Litigation

Rancor on the (WI) Court

By Peter Hardin

Is  protecting fair and impartial courts from the influence of judicial campaign spending so hot an issue that it can cause acrimony among sitting justices?

Apparently so, suggests a thorough report by The Capital Times in Madison, Wi. on a bitterly divided Wisconsin Supreme Court.

In discussing the court’s recent vote to rescind a new rule on when judges must step aside from cases (discussed in a recent Gavel Grab posting), the article focused on the justices’ caustic public remarks, both on the court and in written newspaper columns:

“Until recently, one could hardly imagine a public meeting where one justice would accuse the chief justice of posing for ‘holy pictures,’ then addressing her as ‘kiddo,’ while another rudely dismisses a colleague’s argument as ‘ridiculous.’”

But it wasn’t just politics or personality driving the divisions:

“Strong personalities and the recent change in the majority explain some of the rancor among the justices, but the issue of judicial campaign spending is particularly tender in courts nationwide and in Wisconsin in particular.”

The Wisconsin Supreme Court has voted to rescind the new rule that greatly limited situations when a judge might recuse, or step aside, from cases involving campaign supporters. That rule, passed in a 4-3 vote on Oct. 28, declared that a judge should ?never? recuse solely on the basis that a litigant had financially supported his or her election. It was based on separate petitions submitted by Wisconsin Manufacturers & Commerce and the  Wisconsin Realtors Association.

The Capital Times story offers an in-depth look at a state Supreme Court grappling with a growing issue. It also adds a broader perspective that often has been missing from other accounts, both from national and local vantage points. For example,  it quotes a former state Supreme Court justice who now is a law professor as saying it is very unusual for the court to adopt such a rule without setting up a study group first and examining the issue comprehensively. The article notes that the new recusal policy was “written by lobbying interests” and adopted verbatim by the court.

The article also points to one justice’s publicly berating Mike McCabe, executive director of the Wisconsin Democracy Campaign, a partner of Justice at Stake.

In Wisconsin Democracy Campaign’s Big Money Blog, McCabe recaps recent events and takes issue with Justice David Prosser, the justice who belittled McCabe publicly and whose more recent reservations about the new rule led to its retraction, at least temporarily:

“Prosser says he still supports the thrust of the rules but believes the language needs to be fine-tuned. It looks like what he’s really trying to do is figure out a way to remove the lobbying groups’ fingerprints and make it look like the court did its own writing.”

You can learn more about recusal from Justice at Stake’s issue page.

Full post as published by The Gavel on December 18, 2009 (boomark / email).