panel's
Findings of Fact, Conclusions of Law and Recommendation ¶11 and
p. 19.
24
No. 2020AP1028-J
group of teenage high school students when on the bench in one's
capacity as a representative of the judicial branch and when
there is no judicial purpose for doing so does not promote
confidence in the judge as a dispassionate and impartial arbiter
of the law or in the judiciary as a whole. Moreover, Judge
Woldt expressly "accept[ed] that displaying the gun was
unnecessary and ill-advised, and stipulate[d] that it violated
SCR 60.03(1) and 60.02." Respondent's Brief Regarding Sanctions
at 9. We therefore conclude that the Panel was correct to
conclude that Judge Woldt's conduct in the context of the
Government Day event violated both SCR 60.02 and SCR 60.03(1).
¶43 Having concluded that Judge Woldt committed misconduct
in all six incidents, we now turn to the appropriate level of
discipline.
¶44 The purpose of judicial discipline is not to punish
the judge, In re Judicial Disciplinary Proceedings Against
Aulik, 146 Wis. 2d 57, 77, 429 N.W.2d 579 (1988), but "to
protect the court system and the public it serves from
unacceptable judicial behavior." In re Judicial Disciplinary
Proceedings Against Gorenstein, 147 Wis. 2d 861, 873, 434
N.W.2d 603 (1989); see also Aulik, 146 Wis. 2d at 77. The level
of discipline, therefore, should be determined by the amount of
protection that is needed, given the seriousness of the judge's
misconduct and the likelihood that it would recur. Gorenstein,
147 Wis. 2d at 873. Discipline "commensurate with the conduct"
also is necessary to maintain the integrity of the judicial
process and to demonstrate that integrity to the public so that
25
No. 2020AP1028-J
the public retains confidence in the courts of this state.
Crawford, 2001 WI 96, ¶39;11 see also Aulik, 146 Wis. 2d at 77.
¶45 In his sanction brief to the Panel, Judge Woldt
contended that this court imposes a suspension rather than a
reprimand only when the respondent judge's conduct has involved
some degree of "moral culpability." We acknowledge that we have
previously stated that we consider suspension and removal from
office to be "drastic measures" that are generally reserved for
serious, repeated or persistent violations of the Code. In re
Judicial Disciplinary Proceedings Against Seraphim, 97
Wis. 2d 485, 513, 294 N.W.2d 485 (1980). We have not, however,
made "moral culpability" a bright-line test for the imposition
of a suspension. To the contrary, we have expressly stated that
we do not use bright-line standards when determining the
appropriate level of discipline:
The
11 court in Crawford explained this purpose of
discipline as follows:
The sanction that we impose must convey to the public
the gravity with which this court views judicial
misconduct. Those who sit in judgment in both civil
and criminal matters, in which the lives and
livelihoods of the citizens of this state are
involved, must be above reproach. When a judge fails
to live up to the demanding, but necessary, standards
that are imposed upon the elected judiciary, the
integrity of the entire judicial process can be only
reaffirmed by a sanction commensurate with the
conduct.
In re Judicial Disciplinary Proceedings Against Crawford, 2001
WI 96, ¶39, 245 Wis. 2d 373, 629 N.W.2d 1.
26
No. 2020AP1028-J
We have not established, nor will we here, a "bright-
line" standard when, for example, reprimand or
suspension is warranted as opposed to suspension.
Each case is different, and is considered on the basis
of its own facts.
Crawford, 245 Wis. 2d 373, ¶40. We will, therefore, determine
the appropriate level of discipline for Judge Woldt's judicial
misconduct based on the particular facts of this case.
¶46 In general, we agree with the Panel's view of the
aggravating and mitigating factors present in this case,
although we depart from the Panel on a couple of points.
¶47 We begin with the nature of Judge Woldt's misconduct,
which we view to be serious and to have a significant
detrimental impact on the public's view of the judiciary. We
have already discussed how Judge Woldt used undignified,
discourteous, and disrespectful language unbecoming a judge and
essentially threatened a young defendant with cognitive
impairments in the Shaffer sentencing. In the Krebs sentencing,
he again used profane language and imagery to demean what he
believed defense counsel's argument to be. He displayed
irritation with counsel's attempt simply to make arguments on
behalf of his client and made clear that he wanted Krebs'
counsel, as well as all other attorneys who appear in his court,
to "get to the point" or "jump to the chase" because he does not
wish to hear extended arguments. Indeed, he said that when
proceedings are taking longer than he would like, attorneys
should know that the best thing they can do is to "shut their
pie holes." A highly distressing part of Judge Woldt's conduct
during the Krebs hearing was his fairly blatant attempt to
27
No. 2020AP1028-J
intimidate the defendant into waiving his right to speak in
allocution. Equally distressing, he referred to the 13-year-old
victim in the case as a "so-called victim," thereby questioning
in open court whether the young girl had really suffered a
second-degree sexual assault despite the fact that he had
accepted the defendant's plea to that crime.12 Finally, in the
first incident at issue here, the 2009 sentencing in the
Williams case, Judge Woldt mischaracterized the in-court
statement of the victim in a domestic violence case13 and then
castigated her for having the temerity to express her opinion of
her current relationship with the defendant, essentially
Judge Woldt's sanction memorandum to the Panel noted that
12
the victim was not in the courtroom for the sentencing hearing.
The fact that the victim was not in the courtroom to hear Judge
Woldt's demeaning comment in person matters little. The
important thing for purposes of the Code and this proceeding is
the fact that Judge Woldt made the comment. In addition, Judge
Woldt made the comment on the record in open court. Even though
the victim did not hear the comment as it was uttered, there is
a strong possibility that she learned of the comment at some
later time.
Judge Woldt said to the victim that he was "sick and
13
tired of victims coming in here and they call the cops when they
need 'em but then later on they come and say: Oh, no, this
person's an angel." His statement clearly implied that this
victim had also stated in court that the defendant was an
"angel." That was not what the victim had said. What she said
was that she hoped the court would impose a fine and community
service rather than an extended period of probation "because we
are trying to work things out and things have been a lot
better." Judge Woldt was free not to credit her statement, if
he had a basis for doing so, and he was also free to impose
probation and counseling despite her statement. What he was not
free to do was to mischaracterize her statement and treat her
without dignity, respect, and sensitivity.
28
No. 2020AP1028-J
discouraging her from calling the police in any future domestic
violence situations. These are all serious violations of a
judge's ethical duties and show an open and callous disregard of
Judge Woldt's obligation to serve the public in a fair,
reasoned, impartial, and courteous way.
