Strengthening Our Courts: Recusal and Limiting Campaign Cash
Imagine you are a party to a court case and the party on the other side spent thousands of dollars to help elect the judge hearing the case. Would you feel confident that you'll have a fair day in court?
Recusal rules could solve this problem. Recusal is when a judge steps aside from a case when their impartiality could be questioned. A conflict of interest should trigger a judge to recuse. Recusal is crucial because judges should be required to step aside from cases when they receive substantial spending in support of their election.
Unfortunately, Wisconsin ranks forty-seventh out of the fifty states in having adequate recusal rules in place, according to the Center for American Progress.
The current recusal rule for the Wisconsin Supreme Court is as follows: “A judge shall not be required to recuse himself or herself in a proceeding based solely on any endorsement or the judge’s campaign committee’s receipt of a lawful campaign contribution, including a campaign contribution from an individual or entity involved in the proceeding.”
High-cost elections for state supreme courts have become the norm, according to the Brennan Center. Living in a time when the country questions the process for confirming SCOTUS justices, safeguarding state courts is a backstop to defend our rights.
Some history is in order here to understand the inadequacy of recusal in Wisconsin at our highest court.
On June 8, 2009, the U.S. Supreme Court decided the landmark case, Caperton v. Massey. The Court disqualified a West Virginia judge from a case involving a coal company CEO who had spent $3 million to elect the judge. The Court said a “serious risk of actual bias” was created when the judge cast the tie-breaking vote to throw out a multi-million-dollar damages award against his benefactors. The decision invited states to “adopt recusal standards more rigorous than due process requires” to address the conflicts of interest stemming from campaign cash in the courtroom.
In 2017, fifty-four Wisconsin retired judges with a combined service of more than 1,000 years on the Wisconsin bench petitioned the court to tighten its recusal rules, relying on the Caperton v. Massey case. They urged the Court “to establish an objective standard requiring recusal or disqualification of a judge when he or she has received the benefit of campaign contributions or assistance from a party or lawyer.”
The petition states:
“As money in elections become more predominant, citizens rightfully ask whether justice is for sale. The appearance of partiality that large campaign donations cause strikes at the heart of the judicial function, which depends on the public’s respect for its judgments.”
The retired judges proposed limits of $10,000 for the Supreme Court, $2,500 for the Courts of Appeal, $1,000 for circuit court judges, and $500 for municipal court judges. The retired judges also urged the Court to support a constitutional amendment that would allow judges from the Court of Appeals to serve on the Supreme Court when recusal is necessary. This would assure the Court continues to be able to perform at full capacity while protecting the fairness and impartiality of our judiciary.
The justices on the Wisconsin Supreme Court did not listen to the fifty-four judges’ petition for tightening recusal rules. In fact, the justices acted without holding a public hearing or accepting serious input from Wisconsinites.
The Brennan Center for Justice has four recommendations for how any Supreme Court, including Wisconsin's, can adopt adequate recusal standards.
- States should not rely on a challenged judge to make the final decision on whether his or her impartiality can reasonably be questioned. If a judge denies a recusal request, there must be a prompt, meaningful review of the denial.
- States should require transparent decision-making, including written rulings on recusal requests.
- States should adopt a rule recognizing that a judge’s impartiality may reasonably be questioned, and disqualification made necessary because of campaign spending by litigants or their attorneys.
- States should require litigants (and counsel) to disclose campaign spending related to any judge or judges hearing their case
It is past time that our Wisconsin Supreme Court adopts objective recusal standards in order to restore public confidence in its impartiality and transparency.
- Blog by Joan Schwarz, LWV Dane Co.
