Wis. SC: Contributions shouldn't spark judicial recusal

John O'Brien Nov. 9, 2009, 3:23pm


MADISON, Wis. (Legal Newsline) - The Wisconsin Supreme Court has decided not to force judicial recusal standards on its justices in the wake of a U.S. Supreme Court decision.

A 4-3 decision on Oct. 28 denied the requests of the League of Women Voters of Wisconsin and former Justice Bill Bablitch and adopted the rules proposed by the Wisconsin Realtors Association and Wisconsin Manufacturers & Commerce.

Those rules said a justice does not have to recuse himself or herself in cases featuring campaign contributors and supporters.

"It will send a message that making lawful contributions is not a dishonorable thing to do and it's not a dishonorable thing to receive," said Justice Patience Roggensack, according to a report in the Milwaukee Journal Sentinel.

Roggensack was joined by justices David Prosser, Annette Ziegler and Michael Gableman. Chief Justice Shirley Abrahamson and justices Ann Walsh Bradley and Patrick Crooks made up the minority.

Bablitch's petition wanted justices to recuse themselves from cases featuring litigants or attorneys who gave $10,000 or more in contributions to the justice's campaign.

The Wisconsin Association for Justice, formerly the Wisconsin Academy of Trial Lawyers, preferred neither option, but wrote Bablitch's was closest to a solution.

"The fact remains neither petition fully addresses when judges should recuse themselves," Mark Thomsen, president of the WAJ, wrote to the Court before its decision.

"The Wisconsin Association for Justice believes that (the) Supreme Court should consider adopting recusal rules that are transparent and understandable to parties, attorneys and the public.

"The U.S. Supreme Court announced in Caperton that the proper standard for judicial recusal is an objective standard. This Court should undertake to set this objective standard."

The U.S. Supreme Court ruled in June that West Virginia Chief Justice Brent Benjamin should have recused himself from a $50 million case because of campaign support from Massey CEO Don Blankenship.

The case concerns a coal supply contract.

Hoping to unseat Justice Warren McGraw in 2004, Blankenship spent more than $3 million in support of Benjamin through an independent expenditure group called "And For the Sake of the Kids."

When the $50 million verdict against Massey and in favor of Harman Mining owner Hugh Caperton came before the Court in 2007, Benjamin twice refused to step down.

The state Supreme Court overturned the verdict in Nov. 2007 with a 3-2 vote, then again by the same vote in April after then-Chief Justice Spike Maynard recused himself. It is now before the Court for a third time.

Raymond Taffora, a deputy attorney general in state Attorney General J.B. Van Hollen's office, wrote there are existing rules to prevent what happened in West Virginia.

"Most significantly, there is simply no evidence to suggest that judicial bias has been a problem in Wisconsin courts," he wrote.

"While disappointed litigants may naturally tend to question a judge's commitment to fairness and the rule of law, the proponents of (the League of Women Voters' petition) have not shown that our courts have failed to provide a fair process consistent with due process."

He added that not all perceptions are accurate.

"By focusing on perception, the proposed rule puts too much emphasis on what some people might think and not enough emphasis on the integrity of judges and the right of the people to participate in judicial elections," Taffora wrote.

"When a fair-minded, unbiased judge is forced to recuse himself or herself, the public loses and the people who elected the judge are effectively disenfranchised."

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.

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