¶48 We part ways to a limited extent with the Panel's
conclusion about whether there was a pattern to Judge Woldt's
misconduct. The Panel thought that there was a pattern with
respect to the five incidents that occurred between May 2015 and
April 2016, but it believed that the February 2009 incident was
not part of a pattern of misconduct because of the length of
time that passed between that incident and the next one. We
acknowledge that there was a substantial period of intervening
time between the first two incidents at issue, but that passage
of time, by itself, does not eliminate the pattern that has
existed from 2009 to 2016. The 2009 incident in the Williams
sentencing, in which Judge Woldt mistreated the domestic
violence victim using undignified, discourteous, and
disrespectful language, was no different in type from the
undignified, discourteous, and disrespectful manner in which
Judge Woldt treated people in his courtroom in 2015 and 2016.
Unfortunately, the fact that Judge Woldt acted the same way in
his courtroom back in 2009 indicates that this was not an
isolated instance. That makes the misconduct even more serious
and the need for a sanction that will deter Judge Woldt from
continuing to act in that manner all the more pressing.
29
No. 2020AP1028-J
¶49 In addition, all of the incidents of misconduct
occurred in the courthouse where Judge Woldt was acting in his
official capacity as a circuit court judge. Five of the six
incidents occurred during case proceedings in open court. All
of the incidents have certainly had a negative effect on the
public's respect for the integrity, fairness, and competency of
the judiciary.
¶50 On the mitigating side of the ledger, we acknowledge
that Judge Woldt has acknowledged that he committed judicial
misconduct by entering into a stipulation to that effect,
although his sanction brief to the Panel did attempt to minimize
the nature and extent of his wrongdoing. We also acknowledge
Judge Woldt's assertion that he has attempted to modify his
conduct. In addition, Judge Woldt does have an extended period
of service as a circuit court judge, and there have not been any
prior formal complaints filed with this court by the Commission
regarding his judicial performance. All of these factors lessen
the sanction that would otherwise be appropriate for the
misconduct in this case.
¶51 Although each case is unique, prior disciplinary
proceedings may inform our consideration of the proper level of
discipline to impose. In this case we believe that three prior
judicial disciplinary proceedings are relevant. We agree with
the Panel that Judge Woldt's sarcastic, demeaning, and
disrespectful comments to people in his courtroom are similar in
nature to the judicial misconduct committed by Judges Gorenstein
and Breitenbach. Judge Woldt's misconduct, however, is neither
30
No. 2020AP1028-J
as egregious nor as persistent as their misconduct. The third
disciplinary proceeding that has a similar type of misconduct
was In re Judicial Disciplinary Proceedings Against Michelson,
225 Wis. 2d 221, 591 N.W.2d 843 (1999). In that case, we
imposed a public reprimand on Judge Michelson for a single
incident in which he called the daughter of a litigant a "slut"
for having a child out of wedlock. Judge Woldt's conduct is
more serious than that committed by Judge Michelson, and it
occurred on multiple occasions rather than on just one occasion.
¶52 Having considered all of the facts of this proceeding,
including all of the appropriate aggravating and mitigating
factors, we conclude that a short suspension is necessary in
this situation to assure the members of the public that judges
will treat them with dignity, fairness, and respect when they
enter the courtrooms of this state, and to impress upon Judge
Woldt the seriousness of his misconduct and the need for him to
change how he treats the jurors, lawyers, litigants, witnesses,
victims, and staff with whom he interacts. Given Judge Woldt's
lengthy history of service on the bench, the fact that he has
not previously been the subject of a disciplinary complaint, and
the fact that five years have passed since the last incident at
issue here, we conclude that a seven-day suspension will be
sufficient to ensure that there will not be a repetition of this
31
No. 2020AP1028-J
misconduct by Judge Woldt.14 We remind him and the other judges
in this state that how justice is dispensed is often just as
important as the substance of the legal ruling.
¶53 IT IS ORDERED that Scott C. Woldt is suspended from
the office of circuit judge without compensation and prohibited
from exercising any of the powers or duties of a circuit judge
in Wisconsin for a period of seven days, commencing August 2,
2021.
¶54 ANNETTE KINGSLAND ZIEGLER, C.J. and BRIAN HAGEDORN,
J., did not participate.
14Although there are differences among the participating
justices regarding the presence of violations of the Code of
Judicial Conduct due to Judge Woldt's displays of his handgun in
his courtroom, the participating justices are unanimous that a
seven-day suspension is the proper level of discipline to impose
in this proceeding.
32
No. 2020AP1028-J.rgb
¶55 REBECCA GRASSL BRADLEY, J. (concurring in part,
dissenting in part). The Judicial Code of Conduct's (the
"Code") Preamble states: "Care must be taken that the Code's
necessarily general rules do not constitute a trap for the
unwary judge or a weapon to be wielded unscrupulously against a
judge." SCR 60 pmbl. Three members of this court disregard
this prefatory admonition and weaponize the Code, brandishing it
as a "blunderbuss" that may be used by "any lawyer or any
pundit" with a political agenda.1 See Ronald D. Rotunda,
Judicial Ethics, the Appearance of Impropriety, and the Proposed
New ABA Judicial Code, 34 Hofstra L. Rev. 1337, 1341 (2006).
The majority conjures Code violations from provisions that do
not encompass the charged conduct, even under the most generous
construction of the language. Overly broad constructions of the
Code risk "demean[ing] the seriousness of the charge of an
ethics violation[.]" Id. at 1377. Even worse, such
manipulations of the Code unjustly "besmirch and tarnish" the
reputation of individual judges and the judiciary as a whole.
See id. at 1341. They also undermine the public's confidence in
the justice system, which is contrary to the Code's purpose.
SCR 60.02 cmt.; cf. State v. Hermann, 2015 WI 84, ¶141, 364
Wis. 2d 336, 867 N.W.2d 772 (Ziegler, J., concurring)
(discussing Caperton v. A.T. Massey Coal Co., 556 U.S. 868Political attacks on the judiciary have been a significant
1
problem in Wisconsin. See generally Patience Drake Roggensack,
Tough Talk and the Institutional Legitimacy of Our Courts,
Hallows Lecture (Mar. 7, 2017), in Marq. Law., Fall 2017, at 47.
1
No. 2020AP1028-J.rgb
(2009)) ("If a judge were required to recuse whenever a person
could conjure a reason to question a judge's impartiality, a
judge could be attacked without a standard on which to evaluate
the attack. We have rejected a loose and standardless test, as
the Supreme Court in Caperton did, in no small part because it
would invite mischief and judge shopping.").
¶56 In this matter, a three-justice majority2 ignores the
Code's Preamble and distorts the text of the Code provisions it
invokes to justify a legally unsupportable finding of misconduct
premised on a judge's display of a handgun he lawfully carried.
