The Wages of Speech

thumbnailCAJKLY1BApparently, the Wisconsin Supreme Court is not the only one sharply divided on an array of issues and fighting over questions of recusal. In Michigan, the Supreme Court voted 4-3 to require that individual justices who have denied a motion to recuse themselves explain the reason in writing and to permit the Court to overrule the refusal to step aside. A Detroit Free Press columnist says that the Michigan court has been characterized by “back-biting, name-calling and playground-level cruelty” and adoption of the rule did draw sharply worded dissents. Sound familar?

Locally, there appears to be a concerted effort (spurred, in part, by an internal memo circulated within the State Public Defender’s office) to seek the recusal of Justice Michael Gableman in a number of criminal cases because he has allegedly expressed a general bias against criminal defendants. Justice Gableman has refused to step aside (the rationale for the motions would apply in every criminal case), and it is unclear whether the Court can compel him to do so.

I think the controversy raises some interesting questions about the interaction between campaign speech and recusal. I am writing a paper on the topic and thought I’d test drive a few of the arguments here as applied to our local controversy.

There are, it seems, constitutional implications on both sides of a request for recusal stemming from campaign speech. In its recent Caperton decision, the United States Supreme Court announced a due process of recusal in cases when a judge’s impartiality might be questioned. The standard announced in Caperton (recusal is required when there is some sufficient “probability of bias) is broad in theory, although the majority seemed to think that it would not be in practice. Although Caperton involved potential bias stemming from independent campaign expenditures on a justice’s behalf, there is no reason that it could not apply to campaign speech.

In Republican Party v. White, the Court also announced a strong constitutional right to free speech in judicial elections. For a variety of reasons that I won’t get into, there is a real tension – even if Anthony Kennedy does not yet see it – between having a right to speak and requiring recusal as a consequence of that speech.

I do think that there is a strong argument for recusal when a judge has exhibited a bias in favor of or against a particular class of litigants – when, as Justice Scalia puts it,  there is reason to believe that a judge will not apply the law in the same way to everyone (as opposed, for example, to a judge that has announced his or her views on a legal issue).

But distinguishing between the two is not always easy. For example, a judge who says that the courts have gone “too far” in protecting the rights of criminal defendants has arguably done nothing more than express a legal view about constitutional construction and the relative balance between protections for the accused and public safety.

If that’s so, does a judge exhibit bias if he (arguably) goes as step further by saying that he will be “tough on crime” and “protect the public” from the depradations of criminals? There are those – including the state bar’s Judicial Campaign Integrity Committee – who believe that is indeed a step too far.

This seems to be an untenable position, inconsistent with White. Think of a candidate like recently elected Michigan Supreme Court Justice Diane Hathaway who promised to “stand up for middle-class families” instead of “siding with big insurance companies …”? Louis Butler ran a similar  ad making a somewhat more modulated claim during the 2008 campaign. (For a humorous, if somewhat demagogic, example of the genre from a recent race in Michigan, watch the first ad in this compilation.)

The rationale behind the recusal motions filed against Michael Gableman are primarily (although not quite entirely) based on the now infamous Reuben Mitchell ad and certain statements made by Gableman’s lawyer, Jim Bopp, in the course of defending Justice Gableman on ethics charges stemming from the ad. Bopp suggested that the purpose of the ad was to allow people to decide whether they wished to elect someone who would defend a man like Mitchell  thereby “subvert bringing criminals to account.”

The Mitchell ad should not have been run. It was misleading and unfair. Although I know and like Mike Gableman, it certainly reflects an exercise of poor judgment on his part. I had nothing to do with the Gableman campaign, but, had I been asked, I certainly would have strongly advised against it.

But the propriety of the ad (or whether he should be disciplined for running it) is not precisely the question when it comes to recusal. Rather, we should want to know whether the ad reflects – or creates an impermissable appearance of – bias against a class of litigants. While that question is certainly related to its truth or fairness, it cannot be reduced to that. Our own Greg O’Meara sums up the argument for recusal when he argues, presumably based on Bopp’s statement and this ad, that “Justice Gableman apparently believes that at least some defendants are appropriately condemned without representation, or trial, appeal or other unbiased process ….”

That would indeed be an example of bias against a class of litigants and would raise serious due process concerns. But is that what Justice Gableman believes? How far should we go in inferring a judge’s position from thirty second campaign spots?

For example, in her recent reelection campaign, Chief Justice Shirley Abrahamson ran an ad in which a police officer claims that the “Chief is law enforcement’s ally.” Granted that the word “ally” could be understood to mean a number of things, the most reasonable interpretation is that she is on the same “team” as the police and prosecution. Is that an accurate statement of the judicial role? Does it suggest bias against a class of litigants?

Of course, there will be no recusal motions filed by defense counsel as a result of this ad. The Chief Justice has consistently been one of the most “pro-defendant” members of the Court and no one believes that she really regards herself as a member of the law enforcement team. The ad is seen as a type of “puffery” – one of those things that you must say in a campaign but that should not be taken literally.

This suggests that a broad recusal duty based on campaign speech is not only constitutionally problematic, but a potential source of mischief and justice shopping. Campaign ads, sadly, are not necessarily a good source of information about candidates. Justice Scalia’s tongue was only partly in his cheek when he said, in White, that campaign speech may be among the least binding forms of human commitment.

