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Home / Commentary / View from around the state: Judge recusal proposal makes sense

View from around the state: Judge recusal proposal makes sense

— From the Milwaukee Journal Sentinel

More than 50 retired jurists are making a reasonable request of the state Supreme Court: Set a “bright line” for judges to step down from cases that involve a party who has made a campaign contribution to that judge. The proposal deserves a thoughtful discussion and hearing, but on its face it makes sense: An objective standard on when to recuse oneself from a case would make it simpler for judges and could help rebuild public trust in government. How is that not a good thing?

Imagine you’re involved in litigation. You find out that your opponent in the case gave $5,000 to the re-election campaign of the judge hearing the case. Is your first thought going to be, “I’m sure the judge won’t give that a thought and will judge this case fairly and honestly,” or will it be, “I’m cooked”?

The judge involved may indeed judge the case fairly and honestly — we have no doubt that the vast majority would — but the appearance of a conflict of interest can be just as damaging to the public’s trust as an actual conflict. A hard and fast objective rule would help resolve that question.

Right now, judges and justices rely on a 2010 rule that says campaign donations can rarely force judges and justices off cases. Recusal is left in the hands of the judge or justice, and there’s no review or appeal.

“As money in elections becomes more predominant, citizens rightfully ask whether justice is for sale,” the former judges wrote in their petition to the high court. “The appearance of partiality that large campaign donations cause strikes at the heart of the judicial function, which depends on the public’s respect for its judgments.”

In a meeting with the Journal Sentinel Editorial Board Wednesday, retired Supreme Court Justices Janine Geske and Louis Butler and retired Milwaukee County Judge Mike Skwierawski made the case for the new rule.

“At some level, you have to hope that the integrity of the court system becomes the highest priority for the Supreme Court. Not just keep the money flowing,” Skwierawski said.

Should the Wisconsin Supreme Court require judges to recuse themselves if they have received a certain amount of campaign contributions from the parties or the parties' lawyers?

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There are those who argue this is a free speech issue and that setting a threshold for campaign contributions to trigger recusal would have a chilling effect.

But as Skwierawski noted Wednesday, while everyone has a right to contribute to campaigns and to have a day in court, there is no right to have a case heard by a particular judge. And that’s all this rule would do; remove a particular judge who may or may not be motivated by a campaign contribution. Does it hurt free speech? “Absolutely not,” said Skwierawski.

Under the proposed recusal rules, circuit court judges would have to step aside if they received $1,000 or more from a litigant or attorney in a case. The threshold would be $2,500 for appeals judges and $10,000 for Supreme Court judges. The proposal also calls for a review and appeals process, the retired judges told us.

“This isn’t an attempt to shame anyone,” said Butler, who lost a re-election bid in 2008 to now-Justice Michael Gabelman. “I think it’s a realistic approach to the court, saying it’s time to review the rules that were drafted in 2010.”

It is a realistic and necessary approach. It deserves full consideration by the high court.

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