In doing so, three justices establish a precedent that may be
wielded unscrupulously against other judges in the future. The
majority unearths three dormant traps buried within the Code's
general rules for one unwary judge, the Honorable Scott C. Woldt
of Winnebago County. After misstating the facts——and with
almost no textual analysis of the Code——the majority concludes
that Judge Woldt violated three separate rules by briefly
Two Justices did not participate, leaving only five
2
Justices to decide this matter. See State v. Hermann, 2015 WI
84, ¶154, 364 Wis. 2d 336, 867 N.W.2d 772 (Ziegler, J.,
concurring) ("Citizens of the state deserve to have the entire
supreme court decide all cases unless extreme circumstances
require otherwise. Unlike the circuit court or the court of
appeals, the supreme court serves a law development purpose;
therefore, cases before the supreme court impact more than
parties before the court."); William H. Rehnquist, Sense and
Nonsense About Judicial Ethics, 28 Rec. Ass'n B. City N.Y. 694,
707 (1973) ("Where we deal with appellate courts which
customarily sit en banc, it seems to me scarcely debatable that
decisions of important questions of statutory or constitutional
law by less than a full court are, other things being equal,
undesirable.").
2
No. 2020AP1028-J.rgb
displaying a firearm while making innocuous statements in his
courtroom on two occasions.
¶57 The majority's analysis suggests that it is
disciplining Judge Woldt at least in part because it considers
the display of a firearm offensive. This court should be wary
of suspending a judge elected by the people, thereby temporarily
subverting the will of the people, particularly when part of the
basis for such discipline rests on three Justices regarding his
conduct as politically incorrect. See In re Seraphim, 97
Wis. 2d 485, 513, 294 N.W.2d 485 (1980) (per curiam)
("Suspension and removal, to be sure, are drastic measures.");
cf. In re Amendment of the Code of Judicial Conduct's Rules on
Recusal, 2010 WI 73, ¶11 (Roggensack, J., statement in support),
https://www.wicourts.gov/sc/rulhear/DisplayDocument.pdf?content=
pdf&seqNo=51874 ("We elect judges in Wisconsin; therefore,
judicial recusal rules have the potential to impact the
effectiveness of citizens' votes cast for judges."). While I
concur with the court's decision that a one week suspension
without pay is appropriate discipline for other conduct, I
dissent from the majority's decision that Judge Woldt's displays
of a firearm constitute misconduct.
I. BACKGROUND
¶58 Judge Woldt was appointed to the bench in 2004 and the
voters of Winnebago County elected and re-elected him to three
terms of service since his appointment. He has presided over
27,096 cases through disposition.3 Based on statistics provided
3 Judicial Conduct Panel, ¶34.
3
No. 2020AP1028-J.rgb
by the District Court Administrator, he had a below average
judicial substitution rate from 2014 to 2018.4 Other than the
present matter, he has not been the subject of any public or
private judicial discipline.5 While he was an attorney in
private practice from 1987 to 2004, Judge Woldt was not subject
to any public or private attorney discipline.6 The Judicial
Conduct Panel found that he cooperated with the Judicial
Commission's investigation.7
¶59 The Judicial Commission filed a complaint against
Judge Woldt for six "incidents." Only the second and third
incidents involved Judge Woldt's display of a firearm. During
the third incident, Judge Woldt used profanity, and in so doing,
violated the Code. I agree with the majority on this point. I
part ways with the majority because it characterizes the brief
display of the firearm as misconduct. No provision of the Code
supports that conclusion. I also part ways with the majority
because it misconstrues several innocuous statements made during
the second and third incidents.
¶60 Importantly, the Judicial Commission's complaint
acknowledges that Judge Woldt had a license to carry a handgun.
It also acknowledges that properly licensed judges, including
Judge Woldt, are expressly permitted by statute to carry a
4 Id., ¶35.
5 Id., ¶31.
6 Id.
7 Id., ¶32.
4
No. 2020AP1028-J.rgb
firearm in a courthouse——either openly or concealed.8 Judge
Woldt has not been accused of violating any statutory laws
regulating the possession or use of firearms. Accordingly, the
court's review on this issue is limited to whether Judge Woldt's
display of the firearm, on one or both occasions, violated the
Code.
A. The Second Incident – "Government Day"
¶61 In early 2016, Judge Woldt participated in an event
known as "Government Day," which was sponsored by the local
chamber of commerce. Judge Woldt met with high school students
in the courtroom, and the students were scheduled to later
participate in a debate before the County Board on "courthouse
security."9 When the students met with Judge Woldt, one student
8Wisconsin Stat. § 175.60(16)(a)6 (2019–20) provides, in
relevant part:
(a) Except as provided in par. (b), neither a licensee
nor an out-of-state licensee may knowingly carry a
concealed weapon, a weapon that is not concealed, or a
firearm that is not a weapon in any of the following
places: . . .
6. Any portion of a building that is a county,
state, or federal courthouse.
Paragraph (b) provides:
The prohibitions of para. (a) do not apply to any of
the following: . . .
2. A weapon in a courthouse or courtroom if a
judge who is a licensee is carrying the weapon or
if another licensee or out-of-state licensee,
whom a judge has permitted in writing to carry a
weapon, is carrying the weapon.
9 The Judicial Conduct Panel did not mention this debate in
(continued)
5
No. 2020AP1028-J.rgb
asked him for his thoughts on the debate topic. Judge Woldt
proceeded to un-holster a handgun from beneath his robe.10 He
then removed the handgun's magazine and ejected the round in the
chamber.11 Next, he briefly raised the handgun, without pointing
it at anyone and without his finger near the trigger guard,12 and
explained that he had the handgun for his protection.
B. The Third Incident – Sentencing in State v. Shaffer
¶62 A similar incident occurred in the summer of 2015.
Judge Woldt was presiding over a sentencing hearing in State v.
Shaffer.13 The defendant was charged with stalking and
residential burglary.14 He pled no contest to the stalking
charge, and the burglary charge was dismissed and read in. Two
victims were present at the sentencing hearing, and one victim
explained that the defendant's conduct made him feel that he
could not assure his wife of her safety in their home.15 The
its findings of fact, but the Judicial Commission acknowledged
the debate in its reply brief. Judicial Commission's Reply Br.,
at 5 ("Even though Judge Woldt knew that the high school
students were debating the issue of courthouse security, it is
entirely reasonable to infer that Judge Woldt intentionally
involved these students in his dispute with the County Board
(albeit in a minor way). After all, Judge Woldt knew when he
displayed his firearm to them, that they would be debating
courthouse security in front of the County Board[.]").