But certainly there can be some statements that go too far. Imagine a judge who claims that he will not recognize the rights of blacks or Catholics. Can we see the Gableman statements in this way? It is certainly a much stronger statement than the Abrahamson ad.

I don’t think that – for purposes of recusal – we can limit ourselves to the content of the ad. In this sense, recusal based on campaign speech may differ from the one-off type of expenditure made in Caperton. If you buy into the majority’s analysis, nothing else that we might take into account removes the appearance of bias because it is based on the possibility of an improper analysis (“a debt of gratitude) that can never be detected. Here, the argument is that the ad can be construed to imply that Justice Gableman believes that criminal defendants should not be defended and that the recognition of their rights is a subversion of justice. But that is not a necessary construction. He may have been trying to say that  a former defense attorney will be overly inclined to rule in favor of criminal defendants. There are, I think, problems with saying that and the Mitchell ad was a clumsy and misleading way to say it, but that doesn’t establish the fact or appearance of a systemic bias.

Nor is it the ad the sum of what we know about the man. He sat on the circuit court for a number of years and apparently ruled favorably to criminal defendants in enough cases to provide fodder for the Greater Wisconsin Committee to accuse him of being weak on child sex predators.

Of course, even if Justice Gableman does not really believe criminal defendants have no rights and did not expressly say so, perhaps avoiding the “appearance of bias” requires recusal. The Caperton Court certainly recognized that the appearance of bias can raise due process concerns.

This strikes me as an overly aggressive reading of Capertonand fundamentally at odds with Wisconsin’s choice, for better or worse, to elect justices to the Supreme Court. While impartiality is critical, the fashioning of standards for recusal ought to be informed by the fact that the voters have elected particular individuals to sit on a law developing court of last resort. Removal of one of those individuals frustrates their choice. Thus, it seems to me, it ought to take a rather extraordinary showing of bias to remove an elected justice from an entire class of cases. Perhaps there might be a case where a single campaign ad could meet that burden, but I don’t think we have that case here.

This Post Has 2 Comments

  1. Andrew Golden

    I hadn’t heard about the internal SPD memo, but I will say that Gableman’s comments during the election gave me great pause. If I were appealing a criminal case to the Wisconsin Supreme Court, I don’t know that I’d really be comfortable arguing before someone who has made public comments that, at the very least, imply that he has a bias against my client before even hearing the case. Put another way: if he made the same comments about insurance companies or product manufacturers or any other traditional “big business bad guy,” would you still feel it wasn’t worth a recusal on cases involving the category he was referring to?

    Look, my positions on judicial elections are well-documented on this blog, and I think we both know we’ll agree to disagree on that one. To a large degree, this is the monster that’s created when you have elections; society isn’t satisfied with “I’ll decide when I review the facts of the case,” and they will vote accordingly. But surely you’d agree that it undermines the authority of a “court of last resort” if its members — and I’m not limiting this to Gableman by any means — openly root for a given side?

    And another point: if this was a criminal case on the circuit court level, I’d have a litany of methods to ensure my client got a fair trial in the face of comments like these that imply bias. If they came from the judge, I can substitute at the initial appearance/intake court, or I can file a motion for recusal up the chain of command. If it were from a jury member, I could challenge them for cause, and I’d probably get the strike (or I could strike them with a peremptory challenge). And, if the deck is so stacked against my client that it borders on ludicrous, I can appeal it up the system. But without forced recusal of a sitting justice, what exactly are the checks in place to prevent bias from being applied? And, even if the decision he makes is unbiased, how can we distinguish the “unbiased decision” from the “anti-defendant decision made because he dislikes criminals” or the “pro-defendant decision made because he dislikes criminals but is trying too hard to make it look like he doesn’t”? Isn’t that just a headache that we don’t need to be dealing with?

  2. Sean Samis

    I wanted to take some time out from studying for my finals to make a couple of brief comments on this topic. You wrote that “there is a real tension between having a right to speak and requiring recusal as a consequence of that speech.” Like Justice Kennedy, I don’t see it. Recusal is not a punishment. Judges who are required to recuse do not lose pay, benefits, or seniority. No judge has a right to participate in any particular decision, and if a judge does have some putative interest in participation, that interest argues AGAINST their participation. Whatever this judicial interest might be, it cannot trump the essential interest the parties have in judgments from fair and impartial Courts.

    Likewise, campaign speech is entirely voluntary and self-serving. I know it is horrible to say, but if a judge makes unwise comments that force them to recuse, they have no one to “blame” but themselves. Whatever became of taking personal responsibility anyway?

    It is too generous to characterize Justice Gableman’s Mitchell ad as “misleading and unfair”; it was not even that good. Justice Gableman escaped sanctions only because a majority of the Court decided Justices are held to a standard of conduct lower than used-car salesmen. Chief Justice Abrahamson’s ads may have used “puffery,” but at worst it was the candidate’s vague puffery about herself. Gableman’s dishonest ads made specific and false “factual” claims about his opponent. Puffery and fraud have long been distinguished.

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