Legal community weighs in on Supreme Court Justice Protasiewicz’s duty to recuse over gerrymandering cases

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Published 1:48 p.m. CDT on August 23, 2023.

It’s no secret Wisconsin’s electoral maps are ranked as among the most gerrymandered in the nation.

In fact, in Whitford vs. Gill, a Federal judge ruled gerrymandered districts in Wisconsin unfairly suppressed the voter base. Furthermore, the ruling also found gerrymandering based on racial or ethnic grounds unconstitutional. During former Gov. Scott Walker’s tenure in 2011, redistricting plans created by Republican legislators attempted to increase the likelihood their party would gain seats in the Wisconsin legislature; it worked.

In a state nearly evenly divided among Republicans and Democrats, Gov. Tony Evers won re-election with 51.2% of the popular vote. However, on the same 2022 mid-term ballot, Republicans running for the state Legislature won more than 60% of vacant seats.

“It just doesn’t add up,” blogs Dan Shafer.

Shafer and the mainstream press noted the issue became significant during April’s Wisconsin Supreme Court race between Republican Dan Kelly and Democrat Janet Protasiewicz.

Protasiewicz was quoted in Shafer’s blog and also was widely reported by the mainstream media in saying, “Let’s be clear here: The maps are rigged. Absolutely positively rigged. They do not reflect the people in the state. They do not reflect accurate representation, either in the State Assembly or the State Senate. They are rigged, period. I don’t think it would sell to any reasonable person that the maps are fair,” Protasiewicz said.

Former U.S. Attorney General Eric Holder traveled to Milwaukee ahead of the 2023 Wisconsin Supreme Court race, stumping for Protasiewicz. As previously reported by the Wisconsin Law Journal, Holder noted just how “rigged” Wisconsin’s electoral maps really are in 2023.

Regarding fair elections, Holder said, “Wisconsin is probably the most gerrymandered state in the country,” noting Democrats only have about 35% of the Wisconsin Legislature. Holder believed it is a direct result of the political line gerrymandering redrawn in 2011 under Walker and defended by Protasiewicz’s opponent, who had represented the Republican party as a client.

Holder noted Wisconsin ranks among Texas as far as the most gerrymandered state in the nation.

“When you get compared to Texas when it comes to electoral things, that’s not a good thing,” Holder said, noting that “Texas is the hardest state in the country in which to vote. You don’t want to be there,” he said.

According to a 2021 Princeton University gerrymandering study, Wisconsin earned an “‘F” for partisan fairness, finding the way the political maps are drawn in Wisconsin give a “significant Republican advantage.”

However, the pendulum swings in both directions. Vox reported Democratic gerrymanders in states like New York and Illinois pulled nearly 3 points leftward in favor of Democrats.

Even the left-leaning New York Times reported Illinois Democrats proposed new gerrymandered Congressional Maps, saying the new liberal Illinois districts would be “among the most gerrymandered in the country.”

The tug of war between liberals and conservatives over control of state legislative seats became a central topic of discussion during the recent Wisconsin Supreme Court race.

The Wisconsin Constitution requires legislative districts “to consist of contiguous territory,” yet as The Associated Press recently reported, that’s not the case.

If Wisconsin state Rep. Jimmy Anderson wants to visit residents in some of the northern neighborhoods he represents, he first must leave his own district — twice, he told the AP.

In order for Rep. Anderson to visit some of his constituents, “from his Fitchburg home in suburban Madison, Anderson must exit his 47th Assembly District, pass through the 77th District, reenter the 47th District, then head north through the 48th District to finally reach a cluster of homes assigned like a remote outpost to his district,” The AP wrote.

Wisconsin Public Radio reported on Aug. 2 a coalition led by progressive law firms and Democratic voters filed a lawsuit with the Wisconsin Supreme Court to overturn the state’s Republican-drawn legislative maps, a move that came one day after liberals took control of the court for the first time in 15 years.

As previously reported by the Wisconsin Law Journal, on August 22, filings were made public with the Clerk of the Wisconsin Supreme Court and Wisconsin Court of Appeals in the “Redistricting Cases.”

That case will likely end up before the Wisconsin Supreme Court, where Protasiewicz now sits as a liberal justice.  As previously reported by the Wisconsin Law Journal, Wisconsin Supreme Court Justice Janet Protasiewicz has hit the ground running since being sworn in on Aug. 1 making sweeping changes to increase the Court’s transparency and accountability. Among the key changes are: opening administrative conferences, creating a recusal task force to recommend rule changes and making court orders more accessible online.

Should Justice Protasiewicz recuse herself on gerrymandering cases that go before the Wisconsin Supreme Court?