10 Complaint, ¶¶14–15.
11 Id., ¶15.
12 Id.
13 Winnebago County Case No. 2014CF509.
14 Judicial Conduct Panel, ¶13.
15 Id., ¶15.
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transcript reflects that Judge Woldt responded to the victim's
concerns as follows:
I understand the fear of the victims in this
case. . . . I've been trying to get security into
this courthouse. There is none. Any one of you could
have walked in today with a gun. . . . So I have that
fear too. So what can I tell you to do with that
fear? I have tried the County Board, I have tried
everything to get people to do something to keep guns
out of this courthouse, and nothing happens, so you
know, you got to take it -- you gotta do what you need
to do to protect yourself. I can tell you what I do
now. This is what I do -- (the court holds up a gun).
That I keep up here on the bench just because I want
to protect myself. Now, I'm not saying you should do
that but if I was in your -- if I was in your
situation, I'd have it on my side all the time.16
The Judicial Conduct Panel found the transcript's notation that
"(the court holds up a gun)," means that Judge Woldt proceeded
in much the same way that he did on Government Day. Judge Woldt
un-holstered a handgun from beneath his robe. He then removed
the handgun's magazine and ejected the round in the chamber. He
did not point the handgun at anyone and his finger was not near
the trigger guard.17 According to Judge Woldt, his intent was to
"express[] his understandings of the victims' fear" and "show
the victims 'what he does' for personal safety."18
¶63 The parties seem to dispute whether Judge Woldt then
lowered the handgun before telling the defendant, "[w]ith
today's laws with the Castle Doctrine, you're lucky you're not
16 Id., ¶16.
17 Id., ¶¶17–18.
18 Judge Woldt's Br., at 10–11.
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dead because, if you would have came into my house, I keep my
gun with me and you'd be dead, plain and simple but that's what
makes this so scary."19 Notably, the complaint says that Judge
Woldt "raised and briefly displayed the handgun to those present
in the court," but it does not indicate when he lowered the
handgun.20 Judge Woldt has explained his intent in making this
statement was to "caution the defendant of the dangers of
invading private homes."21
¶64 Shortly after Judge Woldt made this statement, he
spoke directly to the victims present at the sentencing hearing.
He told them:
[W]hat can I do to protect the public from [the
defendant] because he's not going to change, and
that's incarceration. That's the only thing I can do
is take him out of society by doing it, but I can also
do some things also to hopefully make the victims more
at ease 'cuz I agree with you with respect -– I agree
-– I agree with you, partly because I am an idealist
also. Damn it, it's my house. It's my first house, I
don't want to move. Why should I have to move if I
haven't done anything wrong? I understand that, but I
also understand that I don't give a shit about my
idealistic beliefs, if it comes down to my family's
safety I'm moving my ass out of there.22
19 Compare id., at 11, with Judicial Commission's Reply Br.,
at 6.
20 Complaint, ¶22 (emphasis added).
21 Judge Woldt's Br., at 11.
22 Judicial Conduct Panel, ¶20.
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Notwithstanding his profane language, the Judicial Conduct Panel
noted, "[t]here is no indication that any of the cases at issue
were improperly influenced by Judge Woldt's misconduct."23
C. Procedural History
¶65 For the second incident, the Judicial Commission
charged Judge Woldt with violating SCR 60.02 and 60.03(1). For
the third incident, it charged him with violating the same two
rules, along with a third, SCR 60.04(1)(d). Judge Woldt
answered the Judicial Commission's complaint by admitting the
complaint's factual allegations and conceding the conclusions of
law; however, he noted that "the Commission's argument for
suspension omits facts, ignores context, and, at times, unfairly
portrays the selected facts on which it does rely."24 So, while
the parties agree on the facts, they strongly disagree on their
characterization and the inferences that can be reasonably drawn
from them. A Judicial Conduct Panel convened to recommend
appropriate discipline. The Panel accepted the stipulated facts
and conclusions of law and recommended Judge Woldt be suspended
for one to three weeks without pay.
II. ANALYSIS
A. Standard of Review
¶66 We accept the findings of fact of a Judicial Conduct
Panel unless they are clearly erroneous. In re Crawford, 2001
WI 96, ¶10 n.5, 245 Wis. 2d 373, 629 N.W.2d 1 (per curiam). We
23 Id., ¶37.
24 Judge Woldt's Br., at 1–2.
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decide questions of law, including the proper interpretation and
application of the Code, independently.25 See Filppula-McArthur
ex rel. Angus v. Halloin, 2001 WI 8, ¶32, 241 Wis. 2d 110, 622
N.W.2d 436 (citing City of West Allis v. Sheedy, 211 Wis. 2d 92,
96, 564 N.W.2d 708 (1997)); see also Gabler v. Crime Victims
Rights Bd., 2017 WI 67, ¶47, 376 Wis. 2d 147, 897 N.W.2d 384.
We are not bound by a party's concession of law. State v.
Anderson, 2014 WI 93, ¶19, 357 Wis. 2d 337, 851 N.W.2d 760(citing Bergmann v. McCaughtry, 211 Wis. 2d 1, 7, 564 N.W.2d 712(1997)); St. Augustine Sch. v. Taylor, 2021 WI 70, ¶102, __
Wis. 2d __, __ N.W.2d __ (Rebecca Grassl Bradley, J.,
dissenting) (quoting Ross v. Bd. of Outagamie Cnty. Supervisors,
12 Wis. 26, 44 (1860) (Dixon, C.J., dissenting)) ("We sit here
to decide the law as we find it, and not as the parties or
others may have supposed it to be."). Therefore, we are not
obligated to accept Judge Woldt's concession that he violated
the Code by displaying a firearm.
¶67 The Judicial Commission, as the prosecutor, bears the
burdens of proof and persuasion. See Wis. Stat. § 757.85(6)
(2019–20).26 It can prosecute only "misconduct" or "permanent
25 A Judicial Conduct Panel has the statutory authority to
make "recommendations regarding appropriate discipline for
misconduct." Wis. Stat. § 757.91. As the majority explains,
"[a] recommendation is not a judicial act that carries any legal
effect. It is this court in which judicial disciplinary
proceedings are filed, and it is this court that enters an order
specifying the discipline to be imposed on a judge who has
committed judicial misconduct." Majority op., ¶36 n.8.
26All subsequent references to the Wisconsin Statutes are
to the 2019-20 version.
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disability," which are both statutorily-defined terms. Id.;
§ 757.81(4), (6). This matter involves allegations of
misconduct, not permanent disability. Notably, not every
violation of the Code constitutes misconduct. Something more is
required. § 757.81(4); In re Tesmer, 219 Wis. 2d 708, 728, 580
N.W.2d 307 (1998). In the context of this matter, the alleged
violations must be willful to constitute misconduct.
