Recusal At Issue in High Court Race

The election to fill outgoing Justice Michael Gableman’s seat on the Wisconsin Supreme Court is on Tuesday. One issue debated among the two candidates, Judge Michael Screnock and Judge Rebecca Dallet, is whether justices ought to recuse themselves from cases involving groups or individuals who have spent substantial sums of money to help elect the justices.

The issue is important, especially in light of outgoing Justice Gableman’s refusal to recuse in certain controversial cases.

Take the following as an example:

If a lobbying group spent more than $2 million to help elect a justice, would it be fair for that justice to preside over a case involving that same lobbying group?

Any reasonable person applying common sense would surely say no. But even if the justice thinks he could be fair, the appearance of unfairness and bias is about as bad as it gets.

But don’t tell that to outgoing Justice Gableman.

Gableman refused to recuse himself from the “John Doe” case, which involved an investigation into whether Governor Walker’s recall campaign illegally coordinated with third-party groups. The third-party groups included Wisconsin Manufacturers and Commerce (WMC), the most powerful business-lobbying group in Wisconsin. WMC spent $2.25 million to help elect Gableman, more than five times the amount of money Gableman’s own campaign spent.

When a judge or justice fails to recuse in those circumstances, the trust and public confidence in the judiciary is undermined.

Wisconsin’s current recusal rule allows judges and justices to remain on a case involving big-money campaign contributors, though it does not require them to do so. Our nearly toothless recusal rule was re-written in its current form, in part, by WMC and adopted by the Wisconsin Supreme Court on a 4-3 vote in 2011. Gableman voted in favor.

After refusing to recuse himself from the John Doe case, Gableman voted (and wrote the lead opinion) in 2015 to shut down what he called the “unconstitutional John Doe investigation” into alleged illegal campaign coordination activities, a ruling that favored WMC, which spent over $2 million to help elect Gableman.

In 2009, the United States Supreme Court held that it was unconstitutional for a West Virginia justice to preside over a case that involved the financial interests of that justice’s major campaign contributor. A coal company executive spent $3 million to help elect the justice. When a case involving the coal company came before the court, the justice (unsurprisingly) voted in favor of the coal company.

Some states have rules that require judges and justices to recuse themselves from cases involving big money campaign contributors. Such rules do not affect free speech rights because they do not limit the amount of money a person can give to a judge. And while citizens have the right to donate money to judges and justices, citizens do not have a right (Constitutional or otherwise) to have that very same judge preside over his or her case.

In 2017, when 54 retired Wisconsin judges urged the court to set formal recusal rules requiring recusal when Wisconsin judges have received more than a certain amount of money from a party appearing before it, the Wisconsin Supreme Court rejected the common sense proposal on a 5-2 vote. Then, the Wisconsin Supreme Court went even further when it voted to reject a public hearing on the issue, in spite of a high degree of public interest.

While I have no doubt the overwhelming majority of fine judges do, in fact, follow all ethical rules, that in no way means we should have toothless recusal rules. Rules are put in place to regulate the few who do not follow them and, perhaps more importantly, to protect the overall integrity of the profession.

Recusal rules are important, not just to protect against the possibility of actual bias, but also to protect against the perception of bias. It is fundamental to our system of justice that our courts are viewed as ethical and fair.

The lobbying arm of Wisconsin Manufacturers and Commerce (WMC) has reportedly spent over $1 million in advertisements supporting Wisconsin Supreme Court candidate Michael Screnock.

The candidates have different positions on Wisconsin’s current recusal rule. Screnock has indicated he does not support a change to the rule. Dallet has said she supports an amendment to the rule.

The appearance of bias can be just as damaging to the integrity of the judicial process as actual bias. Wisconsinites should demand a recusal rule with teeth to maintain confidence in our legal system.

Casey Hoff is a criminal defense attorney based in Sheboygan.