Supreme Court shapes recusal standards

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Campaign donations alone will not necessitate that a judge step down from a case involving a contributor.

So said the Wisconsin State Supreme Court, which granted two rules petitions on Oct. 28 that modify the Judicial Code of Conduct to state that money received from a campaign supporter cannot be the sole reason for recusal.

The 4-3 ruling was the culmination of a lengthy debate by the court on four petitions, two of which sought to establish contribution caps of $1,000 and $10,000 per person to trigger automatic recusal.

Ultimately, the court decided to maintain the status quo, said attorney Thomas J. Basting, Sr., who attended the hearing.

The Wisconsin Realtor’s Association (WRA) and Wisconsin Manufacturers & Commerce (WMC) proposed the petitions that were ultimately adopted. Both the petitioners argued that placing limits on contributions and mandating recusal would infringe on free speech rights.

“What happened is the court invited big money contributions and third party advocates to spend as much money as they can in judicial elections,” complained Basting, who chairs the campaign watchdog group, the Wisconsin Judicial Campaign Integrity Committee.

While the ruling basically codified current practice, Basting said it now gives a judge or justice “an out” to not have to step down from a case involving an individual or business which may have contributed significantly to his or her campaign.

And that will make it harder for some litigants to feel as if they are getting a fair shake from the court, suggested Justice Ann Walsh Bradley, who voted in the minority.

She was joined by Chief Justice Shirley S. Abrahamson and Justice N. Patrick Crooks.

Ethics attorney Daniel L. Shneidman, who attended a portion of the hearing, suggested that lawyers will now wonder “who’s got the judge in their back pocket.”

But Justice Michael J. Gableman, who was elected to the court last year, suggested that people who donate money to a judge’s campaign do so simply because they feel the individual is qualified for the job.

Gableman has recently been targeted with recusal requests in three criminal cases pending before the court. The petitions argue that he exhibited a bias against criminal defendants in his 2008 campaign.

Justices Patience D. Roggensack, Annette K. Ziegler and David T. Prosser joined Gableman in the majority.

“People give money to someone they think will be fair and impartial,” said Gableman. “I don’t think there is any weird motive or agenda for judges if they get $1,000 or $10,000.”

But Abrahamson, who was re-elected this spring replied, “if someone contributes $500,000, [he or she is] going to expect something in return.”

Bar favored study

The State Bar of Wisconsin’s Board of Governors had unanimously recommended that a study committee be established to evaluate the recusal issue.

At the hearing, attorney Thomas L. Schober, chair of the bar’s Judicial Independence Committee, suggested that the court not rush to a decision simply to have a rule in place by the spring 2010 judicial elections.

Schober also suggested that the court might benefit from an American Bar Association (ABA) report on recusal, expected to be published by the end of the year.