Litigation

WI Justices Clash in Adopting New Recusal Rule

By Peter Hardin

The Wisconsin Supreme Court, bitterly divided 4-3, has formally issued new rules stating that lawful campaign donations from a litigant shall not alone require a judge’s recusal in a case. The new rules were accompanied by stinging, dueling statements in which justices on opposing sides belittled each other.

Justice Ann Walsh Bradley, in a dissenting commentary joined by two allies, wrote that the new rules “signify a dramatic change to our judicial code of ethics” and have fueled a widespread perception in newspaper editorials that they “subvert the integrity of the court.”

Justice Bradley assailed the rules’ adoption in what she called a “ramrod manner.” She also said that following the U.S. Supreme Court’s Citizens United decision, “we should be adopting stronger standards for recusal rather than neutering our existing recusal rules.” Her statement ended by asking the legislature to look at judicial recusal:

“If this court is unwilling or unable to keep its own house in order, perhaps it will require action by others to step in and assist in maintaining the integrity of the court and preserving the public trust and confidence that Wisconsin judges will be impartial.”

Justice Patience Drake Roggensack, joined by colleagues in the majority, labeled Justice Bradley’s dissent as “undeserved” and as “a political statement that will foster disrespect for and distrust of the Wisconsin Supreme Court as an institution.” Justice Roggensack elaborated:

“Justice Bradley has chosen to base her attack on popular political positions, which she supports with newspaper articles rather than with the legal tenets upon which legal writing customarily is based.”

These rules were tentatively adopted in January (see Gavel Grab). Overall, they state that campaign contributions or independent expenditures made in a prior judicial campaign will not require a judge?s stepping aside from a case involving a supporter.

The recusal policy was based on separate petitions submitted by Wisconsin Manufacturers & Commerce and the Wisconsin Realtors Association.

Justice at Stake and the Brennan Center for Justice submitted written testimony to the Wisconsin Supreme Court in advance of the court’s final decision. The groups said proposed changes to the recusal rules were ?in clear conflict” with the holding of the United States Supreme Court in Caperton v. A.T. Massey Coal Co. That 2009 Supreme Court ruling ordered a West Virginia judge off a case involving a coal executive who had spent $3 million to help elect him.

Justice Bradley was supported in her dissent by Chief Justice Shirley Abrahamson and Justice N. Patrick Crooks. Justice Roggensack was supported by Justices David T. Prosser, Annette Kingsland Ziegler and Michael J. Gableman.

In her dissent, Justice Bradley said she was concerned about recusal and upholding the perception of a fair and impartial judiciary:

“Unlike the majority, I conclude that the purpose of a recusal rule is to maintain a fair, neutral, and impartial judiciary.  A fundamental principle of our democracy is that judges must be perceived as beyond price.

“When litigants go to court, they want a judge who will decide the case based on the facts and the law.  They do not want the umpire calling balls and strikes before the game has begun. Yet under the majority’s new rules, which mark a substantial departure from our current practice, judges’ campaign committees and perhaps someday even judges themselves will be able to ask for and receive contributions from litigants before the trial has begun and before the judge makes a decision in their case.”

Justice Roggensack said in her statement that Justice Bradley’s dissent “misses the point that abridgement of indispensable First Amendment freedoms may flow from a recusal rule enacted without the understanding necessary to appreciate its effect on protected liberties.” Justice Roggensack added that justices voting for the new recusal rule knew their votes would not be popular:

“However, the oath of judicial office, an oath that we all took, requires that we protect the United States Constitution and the Wisconsin Constitution, even when our decisions that do so are not popular.”

Full post as published by The Gavel on July 08, 2010 (boomark / email).