What the Cap Times Did Not Tell Us About the Wisconsin Supreme Court

One of my professional interests and charges is to follow the Wisconsin Supreme Court. About now, it's a fascinating beat. Last month, the Capital Times covered the Court's December 7 administrative conference. As Daniel Suhr pointed out on our faculty blog, the article leaves a bit to be desired.

The article spends a great deal of time emphasizing the testiness that was on display during a public administrative conference held by the Court on December 7. That's fine as far as it goes. The conference was certainly contentious and, at times, less than congenial. Part of that is due to the Court's decision to hold its administrative conferences in public, thereby putting sausage making on display.

But it's not just that. There have been many other indications of bad feeling on the Court, and that contention is not new. When the Chief Justice ran for reelection in 1999, a majority of the Court (crossing ideological divides) endorsed her opponent. That must have made for a few frosty decision conferences. The Court's decisions and the concurrences and dissents of the individual justices have exhibited a certain heat for quite some time.

I do wish that the justices could find a way to dial down the heat that seems to characterize their deliberations. The justices are human and we all lose our religion now and then, but I hope that the testiness that has characterized some of the Court's recent public deliberations - and some of the individual justices' written opinions - can be reduced.

Talk to enough people and it becomes apparent that much of what drives this happens out of the public view. The conference gave us a peek at some of that and this is the story that the Cap Times failed to tell.

First, there is the question of why the Court was in administrative conference at all. This past October, it voted 4-3 to adopt certain amendments to the Code of Judicial Conduct. These amendments made clear that campaign contributions and independent expenditures do not, in and of themselves, require recusal. This is not to say that contributions and expenditures, in combination with other circumstances, cannot create a potential for bias that requires recusal. (Indeed, the United States Supreme Court's decision in Caperton tells us that they might.) But the fact of a contribution or expenditure - by itself - is not enough.

All in all, the amendments esssentially restated what has generally been the practice, i.e., judges generally do not automatically step aside because of campaign contributions. Indeed, that the amendments do not provide new and more definitive guidance seems to be the basis of much of the criticism of the decision to adopt them and do no more.

There is something to the idea that more guidance on recusal is required. I am in the midst of writing a paper on that in light of Caperton, so I am certainly not opposed to more discussion and debate on the topic. (I'd like to think that my forthcoming contribution to the discussion and debate would look great in some top 20 law journal!)

But it seems quite clear that the majority adopted these amendments because they wanted to dispel what they believe to be unfounded calls for the recusal of certain members of the court. See, e.g., the suggestion that Annette Ziegler should have recused herself because WMC filed an amicus brief in a case. Thus, Justice Prosser's comments at the conference that he wanted to act promptly rather than allow certain members of the Court to "dangle in the wind."

As is normally the case, an order adopting these amendments was circulated among the Justices. David Prosser and Annette Ziegler declined to approve of the order as drafted, although only Justice Prosser publicly annnounced that he was no longer willing to approve of the rules as submitted. There seem to be two problems. Understanding the nature of the problems is helpful in assessing what was going on in the hearing. So bear with me.

The first is an inconsistency in the language employed in the amendments proposed by WMC and WRA. WRA's proposal sought to amend SCR 60.04(5) to say that recusal is not required solely because of campaign contributions by "persons and other entities before the Court." WMC's petition sought to amend 60.04(6) to make clear that recusal is not required solely because of an independent expenditure or issue advocacy communication, but it referred only to "parties" before the Court.

Obviously, the WMC language could be read to apply to a more narrow class of persons, excluding lawyers and amici. Although it is sometimes said that all standards of construction are contradicted by another, adoption of both amendments by the Court could be seen as establishing that there are "persons before the court" other than parties and that new 60.04(6) provides a more narrow clarification - or limited "safe harbor" - than new 60.04(5). In other words, while contributions and expenditures by parties are not, in and of themselves, cause for recusal, perhap independent expenditures (but not contributions) by amici could be.

It seems clear that this is not what was intended. It is hard to imagine a rule that would say that recusal could not be based solely on independent expenditures by a party, but could be based solely on expenditures by an amici.

