Nov. 4, 2009 – The First Amendment outweighed due process arguments when the Wisconsin Supreme Court declared on Oct. 28 that judges are not required to recuse themselves from cases featuring campaign contributors or parties who made independent expenditures.

“My major concern is the First Amendment,” said Justice Patience Roggensack, one of the four justices to vote in favor of the petitions amending the state Code of Judicial Conduct to exclude these campaign activities as the basis for disqualification on the premise that they are protected speech. Justices David Prosser, Annette Ziegler, and Michael Gableman joined Roggensack in approving the petitions

“I know we are being asked to focus on recusal, not the right to vote,” Roggensack said. “But I do not think you can help but impact the First Amendment when you set the kind of limits that require recusal.”

The due process argument

Justices adopted petition 08-25 offered by the Wisconsin Realtors Association and petition 09-10 from the Wisconsin Manufacturers & Commerce trade group following this summer’s decision on judicial recusal in Caperton v. Massey,  129 S. Ct. 2252.

In Caperton, the nation’s high court found a due process violation occurred when the chief executive officer of a corporation contributed $3 million to the election campaign of the judge before whom it was likely the corporation would be seeking appellate relief.

Writing in support of its petition, the League of Women Voters argued for disqualification of a judge in receipt of campaign contributions totaling $1,000 or more within the preceding two years because “[p]eople who go before a judge should be able to trust that the judge is a fair and impartial decision maker.”

Addressing the justices in support of recusal rules tied to campaign spending, the Brennan Center for Justice argued that a recusal rule does not have to intrude upon protected speech, drawing a distinction between the activities of a candidate standing for office and a judge sitting on a case. “The First Amendment does not entitle any party to choose what judge will hear the case,” the center commented in a letter to the court.

But the Realtors argued that the trend in election law is toward less regulation of speech, beginning with the U.S. Supreme Court decision in Republican Party of Minnesota v. White, 536 U.S. 765 (2002). In White, the U.S. Supreme Court held that the First Amendment forbids a canon of judicial conduct preventing judicial candidates from announcing their views on disputed legal or political issues.

Since White, the Realtors noted, a series of cases have steadily expanded the scope of permissible conduct in judicial campaigns, including Seifert v. Alexander, 597 F. Supp. 2d 860, which invalidated provisions of the Code of Judicial Conduct curtailing a judge’s partisan activities.

A majority of the justices opted to follow this trend. Explaining his vote in favor of rules favoring campaign donations, Gableman said, “If there is something unacceptable about a political candidate, a candidate for any public office including a judge or justice, the power in this country resides with the people [to remove them].”

Mere clarification?

Roggensack remarked that the new recusal rules only clarify existing law, citing the court’s holding in Donohoo v. Action Wisconsin Inc., 2008 WI 110. In Donohoo, the court rejected a motion to recuse Justice Louis Butler on account of a campaign contribution.

In Donohoo, the court remarked, “There is no case in Wisconsin or elsewhere that requires recusal of a judge based solely on a contribution to a judicial campaign.”

“I think what has been put forth by the two petitions we should grant, in my view doesn’t change the interpretation of the law,” Roggensack said. “But what it does is kind of give the courts the blessing of my interpretation of the law.”

But Justice Ann Walsh Bradley, who voted in opposition to the rules sanctioning campaign spending, wondered whether the current law should be preserved without further study.

“It gave me pause when Justice Bablitch said if you pass the Realtors and WMC [petitions], you just memorialize the status quo into law,” Bradley said, referring to testimony from retired state supreme court Justice William Bablitch in which he said that the business groups “want to keep a system that has worked for them but that has not worked for the average litigant; that’s the worst thing you could do.” Bablitch had sponsored his own petition for recusal on account of campaign contributions.

No other factors considered

Chief Justice Abrahamson sought to add language that would spell out circumstances that – as in Caperton – campaign activity did disqualify a judge. But Roggensack argued that the court’s listing of factors would inadvertently leave others out.

Pressing her point, Abrahamson argued that Wisconsin judges need better direction than a mere mention of what is not a basis for recusal, “What does this standard tell me?” Abrahamson said. “It tells me that it’s not based solely [on campaign spending]. What else am I going to look at?”

“You can’t answer that for me,” Abrahamson said. “If you want certainty, this doesn’t give it. I think this is the present law and people seem dissatisfied with it so we should be doing something that might help them.”

“I think passing this with the discussion we’ve had … sends a message that it is not dishonorable to contribute an amount to a campaign,” Roggensack said. “I think what’s in the media constantly is, ‘Oh, judges are being bought. People are contributing $10,000 to a judge [running] in Wisconsin.’ I don’t know how many $10,000 contributions you got; I got one and it was from a family member, so it’s not something I am really troubled with.”

The court ultimately voted to adopt the Realtors and WMC petitions without any amendments.

Not over?

“This is a developing area of the law,” Roggensack said, mentioning an expected decision from the U.S. Supreme Court in Citizens United v. Federal Election Commission addressing free speech issues raised by campaign finance laws.

Roggensack said that the court would likely study recusal as the law evolves on the issue. She added that Wisconsin, with its distinctive rules permitting substitution of judges at the trial court level, “is probably at the forefront” of the national debate.

“I think Wisconsin has always been sensitive to the appearance of justice and letting the litigants have their day in court,” she said.