Improper Influence? Who, Us?

Wisconsin's Supreme Court justices refused to tighten the rules about when they should recuse themselves from cases. It has sparked a battle between old judges and new ones.
by | December 2017
The Wisconsin Supreme Court (AP Photo/Wisconsin State Journal, M.P. King)

A majority of the justices on the Wisconsin Supreme Court are offended by the suggestion that they might rule improperly in cases involving their campaign donors. But even more than that, they’ve rejected tighter recusal standards and have taken revenge on those who suggested them.

In 2009, the U.S. Supreme Court ruled that campaign spending on judicial elections can reach a point where there’s “the probability of actual bias on the part of the judge.” The court in that case, Caperton v. Massey, called on states to “adopt recusal standards more rigorous than due process requires.”

The response from the Wisconsin Supreme Court was, in so many words, nothing doing. In 2010, the year after the Caperton decision, the state court adopted rules proposed by Wisconsin business lobbyists that made recusal voluntary. It’s up to each individual judge to decide whether to recuse himself or herself. There’s no formal trigger denoting circumstances that would require a judge to step aside.

Recusal hasn’t been a popular option in Wisconsin -- even in a case dealing with campaign finance a couple of years back, one that involved outside groups that had spent heavily on judicial races. “The state Supreme Court shut down a campaign finance investigation involving their own campaign donors,” says Billy Corriher, who tracks state courts at the Center for American Progress, a liberal think tank in Washington, D.C. “It was the most egregious conflict of interest you can imagine, and the current ethics rules allowed them to hear the case.”

There are judges in Wisconsin who don’t like the current state of affairs. A group of retired judges called on the state Supreme Court this spring to change its rules. The justices balked. The idea that judges and justices can’t faithfully and impartially discharge their duties “is an entirely unwarranted presumption and we will not entertain it,” a majority of the court said in an order this summer, shooting down the retired judges. One justice declared that all the judges in the state “should be highly offended by this petition because it attacks their integrity and their character.”

A couple of months later, the state Supreme Court took aim at the group by putting out an order pertaining directly to retired judges. They cut off their stipends. Retired judges fill in temporarily at the circuit and appellate court level, helping to clear up cases and reduce the backlog. In order to do so, they are required to attend conferences and classes. They had been paid $454 per day to meet these continuing legal education requirements, but now the court says they won’t be paid for their time. “Just to be clear, reserve judges would still be able to submit expenses such as travel, meals and lodging related to attending judicial education sessions,” says Tom Sheehan, information officer for the court system. “It is estimated the change resulting from the court’s order would save the state roughly $160,000 a year.”

You can always save money when you get people to volunteer their time for required functions. But few court watchers in Wisconsin believe the Supreme Court was looking to save a few dollars. “It’s not a financial thing,” says Jay Heck, head of Common Cause in Wisconsin. “It’s a rebuke from judges. There’s no doubt it’s payback.”