State Supreme Court Gets ‘F’ For Ethics

Rebecca Bradley. Photo by Michael Horne.

Wisconsin Supreme Court Justice Rebecca Bradley will not recuse herself in a COVID-19 control case brought by one of her major donors against Gov. Tony Evers‘ emergency authority during the pandemic, Wisconsin Democracy Campaign reports:

The suit was brought by Jere Fabick, of Oconomowoc, owner of FABCO Equipment, who contributed the maximum $20,000 to Bradley’s campaign on March 15, 2016 when she was running for a 10-year term on the court. Rebecca Bradley is part of the high court’s 4-3 conservative majority….

Current recusal rules, which were fashioned with the help of business and real estate interests who have spent millions of dollars to elect conservative justices, do not require justices to recuse in cases where the parties contributed to their election campaigns.

And how is this possible, you ask?

Look back to 2017, when the Wisconsin Supreme Court rejected a request by retired state judges to overturn the high court’s self-declared ‘no-recusals-needed rule,’ as the Milwaukee Journal Sentinel reported:

The justices voted 5-2 to toss aside a rule change proposed in January by 54 retired jurists that would have forced judges off cases involving those who helped get them on the bench. Conservatives who control the court said the proposal would interfere with the free speech rights of those who run ads and engage in other campaign-like activity.

Then look back to earlier developments I’d noted in 2014 and 2015: that the Wisconsin Supreme Court’s conservative majority not only approved a recusal rule that allowed state judges and justices to hear cases involving entities which had donated to the campaign committees – – they actually solicited this recusal rule from some of their special interest donors, the Wisconsin Manufactures and Commerce and the Wisconsin Realtors Association and then approved it: As the Wisconsin Civil Justice Association noted:

In a 4-3 decision,[5] the Wisconsin Supreme Court… adopted the Realtors and WMC’s petitions. In a dissenting opinion, Justice Ann Walsh Bradley, joined by Chief Justice Shirley Abrahamson and Justice N. Patrick Crooks, criticized the majority’s decision to adopt the rules calling it “a dramatic change to our judicial code of ethics.”[6] In particular, the dissent took issue with the majority’s decision to adopt petitions “proposed by special interest groups.”[7] Dissatisfied with the majority’s decision, the dissent urged the Legislature to “engage in further study of judicial recusal.”[8]

Which was noted nationally: The Center for American Progress surveys the states on judicial ethics and gave Wisconsin an “F”:

Wisconsin: F (35 points) 

Wisconsin received a failing grade after its state supreme court adopted a recusal rule that literally instructs judges not to recuse themselves from cases involving campaign contributors.

In 2010, the four-justice conservative majority on the Wisconsin Supreme Court voted to institute a recusal rule written by the Wisconsin Realtors Association and Wisconsin Manufacturers & Commerce, a group that subsequently donated nearly $1 million to support conservative Justice David Prosser’s re-election in 2011.

The rule says that recusal is not required “based solely on … a lawful campaign contribution.” The majority’s comments that accompany the rule say that requiring recusal for campaign cash “would create the impression that receipt of a contribution automatically impairs the judge’s integrity.”

In other words, the four justices in the conservative majority are worried that mandatory recusal would lead the public to think that judges are biased.

James Rowen, a former journalist and mayoral staffer in Milwaukee and Madison, writes a regular blog, The Political Environment.