• Yes
• No

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Protasiewicz began her public comments against the current legislative maps during a pre-primary WisPolitics Debate on Jan. 9 and again in the only debate directly between Protasiewicz and Kelly on March 22. She said, “I don’t think anybody thinks those maps are fair.”

The Milwaukee Journal Sentinel reported on Jan. 9, that Protasiewicz also called the legislative maps rigged during a campaign event.

Both Justices Jill Karofsky and Protasiewicz campaigned on platforms calling Dan Kelley corrupt for how he ruled in cases, despite nothing ever amounting to anything close to an ethical violation.

On the same day, The Capitol Times reported Protasiewicz said “the court’s decision was wrong, but added that she can’t say what she’d do in a particular case before she hears it,” appearing not to commit to a decision.

As previously reported,  in an interview with AJ Bayatpour on WKOW’s Capital City Sunday on Jan. 15, the gerrymandered maps were mentioned again. Then on Jan. 22, in an interview with Matt Smith for WISN, Protasiewicz again said, “those maps are rigged.”

From interviews with local TV stations across the Badger State to The New York Times, during candidate debates, and on various social media platforms, Protasiewicz and her campaign made her views on Wisconsin’s legislative maps abundantly clear.

On March 7, Protasiewicz’s campaign tweeted, “Coupled with the trend of extreme gerrymandering, voter suppression laws, Wisconsin’s 173-year-old abortion ban & the potential for the Supreme Court to undermine the Voting Rights Act, the conservative takeover of the WI Supreme Court poses a serious threat to our democracy.”

But if judges who are supposed to remain impartial and decide cases based on oral arguments and briefs at the time of trial are making decisions ahead of time, how does that bode for our Democracy?

Fond Du Lac County District Attorney Eric Toney, who also serves as president of the Wisconsin District Attorney’s Association, said the Wisconsin Supreme Court has an opportunity to lead by example.

“I’ve practiced law in over a dozen Wisconsin jurisdictions and have managed thousands of cases as a district attorney for more than a decade. In my experience, anytime a judicial ethics recusal rule has come up the judge has recused themself from the case, if either party requests it. I would be shocked if a specific ethics rule requiring recusal arose and a Wisconsin judge refused to recuse themself, especially at the Supreme Court, because they set standard for the state,” Toney said during an interview with the Wisconsin Law Journal this week.

Pursuant to Wisconsin Supreme Court Rule 60.04, if a candidate for judicial office has made a public statement that commits, or appears to commit, the judge to an issue in the proceeding or the controversy in the proceeding, that judge must recuse himself or herself.

“Wisconsin has adopted a rule that if you appear to commit, you are subject to disqualification from hearing a case. That is what is at issue with Justice Protasiewicz’s statements on legislative redistricting,” said Charles Geyh, a professor who teaches ethics at Indiana University School of Law.

Geyh, a University of Wisconsin Law School alumnus, published “Who is the Judge,” served as an expert witness in the Senate impeachment trial of Federal District Judge G. Thomas Porteous, served as the director of and consultant to the ABA Judicial Disqualification Project, and as a reporter to four ABA commissions: The Joint Commission to Evaluate the Model Code of Judicial Conduct, The Commission on the 21st Century Judiciary, the Commission on the Public Financing of Judicial Campaign and the Commission on the Separation of Powers and Judicial Independence.

Should Protasiewicz recuse herself based on her comments in conjunction with the rule based on appearance that she has committed herself to a ruling admitting her thumb would be on the scale in some cases?

Regarding the gerrymandering matter in Wisconsin, “What we are worried about is if a judge is reaching a result before case is heard. A judge must have an open mind when reviewing oral arguments and briefs,” Gehy said during an interview with the Wisconsin Law Journal last week.

When asked about Protasiewicz’s statements calling the legislative maps “rigged,” Gehy said, “That one gives me a little bit of heartburn.”

“Calling redistricting maps rigged creates a problem for me. She is reaching a conclusion of fact and law before case is heard, and that is a problem,” Gehy said.

Gehy said in normal times Protasiewicz should absolutely recuse herself from the case. However, “Protasiewicz’s statement that maps are rigged, given the context of the world we live in, I am uneasy about being that strident.

“In a perfect world she needs to disqualify. However, this is a hyper politicized situation …  therefore, I am more tentatively about her disqualifying,” he added.

What about the First Amendment? Doesn’t a judicial candidate have the same freedom or speech as an ordinary citizen?

Madison attorney Lester Pines said in most cases, “There is a First amendment right to comment on these things.”

However, freedom of speech and recusal are two separate issues, points out Minnesota Attorney Thomas Vasaly, who previously was appointed as judicial secretary to the Minnesota Board on Judicial Standards.

