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home : news : state news August 19, 2017

4/18/2017 7:26:00 AM
Court set to hear petition to set recusal rules
Retired judges want limits for judges receiving campaign contributions

Richard Moore
Investigative Reporter

The Wisconsin Supreme Court is scheduled this month to take up a petition filed by 54 retired judges to establish threshold levels for recusal from cases for those judges who have received campaign contributions from a plaintiff or defendant in the case.

The judges filed the petition in January; the matter is scheduled for discussion at an April 20 open conference.

The rule change would apply to elected municipal court judges, circuit court judges, state court of appeals judges, and Supreme Court justices. Former justice Janine Geske is one of the signatories.

Specifically, the petition states, recusal would be required if a judge's campaign committee received campaign contributions from a party or that party's lawyers that in the aggregate total at least $10,000 for Supreme Court justices; $2,500 for court of appeals' judges; $1,000 for circuit court judges; and $500 for municipal judges.

The threshold amounts would not apply if the contributions were returned prior to the general election.

The rule would apply to campaign contributions made both during a judge's current term and during the immediately preceding term, the petition states, however the limits would apply separately to each of those time periods. For a judge in his or her first term, the rule would become effective on the date the judge became a candidate.

A party and the party's lawyer would be required, at the outset of a case, to disclose any campaign contribution exceeding $250.

"As money in elections becomes more predominant, citizens rightfully ask whether justice is for sale," the petition states. "The appearance of partiality that large campaign donations cause strikes at the heart of the judicial function, which depends on the public's respect for its judgments. In this age of Super PACs and other independent campaign organizations, perhaps the influx of money to purchase access to legislators has numbed us to ethics. But we are not the Legislature, we are the judiciary."

The retired judges said they understood that most Wisconsin judges strive every day to fulfill their oath to be neutral and impartial.

"We also know that Wisconsin citizens reasonably question the success of that endeavor in the face of sizable campaign assistance," they wrote. "The fundamental purpose of this proposed rule is to ensure the public's confidence in the ultimate fairness and integrity of the entire Wisconsin judicial system."

The petition also calls for amending the Wisconsin constitution to allow the Supreme Court to maintain a quorum if a recusal took place. The state Supreme Court would be empowered to appoint a member or members of the Court of Appeals to temporarily serve on the high court to maintain a quorum.

Common Cause supports

The liberal group Common Cause applauded the petition and urged the high court to adopt the rule.

According to Common Cause in Wisconsin executive director Jay Heck, Wisconsin is considered among the four worst states in the nation with regard to recusal standards for campaign contributions.

"In fact we have none - and the current state recusal 'standard' was written by Wisconsin Manufacturers & Commerce, one of the state's most powerful special interest groups that has spent millions of dollars over the years to elect conservative state supreme court justices," Heck wrote on the Common Cause website. "It was adopted verbatim by a 4 to 3 vote, seven years ago."

In an April 5 letter to Supreme Court chief justice Patience Roggensack, Heck wrote that a failure to adopt what he called sensible and reasonable recusal rules would put the integrity and reputation of all Wisconsin courts at greater risk than they suffer already and result in the further erosion of public confidence in the impartiality and fairness of judges at all levels and especially on the state Supreme Court.

"Public opinion polling in Wisconsin over the last half decade suggests that the public's respect for the judiciary has never been lower," Heck wrote. "The problem stems, in part, to the failure in 2009 of a majority of this court to adopt a proposal put forth by justice N. Patrick Crooks to require recusal if a justice had received substantial election support from one of the parties in the case."

This error was compounded in 2010, Heck wrote, when a court majority adopted a non-recusal rule written and accepted "apparently verbatim" from two of the state's largest business organizations, Wisconsin Manufacturers and Commerce and the Wisconsin Realtors Association.

"As a result of these two actions and because of the failure of the Wisconsin Supreme Court to adopt a strong recusal rule at the explicit invitation of the Supreme Court of the United States in the wake of its landmark 2009 Caperton v. A.T. Massey Coal Company decision, our state currently ranks 47th of the 50 states in terms of the strength of its recusal rules according to a survey cited by the retired Wisconsin jurists in (the petition)," Heck wrote. "That is simply shocking and unacceptable."

What's more, Heck continued, strong recusal rules are even more necessary in the aftermath of the Court's 2015 decision to strike down Wisconsin law that had prohibited campaign coordination between candidate campaigns with outside special interest groups who spend large sums of money engaging in non-express advocacy or issue advocacy, with a clear intent to influence the outcome of elections.

