Last Thursday, the Wisconsin Supreme Court finally issued opinions on recusal rules that it adopted earlier in the term and which essentially say that a duty to recuse cannot be be based solely on the receipt of a lawful campaign contribution or a lawful independent expenditure made on a judge’s behalf. The Court also amended a preexisting rule to permit a judicial candidate’s campaign committee from soliciting funds from persons involved in proceedings in which the candidate, if elected or reelected, is likely to participate. 

The majority opinion and dissent continue to reflect the sharp and bitted divisons on the Court. I wish that would get better.

I have an article on judicial recusal coming out in the Wake Forest Law Review, so it’s a subject that I have been thinking about. I have the following quick observations on the Court’s decision. 

First, I think that the rules on the impact of contributions and expenditures are clearly correct – as far as they go. To say that a legal contribution or expenditure cannot be the sole cause of a duty to recuse seems unexceptional to me and is perfectly consistent with the Supreme Court’s decision in Caperton (in which Justice Kennedy repeatedly referred to the unusual nature of the facts involved in that case.)

Of course, this is not to say that a legal contribution or expenditure cannot be a factor – perhaps even a predominant factor – leading to a duty to recuse. Caperton, for example, involved a perfectly legal (albeit very large) independent expenditure coupled with a very significant and imminent case.

To be sure, there is much more to say about what may and may not lead to a duty to recuse – not only with respect to contributions and expenditures, but also with respect to other matters such as candidate speech and support. (It is not apparent that a duty to recuse cannot arise from candidate speech or the endorsement of a litigant or those associated in some way with a litigant. These are some of the things that I try to address in the Wake Forest piece, although whether and to what extent these matters should and can be addressed by rule (and who should make the rule)constitues a different set of questions.

Second, I think Justice Bradley misses the connection between aggressive recusal rules and burdens on political participation. More than Justice Roggensack, I would address, not only the right to vote, but the rights of expression and association regarding judicial elections and related issues. If the price of speech is that your candidate – if successful – can’t act, then your speech has been burdened. While this may be tolerable in the case of individual litigants like the A.T. Massey Coal Co, it becomes more problematic if recusal is based upon support from trade associations and unions. 
In fact, some academics have urged tough recusal standards as a way to suppress what they believe to be improper (although constitutionally protected)campaign speech in judicial elections and as a way to return judicial elections to quiet contests of low salience.

Third, the rule regarding solicitation of funds from litigants or potential litigants presents a slightly different set of concerns. While it doesn’t seem that it alone should create a duty to recuse (such a rule might very well bar, for example, solicitations sent to a union’s membership list or the arrangement of fundraisers in which invitations are sent based upon organizational affiliation or in which potentially interested parties attend and are then asked to contribute), I think that, as the comments suggest, there is a potential such solicitation will to the “something else” that may create a recusal issue.

Fourth, I think the emphasis on who wrote the rule is more about atmospherics than substance. If the rule is a good rule, it doesn’t matter that WMC or the Realtors proposed it. It it is a bad rule, it’d be just as bad if written, in the first instance, by members of the Court.

Cross posted at Shark and Shepherd