It was painful on Oct. 28 to watch the Wisconsin Supreme Court reject the League of Women Voters’ proposal to require judges and justices to withdraw from cases in which one party has spent $1,000 or more to put the judge in office. That day a majority of our high court justices voted to adopt word-for-word the recommendations of two powerful business associations who proposed that campaign contributions and electioneering ads should never be cause for recusal.
It was still more painful to watch the justices of our state’s highest court revisit the issue. Chief Justice Shirley Abrahamson called the Court into open administrative conference to deal with amendments that have been proposed since the adoption of the new rules. The result was a heated discussion that revealed a sharp division in the Court.
The Wisconsin Supreme Court usually adopts new rules in principle, leaving open the opportunity to modify the language before the final rule is approved. However, the majority in October rejected suggestions to allow for any flexibility and specified that the rules were to be adopted verbatim as proposed by the business groups Wisconsin Realtors Association (WRA) and Wisconsin Manufacturers and Commerce (WMC).
That may have been more than even the original petitioners were bargaining for. In late November, WMC submitted an amendment to the rule they had proposed, which dealt with independent expenditures related to a judicial campaign. They recommended rewording which they said would simply make the language consistent with that of the Realtors’ rule, which dealt with campaign contributions. In addition, Justice David Prosser proposed other amendments. He asserted that the proposed changes would not alter the substance of the rules, but other justices were not so sure of that.
Justice Ann Walsh Bradley read a sharply worded dissenting statement co-signed by Justices Abrahamson and Crooks, saying they never would have adopted a proposal verbatim from powerful lobbying interests. To demonstrate the effect of the court’s rash decision, she read headlines from newspapers statewide decrying the October 28 decision.
The whole point of recusal standards is to protect not only the impartiality but also the credibility of our courts. You can’t do that by letting moneyed lobbying interests write the rules.
Abrahamson asked Prosser several times if he no longer supported verbatim adoption of the WMC and WRA rules, and eventually he agreed that he was retracting his earlier vote. Abrahamson, Bradley and Crooks also voted to rescind the Oct. 28 decision, resulting in a majority. Abrahamson announced that the Oct. 28 order would not be published and asked Prosser to circulate his recommendations to the full court by the end of the week for future consideration.
The court has an opportunity to take the time to do this right. Justice Crooks asked all of the speakers at the Oct. 28 hearing what they thought of the idea of having a committee study the recusal issue and make recommendations to the court within a few weeks. The League of Women Voters and most of the others supported this. We still do, and we also support Crooks’ recommendation that any amendments should receive proper notice and have a hearing before being adopted.
Nobody said democracy is easy. It requires constant care and feeding. But it’s worth it.
Melanie Ramey is president of The League of Women Voters of Wisconsin Education Fund. The LWVWI Education Fund is a nonpartisan, nonprofit organization that encourages active, informed participation in government and influences policy through education and advocacy.
