Congress demands ‘Rule of law’ over ‘Rule of Janet’: Protasiewicz must recuse on political maps case

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As record campaign fundraising numbers in the millions poured into Janet Protasiewicz‘s Wisconsin Supreme Court war chest from Pikesville to Tulsa, then-Supreme Court candidate Dan Kelly traveled throughout Wisconsin warning people: If they don’t vote for him, they would be voting for “The rule of Janet,” not the rule of law.

What appeared to be political theater at the time has now turned into a reality in the Badger State leaving the ultimate question: Will Justice Protasiewicz follow the rule of law?

Several members of Congress are demanding it.

As the fate of democracy may rest in the hands of the Wisconsin Supreme Court with the 2024 presidential election, both Wisconsin Republicans and Democrats know what’s at stake. From abortion, voter rights and border security to taxes, gun control, education and the environment — both liberals and conservatives are fighting for voting maps that each respective party believes to be fair.

U.S. Representatives from Wisconsin Scott Fitzgerald, Glenn Grothman, Mike Gallagher, Bryan Steil and Tom Tiffany have been working in collaboration in an effort to mandate Protasiewicz follow the rule of law. Congress is demanding her recusal from hearing the Wisconsin Supreme Court case involving Wisconsin’s political maps.

According to a motion obtained by the Wisconsin Law Journal from five Congressional Republicans, Protasiewicz must recuse herself — after a failed attempt last year at the state level.

“While I am not in the state Legislature to introduce legislation, I am calling on Justice Protasiewicz to recuse herself from the case of the new maps,” said  Congressman Tiffany, during an interview with the Wisconsin Law Journal.

The Wisconsin Supreme Court is reviewing maps submitted by Democratic Wisconsin Gov. Tony Evers and several others after a December ruling that Republican-drawn maps were unconstitutional.

The Wisconsin Law Journal reported 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. In an interview with AJ Bayatpour on WKOW’s Capital City Sunday on Jan. 15, 2023, the alleged gerrymandered maps were mentioned again. Then on Jan. 22, in an interview with Matt Smith for WISN, Protasiewicz again said, “those maps are rigged.”

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.

“For the reasons you listed, including Justice Protasiewicz repeatedly making remarks calling Governor Evers’ maps ‘rigged’ and ‘wrong,’ it is very clear that Janet Protasiewicz has made public statements that commit to prejudice and bias,” Tiffany said.

Last summer, the Wisconsin Law Journal interviewed dozens of legal professionals, including law school professors, judges and ethics scholars who weighed in on Protasiewicz’s duty to recuse herself from the gerrymandering case before the Wisconsin Supreme Court.

Interviews with state Republicans and Democrats reveled their political loyalty. However, multiple objective out-of-state interviews revealed opinions that were more in alignment with Wisconsin Republicans.

Minnesota Attorney Thomas Vasaly, who previously was appointed as judicial secretary to the Minnesota Board on Judicial Standards said, “Even if appearing to commit is vague, it can still be part of a mandatory recusal.” However, he later said given the current political climate in Wisconsin, Rule 60.04 wasn’t relevant given it was overturned in Duwe v. Alexander. However, to date, it still remains a rule in Wisconsin.

During an exclusive interview with the Wisconsin Law Journal on Monday, Rep. Grothman took aim at Protasiewicz’s ethics.

“I can never remember a situation in which a judge was so publicly animated during a campaign as to what their decision would be on a specific case. Justice Protasiewicz was using a promise of a certain decision as a way to get votes. If a judge has so obviously prejudged the merits of a specific case, it is against our state law for that person to decide that case,” said Grothman.

Also during an interview with the Wisconsin Law Journal, Tiffany agreed with Grothman.

“The people of Wisconsin deserve impartial judges who have not prejudged the merits of this case should they choose to hear it, and in order to uphold the integrity of the Wisconsin Supreme Court, Justice Protasiewicz must recuse herself from this case,” Tiffany said.

According to court documents obtained by the Wisconsin Law Journal, Republican lawmakers also allege a due process violation.

“Moreover, the Democratic Party of Wisconsin contributed nearly $10 million to Janet Protasiewicz’s campaign — more than all other donors to her campaign combined, and more than three times the size of the campaign contribution that triggered the due process violation,” attorneys argued in court documents.

WisGOP Chairman Brian Schimming also demanded Protasiewicz recuse herself from the case.

“Wisconsinites know a conflict of interest when they see one. They deserve a state Supreme Court that puts justice before politics. If Janet Protasiewicz fails to recuse herself from any case concerning congressional maps, it will confirm she was bought and paid for by liberal special interests, openly pre-judged this case and will throw judicial ethics out the window on a whim for political allies,” Schimming said.

Wisconsin GOP officials agreed, and in a media statement last week said, “The very same donors responsible for securing Justice Janet Protasiewicz her seat on the Wisconsin Supreme Court are now shoveling cash into the Elias Law Group lawsuit, attempting to throw out existing congressional maps.”

When asked about Supreme Court rule 60.04 in August of 2023, 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 in August.

As previously reported, the 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,” in favor of Democrats.

During an interview with the Wisconsin Law Journal last summer, Charles Geyh, a professor who teaches ethics at Indiana University School of Law, said “judges must keep an open mind.”

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.

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

“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.

Madison attorney Lester Pines told the Wisconsin Law Journal in August, “There is a First amendment right to comment on these things.”

However, freedom of speech and recusal are two separate issues, points out Vasaly.

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.

As previously reported, after Protasiewicz to recuse herself on the maps case, Assembly Speaker Robin Vos responded, “We think the United States Supreme Court precedent compels her recusal, and the United States Supreme Court will have the last word here.”

The Ides of March

The Wisconsin Supreme Court has a deadline of March 15 to order new maps. The deadline was ordered by the Wisconsin elections commission.

The Wisconsin Law Journal reached out to Protasiewicz’s Wis. Supreme Court spokesperson on Wednesday; the spokesperson said Protasiewicz declined to comment.

In October 2023, Protasiewicz wrote, “Recusal decisions are controlled by the law. …  They are not a matter of personal preference. If precedent requires it, I must recuse. But if precedent does not warrant recusal, my oath binds me to participate.”