State’s high court wise to consider rights in recusal rule

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Bill Malkasian
Friday, November 6, 2009

In Wisconsin, judges and justices are elected by the people. Our Constitution requires it. The people must therefore be able to freely support candidates of their choice.

Last week the Wisconsin Supreme Court voted to reaffirm this basic principle, and we applaud them for it. So should every Wisconsin citizen.

After hearing a wide array of legal, emotional and political arguments from a diverse and sincere set of individuals and organizations, the high court made a very simple but important ruling by clarifying that judges cannot be forced off a case solely because of legal campaign contributions or endorsements they received during an election.

By ruling that lawful campaign contributions or endorsements alone cannot force a judge off a case, the Supreme Court showed respect for both judges and voters. Judges may still recuse themselves, for whatever reasons—including campaign contributions—if they feel they cannot be fair or impartial or if they feel sitting on the case will give that impression. Voters can now fully participate in judicial elections without fear that exercising their right to do so—by making legal contributions or publicly supporting candidates—will forcibly preclude judges from doing their jobs.

Critics of the high court’s decision, including some in the media, argue the entire constitutional premise of electing judges should be thrown out. They favor appointing judges, having taxpayers pay for judicial campaigns, adopting rigid contribution thresholds that force judges off cases, or some combination of these approaches. Still others argue we should do nothing now and just study the matter more.

While these larger systemic issues should be debated, the Supreme Court rightfully ruled on the more narrow, more immediate issue of what is permissible under our current system. That’s why the high court did the absolute right thing, in time for the judicial elections this spring—elections that Wisconsin has held for 150 years.

We should be proud of our Supreme Court justices for their thoughtful consideration of this difficult issue. The justices had to consider the First Amendment rights of individuals and organizations to participate in elections and the due-process rights of litigants to receive fair and impartial hearings before courts. These are both fundamental rights, and weighing them can be a tough balancing act.

While this court and others will be wrestling with the numerous remaining issues regarding recusal for many years to come, the Supreme Court did the right thing by clearly saying voters have the First Amendment right to support judicial candidates of their choosing, and judges have the right to accept that support without being forced off cases for merely doing so.

We applaud the high court for judging both judges and voters fairly.

Bill Malkasian is president of the Wisconsin Realtors Association, a trade group representing more than 14,000 real estate brokers, salespeople and affiliates. The WRA, joined by 10 other major statewide organizations, petitioned the Supreme Court to amend the Code of Judicial Conduct’s rules on recusal to address the issue of legal campaign contributions. Readers can reach Malkasian by e-mail at wem@wra.org.

Last updated: 12:01 pm Thursday, December 13, 2012

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