State Bar of Wisconsin

State Bar  seeks member input on recusal standards

At its Dec. 5 meeting, the State Bar Board of Governors voted to solicit input from members as it explores judicial recusal reform options.

On June 20, 2008, the Wisconsin League of Women Voters filed petition 08-16 seeking creation of rules regarding recusal when a party or lawyer has made a campaign contribution to a judicial campaign. On September 30, 2008, the Wisconsin Realtors Association filed petition 08-25, seeking amendments to the Rules of Judicial Conduct regarding recusal. The Supreme Court has scheduled a hearing on these petitions for April 20, 2009.

Proponents of reform argue that strengthening recusal rules will help safeguard due process and rebuild public trust in the judiciary. The League’s petition state’s, in part, that “we believe it is necessary to have rules for recusal which remove any perception that justices and judges are beholden to those who contribute to their campaigns.” Proponents of the Realtors’ position point to increased admin­istrative costs and potential litigation delays. They also warn that overly-broad rules could open the door to “judge shopping” and may undermine a judge’s duty to hear all cases.

Interest in recusal has increased in the wake of the 2002 Republican Party of Minnesota v. White decision, which determined that Minnesota’s “announce clause” was an unconstitutional infringement on the First Amendment rights of judicial candidates. In his concurrence, Justice Anthony Kennedy wrote that states may respond to perceived threats to the impartiality of the courts by adopting “recusal standards more rigorous than due process requires, and censure judges who violate these standards.”

These issues are central to two pending cases; Siefert v. Alexander (before the U.S. District Court for the Western District of Wisconsin) and Caperton v. A. T. Massey Coal Co.(before the U.S. Supreme Court). On October 30, the ABA Standing Committee on Judicial Independence issued its draft report and recommendations regarding judicial disqualification and requested co-sponsorship of the proposed resolution. The Brennan Center (at the New York University School of Law) has issued a report entitled Fair Courts: Setting Recusal Standards, which offers additional background.

The varied considerations surrounding this issue demand that the State Bar’s position on recusal standards be carefully designed to balance a range of policy and practical considerations. 

Submit your comments.