Tuesday, November 17, 2020

WI Supreme Court's recusals-not-needed rule makes COVID-era debut

Wisconsin Supreme Court Justice Rebecca Bradley will not recuse herself in a COVID control case brought by one of her major donors against Gov. Evers' emergency authority during the pandemic, Wisconsin Democracy Campaign reports:
The suit was brought by Jere Fabick, of Oconomowoc, owner of FABCO Equipment, who contributed the maximum $20,000 to Bradley’s campaign on March 15, 2016 when she was running for a 10-year term on the court. Rebecca Bradley is part of the high court’s 4-3 conservative majority....
Current recusal rules, which were fashioned with the help of business and real estate interests who have spent millions of dollars to elect conservative justices, do not require justices to recuse in cases where the parties contributed to their election campaigns.

And how is this possible, you ask? 

Take a look to 2017, when the Wisconsin Supreme Court rejected a request by retired state judges to overturn the high court's self-declared 'no-recusals-needed rule.'

The justices voted 5-2 to toss aside a rule change proposed in January by 54 retired jurists that would have forced judges off cases involving those who helped get them on the bench. Conservatives who control the court said the proposal would interfere with the free speech rights of those who run ads and engage in other campaign-like activity.

Seal of the Supreme Court of Wisconsin.svg

Then look back to earlier developments I'd noted in 2014 and 2015 -  

- which explained that that the Wisconsin Supreme Court's conservative majority not only approved a recusal rule that allowed state judges and justices to hear cases involving entities which had donated to the campaign committees - - they'd solicited the recusal rule draft from some of their special interest donors, then approved it:
As you process the news that the conservative majority on the Wisconsin State Supreme Court Justices today validated Wrong-Way Walker's rollbacks of voting and collective bargaining rights - - and that several of the same Justices' campaigns were significantly funded by the WMC and other corporate special interests which also heavily back Walker - - do not forget that these same Justices let the WMC and the Realtors write for the Court a new ethics rule defining when - - basically, never - - recusals were in order by Judges and Justices to reduce conflicts-of-interest and enhance the appearance of fairness.
Yes, you read that right:
In response to [a tougher, independent proposal], the Wisconsin Realtors Association (“Realtors”) and Wisconsin Manufacturers & Commerce (“WMC”) filed separate petitions.[4] The petitions sought to amend the Judicial Code of 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,[5] 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 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.”[6] In particular, the dissent took issue with the majority’s decision to adopt petitions “proposed by special interest groups.”[7] Dissatisfied with the majority’s decision, the dissent urged the Legislature to “engage in further study of judicial recusal.”[8]
Which was noted nationally: 
The Center for American Progress surveys the states on judicial ethics and gives Wisconsin an "F" here:
Wisconsin: F (35 points) 
Wisconsin received a failing grade after its state supreme court adopted a recusal rule that literally instructs judges not to recuse themselves from cases involving campaign contributors. 
In 2010, the four-justice conservative majority on the Wisconsin Supreme Court voted to institute a recusal rule written by the Wisconsin Realtors Association and Wisconsin Manufacturers & Commerce, a group that subsequently donated nearly $1 million to support conservative Justice David Prosser’s re-election in 2011.  
The rule says that recusal is not required “based solely on … a lawful campaign contribution.” The majority’s comments that accompany the rule say that requiring recusal for campaign cash “would create the impression that receipt of a contribution automatically impairs the judge’s integrity.”  
In other words, the four justices in the conservative majority are worried that mandatory recusal would lead the public to think that judges are biased.


Anonymous said...

This really bothers me and I would like an explanation: I think that in order to be a realtor in Wis one has to belong to the Wis Realtors Assoc., which is a strong backer of everything GOP. Yet the rule is still in place??? Why is this different than belonging to a union? Isn't this a lot worse because you can not even set up your own "shop" without being a member?

Anonymous said...

Well if a group of bipartisan judges agree that it is wrong to let justices hear these cases, we will be told this is more proof that justices accepting boatloads of money from special-interests before them are above question and are not/cannot possibly be influenced by these donations, because that free speech right and their millionaires anyhow blah blah blah blah blah.

And guess who will catapult that propaganda across the state!

Sue said...

"Former Waukesha County Circuit Judge Mac Davis said he saw the proposal as coming from liberals who do not represent many retired judges. He said he did not think the proposal was well thought out because it would require judges to get off of cases because of donations but not endorsements or other activities."
Very good point, F.W.C.C.J. Davis. There is absolutely no difference between publicly saying 'hey, we like this candidate and encourage you to vote for him/her', and literally helping to fund the candidate's run in both obvious and back-door ways. I mean, on top of everything else, what possible result would that have on potential opposition candidates, who know that they simply cannot compete in the massive amounts of money that will be spent against them and are not willing to put themselves through months of nasty ads? We haven't seen a recent lack of candidates against these well-funded judges, have we? Oh we have? Well I'm sure that has nothing to do with it.
Plus they're liberals apparently, so of course they have no standing in present-day Wisconsin and should be dismissed as the nonentities that they are.
A better move for these retired judges, of course, would be to form a superpac or something and buy a couple of judges, like normal players - er, citizens.
BTW, why now, 7 years after the fact? Has something changed?

Anonymous said...

Anon 7:09

Nice catch -- why?

The realty industry is one of the most subsidized segments of our economy! While each side of the aisle kowtows to them, the real party of unfunded mandates and fiscal train-wrecks is the REPUBLICAN party. But they have succeeded in catapulting the propaganda that food stamps are an "entitlement" and billions of dollars for highway construction and maintenance is all-American Apple Pie warm-and-feely goodness.

And why does the realty industry support GOP in the way you mention?

Because the realty industry is dependent on massive subsidies for public infrastructure, much of it roads and highways. These also promote the interests of oil interests. Koch Industries is primarily an OIL-based business model and most of the profits come from extraction, shipping, and refining. Koch is aligned with ExxonMobile though the Koch front group CEI (Competitive Enterprise Institute).

Realty in the Walker economy can only be profitable if we keep new construction, subsidized by taxpayers, at relatively high levels. Please remember, it was not the public sector that created the highest concentration of multi-generational poverty in America and this burden falls primarily on African Americans in Wisconsin and Milwaukee.

The most extreme economic injustice in America was created by the REALTY INDUSTRY and was entirely subsidized by taxpayers. New roads, sewers, water, and other critical infrastructures were not paid by the realty interests of the future home owners -- they were paid for by other taxpayers (local, state, and federal levels).

The industry broke up neighborhoods by selling the suburbs after most of Milwaukee was built up and there were no tracts of land for block-by-block development. And what a coinkidink -- the oil industry benefits beyond averace when the realty industry normalized the "suburban" lifestyle as people with the ability to pay abandoned Milwaukee.

But remember -- the WOW counties would not be able to swing (actually steal) elections if they had not had public money, much of which actually came from Milwaukee.

Anonymous said...

Sue -- they cannot buy these judges and be as effective because THEY ARE WISCONSIN CITIZENS. The current administration does serve in-state interests that pay no income taxes and donate to Walker, but that is not who they work for and represent.

You are right, except these retired judges need to move out-of state and form a multinational corporate-network (though perhaps hiding the contributions from Vladimir Putin and Russia) and buy these judges the ol' fashion way -- as carpetbaggers and out-of-stated corporate interests.