Legislative Report: Special Legislative Committee Studies Judicial Discipline and Recusal

WDC Journal Edition: Winter 2010
By: Andrew Cook, The Hamilton Consulting Group, LLC

The Wisconsin Supreme Court in the 2009-10 term issued a number of controversial decisions, two of which had to do with how the Court itself operates and how justices are disciplined.

The first ruling involved competing petitions brought by a number of groups requesting the Court amend the Wisconsin Code of Judicial Conduct pertaining to the issue of judicial recusal. The second case involved a complaint filed against Justice Michael Gableman alleging he violated the Code of Judicial Conduct by running a false advertisement against his opponent, former Justice Louis Butler, in the 2008 election.

These decisions led to the formation of the Joint Legislative Council Special Committee on Judicial Discipline and Recusal (“Special Committee”) to study the two issues and recommend legislation to the full Legislature. The Special Committee’s makeup includes legislators and members from the public appointed by the Wisconsin Joint Legislative Council.[i]

Judicial Recusal

The judicial recusal issue gained national prominence last year when the Supreme Court of the United States issued its 5-4 decision, Caperton v. A.T. Massey Coal Co.[ii] Caperton involved an extreme set of facts.

The owner of Massey Coal Company spent $3 million through both direct campaign contributions and independent expenditures in favor of Brent Benjamin, a candidate to the West Virginia Supreme Court of Appeals. Benjamin ultimately won the election. Two years later, the West Virginia court overturned a $50 million jury verdict against Massey Coal Company. Justice Benjamin denied a motion seeking his recusal from the proceedings, and ultimately sided with Massey Coal Company in the 3-2 decision.

The case was appealed to the U.S. Supreme Court, which ruled Justice Benjamin’s denial of the recusal motion violated the Due Process Clause of the Fourteenth Amendment. The case was then remanded to the West Virginia Supreme Court, which reversed its decision in favor of Massey Coal Company.

In light of the Caperton decision, the League of Women Voters of Wisconsin (“League”) filed a petition with the Wisconsin Supreme Court to amend the Code of Judicial Conduct.[iii] The petition sought to amend the recusal rules when a party in an action—or the lawyer or law firm in an action—makes a campaign contribution to or spends money in a judicial campaign for a judge presiding in the case. Specifically, the League’s petition sought to require a judge (or justice) to recuse himself or herself when a party to the proceeding, or the lawyer, contributed $1,000 or more to the judge's election campaign. The petition also sought to place the same $1,000 limitation on all the attorneys in a law firm. Therefore, if lawyers in a law firm cumulatively contributed $1,000 or more to a judge's election, the judge would have to recuse himself or herself from lawsuits involving parties represented by lawyers from that firm.

In response to the League’s petition, the Wisconsin Realtors Association (“Realtors”) and Wisconsin Manufacturers and Commerce (“WMC”) filed separate petitions.[iv] The petitions sought to amend the Code of Judicial Conduct to provide that recusal is not required in a proceeding based solely on any endorsement or receipt of a lawful campaign contribution from a party or entity involved in the proceeding. The petitions also sought clarification that a judge does not need to seek recusal where it would be based solely on a party in the case sponsoring an independent expenditure or issue advocacy communication in favor of the judge.

In a 4-3 decision,[v] the Wisconsin Supreme Court denied the League’s petition and adopted the Realtors' and WMC’s petitions. In a dissenting opinion, Justice Ann Walsh Bradley, joined by Chief Justice Shirley S. Abrahamson and Justice N. Patrick Crooks, criticized the majority’s decision to adopt the rules, calling it “a dramatic change to our judicial code of ethics.”[vi] In particular, the dissent took issue with the majority’s decision to adopt petitions “proposed by special interest groups.”[vii] Dissatisfied with the majority’s decision, the dissent urged the Legislature to “engage in further study of judicial recusal.”[viii]

In the concurring opinion, Justice Patience Drake Roggensack, joined by Justices David T. Prosser, Jr., Annette Kingsland Ziegler, and Michael J. Gableman, responded that the rule changes comported with the Wisconsin Constitution, U.S. Constitution, and recent case law. Specifically, Justice Roggensack noted that when judges are elected, as required by Wisconsin’s Constitution, there is another often unmentioned constitutional right that exists in tandem with the constitutional right to unbiased judicial decision-makers. Justice Roggensack explained:

