By Tom Solberg, Media Relations Coordinator, State Bar of Wisconsin

July 9, 2010 – An order issued by the Wisconsin Supreme Court on July 7 amends SCR 60.04 to modify the Judicial Code of Conduct by, among other things, stipulating that lawful campaign contributions received from a campaign supporter cannot be the sole reason for recusal in a proceeding.

The order, adopted on a 4-3 vote, reveals sharp divisions on the recusal matter within the court. Justice Patience Roggensack, writing for the majority, emphasized the impact of recusal standards on the voting rights of the electorate, stating that “when a judge is disqualified from participation, the votes of all who voted to elect that judge are cancelled for all issues presented by that case.  Accordingly, recusal rules, such as SCR 60.04(7), must be narrowly tailored to meet a compelling state interest.”

Justice Ann Walsh Bradley, writing for the minority, countered in her dissent that the voting rights cases cited by Justice Roggensack “are totally unrelated to the issue of judicial recusal” and argued that “the purpose of a recusal rule is to maintain a fair, neutral, and impartial judiciary.  A fundamental principle of our democracy is that judges must be perceived as beyond price.”

The court had been considering a total of four petitions that addressed the issue of judicial recusal from differing perspectives:

• Petition 08-16, filed by the League of Women Voters of Wisconsin Education Fund in June 2008, would have created “rules for recusal when a party in an action or the lawyer or law firm in an action has previously made a campaign contribution to, or spent money on, a media campaign relating to a judicial election for a judge who is presiding in the case.” Under the petition, a contribution of $1,000 or more, or multiple contributions totaling $1,000 or more, within the preceding two years would be a basis for recusal. Similarly, the league’s petition indentified a party’s payment in full or in part for “a mass communication that was disseminated in support of the judge’s election” within the preceding two years to be a basis for recusal.
• Petition 08-25, filed by the Wisconsin Realtors Association in September 2008, took the opposite tack and proposed amending the Code of Judicial Conduct to “provide that the receipt of a lawful campaign contribution by a judicial campaign committee or an endorsement of a candidate does not, by itself, warrant judicial recusal.”
• Petition 09-10, filed by Wisconsin Manufacturers and Commerce in October 2009, proposed that recusal would not be required where the recusal is based solely on a litigant’s sponsorship of an independent expenditure or “issue advocacy” communication, or by a litigant’s financial donation to an organization engaging in such electioneering activity.
• Petition 09-11, filed by retired Wisconsin Supreme Court Justice William A. Bablitch in October 2009, would have required recusal if a party or an attorney gave a justice $10,000, the legal limit for individual campaign donations. It also would have required recusal for third party expenditures, but provided no particular threshold limit.

In October 2009, the justices voted 4-3 to adopt, without amendment, rule petitions 08-25 and 09-10. The court withdrew that vote in December when Justice David Prosser said the petitions contained language requiring “fine tuning.” The petition sponsors themselves sought a revision to resolve inconsistent terminology for campaign participants before a court and Justice Prosser wanted to clarify the rule’s applicability to judges.

On Jan. 21, 2010, the court adopted Petitions 08-25 and 09-10, as revised, on a 4-3 vote. Justice Prosser was joined by Justices Michael Gableman, Patience Roggensack, and Annette Ziegler in favor of the petitions. Chief Justice Shirley Abrahamson, Justices Ann Walsh Bradley, and N. Patrick Crooks dissented.

The July 7 order denies petitions 08-16 and 09-11 and creates the new rule based on the revised petitions filed by the Wisconsin Realtors’ Association and the Wisconsin Manufacturers & Commerce, effective July 7, 2010.

State Bar position

The State Bar of Wisconsin asked the court to deny all four rule-making petitions. Then-President Douglas W. Kammer wrote to the court on Oct. 15, 2009, urging them to dismiss the recusal petitions and saying the Board of Governors believes “the issue of recusal for campaign related activities merits thoughtful discussion and resolution ...”

A task force created by the board examined the issue of judicial recusal, and Gov. Thomas L. Schober, chair of that study committee, reported to the board that neither the leagues’ nor the realtors’ petition properly addressed the matter. Schober referred to a draft report under review by the ABA Standing Committee on Judicial Independence.

At its September 2009 meeting, the board adopted the following statement:

“The Board of Governors of the State Bar of Wisconsin believes that neither petition 08-16 or 08-25 represent sufficient consideration of the scope of judicial disqualification matters and asks the Supreme Court to deny both petitions. The implications of judicial recusal, both from a practical implementation standpoint and a public confidence view, are such that the Court should reject both petitions and establish a study committee to review these and other judicial disqualification issues. The Court should move deliberately to establish greater guidance to judges through an enumeration of factors judges should consider in potential recusal situations and provide training for implementation of new standards.”

Continue to monitor WisBar.org and visit the State Bar’s Government Relations page for updated information on this and other court developments.

Related Articles:

Wisconsin Supreme Court adopts amended recusal rules (Jan. 22, 2010)

Wisconsin Supreme Court withdraws earlier vote on recusal rules (Dec. 7, 2009)

In battle over judicial recusal, First Amendment trumped due process rights (Nov. 4, 2009)

Recusal not required on account of campaign contribution, independent expenditure of party to proceedings (Oct. 28, 2009)

Board tackles petitions on judicial independence and court procedures, among other actions (Sept. 14, 2009)

Rotunda Report is the State Bar of Wisconsin’s Government Relations e-newsletter that highlights legislative, judicial, and administrative developments that impact the legal profession and the justice system. It is published twice a month and is distributed free to attorneys, public officials and others who help shape public policy in Wisconsin. We invite your suggestions to make the Rotunda Report more informative and useful and we encourage you to visit our Web site for the most current information about justice-related issues.

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