Dec. 7, 2009 – The Wisconsin Supreme Court today withdrew its vote in October to adopt – as written – a petition amending the Code of Judicial Conduct so that the receipt of a campaign contribution or an independent expenditure by a party to the proceedings does not require a judge’s recusal.
By the same action, the justices withdrew its earlier vote for a petition amending the Code of Judicial Conduct so that a judge is not required to recuse him or herself where a party to the proceedings sponsored an independent expenditure or issue advocacy during the judicial campaign.
The petition regarding campaign contributions was authored by the Wisconsin Realtors Association; the Wisconsin Manufacturers & Commerce offered the petition concerning independent expenditures. The court had split 4-3 in its approval of the measures.
Justices determined that they could no longer support their earlier action during an administrative conference held to consider a Nov. 24 letter from the petitioners seeking amended language to resolve the two petitions’ inconsistent terminology for campaign participants before a court. Specifically, the court found it needed to rewrite portions of the petitions it had voted to accept "verbatim."
Initially, Justice David Prosser suggested that this change amounted to no more than “fine tuning” the language. But Prosser indicated other changes might be necessary so that the rules apply beyond just incumbent judges. He also said the rules could better distinguish between the receipt of a lawful contribution and its solicitation.
Given the significance of the changes, Prosser informed the court he had to withdraw the vote he cast with Justices Patience Roggensack, Annette Ziegler and Michael Gableman in favor of the two petitions. Without Prosser's vote, the petitions no longer commanded support from a majority of justices.
Prosser said he did not want the court to further delay addressing the issue of recusal and he said that he still supported the essence of the two petitions. Chief Justice Abrahamson said that the court will revisit the matter next month.
The justices’ actions follow this summer’s U.S. Supreme Court ruling 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.
Alex De Grand is the legal writer for the State Bar of Wisconsin.
