Protasiewicz prohibited from hearing abortion, gerrymandering cases if impeachment commences

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Published August 28, 2023 at 10:33 a.m. CDT. Last updated August 28, 2023 at 5:55 p.m. CDT.

As soon as the Wisconsin Legislature votes to impeach a Wisconsin Supreme Court Justice, that justice is precluded from sitting on the bench hearing cases, including on abortion and gerrymandering.

If Wisconsin Republicans decide to follow through on their threat of impeaching Wisconsin Supreme Court Justice Janet Protasiewicz, they could begin the impeachment process, but hold off on voting to remove her from the bench, in effect creating an evenly split court of three conservatives and three liberals.

“Right now the Republican controlled Wisconsin senate has refused to engage in its statutory required obligation to consider confirming Gubernatorial appointments,” said Madison-based attorney Lester Pines on Monday during an interview with The Wisconsin Law Journal.

“To think that the republican controlled Senate would hold an impeachment trial is preposterous,” Pines said.

“These are power hungry people who do not want to lose control of the executive or judicial branches. They will do whatever they want because they have a gerrymandered map. If Robin Vos or Sen. LeMahieu thinks that they will be able to act without judicial intervention, they need to think again,” Pines added.

The Wisconsin Law Journal reached out to offices of Speaker Vos and Senator LeMahieu on Monday. Neither could be reached for comment prior to publication.

Fond Du Lac County District Attorney Eric Toney who serves as President of the Wisconsin District Attorney’s Association said, “During their campaigns for the Supreme Court candidates Protasiewicz and Karofsky accused Justice Kelley of corruption, despite no alleged violation of the law or judicial ethics rules. Corrupt conduct is a constitutional provision for impeachment and there could potentially be an alleged Supreme Court rule violation related to recusal. If that occurs, the legislature may have to decide if it amounts to corrupt conduct. I hope Justice Protasiewicz does the right thing and that it never comes to this.”

On Monday, Marquette University School of Law Professor Chad M. Oldfather provided the Wisconsin Law Journal a written response with more details of the impeachment process in Wisconsin.

“The Wisconsin Constitution provides the state assembly with the power to impeach ‘all civil officers of this state for corrupt conduct in office, or for crimes and misdemeanors.’ If a majority of members of the assembly vote in favor of an impeachment, it moves to the state senate for trial, which requires a 2/3 vote to convict. The (recent) election of Dan Knodl to the state Senate gives the Republicans a 2/3 majority in the state senate, and thus creates the possibility of the use of the impeachment power in a partisan way,” Oldfather said.

As previously reported by the Wisconsin Law Journal, Knodl threated to impeach Protasiewicz even before she was elected.

“The impeachment power is that it extends only to ‘corrupt conduct in office, or for crimes and misdemeanors.’ That’s significant in at least two ways. One is that it’s absurd to suggest that Protasiewicz has engaged in ‘corrupt conduct in office’ when she hasn’t even taken office yet,” Oldfather noted during the election.

As previously reported by the Wisconsin Law Journal, 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 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.

“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.

Supreme Court Rules can be found at:

https://www.wicourts.gov/supreme/sc_rules.jsp

Supreme Court Internal Operating Procedures can be found at:

https://www.wicourts.gov/sc/iop/DisplayDocument.pdf?content=pdf&seqNo=246983