We elect judges in Wisconsin; therefore, judicial recusal rules have the potential to impact the effectiveness of citizens’ votes cast for judges. Stated otherwise, when a judge is disqualified from participation, the votes of all who voted to elect that judge are cancelled for all issues presented by that case. Accordingly, recusal rules, such as SCR 60.04(7), must be narrowly tailored to meet a compelling state interest.[ix]

Heeding the dissenting opinion’s request for the Legislature to study the issue, the Joint Legislative Council formed the Special Committee and tasked it with drafting proposed legislation. The Special Committee began holding public meetings at the State Capitol and heard testimony from invited speakers. Among those invited were Wisconsin Supreme Court Justices. At one hearing, all three Justices who dissented to the rule changes urged the Special Committee to amend Wisconsin’s law pertaining to disqualifying judges.[x]

Current law provides that a judge or justice must disqualify himself or herself if one or more of seven circumstances is present.[xi] The circumstance important to the discussion here is the one that requires a judge or justice to “disqualify himself or herself from any civil or criminal action or proceeding . . . [w]hen a judge determines that, for any reason, he or she cannot, or it appears he or she cannot, act in an impartial manner.”[xii] The Wisconsin Supreme Court has opined[xiii] that this language constitutes a subjective test, meaning that the question to be answered is whether the judge believes there is an appearance that he or she cannot be impartial.

The dissenting Justices submitted testimony urging the Special Committee to amend Wis. Stat. § 757.19(2) to provide an “objective standard” that requires a judge or justice to recuse himself or herself in any proceeding in which “his or her impartiality might reasonably be questioned.”[xiv] According to the Justices, an objective standard would “ensure that when a recusal motion is brought based on a judge’s having received campaign contributions, the motion would be evaluated under an objective test rather than the judge’s subjective determination.”[xv]

In her testimony to the Special Committee, Justice Roggensack noted that judicial bias cannot be presumed solely from a lawful campaign contribution, lawful independent expenditure, or even from a gubernatorial appointment. According to Justice Roggensack, to impose judicial recusal rules in such circumstances would “nullify the constitutional vote of the contributor, or the lawful choice of the appointer, or chill the lawful speech of those who make independent communications during the course of a campaign for judicial office.”[xvi] Therefore, Justice Roggensack urged the Special Committee to consider the rules[xvii] adopted by the Wisconsin Supreme Court addressing judicial recusal.

Judicial Discipline

The Special Committee was also directed to study the issue of judicial discipline. This controversial issue came to the forefront after the Wisconsin Supreme Court’s 3-3 split decision, In the Matter of Judicial Disciplinary Proceedings of Michael J. Gableman. The case caused so much division among the members of the court that the Justices issued separate decisions, rather than a per curiam opinion.[xviii]

In this case, the Wisconsin Judicial Commission had filed a complaint against Justice Gableman, alleging that he violated the Wisconsin Code of Judicial Conduct,[xix] and therefore engaged in judicial misconduct under Wis. Stat. § 757.81(4)(a). Specifically, the complaint alleged that Justice Gableman violated the Code of Judicial Conduct by running a television ad during the campaign falsely implying that his opponent’s actions resulted in the release of a felon who committed a subsequent criminal molestation.

A Judicial Conduct Panel (“Panel”) was formed to hear the complaint. The Panel granted Justice Gableman’s motion for summary judgment and dismissed the complaint. The matter was appealed to the Wisconsin Supreme Court, which deadlocked on whether to grant summary judgment.

The same three Justices[xx] that dissented to the judicial recusal rule changes discussed above rejected the Panel’s recommendation to grant Justice Gableman’s summary judgment motion and to dismiss the case. Those Justices ruled that the campaign ad violated SCR 60.06(3)(c) and that imposing discipline under the rule did not violate the First Amendment. Justices Roggensack, Prosser, and Ziegler, on the other hand, accepted the Panel’s recommendations and ruled that imposing a violation under the Judicial Code would violate the First Amendment.

Chief Justice Abrahamson argued that the 3-3 split decision did not end the case. Instead, according to the Chief Justice, the case should have gone back to the Judicial Commission for a jury trial. Justice Prosser countered that the Court was at an impasse and thus ruled that the complaint should be dismissed. The Judicial Commission eventually agreed with the conclusions expressed by Justice Prosser and dismissed the case, thus ending the controversial decision.

However, as a result of the Special Committee, the issue has not truly gone away. At the first meeting, the Special Committee invited two Justices from the Court—one each from the two opinions in the Gableman matter—to provide testimony.

Justice Crooks suggested that the decision in the case against Justice Gableman did not provide a final resolution because the Judicial Commission did not dismiss the charges against Justice Gableman or request a jury hearing.[xxi] Therefore, Justice Crooks urged the Special Committee to amend state statutes to allow a jury hearing in the circumstance where a panel hearing provides no resolution.

