Litigation

JAS Testifies on Recusal in WI

By Raheem Dawodu

Wisconsin’s recusal rules lag behind those in almost every state and should be toughened to comply with the landmark 2009 U.S. Supreme Court decision, Caperton v. Massey, Justice at Stake’s state affairs director told a legislative hearing in Madison today.

Speaking to a special panel announced last July, John Robinson told the panel that Wisconsin’s current policy, adopted last year, is one of only a few nationally that allows recusal only when a judge subjectively decides he or she is biased. Forty-eight states have an “objective” standard, Robinson said, in which a judge should not hear a case if a neutral observer might reasonably conclude that bias exists.

He also urged Wisconsin’s legislative body to enact rules so that any decision by a judge not to recuse can be reviewed by other judges. A full draft of Robinson’s written testimony is here. Robinson added:

“We have urged states to adopt recusal standards that will reassure citizens that their courts will be fair and impartial, both in fact and in appearance. Strong recusal rules protect the courts and build public trust by removing even the appearance that justice might be up for sale.”

The recusal debate has gained significance in recent years, as litigants have spent heavily to elect judges before whom they appear in court. Acording to a Justice at Stake poll in September, more than 80 percent of the public believes judges should not hear cases involving major campaign supporters.

Wisconsin emerged as one of the nation’s costliest judicial election states in 2007 and 2008. According to “The New Politics of Judicial Elections 2000-2009: Decade of Change,” the state saw a total of $8.5 million in election spending, ranking second nationally behind Pennsylvania.

In December 2009, the Wisconsin Supreme Court weakened its recusal policy significantly, saying that campaign expenditures could not be a cause for an elected judge to recuse. The policy closely followed a draft submitted by Wisconsin Manufacturers & Commerce, which has spent heavily in recent state high court elections.

In a letter sent to the high court, JAS and Brennan Center Justice said the policy “violates the central lesson” of the U.S. Supreme Court’s Caperton ruling, in which a West Virginia justice was disqualified from hearing a case involving a coal executive who spent $3 million to help elect him.

Full post as published by The Gavel on October 14, 2010 (boomark / email).