State recusal rules govern when judges are required to step aside from cases in order to avoid potential biases. More than 9 in 10 voters think that judges should step aside from cases when one of the litigants has spent substantial sums to get them elected. 1 But recusal rules have not kept up with the realities of high cost judicial elections — and particularly the growing importance of outside spending. Only six states have rules governing when outside spending is grounds for recusal. 2

Wisconsin’s recent “John Doe” investigation presented a particularly egregious example of how expensive judicial races can fuel conflicts of interest for judges, and how weak recusal rules can risk undermining the integrity of state courts.

The John Doe investigation considered whether several political groups had illegally coordinated with Governor Scott Walker’s 2012 recall campaign in violation of state campaign finance laws. The Wisconsin Supreme Court halted the investigation in July 2015, striking down the state’s coordination law in the process. The special prosecutor in the case had sought the recusal of two justices, David Prosser and Michael Gableman, whose own supreme court campaigns had benefited from millions of dollars in outside spending from the very groups under investigation. The justices denied the recusal motion, and then joined the majority in a 4-2 ruling. 3

In a letter explaining why he denied the recusal request, Justice Prosser cited recent changes the state supreme court had made to Wisconsin’s recusal rules, which excluded “campaign contributions” as a basis for recusal. 4One of the groups that spent millions to support both Justice Prosser and Governor Walker, Wisconsin Manufacturers and Commerce, had helped draft those rules. 5

In January 2017, 54 former members of the Wisconsin judiciary petitioned the state Supreme Court to strengthen its recusal standards. The former jurists wrote that judges should be required to step aside if they received either campaign contributions or help in the form of independent spending from a party or lawyer before them. (The Brennan Center submitted a letter supporting their petition.) The state supreme court voted 5-2 to reject the proposed change. 6

Notes:

  1. Justice at Stake & The Brennan Center for Justice, Justice at Stake and Brennan Center National Poll, 10/22-10/24, 2013, https://www.brennancenter.org/sites/default/files/press-releases/JAS%20Brennan%20NPJE%20Poll%20Topline.pdf.
  2. Bannon, Rethinking Judicial Selection, 16.
  3. Patrick Marley and Mary Spicuzza, “Wisconsin Supreme Court ends John Doe probe into Scott Walker’s campaign,” Milwaukee Journal Sentinel, July 16, 2015, http://archive.jsonline.com/news/statepolitics/wisconsin-supreme-court-ends-john-doe-probe-into-scott-walkers-campaign-b99535414z1-315784501.html/.
  4. David Prosser, J., Letter to Counsel, July 29, 2015, 3, http://media.jrn.com/documents/prosserrecusal.pdf.
  5. Lincoln Caplan, “The Destruction of the Wisconsin Supreme Court,” New Yorker, May 5, 2015, https://www.newyorker.com/news/news-desk/the-destruction-of-the-wisconsin-supreme-court.
  6. Patrick Marley, “Wisconsin Supreme Court rejects recusal changes when campaign donors are litigants,” Milwaukee Journal Sentinel, April 20, 2017, http://www.jsonline.com/story/news/politics/2017/04/20/wisconsin-supreme-court-weighs-recusal-rules-when-campaign-donors-litigants/100644698/.