§ 757.81(4)(a). A violation of the Code is willful if,
according to our controlling precedent, "the judge's conduct was
not the result of duress or coercion and . . . the judge knew or
should have known that the conduct was prohibited by the
Code[.]" Tesmer, 219 Wis. 2d at 729.
B. Establishing the Facts
¶68 In the Judicial Commission's brief, it asserted that
Judge Woldt was involved in an ongoing political dispute with
the County Board regarding courthouse security.27 The Commission
inferred from the alleged existence of this dispute that when
Judge Woldt displayed his handgun, his intent was to hijack
Government Day to make a political statement that served no
27 Judicial Commission's Br., at 24–25 ("Judge Woldt
seemingly had one motive for using his handgun as a 'prop' in
both circumstances: expressing his dissatisfaction with the
manner in which courthouse security was being addressed by the
board. . . . Judge Woldt knew that the students who were in his
courtroom for Government Day were also going to be meeting with
the County Board that same day and, by his actions,
unnecessarily involved the students in their ongoing
dispute.").
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legitimate judicial purpose.28 Importantly, the Commission's
complaint does not mention this alleged political dispute.
Neither does the Judicial Conduct Panel's finding of facts.
¶69 Nevertheless, the majority blithely adopts the
Judicial Commission's portrayal of Judge Woldt as a gun-toting
cowboy who misused his office to advance his stance in an
ongoing political battle. The majority writes, for example,
"[w]hen asked a general question about courthouse security,
[Judge Woldt] responded by displaying his gun . . . as a 'prop,'
apparently to make dramatic his ongoing courthouse security
complaints."29
¶70 The majority errs by failing to apply the proper
standard of review and by essentially shifting the burdens of
proof and persuasion to Judge Woldt. We review the Judicial
Conduct Panel's finding of facts; we do not consider
unsubstantiated assertions of the Judicial Commission.
Crawford, 245 Wis. 2d 373, ¶10 n.5. The Panel's findings do not
mention an ongoing political dispute, likely because the
Judicial Commission's complaint does not allege one.
Admittedly, Judge Woldt said at the sentencing hearing in
Shaffer, "I've tried the County Board, I have tried everything
to get people to do something to keep guns out of this
Id. at 26 ("It appears that Judge Woldt had an
28
alternative plan for the students when he used the event as his
opportunity to complain about his dispute with the County
Board[.]").
29 Majority op., ¶42.
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courthouse, and nothing happens, so you know, you got to take it
–- you gotta do what you need to do to protect yourself."30 The
majority mischaracterizes this judge's concerns about courthouse
security as a political battle with the County Board. The
stipulated facts do not support the majority's narrative. On
Government Day, Judge Woldt was responding to a high school
student's question, not advancing a political agenda. If the
debate topic was politically sensitive, that is not Judge
Woldt's fault; there is no evidence that he picked the debate
topic or was involved with organizing or planning Government
Day.
¶71 The majority seemingly attributes its own firearm
phobias to the high school students, suggesting they were
frightened, scared, or otherwise discomforted by Judge Woldt's
conduct. There is no evidence of this either. The majority
states, "[a]lthough the Joint Stipulation indicates that the gun
was not loaded at the time it was displayed, Judge Woldt did not
disclose that fact to the students."31 Continuing its
speculation regarding the mindset of the students, the majority
proclaims, "[a]ll [the students] knew was that an adult judge
sitting in a black robe on a judicial bench in a courtroom
suddenly pulled out a gun, which for all they knew could have
been loaded."32 The majority's apprehensions are belied by its
30 Complaint, ¶21.
31 Majority op., ¶42.
32 Id.
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own emphasis of Judge Woldt's safe handling of the handgun. The
majority explains that he: "(a) removed the handgun from its
holster beneath his robe, (b) ejected the loaded magazine, [and]
(c) racked the handgun's slide to eject the bullet from the
gun's chamber . . . ."33 Any reasonable observer would
understand that Judge Woldt unloaded the handgun. Why the
majority suggests he should have verbally stated that the
handgun was unloaded is unclear.
¶72 While condemning Judge Woldt for using the handgun as
a "dramatic" rhetorical device, the majority engages in a
dramatic display of its own in its discussion of the Shaffer
sentencing hearing. According to the majority, "Judge Woldt
essentially used his sentencing comments to encourage the
victims to take matters into their own hands and use a gun, as
he would do."34 This statement implies that Judge Woldt
encouraged a sort of vigilantism. He did no such thing. He
said:
I can tell you what I do now. This is what I do --
(the court holds up a gun). That I keep up here on
the bench just because I want to protect myself. Now,
I'm not saying you should do that but if I was in your
–- if I was in your situation, I'd have it on my side
all the time.
(emphasis added). Judge Woldt told the victims what he would do
"if [he] was in [their] situation." He explained that he would
exercise his natural right to self-defense by carrying a
33 Id., ¶¶20, 23.
34 Id., ¶40.
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firearm——a right that is protected by the United States
Constitution as well as the Wisconsin Constitution. U.S. Const.
amend. II; Wis. Const. art. I, §§ 1, 25. Telling victims that
others in their situation may consider exercising a fundamental
right for defense of hearth and home is qualitatively different
from telling them to "take matters into their own hands."
¶73 The majority expands its hyperbole when it moralizes,
"it was not necessary for any valid judicial purpose to display
the gun and introduce an element of force into the sentencing
hearing."35 The majority then misstates that Judge Woldt
"threaten[ed]" to "kill" the defendant if he ever broke into the
judge's home.36 Judge Woldt issued no threat. He said, "[w]ith
today's laws with the Castle Doctrine, you're lucky you're not
dead because, if you would have came into my house, I keep my
gun with me and you'd be dead, plain and simple but that's what
makes this so scary." The last part of his statement, "but
that's what makes this so scary," is telling. It evidences an
intent to convey to the defendant the danger to which he exposes
himself through his criminal conduct. Judge Woldt explained to
the defendant that he is "lucky" that he did not get shot. In
35 Id.
36 Id., ¶41.
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other words, Judge Woldt merely told the defendant that he could
have gotten hurt or killed during his criminal activity.37
¶74 A summary of a principle in the recent best seller,
The Coddling of the American Mind, hits at the very heart of the
problem with the majority's hyperbolic statements: "There is a
principle in philosophy and rhetoric called the principle of
charity, which says that one should interpret other people's
statements in their best, most reasonable form, not in the worst
or most offensive way possible." Greg Lukianoff & Jonathan
Haidt, The Coddling of the American Mind 55 (2018). The
majority assumes the worst of Judge Woldt, so it reads into his
statements an insidious intent that is not facially or impliedly
present. When this court exercises its extraordinary power to
discipline elected judges, it should apply the principle of
charity, resolving doubts about the intended meaning of a
judge's statement in favor of the judge. After all, the
Judicial Commission bears the burdens of proof and persuasion.
