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  • WisBar News
    January
    12
    2017

    Retired Judges Request New Recusal Rules for Campaign Contributions

    Joe Forward

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    Recusal Rules

    Jan. 12, 2017 – Yesterday, 54 retired Wisconsin judges formally asked the Wisconsin Supreme Court to establish a rule requiring recusal or disqualification of a sitting judge who has received a significant campaign contribution from a party to the case.

    The petition (17-01) also requests a state constitutional amendment that would allow a judge or judges on the Wisconsin Court of Appeals “to temporarily serve as a Supreme Court justice when necessary to reach a quorum.”

    Janine Geske, a former Wisconsin Supreme Court justice, and Richard Brown, former chief judge of the Wisconsin Appeals Court, are among the 54 signatories.

    The petition would require recusal, under the Wisconsin Judicial Code, if the judge’s election campaign committee received aggregate contributions from a party to a proceeding (or that party’s lawyer) exceeding a threshold level: $10,000 or more for supreme court justices; $2,500 or more for appeals court judges; $1,000 or more for circuit court judges; and $500 for municipal judges. Recusal would not be required 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 the immediately preceding term, but would apply separately. For new judges, the rule would apply starting on the date the judge becomes an official candidate.

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

    Reasons for the Request

    The petition notes that the supreme court, in 2010, adopted amendments to the Judicial Code that do not require recusal in all cases in which the judge received campaign contributions from a party to the case.

    At that time, however, there was a $1,000 cap on individual (and corporate)  contributions to supreme court candidates. In 2015, the Wisconsin Legislature increased the limits on individual contributions to judicial campaigns. For instance, the new law increased the limit to $20,000 for supreme court justices.

    “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 group of petitioners spelled out other reasons for its recusal rule request. It noted a 2015 Wisconsin Supreme Court decision that placed no limit on what individuals or organizations may spend on “issue advocacy” and allows coordination with campaigns.

    The petitioners also noted the supreme court’s concern, in 2010, that recused justices are not replaced, thereby altering the composition of the court and affecting the interests of litigants and non-litigants who could be impacted by the court’s ultimate decision.

    The court “pointed to the state constitutional ban on replacing a Supreme Court Justice who withdraws from a case as a reason to adopt a rule so that recusal is virtually never required,” the petitioners noted. But petitioners said the Wisconsin Constitution should not be a barrier to allowing disqualified supreme court justices to be replaced.

    “Recently a constitutional amendment to change the manner of designating the Chief Justice was procured,” the petitioners note. “One assumed that a constitutional amendment to allow a Court of Appeals Judge or a retired Supreme Court Justice to be selected to fill in on a case to assure a quorum should multiple justices be required to recuse themselves would likely be easily procured.”

    The petitioners noted the “centerpiece of recusal jurisprudence: the appearance of bias,” and explained that recusal is mandatory when a judge “knows or reasonably should know” that the judge’s impartiality could be reasonably questioned.

    The petitioners highlighted a recent U.S. Supreme Court decision in which a state justice refused to recuse himself in a postconviction case involving a party that he prosecuted as a district attorney. The justice, as DA, had asked for the death penalty.

    The U.S. Supreme Court noted the “appearance of bias” in determining that the defendant’s due process rights were violated because the justice did not recuse.

    Finally, the petitioners noted that Wisconsin ranked very low in a 2014 study of recusal rules by the Center for American Progress. “Only three states had lower grades for their systems to address the real and perceived conflicts created by campaign contributions to the judge by parties and/or their attorneys,” the petition states.

    The 54 petitioners, all retired Wisconsin judges, noted a cumulative service on the bench of more than 1,100 years.

    “We know that Wisconsin judges with rare exception strive every day to fulfill their oath to be neutral and impartial," the petition states. “We also know that Wisconsin citizens reasonably question the success of that endeavor in the face of sizeable campaign assistance. 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.”