Supreme Court Justices for Sale

You wouldn’t think the reputation of the Wisconsin Supreme Court could sink any further. The court became the laughingstock of the legal world nationally in 2011 when we learned that Justice David Prosser put his hands around the neck of Justice Ann Walsh Bradley. The Wisconsin Judicial Commission investigated the ugly incident and found probable cause to believe Prosser violated three statutory provisions of the Wisconsin Code of Judicial Conduct, but he was never prosecuted because his three fellow conservatives on the court declined to refer the case to an appeals court for adjudication.

The court is now poised to make a decision, sometime this spring or summer, that will further sully its reputation, regardless of how the case is decided. That’s because four justices on the court have a massive conflict of interest, a conflict so great that it may win the court national infamy.

The court will be ruling on the long-running John Doe probe of Gov. Scott Walker’s campaign and several conservative issue advocacy groups, including the #Wisconsin Club for Growth# and Wisconsin Manufacturers and Commerce. The prosecutors in the probe believe the Walker campaign illegally conspired with these “independent” groups; defense attorneys for the groups argue that this coordination is allowed under the law.

The legal argument here, I suspect, may go all the way to U.S. Supreme Court but in the meantime Wisconsin’s high court will rule, which will be a huge mistake. Francis Schmitz, the special prosecutor in the case, has filed a motion asking for one or more of the justices to “recuse” themselves, or withdraw from the case, because they have a conflict of interest.

The issue once again involves Prosser and his three fellow conservatives, who all looked bad in the alleged choking incident. All four received huge campaign donations from the Club for Growth and Wisconsin Manufacturers.

How huge? In their last campaigns Prosser was supported by $2.6 million in spending from these two groups, Justice Annette Ziegler got $2.6 million in support, Justice Michael Gableman got $2.3 million and Justice Roggensack got $850,000 — a huge pile of money from two groups who now hope for a favorable ruling from these same four justices in the John Doe case.

As bad as that looks, it gets even worse when you look at what percent of total dollars spent to elect these justices came from those two groups. Looking at all money spent to help elect these justices by their campaign committees, by independent expenditures of Political Action Committees and by independent issue advocacy groups, an incredible 76 percent of Prosser’s support came from Club for Growth and Wisconsin Manufacturers. For Gableman, the corresponding figure was 69 percent, for Ziegler 59 percent, for Roggensack 48 percent.

When anywhere from half to three-quarters of the money spent to get you elected came from two parties to a case you are ruling on, it doesn’t really matter how you rule. If you rule in favor of these parties, you look bought and sold. If you rule against them, it looks like you ruled not based on the legal merits, but to protect your reputation. The only reasonable course of action for the justices is to recuse themselves; to rule in this case is to send a signal this court doesn’t care how corrupt or conflicted it looks.

The issue of recusal is not a small one. Indeed, it has gotten tremendous discussion since the 2009 Supreme Court decision in Caperton vs. AT Massey Coal Co. In this ruling the court slapped down West Virginia Justice Brent Benjamin for not recusing himself in a case involving a coal company whose chief executive spent $3 million to get Benjamin elected. Benjamin blithely voted in favor of the coal company.

The court ruled that Benjamin’s failure to recuse himself was a conflict of interest so “extreme” it constituted a violation of the plaintiff’s Constitutional right to due process under the 14th Amendment. It was a strong signal from the nation’s highest court that state courts should consider reforms to prevent such brazen behavior. In response, new rules have been created in 16 states, by either the supreme court, state legislature or chief administrative judge, according to an analysis by the National Center for State Courts noted.

The Supreme Court decision held that a problem existed where one of the parties “had a significant and disproportionate influence” on the election of a justice, but did not spell out how to determine this. Utah’s Supreme Court decided that any donation of more than $50 could constitute a conflict, the California legislature specified that a $1,500 donation created a conflict, Mississippi went with a $1,000 donation for a lower court and $2,000 for an appellate or supreme court judge, while an Alabama law called it a conflict if anywhere from at least 10 percent (for higher court justices) to 25 percent of campaign contributions (for lower court judges) came from a party to a case.

Other states simply offered descriptive language: The New Mexico Supreme Court’s new code of conduct stated that “an appearance of impropriety may result when attorneys or parties appearing before a judge generate large amounts of money for a campaign.”

The Oklahoma Supreme Court’s new code requires disqualification of a judge if a party to a case has “made aggregate contributions to the judge’s campaign in an amount that a reasonable person would believe could affect the fairness of the judge’s consideration of a case.”

