Stephen Joseph Wright v. Wisconsin Elections Commission

2023 WI 67NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2023AP1412-OA
STATE OF WISCONSIN : IN SUPREME COURT
Stephen Joseph Wright, Gary Krenz, Sarah J.
Hamilton, Jean-Luc Thiffeault, Somesh Jha,
Joanne Kane, and Leah Dudley,
Petitioners,
v.
Wisconsin Elections Commission; Don Millis,
FILED
Robert F. Spindell, Jr., Mark L. Thomsen, Ann
S. Jacobs, Marge Bostelmann, Joseph J. Oct. 6, 2023
Czarnezki, in their official capacities as
Members of the Wisconsin Elections Commission; Samuel A. Christensen
Clerk of Supreme Court
and Meagan Wolfe, in her official capacity as
Administrator of the Wisconsin Elections
Commission,
Respondents.
MEMORANDUM DECISION AND ORDER OF
JUSTICE JANET C. PROTASIEWICZ
No. 2023AP1412-OA
Before JANET C. PROTASIEWICZ, J.
¶1 On August 1, 2023, I swore a sacred oath to "faithfully
and impartially discharge the duties of [my] office."1 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."2
¶2 Here, individual Wisconsin citizens ask the court to
hear an original action concerning the State's legislative
districts. The Wisconsin Legislature seeks to intervene and has
asked me to recuse.3
See Wis. Stat. § 757.02(1) (2021-22) (setting forth the oath
1
of office for judges and justices). All subsequent references to
the Wisconsin Statutes are to the 2021-22 version unless otherwise
indicated.
Patrick Marley, Election 2016: Bradley, Kloppenburg Clash
2
Again During Debate, Milwaukee J. Sentinel (Mar. 17, 2016)
https://www.jsonline.com/story/news/politics/elections/2016/03/1
8/election-2016-bradley-kloppenburg-clash-again-during-
debate/84898270 (quoting Rebecca G. Bradley).
3 I refer to the movant as "the Legislature."
2
No. 2023AP1412-OA
¶3 Recusal decisions are controlled by the law. They are
not a matter of personal preference. If precedent requires it, I
must recuse. But if precedent does not warrant recusal, my oath
binds me to participate. As Justice Alito has emphasized: "When
there is no sound reason for a Justice to recuse, the Justice has
a duty to sit."4 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 Justice 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."5
¶4 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
4 Moore v. United States, No. 22-800, at 1 (U.S. Sept. 8,
2023) (Statement of Alito, J.).
5 See Appendix B, Justice David T. Prosser's Decision
Accompanying Order Denying Mot. for Recusal, State ex rel. Three
Unnamed Petitioners v. Peterson, Nos. 2013AP2504-08-W, at 9 (Wis.
July 29, 2015).
3
No. 2023AP1412-OA
this motion has engendered strong feelings in some quarters among
people of good faith.
¶5 In deciding this motion, I have searched the law books—
—and my conscience——to ensure a correct and impartial ruling. I
have reviewed the parties' arguments. I have studied the facts.
And I have examined every relevant precedent. Ultimately, I have
found I must deny the recusal motion. Before turning to my full
analysis, I will summarize why I have reached that conclusion.
I. SUMMARY
¶6 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.6
¶7 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,
The Legislature presses this argument in reliance on
6
Caperton v. A.T. Massey Coal Company, Inc., 556 U.S. 868, 129 S.
Ct. 2252, 173 L. Ed. 2d 1208 (2009), which I discuss at greater
length below.
4
No. 2023AP1412-OA
judges of all political affiliations have denied such motions.7
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, 2022 WI 19, 401 Wis. 2d 198, 972 N.W.2d 559, even
though many had received outsized partisan or ideological
financial support during their latest campaigns.8
¶8 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
7See, e.g., Harper v. Hall, 867 S.E.2d 326 (N.C. 2022);
Dickson v. Rucho, 735 S.E.2d 193 (N.C. 2012).
8See Derek Clinger & Robert Yablon, Explainer: Judicial
Recusal in Wisconsin and Beyond, State Democracy Research
Initiative, at 26-28 (Sept. 5, 2023), available at:
https://uwmadison.app.box.com/s/k2bx0l2b9vwsgiqfl4sfoiwt8m3j43qc
(discussing examples involving Justices Rebecca Grassl Bradley,
Rebecca Frank Dallet, Brian Hagedorn, and Jill J. Karofsky).
