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Three Unnamed Petitioners v. Peterson (Amicus Brief)

In this amicus brief, the Brennan Center argues that the Wisconsin Supreme Court should consider recusal standards resulting from U.S. Supreme Court’s decision in Caperton v. Massey, which ruled that judges may be required to recuse themselves when litigants provides campaign support.

Published: March 2, 2015

The Wisconsin Supreme Court is hearing a challenge to an investigation that involves possibly illegal campaign coordination between Wisconsin Governor Scott Walker's 2011/2012 recall election campaign and special interest groups. According to news reports, those groups include the Wisconsin Club for Growth, Citizens for a Strong America, and Wisconsin Manufacturers and Commerce.

These special interest groups reputed to be targets of the investigation also spent millions in support of four of the state's Supreme Court justices during their election campaigns. These justices will now hear a challenge to the law that prohibits coordination between political candidates and groups that make independent expenditures in support of their election campaigns. Wisconsin's recusal rules do not require judges to remove themselves from a case solely because they benefitted from independent expenditures or campaign contributions made by a party involved in the litigation. In fact, the Wisconsin Supreme Court specifically changed the state's recusal rules in 2010 to exclude campaign contributions and independent expenditures as sole bases for judicial recusal. Notably, those recusal rules were drafted by one of the groups reported to be a target of the current investigation.

In February, the prosecutor leading the probe into possible coordination between Governor Scott Walker's campaign and outside groups filed a motion asking at least one Wisconsin Supreme Court justice, and possibly more, to recuse themselves from hearing a challenge to the investigation.

The Brennan Center filed a brief on behalf of legal ethicists arguing that the Wisconsin Supreme Court must consider the recusal motion in a manner consistent with the U.S. Supreme Court’s decision in Caperton v. Massey, which established that due process may require recusal when a litigant provided significant campaign support to a judge.

On July 16, 2015, Justices Prosser and Gableman denied motions for recusal. On July 29, Justice Prosser issued a letter to counsel explaining his decision to deny recusal. 

Read the amicus brief

Justice Prosser's letter explaining the denied motion for recusal