Protasiewicz Says She Won’t Recuse From Act 10 Case

Milwaukee County Judge Janet Protasiewicz. Photo courtesy of Janet Protasiewicz’ campaign

A lawsuit challenging Wisconsin Act 10, former Gov. Scott Walker’s signature law that effectively ended collective bargaining rights for most public employees, will take a while longer to make its way to the Wisconsin Supreme Court.

But once it gets there, Justice Janet Protasiewicz plans to hear the case.

The court announced the decisions in two orders Wednesday afternoon. In one, it denied a request by the plaintiffs, a teacher’s union, to bypass an appeals court and go directly before the state high court.

In an additional order issued simultaneously, Protasiewicz wrote that she would not recuse herself despite a request from GOP lawmakers.

“Having carefully reviewed the motion papers and all relevant legal authorities, I determine that neither the facts nor the law support the Legislature’s motion for recusal,” Protasiewicz wrote. “I therefore deny it.”

Leadership from the GOP-held state Legislature had called on Protasiewicz to recuse because she participated in the mass protests that gripped the state Capitol in 2011 when Act 10 passed.

The law’s passage also sparked a recall effort against Walker, and Protasiewicz signed that recall petition.

Protasiewicz is part of the 4-3 liberal majority that is seen as key to efforts to overturn the law. Justice Brian Hagedorn, a conservative, announced last month he will recuse from hearing the case because he had served as Walker’s legal counsel, helping to draft the bill that eventually became Act 10.

In December, a Dane County circuit court judge found Act 10 violates the state constitution, paving the way for the law to be overturned. That decision is currently on hold while Republicans in the state Legislature pursue their appeal.

In her decision not to recuse, Protaseiwicz wrote that her past actions criticizing Act 10’s passage and supporting union rights did not amount to a “significant personal interest” that should disqualify her from hearing the case.

“If that were the rule, then a justice related to a doctor could be disqualified from medical malpractice cases. Former NRA members could be disqualified from Second Amendment cases. Participants in free speech rallies could be disqualified from First Amendment cases. Justices who voted in elections could be disqualified from cases challenging the election results,” she wrote. “Where would it end?”

Protasiewicz said her opinions about the law and constitution amount to personal opinion, not a disqualifying personal interest or a pre-commitment to a case’s outcome.

According to state law, Wisconsin Supreme Court justices  must recuse themselves from cases where they believe themselves to be unable to be objective, or if they’ve made a commitment to rule in a certain way, but it’s up to individual justices to decide if that conflict is there.

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Protasiewicz says she won’t recuse from case challenging Wisconsin Act 10 was originally published by Wisconsin Public Radio.