Reconciling the language does seem to be a matter of clarification. With respect, it is not, as Justice Bradley claimed "very substantive" and it is not, as Justice Crooks argued, "difficult to understand." It is not unusual at all for courts to fine tune the wording of an order without a new hearing or other public process.

The second problem is much like the first. It is a concern on the part of Justice Prosser about language in WRA's petition to amend SCR 60.06(4) to say that, while a judge may not solicit campaign funds (a provision recently held unconstitutional by a district judge in Madison and currently on appeal), his or her committee can solicit or accept funds from "lawyers or parties or entities involved in a proceeding over which the candidate is presiding." Justice Prosser seems to be concerned that this could be read to apply only to the chief justice or presiding judge in a multi-member court. This too seems to be a relatively minor clarification of the language.

So, to begin with, the majority seems to have been upset that the conference was being held at all, believing it to be unnecessary and likely to have the effect of adding fuel to what the majority clearly believes to be unfounded allegations of bias and corruption. There is a certain logic to this.

In response, the minority makes two arguments. The first is that the amendments were adopted verbatim and they seem to think (this was the point that lead to the flare up between Justices Crooks and Prosser) that the majority shouldn't "go back" on that without further public proceedings. The Chief Justice goes to great lengths to get the majority to concede that they had somehow "backed off" their earlier position which was now "dead in the water." The majority - Justice Prosser in particular - kept saying that they only wanted to clarify - that they were still adopting in essence - what they had adopted "verbatim." (More on that term later.) I think the extended verbal gamesmanship on this both reflected and contributed to the tension among the justices.

Second, Chief Justice Abrahamson expressed concern that the matter not be delayed. This is fair - and that very concern was offered by the majority as a justification for acting in November. But it was apparent that Justice Prosser was not going to approve the order as it was written. It was clear that he did not want to make major changes. It was clear that he was not prepared to offer an alternative at the conference. It seemed evident from the outset that nothing was likely to be accomplished that day (although in the end, it almost was).

So the administrative conference simply put on display the difference of opinions regarding adoption of the WMC and WRA amendments. But two things that happened in the hearing seemed to have aggravated the tension between the Court's two factions.

The first was Justice Bradley's decision to read her dissent. Justice Prosser encouraged her to do so, although, it is fair to observe, not in an approving sort of way. Justice Gableman seemed to believe that the better practice would have been to wait for an order to dissent from. This would also permit the majority to contemporaneously respond.

The dissent criticizes the majority for adopting the amendments without revision and extended deliberation. It is clear that Justice Bradley feels very strongly about the matter. Read in a rising voice, her dissent refers (in an understanding, if not necessarily approving way) to a number of rather intemperate editorials from newspapers across the state accusing the majority of legalizing "bribery" and putting justice "for sale."

Although the Cap Times noted Justice Prosser's sarcastic remark at the conclusion of the dissent ("Are we supposed to applaud?"), it is not hard to see how he might have been offended by a suggestion that the majority's action somehow justified editorials accusing the Court of legalizing bribery.

Justice Roggensack suggested that Justice Bradley wait in the interest of "public congeniality." For her part, Justice Bradley said she would not be "silenced."

It is not clear how that could happen, but, immediately after, the Chief Justice tried to support Justice Bradley's concern. She made some rather extraordinary remarks about her perception that certain members of the Court were holding orders because they did not like what was written in a dissent or concurrence. After being questioned by Justice Roggensack, Chief Justice Abrahamson actually identifed a case - State v. Carter. (There are two Carter cases currently pending, but I assume that she is referring to the case in which Ellen Henak has filed a motion to recuse Justice Gableman).

This is what led to Justice Roggensack's remark about "posing for holy pictures." She apparently thought that the Chief was attempting to deflect charges that she is responsible for holding up a resolution of the recusal issue. Justice Roggensack expressed her disagreement with the Chief Justice's characterization of the Carter matter and then, in another extraordinary exchange, suggested that the Chief Justice had actually delayed the order in State v. Allen. (This is the first case in which a motion to recuse Justice Gableman was filed by Rob Henak.)

