Wednesday, December 04, 2013

Recusal and Investigations

My column on recusal and the reported John Doe proceeding can be found here. (Subscription required.)

Let me revise and extend my remarks.  The question is presented is whether justices on the state supreme court would have to recuse themselves in a case involving their supporters - in this case, conservative justices whose campaigns may have benefited from issue advocacy by conservative advocacy groups who may now be under investigation for activities undertaken in other elections. 

it is black letter law that recusal is not required simply because a litigant has contributed to or engaged in independent expenditures that may have benefited the campaign of a justice.  My view is while recusal in such circumstances may be required in extreme cases - say when there has been extraordinary and pivotal support fromm a non-ideological organization with a significant matter pending before the court at the time that the support is given - an aggressive approach to recusal on a collegial law developing court of last resort is inconsistent with the idea of judicial elections.  Because we are committed to electing judges in Wisconsin (almost everyone agrees that any proposal to abolish such elections would be dead on arrival), we can't take an expansive approach to recusal.

Lest you think I am adopting this position because the immediate question involves the recusal of conservative judges in a John Doe investigation rumored to be targetting conservative advocay organizations, I first developed this position in a law review published several years ago.  Insomniacs can find it here.

There are two problems with the argument for recusal. The first is that it has no stopping point. If justices who have benefitted from the activities of, say, conervative advocacy groups must recuse, then why wouldn't those who may be harmed by those activities also be required to recuse themselves.  If judges supported by a group like WMC must step down in a case involving WMC, then why wouldn't judges opposed by the group also be required to step aside.

What is good for the goose is good for the gander. Why should those justices who have traditionally benn supported by public employee unions, for example, sit on cases involving challenges to Act 10.

Second, it is no good to say that you want everyone to recuse as long as we have judicial elections and a First Amendment that protects the right of persons to be heard on the issues and candidates involved in those elections.  Judicial elections are predicated on the notion that our desire for judicial independence must be balanced agains the need for judicial accountability and that we trust both the public and judges to, on the one hand, choose wisely on the basis of legitimate issues and, on the other, to cease campaign mode when it is time to assume the bench.

You may disagree with those notions but, if you do, the answer is not to advocate for aggressive recusal standards, but to seek a different method of judicial selection.

Cross posted at Purple Wisconsin.


Anonymous said...


It would be amazing if you knew anything.

Anonymous said...

justice wilcox's campaign was found to be in illegal collusion with school choice advocates masquerading as a voter education group. he did not recuse himself from the school choice case. judge crooks used as a campaign advisor or director scott jensen, at the time the legislature's foremost advocate for school choice. after he joined the supreme court, he did not recuse himself from the same case. the only justice with the integrity to do so was bradley, because she had done legal work for a teacher's union.