Recusal not required on account of campaign contribution, independent expenditure of party to proceedings

By Alex De Grand, Legal Writer, State Bar of Wisconsin

Oct. 28, 2009 – A divided Wisconsin Supreme Court voted today to adopt a petition to amend the Code of Judicial Conduct so that the receipt of a campaign contribution from a party in a proceeding cannot be the sole reason for a judge to recuse him or herself.

Similarly, the justices voted to amend the Code of Judicial Conduct so that a judge is not required to recuse him or herself where a party to the proceedings sponsored an independent expenditure or issue advocacy during the judicial campaign.

The petition regarding campaign contributions was authored by the Wisconsin Realtors Association; the Wisconsin Manufacturers & Commerce offered the petition concerning independent expenditures.

In the 4-3 vote, Justices David Prosser, Patience Roggensack, Annette Ziegler and Michael Gableman voted in favor of the two petitions. Chief Justice Shirley Abrahamson was joined by Justice Ann Walsh Bradley and N. Patrick Crooks in opposition.

The justices rejected the petitions offered by the League of Women Voters and former Wisconsin Supreme Court Justice Bill Bablitch which proposed disqualification on account of campaign contributions of certain amounts.

State Bar President Doug Kammer and State Bar members Thomas Schober and William Curran told the justices that the State Bar Board of Governors had unanimously recommended last month that the court study the issue further. In part, the extra time would give the court the benefit of an American Bar Association report on recusal expected to be released later this year, Schober said.

But Prosser said that he had seen "members of the court subjected to attack without any justification” and that the court delay has delayed in responding to those attacks on its integrity. “All that delay accomplishes is the invitation for more attacks and I have had it,” Prosser said as he urged the court to vote for the petitions.

The justices’ action follows this summer’s U.S. Supreme Court ruling on judicial recusal in Caperton v. Massey,   129 S.Ct. 2252. In Caperton, the nation’s high court found a due process violation occurred when the chief executive officer of a corporation contributed $3 million to the election campaign of the judge before whom it was likely the corporation would be seeking appellate relief.