June 10, 2026 – Instead of approving a proposed judicial rule governing recusal, the Wisconsin Supreme Court on June 4 created a committee to study the subject and return to the court with proposals.

Several commenters to rule petition 26-01 submitted by five former circuit court judges applauded the rule for raising the issue but preferred further study for the ideal result.

Former Dane County Circuit Court Judge Richard G. Niess admitted at the hearing that it’s rare for a petitioner to ask the court to “deny our petition.”

He agreed that a committee of interested parties could improve the final rule.

In open conference after the hearing, the supreme court voted 4-2 to appoint a committee with a general charge to study the issue of recusal and related issues, such as judicial campaigns and substitution of supreme court justices after a recusal.

Justice Annette Kingsland Ziegler and Justice Rebecca Grassl Bradley both voted against creating the committee. Justice Brian K. Hagedorn voted neither for nor against.

The court has yet to consider the committee’s composition – a task Chief Justice Jill J. Karofsky left for another day.

No Change?

Niess summarized the proposed revisions to Supreme Court Rule (SCR) 60.04(4)-(8) as containing three categories: factors mandating recusal, the effect of campaign statements on recusal, and procedures judges would follow when a party raised the issue of recusal in a courtroom.

The proposed rule change attempts to address the increasing amounts of money in judicial elections since the supreme court approved the existing rule in 2010, which the petitioners depicted as benefiting “big-money campaign contributors.”

Justice Hagedorn disputed whether the proposed rule changed anything, and in fact, might be weaker.

Similarly, Justice Bradley described the proposal as “[i]t doesn’t seem to make changes with any force or meat.”

“A more uncomfortable question,” as Justice Hagedorn described it: “Since that rule was enacted, not a single justice on the Wisconsin Supreme Court has ever recused relating to campaign activity. … Who should have recused?”

Niess didn’t name a justice.

In open conference, Chief Justice Karofsky said three justices had said they would recuse if certain parties came before the court.

“It’s hard to [recuse] if the party hasn’t come to you.”

‘Legal Culture’

“What kind of legal culture do we want in Wisconsin,” Justice Hagedorn asked Niess – noting that Wisconsin judicial elections “are a national disgrace.”

Justices split on what that culture should be.

The current political rhetoric has changed, Justice Bradley described, from asserting impartiality on the campaign trail to “justices’ and judges’ personal feelings” or values.

“If you’re not a judge that’s based on values but on law and reaching conclusions solely by law and fact in making an opinion, values don’t matter,” Justice Ziegler said.

Does presenting one’s values in a campaign, she asked, “mislead the public”?

“If the law is clear, the law must be followed,” Niess said, but especially in circuit court, “there are so many areas where the law is not clear.”

“Values will somehow inform your view in the interstices of law.”

Justice Rebecca Frank Dallet added that money – campaign contributions – is speech. “Isn’t that communicating values?”

Circuit courts have great discretion such as in family court and children’s court, Justice Bradley said.

“This court is different. It’s not discretionary. It’s bound by the constitution and statutes.”

“If people want to decide cases based on values and outcomes,” Justice Bradley said, that makes the supreme court nothing more than a “super legislature.”

Chief Justice Karofsky pointed to “the other extreme.”

In U.S. Supreme Court judicial hearings, proposed appointees only say they will “call balls and strikes,” resulting in “frustration of the Senate and citizens.”

No one, she said, believes the appointee “is a blank slate.”

“Something needs to be reformed,” Justice Bradley said, maybe campaign funding, campaign messages that signal positions, and enforcement of the rules.

“There is a problem, but it goes well beyond the rule.”

Chilling Speech?

Republican Party of Minnesota v. White, 536 U.S. 765 (2002), Chief Justice Karofsky pointed out, held that the Minnesota Supreme Court couldn’t adopt a code of conduct because it violated the First Amendment.

Other petitioners worried that the proposed rule as drafted would “chill lawful speech,” especially if enacted now in the midst of a supreme court justice campaign and with a time frame that is not retroactive, said Rachel E. Snyder, policy counsel for Law Forward Inc. of Madison.

As written, the proposed rule would “chill lawyers” from political activity if they believed they could appear before the judge, added Danielle M. Schroder, president of the voluntary trial lawyer association Wisconsin Association for Justice (WAJ).

In counties with smaller populations, explained WAJ Treasurer Brad Yanke, the problems would magnify, where “everybody knows everyone.”

Yanke’s review of judicial elections in Wood and Marathon counties showed circuit court races self-funded with help from friends and family and “a handful of local attorneys.”

“I appreciate the rural perspective,” Chief Justice Karofsky said.

In conference, Justice Hagedorn said many existing “rules haven’t been debated and looked at in a long time” regarding changes in First Amendment law, a matter bigger than recusal.

‘Starting to Solve the Problem’

Throughout the discussion lurked the possibility that stricter recusal rules could empower opportunistic litigation motions that seek to remove a judge, strategically alter the balance on an appellate panel, or result in an evenly divided court.

“Lawyers do not ask for recusal lightly,” explained one of the petitioners, former Milwaukee County Circuit Court Judge Richard J. Sankovitz.

One could write “a rule so clear that” recusal motions aren’t necessary, suggested University of Wisconsin Law Professor Robert Yablon of the State Democracy Research Initiative. The judge or justice would recuse sua sponte.

Although circuit courts may more easily substitute a judge who has recused, at a cost of efficiency as a judge from another county takes the case, who can replace a recused supreme court justice?

Wisconsin is one of only seven states that lacks a substitution procedure, Yablon said, and “I don’t think we want the existing options.”

Some states have constitutional provisions. Procedures range from the governor, the chief justice, or the supreme court as a whole may choose a substitute, which could be a retired justice or judge, a judge from a lower court, or merely a member of the state’s bar, Yablon said.

One could create a procedure in which each justice annually designates a small number of potential substitutions, which could be chosen randomly when needed, Yablon suggested.

The hot bench that raised all these questions Sankovitz saw as positive. “You are already starting to solve the problem.”