Gavel Grab

Archive for the 'Recusal' Category

Judicial Recusal Debate Still Alive in Wisconsin

Wisconsin_flag_mapA controversy over a decision by two Wisconsin Supreme Court justices, who chose not to recuse themselves from participating in a ruling that ended a campaign finance investigation, has not gone away.

Regular Gavel Grab readers will be familiar with the controversy. Now Wisconsin Law Journal has published side-by-side, opposing opinions distributed by Dolan Media Newswires.

Brendan Fischer, general counsel for the Center for Media and Democracy, wrote an opinion headlined, “PRO: Recusal was only way to go in John Doe.” He based his views on the U.S. Supreme Court’s landmark ruling in Caperton v. Massey and on his view that the John Doe case went further because “the [Wisconsin] justices rewrote the rules to greenlight campaign coordination – not only for gubernatorial candidates like Scott Walker, but also for their own campaigns.” Read more

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Opinion: Fair State Courts Would Benefit Voting Rights Advocates

In a commentary discussing litigation in North Carolina courts to defend voting rights, Billy Corriher of the Center for American Progress says advocates wanting a fair hearing in state courts ought to push for judicial selection reform.

“The same partisan interests with a stake in voter suppression are funding the campaigns of the judges who will approve their agendas,” Corriher warns. “Americans in states with elected judges must demand that state supreme court justices implement ethics rules that would keep them from hearing cases involving their campaign contributors.”

By adopting an appointment system for choosing judges, states “would certainly keep partisan cash from dominating the judiciary,” he adds. Read more

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Commentary: Prosser Off Base in Declining to Recuse

justice-scalesWisconsin Supreme Court Justice David Prosser relied on weak legal arguments when he declined to recuse himself from a court opinion that shut down a controversial campaign finance investigation, Matt Rothschild of the Wisconsin Democracy Campaign writes at

Prosser recently issued a 15-page explanation of why he declined to recuse (see Gavel Grab). A special prosecutor had asked him and another justice to do so, pointing to spending by several groups involved in the investigation that benefitted the campaigns of Prosser and the second justice.

Rothschild disputes specific legal points cited by Prosser but also looks at the case through the lens of a landmark U.S. Supreme Court ruling about runaway judicial election spending, called Caperton v. Massey: Read more

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Editorial: Weeks Later, Wisconsin Court Recusal Issue Remains

Wisconsin_flag_mapA lengthy Milwaukee-Wisconsin Journal Sentinel editorial, in the wake of a state Supreme Court decision ending a campaign finance investigation (see Gavel Grab), called the court “polarized and dysfunctional” and said a conflict-of-interest issue involving some of its members has not gone away.

Among the important questions remaining, the editorial said, is the following: “Should two of the justices whose campaigns received heavy support from the groups under investigation and involved as litigants before the court have heard the cases?” It said a special prosecutor asked for recusal by Justices Michael Gableman and David Prosser, and they did not step aside from hearing the case.

The editorial urged Gov. Scott Walker to “to show good faith, be true to his past words in support of transparency regarding campaign contributions, and initiate bipartisan action to resolve these questions.” Read more

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Probate Judge Defends Chief Justice Moore, Urges Defiant Vote

alabama-flag-descriptionAn Alabama probate judge is urging the state’s highest court to defy the U.S. Supreme Court’s recent marriage equality ruling and for Alabama Chief Justice Roy Moore, who has recused himself, to cast a vote.

Washington County Probate Judge Nick Williams also staunchly defended Moore against an ethics complaint recently lodged by the Southern Poverty Law Center (see Gavel Grab for background), saying the complaint appeared aimed at influencing the Alabama justices and that it should not have been made public, according to an article.

Moore has argued publicly against marriage for same-sex couples and in February, he ordered Alabama probate judges to ignore a federal court ruling that had declared the state’s ban on same-sex marriage unconstitutional. He has attracted widespread national media attention for his outspoken views. Read more

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Judge Dismisses Lawsuit by Former Chief Justice Abrahamson

U.S. District Court Judge James Peterson has dismissed a lawsuit by former Wisconsin Chief Justice Shirley Abrahamson, contending that she cannot be removed from the role of chief justice at midterm, following voter approval this year of a constitutional amendment that allows members of the Supreme Court to choose the chief.

“Unless its actions are plainly unconstitutional, Wisconsin has the authority and autonomy to restructure its government without interference from the federal government,” Peterson wrote, according to the Milwaukee-Wisconsin Journal Sentinel.

