Something Is Rotten in the State of Wisconsin
Posted by judicialethicsforum on Tuesday, November, 24, 2009
The Wisconsin Supreme Court recently became the first state court to take post-Caperton, rule-based action. (Michigan recently became the second; for more information, click here.) Putting the merits to the side — ignoring them altogether, actually — the Wisconsin Supreme Court should be commended for taking expeditious action following the Supreme Court’s groundbreaking Caperton decision. The praise ends there, unfortunately. In a puzzling, recalcitrant move, the court adopted two rule amendments that appear to ignore both Caperton and its interpretation of the Due Process Clause. Combining the amendments, they essentially state that contributions or expenditures — from any source and irrespective of amount — to elective judges in Wisconsin do not alone warrant recusal/disqualification. That is not a brief restatement, but rather, a nearly exhaustive statement of the amendments (to verify, click here and here for the full text of the adopted amendments). A state supreme court rule purporting to limit the reach of Caperton and constitutional due process seems anomalous; how such amendments are anything but scoffing and heel-digging remains to be explained. Interestingly, the vote of the court was a deep split of 4-3, with Justice Gableman in the majority.
One point of caution, at this early stage, is that we are reading from mere tealeaves. The Wisconsin Supreme Court has not as yet published its orders or issued a press release. One can hope that the court will explicate in what ways, if any, these amendments constitute learned contributions to the law of disqualification.