See Wis. Stat. § 757.85(6); see also Republican Party of Minn.
v. White, 536 U.S. 765, 796 (2002) (Kennedy, J., concurring)
(quoting Bridges v. California, 314 U.S. 252, 273 (1941)) ("We
37The majority says the defendant had "substantial
cognitive deficiencies" and "substantial cognitive limitations."
Id., ¶¶17, 40. The Judicial Conduct Panel's finding of facts,
however, state the defendant had "cognitive disabilities"——the
word "substantial" is noticeably missing. Judicial Conduct
Panel, ¶13. The record contains nothing about the nature and
extent of the defendant's cognitive impairment, and the
majority's suggestion that it is particularly severe is just
another example of it playing fast and loose with the facts.
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should not, even by inadvertence, 'impute to judges a lack of
firmness, wisdom, or honor.'").
C. The Rules
¶75 Compounding its failure to fairly characterize the
facts, the majority fails to follow long-established principles
of interpretation under which the text of the relevant law
controls the analysis of its meaning. The majority does not
engage with the text of the Code, instead consigning it to
footnotes and declaring violations of the Code nowhere to be
found in the text.
¶76 Unlike most statutes, which are enacted by the
legislature, this court promulgates the Code, but the Code's
rules are functionally equivalent to statutes because they
provide notice of established public policy to a regulated
entity, i.e., judges. See Calvert v. Mayberry, 440 P.3d 424,
430 (Colo. 2019) (quoting Rocky Mountains Hosp. & Med. Serv. v.
Mariani, 916 P.2d 516, 525 (Colo. 1996)) ("Although '[s]tatutes
by their nature are the most reasonable and common sources for
defining public policy,' professional ethical codes may also be
expressions of public policy."); Rich v. Simoni, 772 S.E.2d 327,
328 (W. Va. 2015) (explaining that the Rules of Professional
Conduct "are statements of public policy with the equivalent
legal force and effect as statutes"). Similar to our approach
when interpreting statutes, the Preamble of the Code instructs
us to apply its rules "through a reasonable and reasoned
application of the text." SCR 60 pmbl.; see Milwaukee Dist.
Council 48 v. Milwaukee Cnty., 2019 WI 24, ¶11, 385 Wis. 2d 748,
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924 N.W.2d 153 (quoting State ex rel. Kalal v. Cir. Ct. for Dane
Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110).
¶77 The majority asserts that each incident constitutes a
violation of SCR 60.02, which states:
A judge shall uphold the integrity and independence of
the judiciary.
An independent and honorable judiciary is
indispensable to justice in our society. A judge
should participate in establishing, maintaining and
enforcing high standards of conduct and shall
personally observe those standards so that the
integrity and independence of the judiciary will be
preserved. This chapter applies to every aspect of
judicial behavior except purely legal decisions.
Legal decisions made in the course of judicial duty on
the record are subject solely to judicial review.
The text of SCR 60.02 concerns conduct inconsistent with
judicial integrity and judicial independence. Black's Law
Dictionary defines "integrity" as "[f]reedom from corruption or
impurity; soundness; purity; [m]oral soundness; the quality,
state or condition of being honest and upright." Integrity,
Black's Law Dictionary (11th ed. 2019). It defines "judicial
independence" as "[t]he structural separation of the judiciary
from the political branches of government so that judges remain
free from improper influences, partisan interests, and the
pressures of interest groups." Id. at Judicial independence.
¶78 The comment to SCR 60.02 similarly emphasizes judicial
integrity and judicial independence. It states, in relevant
part: "Deference to the judgments and rulings of courts depends
upon public confidence in the integrity and independence of the
judges. The integrity and independence of judges depends in
turn upon their acting without fear or favor." SCR 60.02 cmt.;
18
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see also Tetra Tech EC, Inc. v. Wis. Dep't of Rev., 2018 WI 75,
¶64 n.37, 382 Wis. 2d 496, 914 N.W.2d 21 (lead opinion) ("Our
Code of Judicial Conduct reflects the foundational importance of
keeping core judicial power in the hands of an independent
judiciary[.]"); Gabler, 376 Wis. 2d 147, ¶8 ("When structuring
the federal judiciary, the Framers knew from experience the
perils of adopting a separation of powers in name without paying
appropriate attention to the incentives affecting individual
judges."); Patience Drake Roggensack, To Begin a Conversation on
Judicial Independence, 91 Marq. L. Rev. 535, 535 (2007) ("It has
been said that most of the respect the public accords judicial
decisions emanates from public perception that a court's
decision is an independent determination of what the rule of law
requires.").
¶79 The majority also asserts that each incident
constitutes a violation of SCR 60.03(1), which states: "A judge
shall respect and comply with the law and shall act at all times
in a manner that promotes public confidence in the integrity and
impartiality of the judiciary." This rule is quite similar to
SCR 60.02, but it requires judges to act in accordance with the
law and to promote public confidence in judicial impartiality.
While judicial independence resists external pressures that
threaten a judge's autonomous decision-making, judicial
impartiality precludes personal bias in the exercise of judicial
judgment. Black's Law Dictionary defines "impartiality" as
"[t]he quality, state, or condition of being free from bias and
of exercising judgment unswayed by personal interest;
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disinterestedness." Impartiality, Black's Law Dictionary. As
one Australian judge explained: "Impartiality refers to what
goes on, and appears to go on, in the mind of the decision
maker. Independence concerns the relationship of the decision
maker to government, the parties and external influences."
Michael Kirby, Judicial Recusal: Differentiating Judicial
Impartiality and Judicial Independence, 4 Brit. J. Am. Legal
Studs. 1, 1 (2015).
¶80 The Commission adds a third charge for the third
incident, citing SCR 60.04(1)(d), which states:
A judge shall be patient, dignified and courteous to
litigants, jurors, witnesses, lawyers and others with
whom the judge deals in an official capacity and shall
require similar conduct of lawyers, staff, court
officials and others subject to the judge's direction
and control. During trials and hearings, a judge
shall act so that the judge's attitude, manner or tone
toward counsel or witnesses does not prevent the
proper presentation of the cause or the ascertainment
of the truth. A judge may properly intervene if the
judge considers it necessary to clarify a point or
expedite the proceedings.
¶81 Crucially, the text of SCR 60.04(1)(d) is decidedly
different than one of its predecessors, which provided: "[a]
judge should not seek to be extreme, peculiar, spectacular or
sensational in his or her judgment or in his or her conduct of
the court." SCR 60.01(12) (1992). We often consult previous
versions of a law to understand the current law's plain meaning.
