Litigation

A Mystery in Madison

By Peter Hardin

Wisconsin’s Supreme Court justices, already struggling to rewrite ethics rules guiding when judges should avoid a case, received new and unusual publicity when four of the state’s seven justices said they had to step aside from a civil appeal, without offering any public explanation of their decision.  

According to an article in the Milwaukee Journal Sentinel, the high court’s mass recusal made it unable to act on a defamation case brought by the former head of the Milwaukee police union.  Justice David Prosser, who was not one of the four justice who recused, said they stepped aside because they knew the former union leader. But all of the justices know the litigant professionally and personally, Justice Prosser said.

There are many sides to the controversy touching Wisconsin’s high court over recusal, and one of them involves  requests by defense lawyers that Justice Michael Gableman  step aside in several cases, because public remarks by Gableman allegedly show an ingrained bias against criminal defendants. Justice Prosser signaled in his opinion on the defamation case that he disagrees:

“Recently, this court has been bombarded with external motions asking a majority of justices to remove other justices involuntarily, thereby seeking to nullify elections, alter the composition of the court and potentially change the outcome of individual cases.”

“These motions represent a frontal assault on the integrity of the Wisconsin judicial system, and they, too, could have serious and profound consequences for parties, citizens and the court.”

The rancor on Wisconsin’s court has been well documented, and it seems to indicate the high stakes of recusal reform. Check out Gavel Grab for related posts. But the latest, mystifying recusal episode in Madison suggests still another piece of reform that warrants consideration–and that is transparency.

When the Brennan Center for Justice recommended  10 proposals for recusal standards that would help protect due process, one of them was transparent decision-making. Judges who rule on a disqualification motion should be required to explain their decision in writing or on the record, the Center said, to both facilitate appellate review and ensure greater accountability for the decisions.

The proposal embodies fundamentals of accountability that might help eliminate some of the mystery in Madison, and advance the difficult debate over recusal standards.

Full post as published by The Gavel on December 21, 2009 (boomark / email).