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View from around the state: Critical reform for impartiality

— From the Beloit Daily News

Limit the stain of money on decisions by the justices.

The last time Wisconsin Supreme Court Justice Shirley Abrahamson was a candidate for election the opposition considered it essentially a lost cause, since her record of easy victories stretched over decades.

For that reason the big money largely stayed out of the race, which was an aberration for Wisconsin Supreme Court elections over many cycles. The official nonpartisan status of these judicial races has become a laugher. There is always a candidate identified with the Democrat Party, and always a candidate identified with the Republican Party. One would have to be thoroughly blind and willfully ignorant to miss it.

So when the election to replace Abrahamson — who has announced her retirement — rolls around early in 2019, expect an explosion of special-interest money on both sides that well may be unprecedented. Both parties will consider this election a ripe target. Liberals (read: Democrats) will be seeking to hold the seat. Conservatives (read: Republicans) will be trying to take it, thus adding to what is a 4-3 advantage for the right.

Leaders at Common Cause, the good-government advocacy group, are renewing a call for reforming Supreme Court recusal rules in the lead-up to the race to replace Abrahamson.

The argument made sense before. It makes even more sense now.

At present, when faced with a potential conflict of interest, each justice is empowered to make the decision alone about whether to step aside from hearing a case. That’s considered the 47th weakest judicial recusal rule in America, according to Common Cause. Further, Common Cause states the rule was “written verbatim by Wisconsin Manufacturers & Commerce (WMC) and the Wisconsin Realtors Association and adopted by a narrow 4 to 3 vote by the Wisconsin Supreme Court in 2010.”

Like other special interest organizations, these entities — particularly WMC — have pushed hard for advantageous treatment from government, including the courts. WMC, for example, spent nearly a million dollars in the race this past spring supporting the losing candidate, Michael Screnock.

The most well-known example of Wisconsin’s weak recusal rule stems from the so-called John Doe investigation matters that followed the controversial Act 10 legislation. The ensuing litigation brought important cases before the justices.

Organizations involved in the cases — again, with WMC in a prominent role — had provided millions of dollars to support the elections of certain members of the Supreme Court. Yet requests those justices should step aside and recuse themselves were ignored. Those justices heard the cases, ruled in their benefactors’ favor, and forever stained the reputation the court could be counted upon to deliver fair and impartial justice.

A good working definition of a conflict of interest is whether an average citizen, viewing the facts, is likely to doubt the objectivity of the officeholder. The justices thoroughly flunked that test.

Reforms have been proposed, notably a set of suggestions put forth by a prestigious group of judges. Essentially, the proposal attempts to set standards for when recusal is required rather than leave the decision to the discretion — or indiscretion — of sitting justices.

For us, the whole issue can be simplified to this phrase: The people need to be able to believe judges are fair referees applying the laws, not partisans hewing to an agenda. Standardized recusal reforms would go a long way toward restoring integrity.

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