Cnty. of Dane v. LIRC, 2009 WI 9, ¶27, 315 Wis. 2d 293, 759
N.W.2d 571 (quoting Richards v. Badger Mut. Ins. Co., 2008 WI
52, ¶22, 309 Wis. 2d 541, 749 N.W.2d 581); see also Kalal, 271
Wis. 2d 633, ¶52 n.9 (quoting Cass R. Sustein, Interpreting
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Statutes in the Regulatory State, 103 Harv. L. Rev. 405, 430
(1989)) ("Although it is proper to look at a statute's
background in the form of actually enacted and repealed
provisions, the legislative history, which was never enacted,
should rarely be permitted to supplant the statutory words as
they are ordinarily understood."). The history of the Code's
language reveals that "extreme, peculiar, spectacular or
sensational" behavior means something different than behavior
exhibiting a lack of patience, dignity, or courtesy.
D. Application
¶82 The majority perfunctorily declares that Judge Woldt's
displays of a firearm "constituted a failure to observe 'high
standards of conduct' 'so that the integrity and independence of
the judiciary will be preserved.'"38 The entirety of the
majority's analysis, however, centers on Judge Woldt's comments
accompanying the display of the gun. Judge Woldt's conduct on
the two occasions in question did not violate any statutory
laws, nor does it indicate a lack of honesty or demonstrate the
influence of external pressures on his decision-making so as to
call into question his judicial independence. In conclusory
fashion, the majority next pronounces that displaying a gun "is
not 'promot[ing] public confidence in the integrity and
impartiality of the judiciary'"39 and "cannot be described as
38 Majority op., ¶41 (quoting SCR 60.02).
39 Id. (quoting SCR 60.03(1)).
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'patient, dignified and courteous[.]'"40 Again, the majority
neglects to explain how displaying a gun exhibits a lack of
integrity, patience, dignity, or courtesy, nor does the majority
demonstrate how displaying a gun reveals any internal bias
impairing the judge's impartiality. At best, Judge Woldt's
conduct could be characterized as "extreme, peculiar,
spectacular or sensational" but that rule is no longer in
effect, having been replaced decades ago by one that requires
judges to be patient, dignified and courteous. The majority is
bound to apply the rules as they are currently written and not
as they may wish them to be.
¶83 Perhaps recognizing the utter absence of any textual
basis for its conclusions, the majority insists that "it was
'Judge Woldt's display of his gun and comments' that constituted
the violations[.]"41 As explained earlier, the comments
accompanying Judge Woldt's display of a firearm——whether
considered in isolation or in conjunction with the gun——do not
give rise to a Code violation (other than the profanity). Judge
Woldt did not threaten anyone or "introduce an element of force"
during the Shaffer sentencing hearing. Black's Law Dictionary
defines "force," when used as a noun, as "[p]ower, violence, or
pressure directed against a person or thing." Force, Black's
Law Dictionary. Judge Woldt did not use power or violence
against the defendant, nor did he pressure him in any way. The
40 Id. (quoting SCR 60.04(1)(d)).
41 Id., ¶40 (quoting Judicial Conduct Panel, ¶¶44–46).
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majority's characterization of Judge Woldt's display of his
firearm during the Government Day event as a "dramatic
introduction of the use of force"42 represents yet another
hyperbolic distortion of the facts. No one other than the
majority contends that Judge Woldt used any force whatsoever and
the record disproves the majority's assertion.
¶84 In one more attempt to bolster its feeble conclusions,
the majority contends that Judge Woldt violated the Code by
"unnecessarily personaliz[ing]" his statements.43 The gist of
the majority's theory seems to be that this is somehow
inconsistent with the judge's role "as a dispassionate and
impartial arbiter of the law."44 With respect to his actions on
Government Day, the majority maintains:
Judge Woldt's dramatic introduction of the use of
force in the form of his personal handgun
unnecessarily personalized what should have been an
educational discussion about a topic of civic
interest. Drawing a gun in front of a group of
teenage high school students when on the bench in
one's capacity as a representative of the judicial
branch and when there is no judicial purpose for doing
so does not promote confidence in the judge as a
dispassionate and impartial arbiter of the law or in
the judiciary as a whole.[45]
Regarding the Shaffer sentencing hearing, the majority quotes
the Judicial Conduct Panel, which stated, "Judge Woldt's
42 Id., ¶42.
Id., ¶42; see also id., ¶40 (quoting Judicial Conduct
43
Panel, discussion).
44 Id., ¶42.
45 Id.
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comments about his own personal fear and the display of the
handgun served only to personalize the proceeding and detract
from his role as an impartial and fair decision maker."46 The
majority does not explain how Judge Woldt's "unnecessary"
personalization demonstrated any impartiality during a
sentencing hearing, much less during a conversation with high
school students detached from any judicial proceeding
whatsoever. While displaying a gun may have been "unnecessary,"
it did not run afoul of any ethics provision.
¶85 The majority appears to abrogate our decision in State
v. Hermann, which expressly held that circuit court judges are
entitled to personalize statements made in their judicial
capacity, even at sentencing. 364 Wis. 2d 336. The defendant
in that case was convicted of several serious crimes stemming
from his decision to drink and drive, including homicide by
intoxicated use of a vehicle. Id., ¶7 (lead opinion). At
sentencing, the judge shared that her sister was killed by a
drunk driver. Id., ¶10. She even stated, "I probably more than
anyone else who would be able to sit on this bench in this
county understand the pain that these victims are feeling[.]"
Id., ¶17. At one point, she said she was "shocked by the
seeming blasé faire attitude that this community has about
alcohol use[.]" Id., ¶13. A three-justice lead opinion,
written by Justice Ann Walsh Bradley, concluded that when the
46 Id., ¶40 (quoting Judicial Conduct Panel, discussion).
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remarks were viewed in context, they did not "appear" to be an
"expression of bias."47 Id., ¶60.
¶86 Hermann expressly permits a judge to personalize a
statement at sentencing. Judges are human beings, and they are
allowed——perhaps even encouraged——to convey to victims that they
sympathize with them. Id., ¶58; Gabler, 376 Wis. 2d 147, ¶58
(quoting Schilling v. State Crime Victims Rights Bd., 2005 WI
17, ¶26, 278 Wis. 2d 216, 692 N.W.2d 623) ("[W]e believe that
justice requires that all who are engaged in the prosecution of
crimes make every effort to minimize further suffering by crime
victims."). Hermann even notes that these kinds of statements
are common. Hermann, 364 Wis. 2d 336, ¶22 (citing State v.
Hermann, unpublished slip op. No. 2013AP197-CR, ¶9 (Wis. Ct.
