Closing Arguments: Should two justices have recused themselves in John Doe case?

PRO | Recusal was only way to go in John Doe

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.