Supreme Court has chance to still get it right on recusal

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Melanie G. Ramey
Monday, December 14, 2009

It was painful Oct. 28 to watch the Wisconsin Supreme Court reject the League of Women Votersí proposal to require judges to withdraw from cases where one party has spent $1,000 or more to put the judge in office. A majority of high court justices voted to adopt word-for-word the recommendations of two powerful business associations who proposed that campaign contributions and electioneering ads never be cause for recusal.

It was still more painful last week to watch the justices revisit the issue. Chief Justice Shirley Abrahamson called the Court into open administrative conference to deal with amendments that have been proposed since the adoption of the new rules. The Wisconsin Supreme Court usually adopts new rules in principle, leaving open the opportunity to modify the language before the final rule is approved.

However, the majority in October rejected suggestions for flexibility and adopted the rules verbatim as proposed by the Wisconsin Realtors Association (WRA) and Wisconsin Manufacturers & Commerce (WMC). That may have been more than even the petitioners were bargaining for.

WMC later submitted an amendment to the rule it had proposed, which dealt with independent expenditures related to a judicial campaign. WMC recommended rewording to make the language consistent with that of the Realtorsí rule, which dealt with campaign contributions. In addition, Justice David Prosser proposed other amendments. He asserted that the proposed changes would not alter the substance of the rules, but other justices were not so sure of that.

Justice Ann Walsh Bradley read a sharp dissenting statement co-signed by Justices Abrahamson and N. Patrick Crooks, saying they never would have adopted a proposal verbatim from powerful lobbying interests. To demonstrate the effect of the Courtís rash decision, she read headlines from newspapers decrying the Oct. 28 decision.

The whole point of recusal standards is to protect not only the impartiality but also the credibility of our courts. You canít do that by letting moneyed lobbying interests write the rules. Abrahamson asked Prosser several times if he no longer supported verbatim adoption of the WMC and WRA rules, and eventually he agreed that he was retracting his earlier vote. This resulted in a majority vote to rescind the Oct. 28 decision. Abrahamson announced that the Oct. 28 order would not be published and asked Prosser to circulate his recommendations to the full Court by the end of the week.

The Court has a chance to take the time to do this right. Justice Crooks asked all of the speakers on Oct. 28 what they thought of the idea of having a committee study the recusal issue and make recommendations to the Court within a few weeks. The League of Women Voters and most of the others supported this.

We still do, and we also support Crooksí recommendation that any amendments should receive proper notice and have a hearing before being adopted. Nobody said democracy is easy. It requires constant care and feeding. But itís worth it.

Melanie G. Ramey is president of The League of Women Voters of Wisconsin Education Fund. It is a member of Community Shares of Wisconsin. For more information about the league, go to lwvwi.org.

Last updated: 12:11 pm Thursday, December 13, 2012

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