The Wisconsin Supreme Court is going to conduct a daylong hearing Wednesday, on the subject of judge recusals. That’s when a judge removes him or herself from a case or is removed because of potential bias or at least the perception of bias. As WUWM’s Marge Pitrof reports, the issue arose because of a court case in West Virginia.
The West Virginia case (Caperton v. Massey) involved a executive of a coal company there, who spent three million dollars to help elect a justice to that state’s high court. It was about to hear a case involving the company which was trying to get a $50 million verdict against it overturned. The U.S. Supreme Court stepped in and ruled that the justice could not hear the case because he had gotten substantial financial support from one side, and that gave the other party reason to doubt it could receive a fair hearing.
Distinguished Professor of Law at Marquette University’s Law School, Janine Geske, says the case is prompting state supreme courts, including Wisconsin’s, to review the recusal rules in their judicial codes of conduct. She says there’s another reason for the review here.
“Because of number of Wisconsin Supreme Court races we’ve had in the last several years, that have involved huge amounts of money, both independent expenditures being spent on behalf of candidates and then the candidates themselves. The races have gotten into multi-million dollar races,” Geske says.
Geske says Wisconsin’s judicial code of ethics primarily calls for justices and judges remove themselves from cases if they’re related litigants or have a personal financial stake in the case. But the issue of campaign donations has not been included.
One party that will make the case that some campaign contributions should be reason for automatic recusal is the League of Women Voters of Wisconsin. Executive Director Andrea Kaminski says it wants judges removed from cases, when litigants have donated more than one thousand dollars to get the person elected to the bench.
“We are doing this because when it comes to the courts and to justice, the perception of an unfair trial can be as damaging as actual bias. You really have to believe that when go to court, that you got a fair and impartial judge. If you don’t and the court rules against you, you’ll never believe that you got a fair trial,” Kaminski says.
Kaminski says the League picked one thousand dollars as the threshold because it believes that is a significant contribution to a state candidate. She also wants people who come before the courts required to disclose whether they have contributed to the judge’s campaign, and some sort of mechanism to discourage people from giving contributions simply to sabotage a judge.
Several groups that have spent a lot of money on campaigns insist the League’s plan would violate free speech rights. Attorney Hannah Renfro represents the Wisconsin Realtors Association. It will present an alternative plan. Renfro says the U.S. Supreme Court has made it clear that everyone has the right to engage in the political process and spend money on campaigns to get the most qualified candidates elected. So Renfro says the realtors want Wisconsin’s judicial rules amended to clearly state that campaign contributions alone should not require the recusal of any judge, including at the Wisconsin Supreme Court level.
“Courts must take into consideration all of the facts and circumstances surrounding a challenge to a judge’s ability to be impartial. And a campaign contribution, which is protected by the First Amendment as a form of political expression, does not, in and of itself, mean that a judge cannot impartially preside over a matter,” Renfro says.
Renfro says besides, the state already has laws regulating campaign contributions.
Marquette University’s Janine Geske doubts that Wisconsin’s Supreme Court justices will immediately decide on amending the state’s recusal rules. She says the court appears fractured on some questions, and may create a third party to sort through the ideas and recommend a model.
(Geske has been traveling the state, urging it to boost public financing of Wisconsin high court elections, to lessen the impact of big money.)
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