Vanishing Recusal Prospects in Wisconsin

“I’m just dumbfounded,” stammered Justice Ann Walsh Bradley of the Supreme Court of Wisconsin. This was Thursday, January 21, the same day the U.S. Supreme Court issued its long-anticipated ruling in Citizens United, which easily eclipsed the unfolding drama in Wisconsin. Justice Bradley’s words were in response to the state court’s anguished position on the recusal of high court judges, a position that’s brought only disappointment since October 2009.

Several petitions on recusal came before the Wisconsin high court over the past year, each proposing different rules for how and when state Supreme Court justices should be disqualified from hearing cases involving conflicts of interest.In a controversial 4–3 decision in October, the court rejected two promising petitions, and instead voted to grant two petitions that flouted the spirit – if not the very letter – of the U.S. Supreme Court’s June 2009 ruling in 'Caperton v. Massey. Caperton held that the constitution’s due process clause prohibits a judge from hearing the case of a party who spent substantial funds to place the judge on the bench. Under the rules adopted by the Wisconsin justices in October, though, no amount of campaign spending – whether in the form of direct contributions or independent expenditures – could be the lone basis for a judge’s recusal.

The Supreme Court of Wisconsin voted to adopt the misguided rules in October by a razor-thin 4–3 vote. The court’s two newest members – Annette Ziegler and Michael Gableman, who formed half of the four-justice majority in favor of the rules – are the recent beneficiaries of exorbitant campaign spending by the very group that wrote one of the petitions adopted by the court, Wisconsin Manufacturers and Commerce (WMC). (Ziegler and Gableman each bear scars from recent dust-ups of their own, Ziegler for repeatedly failing to recuse from cases involving financial conflicts and Gableman for campaign ads he ran in 2008 that resulted in ethics charges.) Then, in December, the court had to withdraw its October vote when it became clear that there were details that still needed reconciling between the two petitions the majority had adopted verbatim.

The bottom fell out of the ongoing recusal controversy when, last Thursday, the court voted once more to adopt the ”no recusal” petitions (this time with only minor tweaks from Justice David Prosser) – and to adopt them without extended debate. There was an air of defensiveness about Thursday’s administrative hearing. As Justice Prosser said, just as discussion was heating up on his proposed revisions, “I don’t think there needs to be any more commentary.” (Part 4, 1:00:27) There was something uncomfortably – needlessly – rushed about the vote, as though the majority were afraid its advantage might evaporate at the onset of scrutiny.  Justice Bradley, meanwhile, wondered aloud what it was exactly that Prosser had added to these two petitions to make them suddenly palatable after December’s embarrassing withdrawal. (Part 4, 55:16) Prosser had made minor changes to the text of the proposed rules themselves, but most of his changes weren’t to the rules themselves but to the commentary.  He offered additions designed to justify the new rules, both by inserting historical flourishes – “An elective judiciary was selected and has been part of the Wisconsin democratic tradition for more than 160 years” – and by simply re-phrasing the petitions’ original language. Chief Justice Shirley Abrahamson gently observed that what the justices had before them, in the form of Prosser’s proposed revisions to the petitions, was “a good first draft.” (Part 4, 1:00:08)    

The majority’s hasty push to adopt the petitions without further discussion was odder still given the explicit calls for a more meaningful, thorough-going investigation of the proposals on the table. Justice N. Patrick Crooks, one of the three justices to vote against these petitions in October, judiciously called for a hold.  Adopting the petitions was ill-advised, he argued, without further study by legal experts – a position with broad support. (Justice Crooks cited as grounds to proceed with caution the Brennan Center’s recommendation of a study committee, a suggestion that the Wisconsin Bar Association also made in October.)  Having suggested many times that a commission of experts study different proposals for recusal language, Crooks argued that the state high court had still not heard – or solicited – the input of the state’s lower court judges, input that should certainly be a part of the process too. One was struck by the reasonableness and modesty of Crook’s suggestion, which stood in stark contrast to the majority’s dismissiveness. 

Ever skittish, Justice Prosser has responded to this suggestion by saying that a committee of legal experts is “designed to harass certain members of the court.”  His defensiveness speaks volumes.  Prosser is up for re-election in 2011 – which may partly explain his anxieties. 

Also striking is the disingenuousness of the majority here, as it claims to be protecting Wisconsin voters’ right to elect their judiciary.  Justice Gableman, for example, stated Thursday that the Brennan Center’s support for recusal reform is part of a secret agenda to do away with judicial elections all together – even though we clearly and repeatedly testified in October (see Part 2) that this was simply false. (See also this more general clarification.) Dogged by questions about her October vote with the majority, Justice Patience Roggensack, too, framed her stance as a defense of Wisconsin citizen’s right to vote, writing an op-ed in December claiming that she acted in defense of the First Amendment.  The Capitol Times, among other sources, duly called her out for her bait and switch: no one is talking about doing away with the election of judges. 

Quite the contrary. Reforming recusal standards is designed to make the administration of these elections more tenable, to ensure that First Amendment concerns of voters are balanced with their due process rights to a fair trial. 

Over the last decade, more money than ever has poured into judicial elections. According to the New York Times, “between 2000 and 2009, spending on state supreme court races across 22 states” with competitive elections “was about $207 million, up from $86 million between 1990 and 2000.” As Caperton showed us, the public is bound to question the independence of the judiciary if judges are hearing cases that involve litigants who have put massive amounts of money toward their election efforts. According to a USA Today poll, more than 90% of those asked said “judges should be removed from a case if it involves an individual or group that contributed to the judge’s election campaign.” Recusal standards that take into account the size and timing of such spending are merely a means to formalize this obviously logical concern.         

Skeptics of reform are quick to point out the difference between campaign contributions and independent expenditures, which is immaterial. The Supreme Court found that West Virginia Supreme Court Justice Brent Benjamin needed to recuse himself from a case when an active litigant – C.E.O. of Massey Coal – put $3 million dollars toward Benjamin’s election effort, $2.5 million of which came in the form of independent expenditures. What’s more, as we survey the likely impact of the Supreme Court’s disheartening decision in Citizens United, the issue of independent expenditures (particularly those coming from corporations) is likely to explode in the context of judicial elections.  It is therefore more critical than ever that some mechanism is in place to safeguard the independence of the judiciary.

The timing of the Supreme Court’s decision in Citizens United makes the Wisconsin Supreme Court’s recent vote all the more egregious.  The judiciary should be above the suspicion of influence peddling.  And without recusal standards that are responsive to the flood of campaign money propping up state high court judgeships, the public in Wisconsin has virtually no bulwark standing between its courts and perceptions that justice can be bought. As Justice Stevens said in his Citizens United dissent, trying to explain the majority’s sometimes confusing language in Caperton:

The reason the Court so thoroughly conflated expenditures and contributions, one assumes, is that it realized that some expenditures may be functionally equivalent to contributions in the way they influence the outcome of a race, the way they are interpreted by the candidates and the public, and the way they taint the decisions that the officeholder thereafter takes. 

The refusal of four Wisconsin justices to acknowledge these “influences” and the “way they taint the decisions” that judges like themselves may eventually take is a serious blow to the integrity of our judiciary.