The Chief Justice denied that and seems to contend that the order is awaiting finalization of her dissent and the majority's response. Justice Roggensack, perhaps for the reasons expressed below, thought that the order should have been issued with opinions to follow.

These things are normally not discussed publicly and, it was in response to the Chief Justice's objection to discussion of the Allen case, that Justice Roggensack said "you opened the door, kiddo."

Whoever opened it, one does wish it would have remained closed. But therein lies the story that the Cap Times did not tell.

I believe that the recusal motions should be denied - and quite easily at that. I am not going to criticize the lawyers who make them as long as they are made - as they have been - in a professional manner. I understand that, at least in part, the recusal efforts are motivated by a certain view of the relationship between judicial elections and criminal justice, as well as by a certain frustration with the public's ambiguous attitude toward the adversary system and the resulting impact on criminal justice. A lawyer must zealously defend his or her client and judges, for the most part, understand that. Indeed, at the conference, Justice Roggensack complained that the failure to act on the motions was giving lawyers the impression that they have to make these motions to adequately represent their clients because there might be "something there." She seems frustrated with the Court and not the lawyers.

So the problem isn't that the motions were made. It's that they haven't been decided. Effectively removing an elected member of law developing court of last resort from all criminal cases would be, to put it mildly, quite unusual. As Justice Prosser argues in his concurrence in DeBraska v. Quad Graphics, recusal of Supreme Court justices can have significant costs.

If I am reading correctly between the lines of what was said, at least one of these motions has been denied, but the orders are being held up. Of course, I have no way of knowing why. Certain of the justices seem to believe that these requests ought to have been summarily dismissed* and that the failure to do so is a product of the Court's ideological and personal divisions. At the very least, it seems to have exacerbated those tensions and this has crept into the debate about recusal rules.

That tension is, I think, also exacerbated by the tone of much of the public debate on these questions. I, for example, sympathize with Justice Prosser's frustration at certain "reformers" who, in his view, make a living (and seek certain ideological outcomes) by (sometimes) selective and unfounded allegations of corruption. It is one thing to make a sober case for recusal under certain circumstances. It is quite another to indulge in a disrespectful and uninformed demagoguery. We can discuss the role of money in politics without channeling Huey Long. As noted above, it has been some of the more aggressive and unfounded calls for recusal that seems to have motivated the prompt and "verbatim" adoption of the WRA and WMC amendments in the first place.

It is quite clear, of course, that the minority did not want to move so quickly and, in the conference, the Chief Justice and Justice Bradley repeatedly expressed or implied criticisms of the adoption of amendments "verbatim." It seems to me that the problem, if there was one, was not use of the word "verbatim" in the motion passing the amendents. That would certainly not preclude the majority from clarifying the language if it wants to. It is in the desire to quickly adopt the amendments and then consider the matter closed.

In a revealing comment at the end, Justice Prosser suggested that he views much of this public pressure for recusal as an attack on the election of judges.** If commonplace campaign activity results in an inability to hear cases, the electoral system - at least one in which there is vigorous public participation and high salience - breaks down.

At the end of the hearing, Justice Prosser began to offer clarifying language but the Chief Justice stated that she must end the conference, having made a commitment to attend a bill signing.

More to come.


* At one point, Justice Roggensack say that they should have acted per curiam in Allen ,i.e., issued an unsigned opinion. This isn't necessary indicative of a summary action, but may have revealed some of her thinking on the matter.

** In yet another fascinating exchange, Justice Prosser said that the Court had held action on the LWV proposal (which would have strangled fundraising in state wide judicial races)to ensure that it would not hamper the Chief Justice's reelection campaign. I would have doubted that, but she did not contradict him. In any event, I rather doubt that adoption of the LWV proposal would have had any impact on the 2009 race and it has now been rendered largely moot by the recently enacted limit on contributions. There cannot be contributions in excess of $1000.00.


Cross posted at Marquette University Law School Faculty Blog.