Justice Roggensack testified that the system worked correctly in the Justice Gableman case, and that dismissal was appropriate because the Judicial Commission did not meet its burden of proof. Furthermore, Justice Roggensack noted that Wisconsin’s disciplinary statutes are clear that either a jury hearing or panel hearing should be held, but not both. If the Special Committee were to draft legislation, Justice Roggensack suggested amending Wisconsin’s laws to clarify that if the Judicial Commission does not meet its burden of proof, the case will be dismissed.[xxii]

The Special Committee’s Next Steps

The Special Committee plans to meet at least two more times. After collecting all the information and receiving testimony, the Special Committee will either agree to recommend draft legislation to the full Legislature, or decide not to do anything. More than likely, the Special Committee will recommend draft legislation.

The biggest question is whether the full Legislature will act on any proposed language. The makeup of the Legislature may change significantly after the upcoming elections. Moreover, the issues involved are somewhat complicated and controversial, which may give the Legislature pause when deciding whether to impose new rules on another co-equal branch of government.

Upcoming Judicial Election

What, if anything, the Legislature decides to do with the judicial recusal issue may ultimately affect the next Wisconsin Supreme Court election in April 2011. That election is for the seat currently held by Justice Prosser. At the time of publication, no one has stepped forward to challenge Justice Prosser. If Justice Prosser fields an opponent, the race could potentially attract a lot of attention from varying groups. This in turn could mean significant campaign spending by the candidates, or by outside organizations.

Therefore, what the Special Committee ultimately proposes will be a significant issue to watch during the next few months. Even more interesting will be to see if the full Legislature enacts any legislation, if ultimately proposed, or instead decides to punt.

For more information about the Special Committee, please visit:

[i] The Special Committee members include: Rep. Gary Hebl (D-Sun Prairie), Co-Chair; Sen. Glenn Grothman (R-West Bend), Co-Chair; Rep. Frederick Kessler (D-Milwaukee); Rep. Daniel LeMahieu (R-Cascade); Attorney Thomas Basting, former State Bar Association President; Chief Judge J. Mac Davis, Waukesha County Circuit Court; Attorney Stephen Hurley, Hurley, Burish, & Stanton, S.C.; Attorney Lynn Laufenberg, Laufenberg Law Group, S.C.; Troy D. Cross, Assistant District Attorney, Portage County; Attorney Diane S. Diel, former State Bar Association President; Andrea Kaminski, Executive Director of the League of Women Voters of Wisconsin; and Professor David Schultz, University of Wisconsin Law School.

[ii] 556 U.S. __, 129 S. Ct. 2252 (2009).

[iii] Petition 08-16, available at http://www.wicourts.gov/supreme/docs/0816petition.pdf.

[iv] Petition 08-25, available at http://wicourts.gov/supreme/docs/0825petition.pdf, and Petition 09-10, available at http://wicourts.gov/supreme/docs/0910petition.pdf

[v] 2010 WI 73, available at http://www.wicourts.gov/sc/rulhear/DisplayDocument.pdf?content=pdf&seqNo=51874.

[vi] Id.

[vii] Id.

[viii] Id.

[ix] Id.

[x] Wis. Stat. § 757.19(2).

[xi] Wis. Stat. § 757.19(2)(a)-(g).

[xii] Wis. Stat. § 757.19(2)(g).

[xiii] State v. American TV and Appliance of Madison, Inc., 151 Wis. 2d 175, 443 N.W.2d 662 (1989).

[xiv] Testimony of Justice N. Patrick Crooks to the Joint Legislative Council Special Committee on Judicial Discipline and Recusal, September 7, 2010, available at

[xv] Id.

[xvi] Testimony of Justice Patience D. Roggensack to the Joint Legislative Council Special Committee on Judicial Discipline and Recusal, September 7, 2010, available at

[xvii] SCR 60.04(7)-(8).

[xviii] 2010 WI 61 (Chief Justice Abrahamson, Justice Bradley, and Justice Crooks); 2010 WI 62 (Justice Prosser, Justice Roggensack, and Justice Ziegler). Justice Gableman did not participate.

[xix] SCR 60.06(3)(c).

[xx] Chief Justice Abrahamson, Justice Crooks, and Justice Bradley.

[xxi] http://www.legis.state.wi.us/lc/committees/study/2010/JUDI/files/aug5min_judi.pdf.

[xxii] Id.