The court’s conservatives, in an email vote, recently selected Justice Patience Roggensack as the new chief. There also were these other news media pieces about court-related developments in Wisconsin: Read more

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Prosser Denies Recusal Was Warranted

Seal_of_the_Supreme_Court_of_Wisconsin.svgWisconsin Supreme Court Justice David Prosser “issued a 15-page opinion explaining why he believed he could participate” in the recent campaign finance decision involving Gov. Scott Walker’s anti-recall campaign, according to the Milwaukee Journal-Sentinel.  Prosser joined the majority of the court in the “John Doe” case, when it ruled that no campaign finance laws were violated by the anti-recall campaign and several conservative groups that were alleged to have coordinated their activities.  The same groups spent significant sums to benefit Prosser’s supreme court campaign and the campaigns of other justices in the majority, and a special prosecutor asked Prosser and another justice to recuse themselves from the case.  Neither did so. (See Gavel Grab.)

“Prosser wrote that outside spending to help him was ‘very valuable to my campaign’ but did not rise to a level that would require him to step down from the challenge to the investigation of those groups,” according to the Journal-Sentinel.

Meanwhile, critics of the Wisconsin high court’s ruling are urging prosecutors to appeal to the U.S. Supreme Court, claiming that the justices who benefited from outside spending, but did not recuse themselves, may have had an unconstitutional conflict of interest.   (See Gavel Grab).

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Op-Ed: WI Prosecutors Should Appeal ‘John Doe’ Case to SCOTUS

In a strongly-worded column for Newsweek, Billy Corriher and Maya Efrati of Legal Progress urge prosecutors in Wisconsin’s recent “John Doe” campaign finance case to appeal the ruling of the Wisconsin_flag_mapstate Supreme Court in that case.

The ruling in the “John Doe” case  effectively halted further investigation of alleged collusion between Gov. Scott Walker’s anti-recall campaign and conservative groups, when the court decided that  there were no violations of campaign finance laws (see Gavel Grab). But Corriher and Efrati argue that because several justices on the court benefited from millions of dollars in campaign spending by those same conservative groups, “Prosecutors have a strong argument that the Wisconsin justices had an unconstitutional conflict of interest.” They argue that the justices who benefited from the spending should have recused themselves, and that since they did not, there are grounds for appeal to the U.S. Supreme Court.

The writers also suggest that the U.S. Supreme Court’s ruling in Caperton v. AT Massey Coal Co. Inc. should serve as a meaningful precedent.  “Caperton has not yet been applied by any lower court to require recusal,” they note. “But if the decision means anything, it must apply to the Wisconsin decision.”


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Opinion: Wisconsin Court Rightly Labeled a ‘Political Body’?

A New Yorker commentary by Lincoln Caplan takes a critical look at the Wisconsin Supreme Court’s recent ruling that quashed a campaign finance investigation involving Gov. Scott Walker, and it suggests the ruling may have national implications.

You can learn more from Gavel Grab about how the issue of judicial recusal was handled in the 4-2 ruling. Caplan wrote this about recusal:  “The highly political nature of the election, or reëlection, of the court’s conservative justices, between 2007 and 2013, and the highly political nature of their rejection of the traditional recusal rule have for half a decade made the court vulnerable to charges that it has become a political body. With their decision to halt a major criminal investigation of the sitting governor, who is running for President, and to do so by gutting the state law regulating campaign finance, the conservatives have confirmed the weight of those charges.” Read more

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Wisconsin ‘John Doe’ Ruling Stirs Ongoing Controversy

630px-Seal_of_WisconsinThe Wisconsin Supreme Court’s ruling that there were no violations of campaign finance laws by Gov. Scott Walker’s anti-recall campaign and conservative groups continues to stir controversy on both sides. The ruling in the “John Doe” case  effectively halted further investigation of the alleged collusion.

In a scorching commentary supporting the ruling, The National Review Online  said the investigation of alleged violations was nothing short of a “witch hunt” perpetrated by state Democrats.  A report in the Wisconsin State Journal noted that the Wisconsin court’s majority described the investigation as a “dragnet” involving “highly publicized raids” of private homes.

But a piece in the LaCrosse Tribune  focused on the failure of several state Supreme Court justices to recuse themselves, although they had benefited from millions of dollars in campaign spending by the same conservative groups at the center of the case.  Prosecutors might have the option to appeal the ruling in federal court, the Tribune suggested, citing legal experts who named the U.S. Supreme Court’s 2009 ruling in the landmark Caperton case as a possible precedent.

In the same Tribune piece a conservative legal scholar disagreed, noting that “if elected judges had to recuse themselves from cases involving groups that donate to their campaigns, then so would judges who were targets of campaign spending,” according to the report.  Rick Esenberg of the Wisconsin Institute for Law and Liberty told the paper that if a broad view of the Caperton decision were adopted, “‘it’s basically impossible to have judicial elections’ because there will always be an array of political parties supporting or opposing judges.”

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