Jan. 22, 2010 – For the second time, a divided Wisconsin Supreme Court adopted yesterday amendments to the Code of Judicial Conduct permitting judges to sit on cases involving their campaign contributors or sponsors of independent expenditures and issue advocacy during their judicial campaigns.
Last fall, the justices had voted 4-3 for these changes by accepting without any amendment the rule petitions authored by the Wisconsin Realtors Association and the Wisconsin Manufacturers & Commerce. The court withdrew that vote in December when Justice David Prosser said the petitions contained language requiring “fine tuning.” The petition sponsors themselves sought a revision to resolve inconsistent terminology for campaign participants before a court and Prosser wanted to clarify the rule’s applicability to judges.
In the second vote, Prosser was joined by Justices Michael Gableman, Patience Roggensack, and Annette Ziegler in favor of the petitions. Chief Justice Shirley Abrahamson and Justices Ann Walsh Bradley and N. Patrick Crooks voted against the petitions. The justices had cast their first votes on the petitions along the same lines in October.
Overcoming a hold
Before the justices could vote on the petitions, they had to address a hold placed on the matter by Crooks who said a decision should be postponed until the court gathered additional information, including the input of circuit judges and members of the Wisconsin Court of Appeals. Crooks noted that the State Bar of Wisconsin Board of Governors had urged the justices to appoint a committee to study the recusal rules.
Although she said the rules were a “work in progress,” Roggensack opposed any delay in adoption of the new rules, arguing that candidates in this spring’s judicial elections need immediate guidance. Prosser had long maintained that delay only worked in the interests of critics of judicial elections and Gableman agreed. Ziegler thought Crooks was trying to achieve the outcome he had unsuccessfully asked the court to accept in the form of a motion last fall. These four justices then voted to override the court’s custom of postponing action until the hold is lifted.
First Amendment versus due process
Roggensack said failure to clarify that a legal campaign contribution, by itself, is not disqualifying could frustrate the voters’ ability to choose judges as protected by the First Amendment. But Abrahamson said that the issue presented by the recusal rules concerned preservation of a litigant’s due process right to a fair tribunal.
Gableman observed that the U.S. Supreme Court had rebuffed the idea that mere receipt of a lawful campaign contribution colored a judge’s view of a case, quoting from yesterday’s decision in Citizens United v. Federal Election Commission. Yet, Abrahamson pointed out that the same court had found that lawful campaign spending to elect a judge can reach a point at which the judge’s impartiality is in doubt, citing Caperton v. A.T. Massey Coal Co., 129 S.Ct. 2252 (2009).
Ziegler argued the scope of Caperton was limited by its extreme facts which concerned $3 million from a corporation’s chief executive officer to elect a judge before whom it was likely the corporation would be seeking appellate relief.
Abrahamson applauded Prosser for adding a commentary to the new recusal rule that mentions factors such as a contributor’s pending litigation to help the judge assess the impact of campaign spending on his or her role. But Abrahamson said that the list of factors should be expanded to specify other considerations, including the amount spent and its size relative to other contributions.
But Prosser did not accept Abrahamson’s invitation to revise the commentary, explaining that the commentary was mainly intended to assist judges with distinguishing between campaign contributions and independent expenditures. Prosser said that the court could always hear a new rule petition proposing these changes.