Should a justice on the Wisconsin Supreme Court recuse himself or herself from cases involving litigants who donated $1,000 or more to the judge’s election campaign?
The court has the authority to amend the state judicial code without having to run it past the state legislature.
Justices on the court are pondering dueling petitions on the issue of recusal.
The first petition was filed by the League of Women Voters of Wisconsin Education Fund, with full support from the Wisconsin Democracy Campaign and Common Cause in Wisconsin.
In a joint statement, the three organizations called for recusals when litigants contribute $1,000 or more to a justice’s campaign "or tried to influence a campaign through mass communications," i.e. bogus television "issue ads" that always end with a phrase such as, "Tell Justice So-and-So to (fill in the blank for whatever cause)."
"Campaign gifts certainly don’t automatically undermine a judge’s neutrality. But the increasing campaign donations we have seen in recent years do severely erode public trust, even when a judge may be acting fairly," the organizations said. "The new recusal rules would restore public trust that campaign contributions will not influence a judge’s decisions and give notice to special interests that there is no benefit to turning court elections into a financial arms race – not when the judge they help elect will not be allowed to hear their case. Together these reforms will restore public confidence in Wisconsin’s progressive tradition of election of judges and justices."
Au contraire, says the Wisconsin Realtors Association, which has filed a petition urging the court to resist mandating judicial recusals based on campaign contributions.
The Realtors are asking that the code be revised to state, "A judge shall not be required to recuse himself or herself in a proceeding based solely on any endorsement or the judge’s campaign committee’s receipt of a lawful campaign contribution, including a campaign contribution from an individual or entity involved in the proceeding."
In other words, the Realtors want to still be able to play after they pay.
So, which side will prevail?
A recent U.S. Supreme Court ruling (Caperton v. Massey) affirmed the notion that a judge should recuse himself or herself when a litigant has donated substantial campaign funds. In 2004, a West Virginia coal executive working for Massey Energy Company spent $3 million to elect a state Supreme Court justice while appealing a $50 million jury award against his company. In 2007, that justice rejected a motion to recuse himself, and joined two colleagues as the court overturned the jury award in a 3-2 decision.
If the Wisconsin Supreme Court takes its cues from the U.S. Supreme Court, there could be a whole lot of recusing going on. According to a study by the Wisconsin Democracy Campaign requested by BizTimes Milwaukee, Wisconsin justices have received the following numbers of individual campaign donations of $1,000 or more: Shirley Abrahamson, 341; Annette Ziegler, 95; Mike Gableman, 71; Pat Roggesack, 42; Patrick Crooks, 38; and Ann Walsh Bradley, 37. Only Justice David Prosser Jr. has not received any individual donations of $1,000 or more.
However, the campaigns of all of the Wisconsin justices have received donations of $1,000 or more from political action committees (PACs).
Often in politics, appearance becomes reality. The recent elections of justices were overloaded with special interests, as the Wisconsin Manufacturers & Commerce put conservatives Ziegler and Gableman on the bench, and progressive forces kept Abrahamson in office.
If the Supreme Court enacts the restrictions for checks of $1,000 or more, here’s a prediction: We’ll see a spike of checks for $999 donated to judicial candidates.
Steve Jagler is executive editor of BizTimes Milwaukee.
