Patrick Marley

Milwaukee Journal Sentinel

MADISON - Conservatives on the Wisconsin Supreme Court shot down a proposal Thursday to overhaul rules that determine when judges and justices must step aside from cases involving those who spent money in their elections.

The decision keeps in place a 2010 rule that has faced criticism because it allows judges to stay on cases affecting their biggest financial backers.

The justices voted 5-2 to toss aside a rule change proposed in January by 54 retired jurists that would have forced judges off cases involving those who helped get them on the bench. Conservatives who control the court said the proposal would interfere with the free speech rights of those who run ads and engage in other campaign-like activity.

"I believe as a matter of law it cannot stand constitutional or structural scrutiny," Justice Annette Ziegler said of the proposed rule. "The petitioners here have asked us to do something that does not comport with the constitution as I view it."

Justice Shirley Abrahamson disagreed, saying tighter rules were needed to boost the public's confidence that judges were acting impartially.

"I see nothing in the Wisconsin Constitution or the U.S. Constitution that says that this court can't make reasonable recusal rules," Abrahamson said.

In 2010, the court narrowly adopted a rule that says spending on elections, on its own, is not enough to force a judge or justice off a case.

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The retired judges wanted the court to revisit that policy, but the justices rejected the idea after an hour of debate.

Opposing the rule changes were Chief Justice Patience Roggensack and Justices Rebecca Bradley, Michael Gableman, Daniel Kelly and Ziegler. Supporting the rule change were Abrahamson and Justice Ann Walsh Bradley. (The Bradleys are not related.)

The retired judges who asked for the rule to be rewritten argued there should be a bright line for conflicts of interest to make it clear when judges cannot hear cases. They contended such a rule is essential because money has flooded into high court races over the last decade, much of it spent by special interests running so-called issue ads that face no spending limits.

The justices received written comments from individuals and groups on both sides of the issue, but decided Thursday they would not hold a public hearing to get more input before deciding what to do. Ann Bradley criticized her colleagues for not taking such testimony.

"To shut it down without a hearing and without comment just undermines the public trust and confidence that is so important for the integrity of this court," she said. "What's so threatening about hearing what people in this state want to tell us?"

But conservatives suggested taking up the proposal would damage the public's view of the state's courts. Kelly said judges are capable of determining on their own when they must step aside from a case.

"The question is whether we should tell judges and the state that we don't trust them to do that," he said. "I think that's caustic and inappropriate and an unnecessary thing for us to do."

"Every judge and justice in Wisconsin should be highly offended by this petition because it attacks their integrity," said Rebecca Bradley.

In a filing to the court, Rick Esenberg and others with the conservative Wisconsin Institute for Law & Liberty argued the proposal would infringe on free speech.

“Money is speech, or more accurately, speech requires money,” Esenberg and the others wrote. “When the state restricts the ability of people to spend money on expression, it is restricting expression itself.”

But attorneys with the Campaign Legal Center, a national group that supports limits on campaign spending, argued it is essential that the court revisit its disqualification rules because state lawmakers last year rewrote the law to make it plain that candidates can work closely with groups that don't disclose their election spending.

"Because coordination is now legally permissible between judicial candidates and so-called 'issue advocacy' organizations, this court cannot rely on campaign finance laws to guard against the appearance or reality of corruption, much less to protect due process and the public perception of the judiciary," attorneys Brendan Fischer and Catherine Hinckley Kelley wrote in a filing last month.

Under the proposal, circuit court judges would have had to step aside if they received $1,000 or more from a litigant or attorney in a case. The threshold would be $2,500 for appeals judges and $10,000 for Supreme Court judges.

The same limits would apply to donations to issue groups that spend in judicial races.

Donors are allowed to directly give up to $20,000 to candidates for Supreme Court. Under the proposed rule, justices would have had to recuse themselves in a case if someone before them had given half that amount or more.

Thursday's debate was tense at times, with justices alluding to upcoming elections where they could face questions about donations they have received. There were also moments of levity, with the justices acknowledging the infighting that has marked the court for years.

"I think," Abrahamson joked as they wrapped up their debate, "we maybe need a therapy session, but that's not for me to say."