App. Feb. 13, 2014)). Judges are also permitted to convey to
defendants the gravity of their actions and the dangers they
pose, as Judge Woldt did when he explained to the defendant at
the Shaffer sentencing hearing that many people carry firearms.
A criminal never knows who has a gun, and it serves an important
judicial purpose to warn defendants of this fact, if nothing
else as a deterrent to recidivist behavior.
¶87 When viewed in light of Hermann, neither Judge Woldt's
display of the handgun on Government Day nor his display at the
Shaffer sentencing hearing establish a rule violation. On
47The other justices concurred but wrote or joined separate
writings to express their concern about an appearance-based
recusal standard. Hermann, 364 Wis. 2d 336, ¶71 (Prosser, J.,
concurring); id., ¶112 (Ziegler, J., concurring).
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Government Day, Judge Woldt was not even presiding over a court
proceeding. He merely responded to a student's question
regarding his thoughts on courthouse security. If he was not
permitted to "personalize" his response, he effectively was not
permitted to respond at all.
¶88 Another theory of the majority seems to be that on one
or both occasions, Judge Woldt's actions may have made people
uncomfortable. For example, the majority notes that Judge Woldt
did not mention that the handgun was unloaded. Sometimes,
judges' personalized statements make people uncomfortable, but
that does not render the statements professional misconduct. A
judge does not demonstrate a lack of patience, dignity, or
courtesy, let alone a lack of integrity, independence, or
impartiality, by making people uncomfortable.
¶89 Even if the majority's theories had abstract merit,
the majority's inability to explain how Judge Woldt willfully
violated the Code by displaying a handgun precludes a misconduct
finding. The Judicial Commission bears the burden of proving
not only a violation but a willful one. To be willful, Judge
Woldt had to have actual or constructive knowledge that his
conduct violated the Code. Tesmer, 219 Wis. 2d at 729. The
majority announces a novel rule of law, so Judge Woldt cannot be
held to have had actual or constructive knowledge of it. Id. at
731–32 ("[W]e conclude that Judge Tesmer's violation of SCR
60.20 was not wilful . . . . [T]he only reported cases in which
a judge was disciplined for having engaged in ex parte
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communications concerned communications with one of the parties
to a pending proceeding.").
¶90 On a final note, the majority raises a red herring by
insinuating that my conclusions are grounded in the statutory
right to concealed carry and the constitutional right to keep
and bear arms.48 They aren't. It is the text of the Code that
governs this matter and nothing in the actual text of the Code
prohibits the display of a firearm. While the comment to SCR
60.03 counsels against reading the Code in a manner that permits
"onerous" depravations of judges' "fundamental freedoms," the
majority errs because it declines to undertake any textual
analysis of the Code and utterly fails to connect a judge's
display of a handgun to the text of any of its provisions.
Judge Woldt's display of a firearm offends the sensibilities of
three justices of this court, so they deem it unethical.
Allowing subjective feelings to color the construction of the
Code subjects Wisconsin's judges to sanctions based on the
personal ideals of three or four justices rather than actual
breaches of written rules. Unreasonably broad and unexplained
constructions of the Code's rules are "antithetical to the rule
of law" because "[s]uch rules place ipse dixit powers . . . in
the hands of disciplinary boards and courts applying such
rules." In re Larsen, 616 A.2d 529, 580–81 (Pa. 1992) (per
The majority argues that the Code may prohibit speech
48
that the First Amendment otherwise protects. While that may be
true, the Code explicitly requires judges to be "patient,
dignified and courteous" to others but has absolutely nothing to
say about carrying or displaying a firearm. Majority op., ¶39.
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curiam), overruled on other grounds by In re Roca, 173 A.3d
1176, 1184 (Pa. 2017). Beyond judicial commission proceedings,
"[i]ll-defined and fuzzy ethics rules give detractors a green
light to hurl too easily the accusation of ethics violations[.]"
Rotunda, Judicial Ethics, the Appearance of Impropriety, and the
Proposed New ABA Judicial Code, at 1377.
¶91 The majority replaces our customary method of
interpretation with its personal policy preferences, which
appear to be grounded in "hoplophobia," i.e., an irrational fear
of guns. In so doing, the majority dangerously exercises this
court's powers based on dogma, not law. See Robert J.
Martineau, Disciplining Judges for Nonofficial Conduct: A Survey
and Critique of the Law, 10 U. Balt. L. Rev. 225, 245 (1981)
("It sometimes appears as if particular courts have merely
imposed their own moral standards of what is or is not proper
conduct. Those who administer judicial discipline should keep
in mind that they are not empowered to enforce their personal
views of proper conduct for judges[.]"). Adherence to the
judicial obligation to apply the text of the law as written
ensures neutral and apolitical decision-making, based on the
rule of law rather than individual predilection. See James v.
Heinrich, 2021 WI 58, ¶23 n.12, __ Wis. 2d __, ___ N.W.2d ___
(quoting Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 61 (2012)) ("Contrary to . . . [a]
policy-focused approach, the canons [of construction] serve as
'helpful, neutral guides' and are 'grounded in experience
developed by reason and tend to be a better administration of
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justice than leaving interpretation in each case to feelings of
policy on the part of the tribunal.'"). In cases involving
political controversy, our obligation to focus on the text is
even more compelling. Departures from the text risk the court
being viewed as little more than a political institution——a
kangaroo court.
¶92 As Justice Louis Brandeis cautioned, "we must be ever
on our guard, lest we erect our prejudices into legal
principles." New State Ice Co. v. Liebermann, 285 U.S. 262, 387
(1932) (Brandeis, J., dissenting). By recognizing that "a law
is the best expositor of itself," courts can faithfully fulfill
their function as neutral arbiters. Pennington v. Coxe, 6 U.S.
(2 Cranch) 33, 52 (1804). While textualism cannot prevent the
incursion of policy preferences into legal analysis——indeed,
sometimes the word is invoked as cover for policy-based
decision-making——the majority's opinion demonstrates that
without textualism, such encroachment is certain.
III. CONCLUSION
¶93 In its opinion, a three-justice majority untethers
judicial ethics violations from the text of the Code. While the
majority's decision imposes immediate and unjust consequences on
Judge Woldt, it inflicts broader and more insidious damage on
the institution of the judiciary. If left uncorrected, it will
weaponize the Code as a tool for illegitimate attacks on the
judiciary. I dissent from the majority insofar as it
disciplines Judge Woldt for his displays of a firearm and
innocuous statements, which may have offended the sensibilities
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of three justices but undoubtedly did not violate the Wisconsin
Judicial Code of Conduct.
¶94 I am authorized to state that Justice PATIENCE DRAKE
ROGGENSACK joins this concurrence/dissent.
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