Friday, March 29, 2013

Recusal and Elections

Over at Right Wisconsin, I have a piece up on the issue of recusal in the state Supreme Court race. Challenger Ed Fallone is trying to make an issue of incumbent Pat Roggensack's support of a rule that a legal campaign contribution or independent expenditure by a party to or attorney in the case does not require recusal.

Of course, an individual judge or justice might decide that, in a particular circumstance, a contribution or expenditure might warrant recusal. The rule that Roggensack supported only makes clear that recusal is not automatically required.

(Roggensack, along with a majority of the court, has also taken the position that the recusal decision is to be left to the individual justice - a practice that is also followed by the United States Supreme Court. But that's a different issue.)

Fallone appears to have said different things about recusal at different times, but has apparently settled on the view that there ought to be some sort of rule requiring automatic recusal - at least for contributions of expenditures over a certain level.

But would he follow that rule himself? He has enjoyed support - in a variety of forms - from persons with an interest in overturning Act 10. Would he recuse himself in a case addressing the constitutionality of that law?

I suspect that answer would be "no." I imagine he would say that, under the circumstances. he believes that he could address the issue fairly and impartially. He would say, that in the context of the case and the circumstances surrounding support of his campaign, he believes that recusal is unwarranted.

In other words, he would avail himself of the discretion that the rule supported by Roggensack affords each justice. If I am wrong, then he should be willing to say so. If he believes that contributions are naturally corrupting or automatically give rise to the appearance of bias, then shouldn't recuse himself whether or not there is a rule requiring it or without regard to what other justices might do?
Of course, he won't and, in a sense,  I don't blame him. An automatic recusal rule would make it impossible for people like Ed Fallone to ever challenge an incumbent judge or for voters to hold elected judges accountable. If campaign contributions would render a judge unable to sit on cases that are important to the contributor, then those contributions would not be forthcoming.

While it is easy to regard this as a good thing in the case of a private party interested in the outcome of a private dispute, that is not the typical circumstance in supreme court elections. Contributions tend to come from groups and organizations interested in electing judges with a particular philosophy. To adopt a rule that would require recusal in any case in which these groups are interested would shut down the process. (A rule that was limited to contributions that come from private parties who are litigants in the case would be largely meaningless. None of our recent recusal controversies involve such a dispute and the amount that a party can contribute will be immaterial in a contested statewide race.)
Some people would count that a good thing - being relatively immune from challenge would certainly foster judicial independence. But, in Wisconsin, where judges have always been elected, we have struck a different balance, trusting in the voters to evaluate judicial candidates and incumbents.If that balance is the correct one, then rules which make elections impossible or futile should be regarded as suspect.

If you are interested in this topic, I wrote about it at length here.

Cross posted at Purple Wisconsin


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An automatic recusal rule also opens the door to mischief. Would groups donate the triggering amount to a candidate they opposed, thus forcing that candidate off the donor's case? Of course they would! A far more certain investment than contributing to a candidate who might win and recuse, or lose.
Over time, there wouldn't even be a quorum left on certain 'hot' issues.

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