There is so much to admire in Justice Janet Protasiewicz's Friday order declining to recuse herself from redistricting litigation that I'm going to take a few days to post excerpts. The full 64-page order, for those interested, is posted here.
Part 2 of this series is here.
Part 3 is here.
Here we go. Her quotes are in italics.
On August 1, 2023, I swore a sacred oath to "faithfully and impartially discharge the duties of [my] office." In taking that oath, I promised — above all else — to decide cases based only on the rule of law, not my own personal opinions. Each of my colleagues has taken the same oath. We all strive to be fair and impartial in our work: "We're people . . . . We have opinions on the issues of the day. Once we put the black robe on . . . we put those opinions aside.
That second quote? Straight from the mouth of Justice Rebecca Grassl Bradley.
Protasiewicz
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As (SCOTUS) Justice (Samuel) Alito has emphasized: "When there is no sound reason for a Justice to recuse, the Justice has a duty to sit." That is true even when a case is controversial, or when my decision may upset those who would rather I step aside. Respect for the law must always prevail. Allowing politics or pressure to sway my decision would betray my oath and destroy judicial independence. As (former SCOW) Justice (David) Prosser has warned, unjustified recusal can affect the integrity of the judicial branch: "Successful recusal motions alter the composition of the Wisconsin Supreme Court, so that, in a very real sense, a party moving for a justice's recusal is trying to change the composition of the court that will hear its case."
Alito is one of the most reactionary SCOTUS justices and a favorite of right wingers everywhere; the conservative Prosser, who allegedly choked Justice Ann Walsh Bradley because she disagreed with him, is a member of the secret group advising Assembly Speaker on Protasiewicz's possible impeachment.
Strict adherence to the law is especially important here. This recusal motion has been filed by a co-equal branch of government. I take its request seriously. I also appreciate that this motion has engendered strong feelings in some quarters among people of good faith. ...
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The Legislature first argues that I must recuse because the Democratic Party of Wisconsin (DPW) made substantial contributions to my campaign ($9.9 million) and would benefit if this court were to order the adoption of new maps. In the Legislature's view, due process prohibits me from hearing this case because a particular possible resolution may benefit a campaign donor.
This claim lacks merit for two reasons. First, the Legislature has not cited — and I have not found — any case in which a judge recused because a political party that was not involved in the litigation had contributed to their campaign. To the contrary, judges of all political affiliations have denied such motions. And justices of this court have repeatedly participated in redistricting cases despite receiving substantial support from politically affiliated groups during their campaigns. For example, no justice recused from Johnson v. Wisconsin Elections Commission (the 2021-'22 term's big redistricting case that left the state grotesquely gerrymandered in favor of Republicans) even though many had received outsized partisan or ideological financial support during their latest campaigns.
Here, the Legislature focuses on contributions that I received from the DPW. But the DPW is not a litigant and plays no role in this case. Rather, this original action petition has been filed by citizens who allege violations of their own individual rights. Those citizens, moreover, are not mere stand-ins for a political party. As voters, they claim to advance legal interests in excluding partisan influence of all kinds from the districting process. Taken at face value, those interests may, in some circumstances, contradict the interests of the DPW. Thus, for me
to recuse myself based on campaign contributions from the DPW — a non-party to this case— would be unprecedented.
The Republicans aren't made about her accepting donations from the Democratic Party, but are crying foul because they think she received too much from the party. It's not clear where that line is — when that additional dollar adds up to "too much" — but Protasiewicz's donations aren't near it, if history counts for anything.
Accepting the Legislature's theory would also raise a swarm of continuing difficulties for each justice. In recent Wisconsin Supreme Court races, the victor has received substantial financial support from a single entity. In 2016, the Wisconsin Alliance for Reform spent $2.6 million supporting Justice Rebecca Grassl Bradley's campaign (comprising 46.2 percent of total spending in that election). In 2018, Greater Wisconsin Committee spent $940,000 supporting Justice Rebecca Frank Dallet's campaign (comprising 17 percent of total spending in that election). In 2019, the Republican State Leadership Committee spent $1.25 million supporting Justice Brian Hagedorn's campaign (comprising 15.2 percent of total spending in that election). In 2020, A Better Wisconsin Together Political Fund spent $1.88 million supporting Justice Jill J. Karofsky's campaign (comprising 18.8 percent of total spending in that election). And in 2023 — where the total amount of money spent in support of both candidates obliterated historical records — the DPW spent $9.9 million supporting my campaign (still comprising only 19.4 percent of total spending in that election). This trend is likely to persist.
It would be unworkable, and again unprecedented, to conclude that the Due Process Clause requires every elected judge to recuse whenever their involvement might be predicted (before they have even cast a vote) to benefit non-parties who supported their campaign. Indeed, this court would grind to a halt if that were the constitutional standard for recusal.
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Protasiewicz takes a moment to quote Justice Brian Hagedorn in his concurrence in County of Dane v. Public Service Commission of Wisconsin: "We have seen bias and recusal allegations increase greatly in recent years, turning the obligation of adjudicator impartiality into a litigation weapon."
She omits some of Hagedorn's further observations in that concurrence: "While citizens have a right to expect judges and other adjudicators to decide cases impartially, this concern does not justify weaponizing bias allegations and recusal to achieve litigation ends. Legitimate claims have their place, but we cannot validate and routinize a litigation tactic that aims its fire at the decision-maker rather than the decision. Recusal and bias claims must not become another missile to be deployed anytime a litigant does not like an adjudicator's decision."
Are you paying attention, Republican legislators?
For that reason alone, the Legislature's argument based on campaign contributions cannot succeed. But there is a separate, second reason: under binding United States Supreme Court precedent, the nature and amount of the DPW's contribution comes nowhere close to requiring my recusal.
Stay tuned for more.
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