Wisconsin Supreme Court Buries Recusal in 'Feeble' Move

by Matthew Rothschild, Executive Director

July 5, 2017

The Wisconsin Supreme Court finally came out with its written order denying the recusal petition from more than 50 Wisconsin judges, which it had orally rejected back on April 20. That petition had urged the Court to tighten its rules on when a judge or justice needs to get off a case because of a conflict of interest related to a campaign contribution.

Justice Shirley Abrahamson denounced the order, which the Court waited to release until 3:19 p.m. on June 30, the Friday before the long July 4 weekend.

“The court order makes a feeble and somewhat misleading attempt to justify the dismissal,” Abrahamson wrote, adding that the underlying “justifications proffered by the justices themselves … are, in my opinion, unsubstantiated and misguided.” Her 30-page dissent was joined by Justice Ann Walsh Bradley.

In denying the petition, the three-page order briefly mentioned a couple of the claims of the five conservative justices who voted the petition down. The one it spelled out the most was this: “The petition presumes, as a categorical matter, that the judges and justices of this state are incapable of fulfilling their oaths to ‘administer justice without respect to persons’ and to ‘faithfully and impartially discharge the duties of [their] office.’ This is an entirely unwarranted presumption and we will not entertain it.”

Abrahamson pointed out that the logic behind this claim would make any judicial code of conduct unnecessary. “No code of judicial conduct will ever be needed because the oath in general terms already prohibits much (if not all) the conduct specifically prohibited in the code. I conclude that a Code of Judicial Conduct that provides more specific direction for judges than does the oath serves judges and the public well.”

A related claim, made by Justice Rebecca Bradley at the April hearing, was that “every judge and justice in the State of Wisconsin should be highly offended by this petition because it attacks their integrity and their character.”

Abrahamson ripped that claim apart. “Recusal standards are, in my opinion, no more of an insult to judges and justices than it is an insult to all law-abiding people to have laws governing ethics for public officials; laws governing criminal and tortious conduct; laws protecting our rivers, lakes, and streams; laws regulating the quality of dairy products; and so on and so forth. Unfortunately, judges and justices, like all people, even very good people, need guidance and make mistakes. … In a perfect world, we would not need a Code of Judicial Conduct, and we would not need many of the statutes that now cover six hefty volumes of the Wisconsin Statutes.”

Abrahamson also made mincemeat out of the argument that a tighter recusal rule would somehow violate the First Amendment. “No one has cited any case (and I cannot find any) holding or even hinting that judicial recusal requirements violate a campaign donor’s or a voter’s (or anyone else’s) First Amendment (or any other) rights.”

She added, a little later: “Judicial recusal is unrelated to a citizen’s casting a vote or any person (other than a judge) speaking in a judicial election.” Cutting to the heart of the matter, she wrote: “Citizens do not have a constitutional right to have a judge of their choice (whether the judge is elected or appointed) sit on their case.”

In invoking the First Amendment as an excuse to deep-six the petition, the conservative justices were “making an assertion without proof,” she said.

Then Justice Abrahamson cited case after case by the U.S. Supreme Court “demonstrating,” in her words, “that Wisconsin’s rule on recusal is at odds with the United States Supreme Court’s instructions on recusal.”

Here’s one example: the Caperton v. Massey Coal case of 2009, where the U.S. Supreme Court ruled that due process is violated when the degree of campaign spending is such that the “the probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable.” In that decision, the U.S. Supreme Court, invited states to “adopt recusal standards more rigorous than due process requires.” Abrahamson added, tartly: The U.S. Supreme Court did so “without noting any First Amendment concerns.”

(Full disclosure: Justice Abrahamson several times cited the Wisconsin Democracy Campaign and my writings on the recusal issue.)