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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