State Bar of Wisconsin

Court to tackle recusal issue and other rules petitions

By Adam Korbitz, Government Relations Coordinator, and Alex De Grand, Legal Writer, State Bar of Wisconsin

Oct. 27, 2009 – The Wisconsin Supreme Court kicks off three days of rule-making hearings this week and next on a total of ten pending rules petitions, starting with testimony on judicial recusal related to campaign contributions. On Oct. 28, the court will hold a public hearing and open administrative conference at 9:30 a.m. on four petitions relating to recusal: 08-16, 08-25, 09-10 and 09-11.

Although two of the petitions the court will be hearing were filed more than a year ago, the court will also hold a public hearing on petition 09-10. Petition 09-10 was filed by Wisconsin Manufacturers and Commerce on Oct. 16, less than two weeks before the scheduled hearing, which was scheduled by the court in early August. A fourth petition, 09-11, was filed just days before the hearing by former Justice William Bablitch and will also be heard by the court.

Petition 08-16, filed by the League of Women Voters of Wisconsin Education Fund in June 2008, would create “rules for recusal when a party in an action or the lawyer or law firm in an action has previously made a campaign contribution to or spent money on a media campaign relating to a judicial election for a judge who is presiding in the case.”

Under petition 08-16, a contribution of $1,000 or more, or multiple contributions totaling $1,000 or more, within the preceding two years would be a basis for recusal under the League’s petition. Similarly, the League’s petition indentifies a party’s payment in full or in part for “a mass communication that was disseminated in support of the judge’s election” within the preceding two years to be a basis for recusal.

Petition 08-25, filed by the Wisconsin Realtors Association in September 2008, takes the opposite tack and would amend the Code of Judicial Conduct to “provide that the receipt of a lawful campaign contribution by a judicial campaign committee or an endorsement of a candidate does not, by itself, warrant judicial recusal.”

Under petition 09-10, the WMC petition, a judge would not be required to recuse himself or herself where the recusal is based solely on a litigant’s sponsorship of an independent expenditure or “issue advocacy” communication or by a litigant’s financial donation to an organization engaging in such electioneering activity. On its face, WMC’s proposed rule might apply no matter how large a litigant’s financial expenditure or donation for or against a judge’s campaign, as the WMC petition proposes no dollar limit.

Petition 09-11, filed by Justice Bablitch, would require recusal if a party or an attorney gave the justice $10,000, the legal limit for individual campaign donations. It also would require recusal for third party expenditures, but provides no particular threshold limit.

Representatives of the State Bar of Wisconsin will ask the Wisconsin Supreme Court to deny these rule-making petitions requesting various changes to the Code of Judicial Conduct regarding judicial recusal and instead refer the recusal issue to a study committee.

State Bar President Douglas W. Kammer wrote to the court on Oct. 15, urging them to dismiss the recusal petitions and saying the Board of Governors believes “the issue of recusal for campaign related activities merits thoughtful discussion and resolution in the near future and thanks both the League of Women Voters – Wisconsin and the Wisconsin Realtors Association for bringing the issue before the Court and the public.”

“The Board of Governors recognizes the difficulty of setting rules to apply to all the different situations that arise,” Kammer also told the court. “Since parties at the trial court level have a right of substitution by statute, the problem is really limited in Wisconsin to complaints at the Court of Appeals and the Supreme Court levels. The Board of Governors will assist in any way the Court requests to analyze the problem and offer solutions.”

At its meeting on Sept. 11-12, the State Bar’s Board of Governors voted to oppose the recusal petitions filed by the League and the Realtors and instead refer the matter to a committee. Over the summer, members of the Board of Governors assigned to a task force examined the issue of judicial recusal. Gov. Thomas L. Schober, chair of that study committee, reported to the full board that neither the League’s nor the Realtors’ petition properly addressed the matter. Schober referred to a draft report authored by the ABA Standing Committee on Judicial Independence. Within the report’s broader policy goals are detailed recommendations, including a recommendation for the adoption of peremptory challenges already codified in this state by Wis. Stat. 801.58, Schober said.

