Court: Butler had no duty to recuse self from case

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Groundless demands that state Supreme Court justices recuse themselves from cases may be the latest and hottest form of attack on judicial independence.

But if a July 30 opinion from the Wisconsin Supreme Court — denying a motion to vacate a decision relating to the disqualification of a justice — is any indication, those attacks aren’t going to fare very well.

In a unanimous per curiam opinion, the court held that Justice Louis B. Butler, Jr., had no duty to recuse himself from a case involving a group that supports lesbian, gay, bisexual and transgender (LGBT) rights.

Attorney James R. Donohoo filed a motion seeking vacation of a recent opinion, based on Butler’s receiving campaign contributions from the opposing attorney in the case, and Butler’s appearance at a fundraiser for an LGBT PAC. Other contributors to his campaign also had affiliations with LGBT organizations.

Burdensome Review

But the court denied the motion, concluding, “The code of judicial conduct does not require judicial candidates to attempt to research every possible organization with which contributors may have an affiliation. Such a requirement would be unduly burdensome to candidates for judicial office and we decline to impose it.”

Justice David T. Prosser wrote an even more vehement concurrence, blasting the motion.

“Attorney Donohoo is not oblivious to contemporary legal developments,” Prosser wrote.

“In recent years, justices of this court have been subjected to repeated demands that they recuse themselves from participation in pending cases. Often those demands are amplified by sensation-seeking reporters who appear to believe that freedom of the press entails a right to tamper with the administration of justice. Sometimes these well-publicized demands have caused a justice to withdraw from a case because the justice is not in a position to answer false allegations without appearing to comment on pending litigation.”

The opinion brings to a conclusion a case with a long and tortured history.

It began when Grant E. Storms, a minister, filed a libel suit against Action Wisconsin and Christopher Ott, its executive director, after the group issued a release contending that Storm advocated the murder of homosexuals.

The defendants won at the trial level, and the court found the suit frivolous, awarding attorney fees. The Court of Appeals reversed the finding of frivolousness.

However, in a June 5 opinion, the Supreme Court reversed the Court of Appeals, with Justices Prosser, Patience Drake Roggensack and Annette Kingsland Ziegler dissenting.

Donohoo v. Action Wisconsin, Inc., 2008 WI 56, 750 N.W.2d 739.

Motion to Vacate

Donohoo then filed the motion to vacate, based on the following facts:

• Action Wisconsin had formed a PAC, Fair Wisconsin, to oppose Wisconsin’s Marriage Protection Amendment, and ultimately the two merged, keeping the name, Fair Wisconsin;
• One of Fair Wisconsin’s board members contributed $125 to Butler’s Supreme Court campaign;
• Another board member contributed $1,100;
• Attorney Lester Pines, the attorney for Fair Wisconsin/Action Wisconsin, Inc., contributed $300 to Butler’s campaign;
• Attorney Tamara Packard, another attorney for Fair Wisconsin, endorsed Justice Butler in an editorial that ran in an LGBT publication; and
• Justice Butler spoke at a LGBT PAC garden party.

Although Butler informed Donohoo of Pines’ contribution, Donohoo did not seek recusal prior to the case. After the opinion was released, Donohoo filed the motion to vacate, contending, “Justice Butler joined himself at the hip with the PAC, and consequently also to Action Wisconsin," and "aligned himself with Wisconsin’s premiere homosexual rights PAC and premiere radical homosexual advocacy group … and their common goals and agenda." The Supreme Court disagreed. Prior Decisions The court began by reviewing its three prior decisions concerning requests for vacation of judgment, all of which found recusal was not required. State v. American TV & Appliance, 151 Wis. 2d 175, 443 N.W.2d 662 (1989), City of Edgerton v. General Cas. Co., 190 Wis. 2d 510, 527 N.W.2d 305 (1995), and Jackson v. Benson, 2002 WI 14, 249 Wis. 2d 681, 639 N.W.2d 545.

The court noted that there is no rule that a judicial candidate disclose all contributions to his campaign to parties. The court further noted that the PAC board members were not parties to any action, and there is no allegation that Justice Butler knew they were board members in the first place.

In addition, no rule prohibits judicial candidates from attending fundraising events, such as the garden party, nor does any rule prohibit a candidate from accepting endorsements from lawyers.

Finally, the court declined Donohoo’s assertion that the court should adopt both a subjective and objective test to decide whether a justice should recuse himself.

The court wrote, “Justice Butler clearly determined that he could be impartial. This is all that is required by sec. 757.19(2)(g).”

Attorney Pines said in an interview that he was not surprised by the decision.

“I’m not surprised because the reported cases on motions to vacate, prior to this, show that there is a very high burden to meet,” Pines said. “We are pleased that the motion was decided promptly (less than one month). So, that is the end of the case. It was definitely a last-ditch effort.”

As for the broader effects of the opinion, attorney Packard added, “What it does is vindicate the rights of attorneys to participate in the political process as individual citizens.

Justice Butler did nothing wrong, and we did nothing wrong. We are able to engage in politics, the most protected form of speech under the First Amendment.”

Attorney Donohoo could not be reached for comment.

As noted, Justice Prosser wrote separately, praising the per curiam opinion as a “swift rebuff” that is needed, “because any other response would encourage more challenges from disappointed or apprehensive litigants and others who seek to advance their interests or political agenda by attempting to induce targeted justices to withdraw from cases under pressure.”

However, Prosser also discussed the inherent flaws of electing Supreme Court justices, although he noted that any other system would have its own flaws.

“A court that is in the vanguard of making and changing law in a way that greatly benefits some interest groups and seriously damages others is a court that is actively, if inadvertently, promoting the politicization of its own elections,” Prosser wrote. “Every litigant believes he is entitled to an impartial review of his case. If litigants do not believe they can get an impartial review of their cases, they will inevitably attempt to change the composition of the court.”

The case is Donohoo v. Action Wisconsin, Inc., No. 2006AP396