"This controversial decision exceeded even the 2010 U.S. Supreme Court Citizens United v. F.E.C. decision in allowing coordination between so-called issue ad groups and candidates," Heck wrote. "Citizens United prohibited this type of coordination. The fact that the four Wisconsin Supreme Court justices who voted in 2015 to decriminalize this kind of coordination had themselves been supported by one or more of the organizations engaging in that coordination during the 2011-12 recall elections, further underscores the urgent need for strong recusal standards and rules."

Heck said the most recent contested Wisconsin Supreme Court election in 2016 also illustrated the growing need for recusal rules.

"According to the Brennan Center for Justice, 'issue ad' groups spent more than $2.25 million attempting to influence the outcome of the election while the two candidates themselves spent a combined total of $777,440 - about one-third as much as the outside spending," Heck wrote. "And yet one of those outside groups could conceivably appear as a party to a case that came before the court and the justice who benefited by the election spending of that group would not be required to recuse herself under current law."

That is not acceptable, Heck concluded.

"That is simply a standard that invites even deeper cynicism and distrust on the part of citizens of all political and philosophical persuasions in the ability of this state's highest court to be able to render justice fairly and impartially," he wrote. "You, and the other six justices of the Wisconsin Supreme Court, have it within your power to restore a modicum of citizen confidence and trust in not only the state's highest court, but in state courts of all levels by adopting the thresholds recommended by the distinguished group of 54 retired jurists in (the petition)."

On the other hand

The conservative Wisconsin Institute for Law and Liberty opposes the proposed recusal rule, which it says is triggered by otherwise legal campaign contributions.

"WILL opposes the petition because the proposed changes are inconsistent with an elected judiciary and the concomitant First Amendment rights of Wisconsin citizens to support judicial candidates and express themselves on issues that are pertinent to judicial elections," WILL stated in a release. "Further, the proposed changes are unnecessary given the practicalities of Wisconsin's current judicial system."

WILL noted that its own response came two days after 11 retired judges and justices filed their own response opposing the petition.

"Wisconsin's founding fathers debated the merits of an elected judiciary versus an appointed judiciary almost 170 years ago - and they settled on the former as the one most capable of delivering sound and impartial justice," WILL associate counsel Jake Curtis said. "The petition would accomplish one thing, and one thing only - unconstitutionally restricting the ability of voters to participate in the selection of judges and justices. For that, and the other reasons set forth in our response, WILL stands alongside the people in opposition to the petition."

WILL president and general counsel Richard Esenberg said the petition was a solution in search of a problem.

"The petition is nothing more than hyperbole," Esenberg said. "Mechanisms already exist that allow litigants at the circuit court level to substitute on a judge. And as we explained, petitioners have utterly failed in establishing campaign contributions have the type of negative effect on judges and justices they argue is rampant throughout the judicial system."

In its response filed with the court, WILL argued that the petition wants to go further than prudent judgment and the constitution require and make recusal demands a litigation tactic, and, not only that, one that interferes with the First Amendment rights of Wisconsin citizens.

"The petition rests on the premise that judges cannot be trusted," WILL's response stated.

WILL's petition also observes that campaign dollars are not the only ways judges can be influenced, and yet the petition deals with only that factor.

"It is worth noting that campaign contributions and spending are only one - and probably not the most important - source of public pressure on judges," the response stated. "The need to be perceived as 'tough on crime' or 'pro-middle class' or the need to obtain endorsements from other judges, elected officials, lawyer groups and the media could equally (or even more so) place pressure on a judge to rule in a certain way. The petition makes no effort to deal with these other factors."

Perhaps most important, WILL stated, however one feels about an elected judiciary, the petition must be reconciled with the needs and ramifications of Wisconsin's decision to elect its judges.

"Given judicial elections, Wisconsin citizens have a First Amendment right to speak - and to associate - in favor of the candidates they prefer and against those they oppose," the response stated. "This includes the right to endorse candidates, work on behalf of their election and contribute money to or spend money in support of those candidates. Although the state may take reasonable measures to safeguard impartiality, those measures must be consistent with the First Amendment."

The United States Supreme Court has made clear that freedom of speech and association are fully protected in judicial elections, WILL's response asserted.

"In Republican Party of Minnesota v. White, for example, the U.S. Supreme Court made clear that speech by judicial candidates cannot be limited simply because it might create an appearance of 'bias,'" the response stated. "Justice Scalia, writing for the majority, emphasized that the argument that the First Amendment ought to apply differently in judicial elections 'greatly exaggerates the difference between judicial and legislative elections' especially given the judiciary's power to make law and set aside laws enacted by the Legislature. He pointed out that 'the notion that the special context of electioneering justifies an abridgment of the right to speak out on disputed issues sets our First Amendment jurisprudence on its head.'"

Richard Moore is the author of The New Bossism of the American Left and can be reached at www.rmmoore1.com.

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