April 20, 2017 – The Wisconsin Supreme Court today dismissed (5-2) a petition filed by 54 retired judges that would have established a rule requiring recusal or disqualification of a judge who received a significant campaign contribution from a party to the case. A 5-2 majority also voted down a motion to hold a public hearing.
The petition (17-01), dismissed at the court's open administrative conference today, would have required recusal if the sitting 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 petition requested a state constitutional amendment that would have, if adopted, allowed a judge or judges on the Wisconsin Court of Appeals “to temporarily serve as a Supreme Court justice when necessary to reach a quorum.”
Under the petition, a party and the party’s lawyer would have been required to disclose any campaign contribution exceeding $250.
Janine Geske, a former Wisconsin Supreme Court justice, and Richard Brown, former chief judge of the Wisconsin Appeals Court, were among the 54 signatories. Other lawyers, organizations, and citizens weighed in through nearly 80 submitted comments.
Majority Dismisses, No Public Hearing
Justice Shirley Abrahamson recommended, by motion, that the court schedule a public hearing on the petition, but the motion failed by a 5-2 majority. Justice Ann Walsh Bradley then moved to adopt the petition without a public hearing. It also failed 5-2. Justice Abrahamson and Justice A.W. Bradley cast the minority votes on both motions.
Justice A.W. Bradley said that the last time the court looked at recusal rules, in 2010, its decision “did not reflect consideration of the importance of making sure that this court not only be fair, neutral, and impartial, but also appear fair, neutral, and impartial.”
“To shut it down without a hearing and without comment just undermines the public trust and confidence that is so important for the integrity of this court,” Justice A.W. Bradley said. “We at least need to give people an opportunity to be heard. What is so threatening about hearing what people in this state want to tell us?”
Justice Annette Ziegler then moved to dismiss the petition, stating: “I believe, as a matter of law, it cannot withstand constitutional or structural scrutiny,” said Ziegler, noting that there is no constitutional precedent to support the petition.
Justice Rebecca Bradley seconded. She said the petition would force the justices to violate their oath by infringing on the First Amendment rights of Wisconsin citizens who choose to participate in elections through campaign contributions to judges.
“The people of Wisconsin,” R. Bradley said, “have a First Amendment right to speak out in favor of the judges they support, and in opposition to the judges they oppose without being penalized for exercising their free speech rights.”
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
Justice R. Bradley said petitioners, the 54 retired judges, acknowledged that the Wisconsin Constitution would have to be amended in order for the proposal to work.
“To further consider the petition would essentially require us to disregard or even violate the Wisconsin Constitution,” R. Bradley said.
The petition rests on a false presumption, Justice R. Bradley noted, “that 272 judges and justices who serve the people are incapable of administering their oaths without respect to persons, and to faithfully and impartially discharge the duties of their office.”
“I reject this premise. It is a falsehood,” she said.” Every judge and justice in the state of Wisconsin should be highly offended by this petition because it attacks their integrity and their character. I defend every judge and justice in the state by rejecting this petition.”
Petitioners were Concerned with Appearance of Bias
The petition noted 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 stated. “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.”