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No. 2023AP1412-OA
to recuse myself based on campaign contributions from the DPW——a
non-party to this case——would be unprecedented.
¶9 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.9
9 The facts in this paragraph are drawn from Clinger & Yablon,
supra note 8, at 26-28.
6
No. 2023AP1412-OA
¶10 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. We would be flooded
with requests for "conservative" or "liberal" justices to recuse
whenever a case involved issues of great social or political
importance to any major campaign funder. See County of Dane v.
Pub. Serv. Comm'n, 2022 WI 61, ¶91, 403 Wis. 2d 306, 976 N.W.2d
790 (Hagedorn, J., concurring) ("We have seen bias and recusal
allegations increase greatly in recent years, turning the
obligation of adjudicator impartiality into a litigation
weapon."). In a system of elected judges, it is inevitable that
outside groups and political parties will support candidates whose
judicial philosophies are hoped to align with their own worldviews.
When those groups participate in a case as litigants, recusal may
well be warranted as a matter of good judgment (though it is not
currently required by Wisconsin law).10 Yet it would turn precedent
on its head, and confound the administration of this court, for
justices to recuse whenever a possible outcome of a case could
10 See SCR 60.04(7).
7
No. 2023AP1412-OA
potentially be seen as beneficial to a non-party campaign
supporter.11
¶11 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.
¶12 In this respect, the Legislature's position is
foreclosed by Caperton v. A.T. Massey Coal Company, Inc., 556 U.S.
868 (2009). Caperton is the first and only decision of the United
States Supreme Court to require judicial recusal based on campaign
contributions. And the facts of that case were "exceptional."
Id. at 884. While a case was pending against his company, a CEO
spent $3 million promoting the election of a judge who won a spot
on West Virginia's highest court by merely 50,000 votes——and who
then cast the deciding vote to overturn a $50 million verdict
against the CEO's company in that very same pending case. Id. at
873-76. The CEO's $3 million in donations, moreover, had totally
11In reaching this conclusion, I do not foreclose the
possibility that Caperton could require an elected judge to recuse
based on contributions from a non-party. But cases involving
campaign contributions from a political party are an especially
weak fit for that possibility. Indeed, many states have partisan
judicial elections, and it has not been suggested that party-
backed judges must recuse from all cases where the outcome could
matter to their party.
8
No. 2023AP1412-OA
flattened the field: it vastly exceeded the amount spent by all
other supporters of the judge; it was more than three times the
amount spent by the judge's own campaign committee; and it
surpassed by $1 million the total amount spent by the campaign
committees for both of the candidates combined. See id. at 873.
¶13 Caperton recognized that its rule would apply only in
"rare instances." Id. at 890; see also id. at 887 ("The facts now
before us are extreme by any measure."). Indeed, "nowhere in the
Caperton decision does the Supreme Court state that any lesser
fact situation would have required [the judge's] recusal in that
case, and nowhere does the Supreme Court conclude that he would be
required to recuse himself from an unrelated civil case that
involved different parties." State v. Allen, 2010 WI 10, ¶269,
322 Wis. 2d 372, 778 N.W.2d 863 (Ziegler, J., concurring).
¶14 Here, as explained above, the Legislature seeks recusal
in an "unrelated civil case that involve[s] different parties."
Id. Moreover, this is obviously a "lesser factual situation."
Id. In Caperton, the CEO spent 300 percent more than the judge's
campaign committee; here, the DPW's contribution was only 57
percent of the spending by my campaign committee, and was merely
33 percent of the total spending in support of my campaign. In
Caperton, the CEO's donations fully eclipsed all other spending in
the election; here, the DPW's contribution was just 19 percent of
all spending on the race. In Caperton, the CEO's expenditures
9
No. 2023AP1412-OA
were concerning partly because his favored judge won by only 50,000
votes; here, I defeated Justice Kelly by a decisive 11 percent of
the vote (the very same margin by which Justice Kelly lost to
Justice Karofsky only three years earlier). And in Caperton, the
CEO spent $3 million while his own case was already pending before
the West Virginia courts; here, these original action petitions
were filed months after the election had already concluded.
¶15 Under Caperton, these distinctions make all the
difference. The DPW's contribution was too small a percentage of
my campaign committee's fund, and too small a percentage of the
overall spending on the race, to warrant my disqualification——
especially given that the election was not close and this original
action petition was not even pending at the time. While the total
amount of the DPW's contribution was surely substantial, the 2023
election broke all historical records in Wisconsin. Compared to
total election spending, it falls far short of Caperton's recusal
standard.
