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Judicial conduct complaints begin in Wisconsin Supreme Court race, but what are the chances for success?

The Wisconsin Supreme Court hears oral arguments in this room at the State Capitol in Madison.
Chuck Quirmbach
The Wisconsin Supreme Court hears oral arguments in this room at the State Capitol in Madison.

This week, the Republican Party of Wisconsin filed a complaint with the Wisconsin Judicial Commission.

The issue: alleged violations of Wisconsin's Code of Judicial Conduct by Milwaukee County Judge Janet Protasiewicz in her State Supreme Court campaign. But legal scholars argue court candidates are allowed to say a lot these days.

Protasiewicz has called the GOP-controlled state redistricting maps "rigged," and criticized last summer's Dobbs ruling by the U.S. Supreme Court overturning abortion rights protections.

Janet for Justice - "Common Sense" Ad
Screenshot from youtube ad.
Janet for Justice - "Common Sense" Ad

The Milwaukee County jurist also gives her views on abortion in one of her campaign commercials."I believe in a woman's freedom to make her own decision on abortion. It's time for a change," she says in the ad.

A challenge to Wisconsin's 1849 law banning almost all abortions in the state could come before the State Supreme Court after a new justice is seated later this year—as could a challenge to the redistricting lines. The Republican complaint filed with the Judicial Commission contends Protasiewicz is promising her vote on those cases.

But Prof. Rob Yablon of the University of Wisconsin Law School says the lawyers and judges who sit on the commission don't act in favor of very many campaign-related complaints. He says generally speaking, judicial candidates can now discuss a lot of matters.

"The U.S. Supreme Court has said judicial candidates do a have First Amendment rights when they are campaigning. And that their First Amendment rights allow them to share their views on disputed or political issues, and to talk about the values that they would bring to the job," Yablon tells WUWM.

Yablon says judicial candidates are not allowed to make specific pledges, promises or commitments. But he says he doesn't think Protasiewicz crosses the line.
"Those kind of statements do appear to stay on the proper side of the line. To give you one example, there was a case a federal district court in Wisconsin heard back in the early 2000's where the court indicated judicial candidates were free to express on the fairness, efficacy and wisdom of the death penalty, as long as they didn't go so far as to how they might rule on a particular legal question concerning the death penalty were it to come before them," Yablon says.

If the judicial candidate is elected, Yablon says it's possible that parties in a case could ask the judge to recuse, or step away, from the arguments, based on comments made during the campaign. But he says those legal motions are difficult to win.

Here's why, says former Wisconsin Supreme Court Justice Janine Geske:

"The problem with enforceability, and I think it's a problem, is that particular justice decides whether or not they can impartially hear the case or not," Geske tells WUWM.

Geske, who now is a Distinguished Professor of Law at the Marquette Law School, says recusal motions are often filed when the state justice is due to take part in a case involving a major campaign donor. But she says generally, the jurist does not step away and that is not a reviewable matter.

"And the idea behind that is you didn't want justices putting pressure on each other about getting off a case. Because if somebody had a motion, and you had a different opinion than they do on the case, that it would be a way to vote as a group. You could vote somebody off a case, even though they shouldn't be off a case," Geske explains.

Geske says that as this year's State Supreme Court race moves along, there could be more complaints filed against candidates. But she says a bigger concern will likely be outside groups trying to portray a candidate as biased.

"Private interests that are uncontrollable, that are going to put millions in can do it. And the candidate can say, 'Well, I don't control what they say.' I think we're going to see a great deal of this, and as sick as we were, many of us, of the ads at the time of elections in November, it's going to be just as bad or worse as we head into these elections, "Geske predicts.

Protasiewicz's campaign told WisPolitics.com that the Republican Party's complaint against the judge is not based in reality or facts, "much like the decisions Wisconsinites have come to expect by the right-wingers on the state Supreme Court.”

The primary election in the Supreme Court race is Feb. 21. The other candidates are Dane County Judge Everett Mitchell, Waukesha County Judge Jennifer Dorow, and former State Justice Dan Kelly.

Two contenders will move on to the April election.

Wisconsin's spring primary election is Tuesday, February 21, 2023 and the spring general election is Tuesday, April 4, 2023. If you have a question about voting or the races, submit it below.


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