May 6, 2026 – A rule petition scheduled for a public hearing at 9:30 a.m., June 4, before the Wisconsin Supreme Court would transform recusal requirements for judges from a “presumption against judicial recusal” to one that favors recusal, its proponents stated.

Rule Petition 26-01 would amend Supreme Court Rules (SCR) 60.04(4)-(8), which was last revised in 2010.

The petitioners, former circuit court judges from Dane, Milwaukee, and Monroe counties, seek the changes to address the increasing dollar amounts of political contributions for Wisconsin Supreme Court elections, they stated in their supporting memorandum.

Although written comments expressed support for the concept of revision, others see problems with the proposal.

Three commenters suggest the Supreme Court appoint a committee to study and craft a final rule.

Proposed Changes

The petition proposes several changes to the rules.

The current standard for recusal is the judge’s knowledge or that of “reasonable, well-informed persons knowledgeable about judicial ethics standards and the justice system” who “would reasonably question the judge’s ability to be impartial.”

The proposal would set the standard as “rais[ing] a reasonable question concerning the judge’s ability to be impartial.”

Most notably, the proposed rule lists a series of factors for a judge to use to determine whether the judge is required to recuse from a proceeding.

The recusal requirements focus on whether a campaign contribution “raises a reasonable question concerning the judge’s ability to be impartial,” both for direct contributions and for entities sponsoring independent communications – messages that the candidate didn’t endorse.

Factors in considering whether the contribution or support had an effect include amount, timing, relationship of the source to parties in the proceeding, the impact “relative to all contributions and support received,” degree of the individual’s involvement in the campaign, nature of prior support, and the nature of the pending proceedings.

If a judge believes recusal is required, a written order would document the recusal and reason for it, or, as allowed in the current rules, disclose the matter on the record.

Even if the judge doesn’t believe recusal is required, the judge still has a duty to “disclose the facts and circumstances on the record to the parties.”

Parties before the judge may raise the issue of recusal, allowing for a hearing, with the judge making a ruling on the record or in writing.

Judges would be required to know the judge’s own personal and fiduciary economic interests as well as those of “spouse, domestic partner, children and any other family member residing in the judge’s household” – and within the third degree of kinship for the judge and spouse.

Another amendment would more precisely define recusal requirements for “a public statement that expressly and specifically commits the judge to decide an issue before the court, or likely to come before the court, in a certain way.”

‘Increased Public Confidence’

The petitioners, former Dane County Circuit Court Judges Sarah B. O’Brien, John W. Markson, and Richard G. Niess, former Monroe County Circuit Court Judge J. David Rice, and former Milwaukee County Circuit Court Judge Richard J. Sankovitz, filed the petition Jan. 30.

Their goal is to “foster increased public confidence in judicial independence, integrity and impartiality by clearly emphasizing transparency, prompt notice and a meaningful opportunity for parties to comment when concerns regarding recusal are raised.”

Their supporting memorandum describes the current rules as creations of Wisconsin Manufacturers and Commerce and the Wisconsin Realtors Association, “both trade association representatives for big-money campaign contributors.”

The Supreme Court adopted the proposal in 2010, the petitioners wrote, “almost verbatim … in closed session, without public notice, without public hearing, and without any opportunity for the public to comment.”

Since then, “the amount of money contributed to Supreme Court elections, and even to some of the state circuit court elections, has exploded,” the petitioners claimed. “It is not a stretch to conclude some cause and effect relationship.”

They said the proposal is consistent with Georgia’s Code of Judicial Conduct Rule 2.11(A)(4), which the petitioners said is based on the American Bar Association’s (ABA) Model Code of Judicial Conduct, and Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009).

Commenter Criticisms

A consistent theme in written comments to the proposal argues for a committee to more thoroughly research and consider the appropriate rule.

“We respectfully suggest that the Court convene a committee tasked with (1) studying these matters further, including examining the experiences of other states; and (2) producing a more fully vetted proposal,” wrote Professor Miriam Seifter and Professor Robert Yablon of the U.W. Law School’s State Democracy Research Initiative.

They saw too much breadth in mandating recusal, perhaps “generating a further increase in opportunistic recusal motions.”

Although Georgia court rulings have clarified such points for its judicial rules, Wisconsin’s proposal based in part on Georgia’s rules lacks that clarity, the professors suggested.

The rules may infringe upon attorney First Amendment rights to discuss and participate in judicial elections, noted both the “pro-democracy nonprofit” firm Law Forward Inc., of Madison, and the Wisconsin Association for Justice (WAJ), an association of civil trial attorneys based in Madison.

The chilling effect on political speech may extend to potential litigants and individuals, the WAJ added.

The rules should have clear effective dates and prospective application to prevent recusal motions for activities permitted before the rules take effect, Law Forward outlined.

A substitution process for replacing recused judges would protect courts from the disabling effects of recusal, both the U.W. professors and Law Forward recommended.

According to the WAJ’s comments, the proposed rules are “significantly more expansive” than the sources the petitioners attributed to their drafting, especially the extent of personal financial knowledge a judge must have about family members.

The proposal lacks, according to the professors and the Wisconsin Justice Initiative Action, Inc., of Milwaukee, a means of appealing a judge’s recusal decision.

The comments reflect a general appreciation for the goal of strengthening recusal requirements but seeking “the precise balance,” as Law Forward put it.

“We agree with Petitioners’ animating sentiment,” Law Forward wrote. “Transparency and ethical conduct among elected officials are critical to preserving a functioning democracy.”