Wisconsin Supreme Court justices weigh in on the recusal issue

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In 2010 and 2011, Wisconsin Supreme Court justices issued nearly 200 opinions. In 18 of these, one or more justices declined to participate, usually without explanation. Eight of these cases involved attorney discipline.

For instance, Justice David Prosser, a former Republican member of the state Assembly, declined to take part in the court's September 2010 decision (PDF) to reinstate the law license of Gary George, a former Democratic member of the state Senate who served time in prison for accepting kickbacks. Prosser also did not take part in the court's earlier order (PDF) suspending George's license.

The remaining recusals involved four criminal and six civil cases. Sometimes the reason is apparent, as when Justice Annette Ziegler declined to review an appeal by a sexual predator whose case she had presided over as a circuit court judge.

Justices can also recuse themselves from decisions over which cases to accept for review. In 2010 and 2011, this happened 46 times, out of nearly 1,500 petitions for review. There were 54 recusals, including cases in which more than one justice bowed out. Ann Walsh Bradley, Ziegler, Patrick Crooks and Prosser had the most recusals, between 11 and nine each; Michael Gableman had the least, at three.

Wisconsin's Supreme Court justices divide sharply on the recusal issue. Chief Justice Shirley Abrahamson and Justices Ann Walsh Bradley and Patrick Crooks have sought stricter standards, while Justices David Prosser, Patience Roggensack, Annette Ziegler and Michael Gableman have voted to let judges take part in cases involving campaign supporters and against allowing a court majority to force a justice's removal.

David Prosser

"Because the preservation of the court as an institution is more important than any case or any member of the court, I believe we must reject the notion that we possess the power to prevent each other from participating in individual cases."

-- Feb. 11, 2010 opinion in State v. Allen (PDF)

Patrick Crooks

"Amending the statute to include a true objective standard would ensure that when a recusal motion is brought based on a judge's having received campaign contributions, the motion would be evaluated under an objective test rather than the judge's subjective determination."

-- Sept. 16, 2010 testimony (PDF) to a Legislative Council committee

Patience Roggensack

"It is the fundamental right of each elector to cast an effective vote for the office of judge. When an unbiased judge is removed from hearing a case or cases by the operation of recusal rules, the recusal defeats the votes of the electorate that were cast for that unbiased judge."

-- Sept. 7, 2010 testimony (PDF) to a Legislative Council committee

Shirley Abrahamson

"I am disappointed that my colleagues on the Supreme Court do not come back to the table to reconsider amending the Code of Judicial Conduct in light of [recent developments regarding recusal].... The time has come to beef up the safeguards that keep our justice system secure."

-- Sept. 16, 2010 testimony (PDF) to a Legislative Council committee

Annette Ziegler

"The writings of Chief Justice Abrahamson and Justice Crooks [would potentially allow] an attack on virtually any justice for any reason and allow litigants to 'pick their court' by filing recusal motions against certain justices and not others."

-- Feb. 11, 2010 opinion in State v. Allen (PDF)

Ann Walsh Bradley

"If this court is unwilling or unable to keep its own house in order, perhaps it will require action by others to step in and assist in maintaining the integrity of the court and preserving the public trust and confidence that Wisconsin judges will be impartial."

-- July 7, 2010 dissent to Supreme Court's revision (PDF) of its recusal rules

Michael Gableman

"As with the U.S. Supreme Court, [in Wisconsin] there is no one to replace a justice on our court who recuses himself or herself from a case. A justice simply should not withdraw from a case because of 'partisan demands, public clamor or considerations or personal popularity or notoriety.'"

-- Jan. 20, 2012 order (PDF) rejecting recusal requests

Bill Lueders is the Money and Politics Project director at the Wisconsin Center for Investigative Journalism. The project, a partnership of the Center and MapLight, is supported by the Open Society Institute.

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