Litigation

WI Justice Replies on Recusal

By Peter Hardin

A Wisconsin Supreme Court Justice, Patience Drake Roggensack, has written a public defense of a recently adopted rule that rejected public calls for state judges to recuse themselves in cases involving major donors and supporters.

Justice Roggensack, writing in the Wisconsin State Journal, contended that some media reports have failed to give “the full story of the concerns that the court’s rule addressed” and were “misleading.” In October, the Wisconsin court agreed to suggestions that no amount of campaign contributions or third-party support could ever form the sole basis for a judge to recuse him or herself from a supporters? case. Justice Roggensack, in her  commentary, asserts that citizens who vote in a judicial election are exercising a right under the First Amendment, and protecting First Amendment rights “was a primary concern of the court.” She elaborated:

“I voted for the rule because of my concern that the citizens who elect justices were in danger of having their votes for judicial candidates cancelled, solely due to another person’s lawful contribution or due to an independent advertisement over which the justice had no control.”

Her 12-paragraph commentary did not mention due process rights, which were central to the U.S. Supreme Court’s recent landmark decision on recusal, Caperton v. Massey.

In Caperton, the U.S. Supreme Court declared that campaign spending can damage a litigant?s right to a fair trial. A coal executive  had spent $3 million to elect a West Virginia justice in 2004, while a lawsuit involving the executive’s company was pending; the justice went on to join a 3-2 majority overturning a $50 million damage ruling against the coal company. This year, the U.S. Supreme Court decided that because of the ?serious, objective risk of actual bias,? due process required the justice’s recusal from the case.

You can learn more about the Wisconsin recusal rule from Gavel Grab. There is a thorough examination of the Caperton decision, and extensive discussion of due process, in the November volume of the Harvard Law Review.
You also can read a detailed discussion of recusal rules at Justice at Stake’s in-depth  issues guide for the Caperton case.

Full post as published by The Gavel on December 04, 2009 (boomark / email).