In the context of these rules, the conflict for the four Wisconsin justices is off the charts. We’re not talking about a $50, $1,500 or $2,000 donation, but as much as $2.6 million each for Prosser and Ziegler. That figure is just shy of the $3 million donation that brought forth the stern ruling from the U.S. Supreme Court. And compared to the Alabama guideline that a high court justice should recuse if more than 10 percent of campaign spending came from a party to the case, we have Prosser getting 76 percent of campaign support and Gableman getting 69 percent of campaign support from parties to the case they are poised to rule on.

Wisconsin’s Supreme Court has already sent aggressive signals that it intends to thumb its nose at the U.S. Supreme court on the issue of recusal. Wisconsin’s was one of just two state supreme courts that, “even after the decision in Caperton, expressly rejected proposals to adopt a specific campaign contribution amount that would trigger disqualification,” an analysis by the National Center for State Courts noted.

The League of Women Voters had petitioned the Wisconsin Supreme Court to revise its rules, proposing that any justice who received at least $1,000 from a party in a case being heard should recuse. A separate petition by a former justice of the court proposed a less draconian solution, recusal if a judge received more than $10,000 from a party to a case.

Instead the court’s four-member conservative majority signed on to an opinion by Roggensack which accepted verbatim a rule suggested by Wisconsin Manufacturers & Commerce and the Wisconsin Realtors Association, which stated that a campaign donation by itself could never require a recusal. The new rule further stated that “A judge shall not be required to recuse himself or herself in a proceeding where such recusal would be based solely on the sponsorship of an independent expenditure or issue advocacy communication… by an individual or entity involved in the proceeding.”

In short, the fact that a justice might have benefitted from millions of dollars spent by groups like the Club for Growth or Wisconsin Manufacturers cannot by itself require a recusal. At a time when many states were creating stricter rules for recusals, Wisconsin’s court loosened them to the point where it’s hard to see when a recusal might be necessary.

The court looked like a rubber stamp for Wisconsin Manufacturers as well as the Realtors, another group which has spent heavily to elect these four conservative justices. Justice Patrick Crooks told the Wisconsin Center for Investigative Justice the decision “really puts us in a minority position, nationally,” in that 45 states have adopted language from the American Bar Association’s Model Code of Judicial Conduct requiring recusal whenever a judge’s impartiality “might reasonably be called into question.” Adam Skaggs of the nonpartisan Brennan Center for Justice agreed, charging that the Roggensack majority “basically ignored the U.S. Supreme Court.”

You might conclude from all this that these four justices simply don’t believe in recusals. On the contrary, they used recusal to protect Prosser from prosecution.

When the Wisconsin Judicial Commission found probable cause that Prosser was guilty of violations, the normal course of action, former state Supreme Court Justice Janine Geske has explained, was to refer the complaint to an appeals court panel to hear evidence and determine if Prosser was indeed guilty of the allegations. In her experience on the court, she said, such a referral “was pro-forma, it was routine, to forward it on. I would be surprised if the court even discussed whether the appeals court should be convened.”

But in this case, Prosser recused (for obvious reasons) and then filed a motion calling on the justices who witnessed his treatment of Bradley to recuse themselves from making this referral. Roggensack quickly did so and Ziegler and Gableman soon did likewise.

If they now turn around and decline to recuse from a case where they are actually making a ruling rather than a referral, and where they all have a giant conflict of interest, the message would be signaled in capital letters: this is a court that is bought and sold and has nothing but contempt for the legal views of the U.S. Supreme Court and 45 other state courts in the land.

I suspect that all four justices hope this issue gets no attention and they can quietly decline to recuse, because if they do so in this case, that opens the door to recusing in many cases where the ever-busy Wisconsin Manufacturers and Commerce has an interest in the case. In short, the court is already bought and sold, and can only dig itself in deeper, becoming ever more conflicted.

Short Takes

-Defenders of the court might argue that Wisconsin Manufacturers and the Club for Growth, though they did ads favoring these four justices, did not expressly advocate an electoral result. But of course that gets to the heart of the John Doe investigation the court will rule on: the investigators claim such groups cannot coordinate with the Walker campaign while the other side argue coordination is legal since these groups did not use the magic words “vote for” while running ads favoring the candidates. Given that these four justices benefitted from ads done by these two advocacy groups, how can the rule on a question so central to their own electoral survival?

-On most issues Crooks votes with the conservatives, but he took the other side on the Prosser issue and the issue of recusal.

-The spending figures in these four justices’ campaigns can be found at the Wisconsin Democracy Campaign website. Here are the figures for Ziegler, for Gableman, for Prosser and for Roggensack.