Recusal proposal would put state on track with US Supreme Court decision

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Since 1999, the American Bar Association’s model code for judicial conduct has set limits on how much judges can receive from the parties or lawyers in a particularly case before having to recuse themselves.

Yet, only five states have adopted those provisions, according to a recent report from the National Center of State Courts, an organization that promotes improving the judicial administration of state courts. Wisconsin, for its part, is one of two states that chose in 2010 to reject proposals to adopt rules mirroring ABA’s recommendations.

Nearly a decade later, a group of 54 retired judges is asking the Wisconsin Supreme Court to reconsider that decision.

The judges filed a petition on Jan. 11 asking the Wisconsin Supreme Court to add stronger recusal rules to the state’s code for judicial conduct. Specifically, they are asking the justices to adopt what they are deeming an objective standard for judicial recusal — one that mirrors rules that the U.S. Supreme Court adopted in 2009 in the case of Caperton v. A.T. Massey Coal Co.

The petitioners are calling for the recusal thresholds to be set differently for various sorts of judges. Their recommendations would set the limits at:

• $10,000 for Supreme Court justices;
• $2,500 for Court of Appeals judges;
• $1,000 for circuit court judges;
• $500 for municipal court judges.

The petitioners are also asking for a state constitutional amendment that would give the Supreme Court a way to still form a quorum when justices have been prevented by recusal requirements from ruling on a case. Their proposal would allow the justices to appoint Court of Appeals judges as temporary substitutes.

The petitioners say they are optimistic their proposals will be received favorably.

“We’re hoping the court will schedule a hearing given the nature of the people that filed the petition,” said former Wisconsin Supreme Court Justice Louis Butler, one of the judges who signed the petition.

Current recusal law relies on what many observers dismiss as being a subjective standard. Recusals can now be initiated only either by judges themselves or by parties in a particular case. But just because someone has asked a judge to step aside, that doesn’t necessarily mean the request will be granted.

“One of the interesting things about recusal that a few scholars have been emphasizing recently is that it’s an interesting sort of situation in which the judge or the justice faced with a recusal petition is inherently being asked to be a judge in his or her own case,” said Chad Oldfather, a law professor at Marquette University.

And because current procedures are so often initiated by the parties in a case, they can be viewed as being inherently accusatory, he said.

Oldfather, who studies judicial behavior, says he thinks the latest proposal sets a bright-line rule that would prevent judges from having to admit their impartiality could be in question.

“It has the effect of taking the question out of the judge’s hand and not requiring them to engage in the understandably difficult task of admitting either ‘I can’t be impartial here’ or ‘It doesn’t look like I can be impartial here,’ because it’s a hard thing to do,” Oldfather said.

But as much as Oldfather thinks the proposed rule change is a good one, he acknowledges that it also could give rise to constitutional concerns. Oldfather said that recent national and state court decisions have only strengthened precedents equating campaign contributions to free speech.

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Others, though, think the latest petition can be squared with constitutional protections. Matt Rothschild, executive director of the watchdog group Wisconsin Democracy Campaign, said the recusal proposal shines light on two unfortunate consequences of the state Supreme Court’s decision in 2010 not to adopt recusal rules linked to campaign contributions.

The first, bigger consequence, he says, is the larger role that money has since taken on in judicial elections. The second, he said, is the harm that has been done to the courts’ presumed impartiality.

“A judge has an ethical obligation to step aside when a party before that judge has contributed lots of money to that judge or to an outside group that spent a lot of money to get that judge elected,” Rothschild said. “This is not only about the appearance of bias, but actual bias. The other party in such a case cannot get due process.”

By the Wisconsin Democracy Campaign’s count, the Wisconsin Realtors Association and Wisconsin Manufacturers and Commerce have poured about $5.8 million into Supreme Court races since 2007. Rothschild noted that WMC and WRA had a big part in shaping the state’s current recusal rules, having submitted a petition in 2008 calling for the justices to change the judicial code so that receiving a campaign contribution did not automatically require judges to recuse themselves from cases. The justices, on a 4-3 vote, adopted that petition in 2010.

For Oldfather, the bigger concern is the possible loss of the appearance of impartiality. He noted that judges, unlike legislators, are expected to show how their rulings fit in with the greater body of law. Even though judges by and large fulfill this duty, the public is not necessarily aware of their efforts.

“There is more to it than simply judges making those sort of nakedly political decisions that legislators do,” said Oldfather. “We want the public to understand that, and there’s a real, legitimate fear that given the way judicial elections have unfolded in recent memory, particularly here in Wisconsin, that members of the public don’t think it works that way.”

The justices could vote in February on whether they will consider the recusal petition. If they choose to, they will then schedule a public hearing and solicit comments from the public. Follow @erikastrebel