Citing the case Republican Party vs. White, Vasaly noted, “A judge has a constitutional right to engage in campaign speech within certain limits, but it’s not clear to what extent that judge has right to mandatory recusal rules,” Vasaly said.

In the White case, the Supreme Court ruled that Minnesota’s rule which forbade candidates for judicial office from announcing their views on disputed legal and political issues, was unconstitutional.

During an interview with the Wisconsin Law Journal Vasaly noted, “most candidates would know enough to stay away from this type of commitment or comment.”

However, in this instance, given the “rigged” comments were already made, Vasaly said, “If a judge made a statement like that, the question would be is that a commitment or appearing to commit?”

Vasaly also added that even if appearing to commit is vague, it can still be part of a mandatory recusal.

By saying the maps are rigged, did Protasiewicz appear to commit to a decision on the redistricting case?

“There are two factors I would look at. First, the standard of specificity vs generality. Specificity is an important thing, talking about gerrymandering is one thing, very general, but talking about gerrymandering of Wisconsin’s map is very specific,” Vasaly said.

“The question now becomes whether the justice would, despite her general views, be able to set those aside to maintain an open mind based on the facts of the case, or is the justice indicating these are already her opinion?,” asked Vasaly.

Is Wisconsin’s Supreme Court Rule 60.04 even still relevant?

According to Vasaly, no.

“SCR 60.04(4)(f) was declared facially unconstitutional in Duwe v. Alexander, 490 F. Supp. 2d 968 – Dist. Court, WD Wisconsin 2007, a Federal district decision. The court didn’t see a distinction between a direct prohibition and a mandatory recusal rule. Subsequently, in another case, the court of appeals in Bauer v. Shepard, 620 F. 3d 704, 7th Circuit 2010, said that a similar Indiana rule was constitutional. See also In re Kemp, 894 F. 3d 900, 8th Circuit 2018.”

However, others disagree, stating that the Alexander case upheld 60.04(4) and a separate Shephard case held a similar Indiana judicial ethics rule as constitutional.

On Aug. 17, the Milwaukee Journal Sentinel reported Wisconsin Supreme Court Justice Rebecca Bradley wrote in a dissenting opinion the outcome of a challenge to Wisconsin’s legislative maps is “predetermined” by the court’s liberal majority. The court ordered the Wisconsin Elections Commission to file responses to the petitions by Aug. 22.

So what happens if it is determined that Protasiewicz should recuse herself and doesn’t?

Republican Assembly Speaker Robin Vos said impeachment of Protasiewicz could advance if she does not recuse herself, reported the Milwaukee Journal Sentinel.

Vos said in a radio interview with WSAU that Protasiewicz should recuse herself because she had “pre-judged” the case.

The Wisconsin Constitution stipulates impeachment should only take place in instances of corruption, crimes and misdemeanors.

“I don’t think there is anything that Justice Protasiewicz has said or done that would be grounds for impeachment at this point,” said Marquette University Law School Professor Ed Fallone during an interview with the Wisconsin Law Journal.

“Grounds for impeachment are notoriously ambiguous. Theoretically, violation of judicial ethics could constitute sufficient grounds to say you intentionally violated this ethical provision. That satisfies corruption. Those words don’t have a meaning which allows Vos to argue whatever he thinks is corruption would qualify,” Fallone noted.

Even though Protasiewicz’s statements may satisfy meeting the definition of corruption under a broad conservative interpretation, is it really corrupt from an ethical perspective?

“Saying the system is rigged may disqualify her from deciding the case, but to say that’s corrupt is absolutely nonsense,” said Gehy.

“When Republicans say this is what disqualifies her, this isn’t about corruption. It’s about preserving their legislative majority. This is a problem; everyone is being partisan,” Gehy noted.

“This is an effort to leverage the judge to disqualify herself to preserve the current legislative districting,” he added.

Pines noted, “If the assembly sought to impeach Justice Protasiewicz, there would be a separation of powers problem.”

Jay Heck, director of Common Cause, told the Wisconsin Law Journal he believes Vos’ threat of impeachment is hypocritical.

“It’s such self-serving hypocrisy with Vos. Where was Vos in 2012 when conservatives all voted to dismiss illegal coordination with Walker and Club For Growth? It has been well documented  that Walker engaged in coordination to raise money for his recall election, which was illegal. Candidates cannot coordinate with outside special interests, and the Legislature changed that in 2015, but I didn’t hear Vos, or conservative justices who received funding from Club for Growth, to recuse,” Heck said during an interview with the Wisconsin Law Journal.

“It’s selective outrage,” Heck said, noting that Common Cause also held former Democrat Jim Doyle accountable for actions taken during his administration.

According to Pines, in the event Protasiewicz is impeached, Gov. Tony Evers would appoint another justice to serve on the state’s Supreme Court.