Signing a Recall Petition Does Not Require Judicial Recusal

We live in interesting times.  A segment of the general public is quick to forgive the killing of two young men in Slinger, Wisconsin and Sanford, Florida as the unavoidable consequence of the exercise of a constitutional right.  Yet at the same time, state court judges who have exercised their constitutional right of self-governance by signing a recall petition are being publicly called out by both special interest groups and the media, as if by signing the petition they have transgressed some moral boundary.  These are interesting times, indeed.

The signing of a recall petition is a right guaranteed by Article XIII of the Wisconsin Constitution.  It is a procedure whereby any voter can request that the continuation in office of an elected official in the State of Wisconsin should be put to the vote of the full electorate.  If a sufficient number of voters sign the petition, a recall election is held.  A recall can only succeed in removing the officeholder if both a sufficient number of recall signatures are filed and a majority of the electorate votes in favor of removal.  The Recall is democratic self-governance in its purest form, and along with the Initiative and the Referendum it is one of the three structural vehicles by which Progressive Era voters sought to bypass the influence that special interests hold on elected bodies.

The Wisconsin GOP has filed an official complaint against Dane County Circuit Court Judge David Flanagan with the Judicial Commission on the grounds that the judge should have recused himself in a case challenging the constitutionality of the Wisconsin Voter ID law.  Must judges who have signed a recall petition subsequently recuse themselves from sitting on any case in which the Governor, or Republican legislators, or the Republican Party of Wisconsin asserts that the signing of the petition evidences a bias against them?  The answer is “no.”  There is no explicit provision that prohibits judges from signing a recall petition or that mandates that they recuse themselves from any politically charged case if they have done so.

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In Praise of Flip-Floppers (Part II)

In my last post I scrutinized the tendency for contemporary political discourse to use the pejorative term “flip-flop” to refer to virtually any change of position by a candidate for public office. I argued that this usage uncritically discounts the possibility that some position changes are not only entirely justified, but should, if anything, improve our perception of a candidate, and that the likely effects are excessive cynicism and an exaggerated sense of the value of consistency. In this post, I want to add one more argument to the critique: contemporary usage is also problematic because it tends to attack position changes without regard for the public office the candidate seeks, and thus fails to appreciate how the particular constitutional function of the office might make a candidate’s shifts more or less problematic.

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Falk: Walker’s Values Are Not Wisconsin’s Values

The almost-certain upcoming recall election for governor will be a chance for Wisconsinites to re-assert what their values are when it comes to government, Democratic candidate Kathleen Falk said Wednesday at Marquette University Law School.

That, in her view, means the election will lead to the defeat of Gov. Scott Walker, the Republican who “has so torn this state apart and exercised such an extreme far right agenda.” The values that underlie Walker’s actions since he became “aren’t our values,” Falk told Mike Gousha during an “On the Issues” session at Eckstein Hall. The event can be viewed by clicking here.

The recall election could be coming quickly, depending on how soon the state’s Government Accountability Board acts, and the Democratic field has not yet fully taken shape. But Falk has drawn the most support so far of those Democrats who say they intend to run.

The most highly publicized part of Falk’s campaign has been her pledge to veto any state budget bill that does not restore the collective bargaining powers of public employee unions that were taken away last year in action spurred by Walker. Her pledge earned her endorsements from major unions but criticism on the editorial pages of some state newspapers.

Falk told Gousha and the audience that it wouldn’t be effective to introduce a bill to reverse last year’s action that stripped public unions of almost their powers. Calling a special session of the Legislature wouldn’t work either. Republicans are very likely to remain in control of at least the Assembly and they would block any action by those routes.

That makes taking a firm stand to veto the budget unless it restores union powers the only realistic path she could take as governor, she said.

“The only bill that has to pass every two years – there is only one – is the budget bill,” Falk said. “That is why Gov. Walker eliminated collective bargaining by the budget bill. That’s how you have to restore it. And if you are not willing to go to the mat and say truthfully how you will do it . . . then you are not honoring the million people who signed that petition (to recall Walker) and it isn’t being open and honest. I thought campaigns were about telling people what you’re going to do and how you’re going to do it.”

Gousha asked her whether such a stand could be bring deadlock over the budget. “Those Assembly Republicans will see that the vision they had has been rejected by Wisconsin citizens, and I believe they will be in a more compromising mood, and that is what a budget bill is about,” Falk said.

Falk said she was successful as Dane County executive in running a government that was frugal with money and willing to change as financial circumstances changed. She said she worked well with people of all political views and was able to get unions representing Dane County workers to make concessions by convincing of them of the need for “shared sacrifice.”

She emphasized her personal story, including her childhood living in Milwaukee and Waukesha County, and referred to herself several times as “the granddaughter of a bus driver from Milwaukee.”

Gousha said at the end of the conversation that the Law School policy is not to take political sides and major candidates for major offices from both parties have been invited to “On the Issues” sessions. He said Walker has had an open invitation but has not accepted the offer since taking office 14 months ago.

Continue ReadingFalk: Walker’s Values Are Not Wisconsin’s Values
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