In July, the Wisconsin Supreme Court handed down a 4-2 decision that brought to a halt a John Doe investigation into whether Gov. Scott Walker’s campaign, during the 2012 recall election, worked illegally with outside groups. Two of the justices who ruled with the majority — David Prosser and Michael Gableman — had previously been asked to recuse themselves.
The prosecutors who made the request noted that both justices had received support from various outside groups involved in the John Doe case, most notably Wisconsin Manufacturers & Commerce and the Wisconsin Club for Growth. Particular note was made of a precedent set by the case of Caperton v. A.T. Massey Coal Co., in which the U.S. Supreme Court found that the principle of due process required a West Virginia justice to recuse himself from a case involving a company whose top executive had spent $3 million in support of the justice’s election campaign.
Gableman, the author of the John Doe decision, never released a public explanation of his refusal to recuse himself, but Prosser did. In it, Prosser noted that the outside support of his campaign came four years before the John Doe ruling. Given the separation in time, Prosser argued there was no chance the money was given to influence his decision in that case.
By Brendan Fischer
Two Wisconsin Supreme Court justices should not have taken part in a case that involved their biggest electoral supporters and moreover should not have issued a decision rewriting the rules to give those parties new ways to back the justices’ re-election campaigns.
Wisconsin Club for Growth and Wisconsin Manufacturers and Commerce have spent $10 million since 2007 helping elect the court’s four-justice conservative majority, in most cases outspending the justices themselves.
In 2011, Club for Growth, the WMC, and their offshoots spent nearly $3.7 million supporting Justice David Prosser. That was five times as much as the Prosser campaign itself, for an election that ended in being decided by a mere 7,000 votes.
Three years before, WMC’s spending in support of Justice Michael Gableman had come in at five-and-a-half times what Gableman’s own campaign spent. The Club for Growth, for its part, also surpassed the Gableman campaign’s spending, helping give Gableman a leg up in a race he won by 20,000 votes.
Given the closeness of these contests, it’s fair to ask: If it weren’t for WMC and the Club for Growth’s spending a combined $3.7 million on Prosser’s race, and $2.75 million on Gableman’s race, would the two justices even be on the bench?
Any reasonable observer would question whether the two justices could remain impartial in such circumstances. Their failure to recuse themselves undermines the public’s trust in the judiciary, and raises questions related to due process and the U.S. Supreme Court’s 2009 decision in Caperton v. Massey.
In that case, the majority declared that when a donor “had a significant and disproportionate influence on the outcome” of a judge’s election, and when an election was decided by a small number of votes, among other factors, the risk of “actual bias is sufficiently substantial that it ‘must be forbidden if the guarantee of due process is to be adequately implemented.’”
If Justices Prosser and Gableman had recused themselves, the decision in the recent John Doe case would have been a 2-2 tie, since Justice Ann Walsh Bradley recused herself on other grounds. An outcome of that sort would have most likely left the ultimate resolution of these matters to a less-conflicted appellate court.
The conflict-of-interest questions raised by this John Doe case are unique. Recusal in this instance would not open the door to a broad obligation that justices step aside in every case involving their electoral supporters.
The consequences of the court’s decision go beyond those of a typical case that could have indirect effects on a judge’s supporters, as might a civil-justice matter concerning WMC’s members, or a labor-law case concerning a justice’s union backers. The John Doe criminal probe involved liability for precisely the same organizations that spent millions helping to put these justices on the bench.
Moreover, there was a compelling argument for recusal in the John Doe case that was not at issue in Caperton. In the John Doe case, the justices rewrote the rules to greenlight campaign coordination – not only for gubernatorial candidates like Scott Walker, but also for their own campaigns.
As a result, the justices can coordinate with the same “dark money” groups that were parties to the case. Donors, rather than being limited to giving directly to a candidate and having their contributions disclosed, can now provide secret money to outside groups that will spend it as the candidates wish.
Justices cannot personally solicit donations for their campaigns — a rule that the U.S. Supreme Court has recently upheld. Now, though, justices can secretly solicit donations from the same groups that were parties to this case and tell them how to spend the money.
The John Doe decision gives the parties to the case new ways to back the justices’ re-election campaigns — and effectively guarantees that they will do so.
By Rick Esenberg
Shortly after the United States Supreme Court’s decision in Caperton, I published a law-review article suggesting that it needed to be understood as establishing a quite limited recusal requirement. After all, judicial candidates will be supported and opposed by various persons with conflicting interests.
If, for example, Justice Gableman was required to recuse himself from a case involving conservative-advocacy organizations, then why wouldn’t Justice Abrahamson, who received substantial union support, not have been required to step down in the cases involving Act 10 ? (She did not.)
If support for a particular judge frequently resulted in a duty to recuse, there would be no reason to think that opposition to that judge might do so as well. And if a “debt of gratitude” can require recusal, then so can a “desire for vengeance.”
If Justice Prosser should have recused himself from the Doe case because one of the targets spent money criticizing his opponent, Joanne Kloppenburg, then certainly Judge Kloppenburg should also have recused herself from the same case when it came before the Court of Appeals in Madison. (She did not.)
Questions of recusal become even more difficult when the judges who are asked to recuse themselves are members of a collegial law-developing court of last resort. The voters elected this particular group of lawyers to answer unresolved questions of state law. Sometimes they must recuse themselves. But this should be done only when absolutely necessary since it frustrates the will of voters when there is not participation from everyone who has been chosen to sit on the court.
When one considers these difficulties, it becomes quite clear that recusal in the Doe case was not required. Unlike the expenditures in Caperton, the support of the Doe targets, while substantial, was not disproportionate. The targets, to be sure, spent heavily, but so did others. Moreover, unlike the expenditures in Caperton, the alleged appearance of a conflict was a product of the constitutionally troubling breadth of the Doe itself. Having attacked almost the entire conservative infrastructure, the prosecutors had the temerity to ask the conservative (but not liberal) justices to step aside. To use their own sin as a sword is a bit like the plea of a defendant who, having killed his parents, seeks clemency because he’s an orphan.
Unlike the legal dispute in Caperton, the Doe investigation was not pending at the time expenditures by outside groups were made – a fact that the Caperton court itself regarded as critical. Unlike Caperton, the parties targeted by the Doe investigation were essentially conduits for ideological actors.
If, for example, Club for Growth had been destroyed by the Doe, the people who supported the Club would simply support a new organization in the future. But, under Supreme Court precedent, to be “biased” in favor of an ideological viewpoint is not the type of bias that creates a duty of recusal.
Rick Esenberg is president and general counsel of the Wisconsin Institute for Law & Liberty.