At the September meeting, the Board of Governor’s adopted the following statement:

The Board of Governors of the State Bar of Wisconsin believes that neither petition 08-16 or 08-25 represent sufficient consideration of the scope of judicial disqualification matters and asks the Supreme Court to deny both petitions. The implications of judicial recusal, both from a practical implementation standpoint and a public confidence view, are such that the Court should reject both petitions and establish a study committee to review these and other judicial disqualification issues. The Court should move deliberately to establish greater guidance to judges through an enumeration of factors judges should consider in potential recusal situations and provide training for implementation of new standards.

The Wisconsin Supreme Court is considering appointing a committee to suggest revisions to the Code of Judicial Conduct, which could include a change to existing recusal rules. In May 2009, the court adopted the following mission statement for the anticipated committee:

The mission of the Committee to Study the Code of Judicial Conduct is to conduct a comprehensive review of the Wisconsin Code of Judicial Conduct including examining the American Bar Association's 2007 Model Code of Judicial Conduct as revised, other proposals for changes to Wisconsin's code, and developing law and codes of other states, and if warranted, to make recommendations for modifications to the Wisconsin Code of Judicial Conduct.

On Oct. 29, the day following the recusal hearing, the court has scheduled another public hearing on three other petitions, including petition 08-27, filed by the State Bar last year to clarify classes of membership in the State Bar.

At the same hearing the court will also hold a hearing on petition 08-28, filed jointly by the State Bar and the Office of Lawyer Regulation to create rules establishing procedures for lawyer support and monitoring within the State Bar. The petition would also establish procedures for OLR to refer lawyers for assessment, treatment and monitoring when they are struggling with AODA and other mental health issues. After the public hearing, when the court convenes in open administrative conference on petition 08-28, it will also discuss a BBE petition (08-13) it deferred earlier this year concerning conditional admission to the State Bar. (The State Bar has a neutral position regarding the conditional admission petition as long as conditional admission is a confidential process; earlier this year the Supreme Court voted to adopt a confidentiality provision modeled on the ABA model rule on conditional admission.)

On Oct. 29, the court will also hear petition 09-05, filed by the Director of State Courts, which would amend SCR 71.01 (2) governing the reporting of court proceedings. The State Bar’s Board of Governors recently voted to support this petition.

Finally, on Nov. 2, the court will hold public hearings on three more petitions, including petition 09-06, which the State Bar filed earlier this summer to permit non-resident State Bar members to serve as certain officers of the association. The court will also hear two additional petitions filed by the Director of State Courts. Petition 09-02 would make various technical amendments to SCR 72.01 regarding record retention, in order to take into account statutory changes that have occurred since the last major revision to the rule in 1997. Petition 09-03 would create a rule governing the submission of evidence originating in a language other than English. The State Bar’s Board of Governors has not taken a position on either petition.

Under Wis. Stat. section 751.12 and Supreme Court Internal Operating Procedures II.B.5. and III, any person may file a petition to change Supreme Court rules, pleading, practice, procedural statutes and administrative matters.

The State Bar’s activities regarding Supreme Court rule-making petitions are coordinated by the State Bar’s government relations team. If you have questions regarding the State Bar’s position on a rule-making petition pending before the Supreme Court, please contact Adam Korbitz, government relations coordinator.

Continue to monitor WisBar.org and visit the State Bar’s Government Relations page for updated information.

Related articles:

State Bar faces busy year with Supreme Court rule-making – September 21, 2009
Board tackles petitions on judicial independence, court procedures, and more – Sept. 14
Lawyers in treatment for substance abuse, other impairments could be admitted to practice under proposal – March 10, 2009
Inside the Bar: Wisconsin Supreme Court will continue to review State Bar UPL committee – December 2008
Inside the Bar: Supreme Court moves on State Bar consumer protection petition – January 2008
Legal Services Consumer Protection Act Offers Needed Safeguards

Rotunda Report is the State Bar of Wisconsin’s Government Relations e-newsletter that highlights legislative, judicial, and administrative developments that impact the legal profession and the justice system. It is published twice a month and is distributed free to attorneys, public officials and others who help shape public policy in Wisconsin. We invite your suggestions to make the Rotunda Report more informative and useful and we encourage you to visit our Web site for the most current information about justice-related issues.

© 2009, State Bar of Wisconsin