State Bar board starts discussion on recusal rules

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Initial silence eventually evolved into a lively discussion at the Board of Governors meeting today about a pair of petitions involving judicial recusal that are headed to the state Supreme Court.

Absent presentations from petitioners — the Wisconsin League of Women Voters, which favors rigid recusal rules, and the Wisconsin Realtors Association, which opposes recusal restrictions related to campaign donations — board members unanimously voted to solicit more information for section leaders prior to taking action in support of, or opposition to the petitions.

Executive Director George Brown will gather information prior to the Feb. 5 Executive Committee meeting and disseminate the feedback to board members prior to the next Board of Governors meeting on Feb. 27.

A state Supreme Court administrative hearing is scheduled for April 20, 2009.

Several board members expressed opposition to both petitions, but President Diane Diel suggested that the State Bar has an opportunity and obligation to voice its opinion on the issue.

“My dismay is that neither of the two petitioners thought they should come forward today to address their point of view,” Diel said. “But the voice that is most articulate is that of the State Bar of Wisconsin on this issue.”

The League of Women Voters petition calls judges to have to recuse themselves in cases where parties have contributed $1,000 to their campaign. But the Realtor’s petition says judges should not have to recuse themselves, solely on the basis of “lawful campaign contributions.”

Gov. Catherine LaFleur, who opposed both petitions, suggested that members of the judiciary should weigh in on the issue, since many may not discover a conflict of interest until they open the case file for the first time.

“I’ve practiced in a number of counties where I’ve driven a long distance only to get into court and have the judge open the file for the first time and say, I can’t hear this case,” LaFleur said. “I think the judiciary needs to tell us up front if there may be a conflict.”

Immediate Past-President Thomas Basting suggested that the state Supreme Court may not take action on either petition until the U.S. Supreme Court rules in a recusal case involving a West Virginia justice.

Justice Brent Benjamin twice voted to overturn judgments in favor of Harman Mining Co. in its $76 million coal contract dispute with Massey Energy Co. Massey Chief Executive Don Blankenship had contributed $3.5 million toward Benjamin’s campaign in 2004.

“I suspect that until a decision in that case comes down, Wisconsin will wait to do anything,” Basting said.