Liberal Supreme Court justices make sweeping changes to enhance transparency and accountability

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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.

Protasiewicz’s landslide win in April by more than 203,000 votes is significant as it resulted in Wisconsin’s highest court having a liberal majority for the first time in decades.

Among the key changes are: opening administrative conferences, creating a recusal task force to recommend rule changes and making court orders more accessible online.

Earlier in August, Wisconsin Supreme Court Justice Rebecca Dallet issued a statement regarding the transparency and accountability measures the court is implementing.

“The majority of justices on the Wisconsin Supreme Court voted today to advance a number of transparency and accountability measures. First, we have made a series of rules and operating procedures changes to make Court decision-making more inclusive, timely and responsive. Second, we are committed to making all orders more readily accessible on our website. Third, we have voted to re-open our administrative conferences. And fourth, we will be announcing the creation of a bipartisan task force to study the issue of recusal and to present us with recommendations. This initial series of actions is intended to be a first step in making our court more accessible and more accountable to the people of Wisconsin,” Dallet said.

As previously reported by the Wisconsin Law Journal, a sharply divided Wisconsin Supreme Court voted to end its longstanding practice of discussing court administrative matters in open conference in 2012. The end to the practice of open conference left attorneys, news media, outlets and the general public generally in the dark.

The new changes being implemented by the liberal majority are being welcomed across the Badger state.

“We are very pleased to see talks about recusal as this aligns with the League’s mission for transparency and ethics to keep elected official accountable, so whomever goes in front of court is treated fairly,” said Molly Carmichael, with the Wisconsin League of Voter’s.

In 2009, conservative justices on the Wisconsin Supreme Court ruled that endorsements, campaign contributions and independently run ads in themselves are not enough to force a judge to recuse themselves.

In 2017, the Brennan Center for Justice — a nonpartisan law and policy institute —  supported a petition, signed by 54 former members of the Wisconsin judiciary, urging the state supreme court to adopt new standards for how judges recuse themselves in cases where they benefit from campaign contributions.

During an interview with the Wisconsin Law Journal last week, Executive Director Jay Heck of the non-partisan government accountability group Common Cause noted that Wisconsin ranked as the 47th worst in the nation, according to a Center for American Progress study for judicial ethics recusal rules.

The study looked at the strength of recusal rules for judges in every state, ranking each state 1-50.

“Even Cook County (in Chicago) has stronger recusal rules for judges, which is a pretty low bar given Chicago’s reputation,” Heck said.

“Chicago has always been the thing we don’t want to be. It’s the bar you always want to surpass in terms of politics, ethics and corruption,” Heck added.

Citing a Marquette University Law School poll on reduced confidence in Wisconsin’s courts, Heck said, “It’s reasonable to open to the public how a court operates, especially with the low regard noted in Marquette Law School polls. Wisconsin courts used to be highly regarded, but that has dissipated over the years, as big money has inundated elections,” Heck said.

Madsion Attorney Lester Pines, partner at Pines Bach LLC, agreed with Heck in support of Protasiewicz’s and her liberal colleagues’ efforts to enhance transparency and accountability in Wisconsin courtrooms.

“Every other aspect of Wisconsin government has open access to the public to determine how those respective branches of government operate. When the Wisconsin Supreme Court decided in 2012 to talk about administrative processes in secret, there was never good explanation for why that was necessary,” Pines said.

“Whenever there is secrecy, it gives rise to suspicion. In my opinion, it undermines the public’s trust in the court. That trust needs to be reinstated by allowing the public to watch the way justices interact with each other, and have more information about why the court is doing certain things administratively. There is no risk to the court in doing that,” Pines added.

During an interview with the Wisconsin Law Journal last week, former Milwaukee Fire and Police Commission Chair Ed Fallone, a professor at Marquette University School of Law said, “the legal community has been appalled at the lack of a recusal rule,” citing the letter executed by 54 former members of the Wisconsin judiciary asking for “ethical standards and common sense.”

“The conservative justices ceased to have those meetings open to the public. I absolutely applaud the move movement to do that,” Fallone said.

Fallone noted this was a campaign promise, from Protasiewicz and Karofsky, both of whom are following through.

“They are just living up to their promise and people in legal community have been pushing for this for more than a decade. It’s very important and well overdue,” Fallone said.

“It’s an example of how the new liberal majority is tackling ethics,” Fallone added.

Click here to view the Rules and Procedures changes made by the Court obtained by the Wisconsin Law Journal.

Click here to view the Wisconsin Supreme Court Rule Amendments.