¶16 This brings me to the Legislature's second argument:
that the Due Process Clause of the United States Constitution
requires recusal because, while campaigning, I described the
legislative maps as "gerrymandered," "rigged," and "unfair," and
I expressed disagreement with the Johnson case (which ordered the
adoption of these maps). The Legislature views this as legally
impermissible.
10
No. 2023AP1412-OA
¶17 There are two fundamental issues with the Legislature's
position. The first is factual. While making many of the
statements that the Legislature spotlights, I also emphasized that
these were descriptions of my personal "values," not pledges of
"what I'm going to do on a particular case." Elsewhere, I
explained: "I plan to follow the law. I tell you what my values
are because I think that Supreme Court candidates should share
with the community and the electorate what their values are.
Nonetheless, I will uphold the law [and] follow the Constitution
when I make any decisions. Nothing is prejudged." I also made
clear: "[W]hat my real values are and what's going to happen in
a case can be two different things, right? I mean, follow the
law, you look at the case law, you look at the statutes, you look
at the constitution, and you follow where . . . it leads you."
And again: "I follow laws I don't always necessarily like or agree
with. You follow the law."
¶18 These statements——and there are many of them——expressed
my fundamental commitments as a judge. I will set aside my
opinions and decide cases based on the law. There will surely be
many cases in which I reach results that I personally dislike.
That is what it means to be a judge. See Caperton, 556 U.S. at
891 (Roberts, C.J., dissenting) ("All judges take an oath to uphold
the Constitution and apply the law impartially, and we trust that
they will live up to this promise.").
11
No. 2023AP1412-OA
¶19 The second issue with the Legislature's position is that
it is foreclosed by federal precedent. As two legal experts
recently explained, "[n]o Supreme Court case has ever held that
due process required a judge to recuse because of the judge's
expression of views, whether on the campaign trail or elsewhere.
In fact, the Court has rejected several such claims."12 Thus, "[no]
decision of the [United States Supreme] Court would require us to
hold that it would be a violation of procedural due process for a
judge to sit in a case after he had expressed an opinion as to
whether certain types of conduct were prohibited by law." FTC v.
Cement Inst., 333 U.S. 683, 702-03 (1948).
¶20 More recently, the United States Supreme Court struck
down a Minnesota rule that banned judicial candidates from
announcing their views on disputed legal or political issues. See
Republican Party of Minn. v. White, 536 U.S. 765 (2002). Writing
for the Court, Justice Antonin Scalia made clear that "[a] judge's
lack of predisposition regarding the relevant legal issues in a
case has never been thought a necessary component of equal justice,
and with good reason." Id. at 777. "For one thing, it is virtually
impossible to find a judge who does not have preconceptions about
the law." Id. Nor should anybody want to elect such a judge:
"Proof that a Justice's mind at the time he joined the Court was
12 Clinger & Yablon, supra note 8, at 10.
12
No. 2023AP1412-OA
a [blank slate] in the area of constitutional adjudication would
be evidence of lack of qualification, not lack of bias." Id. at
778 (quoted source omitted). The truth is that "avoiding judicial
preconceptions on legal issues is neither possible nor desirable."
Id. And it would violate the First Amendment to "censor what the
people hear as they undertake to decide for themselves which
candidate is most likely to be an exemplary judicial officer."
Id. at 794 (Kennedy, J., concurring).
¶21 Consider the point practically. Many other justices
have written opinions expressing strong views on the legality of
the current legislative maps.13 Only a month ago, one justice wrote
an opinion in this very proceeding that describes the mere
consideration of this original action petition as a "mockery of
our justice system."14 No other justice has decided that they must
recuse, even though their prior writings (including from just last
year) might indicate firm preconceptions of certain issues in this
action. And if prejudgment is the concern, their writings are
just as relevant as my campaign remarks. As Justice Scalia
explained, "we doubt . . . that a mere statement of position
13 See generally Johnson, 401 Wis. 2d 198.
See Wright v. Wisconsin Elections Comm'n, No. 2023AP1412-
14
OA, unpublished order (Wis. Aug. 15, 2023) (Rebecca Grassl Bradley,
J., dissenting), available at: https://acefiling.wicourts.gov/
document/eFiled/2023AP001412/692191.
13
No. 2023AP1412-OA
enunciated during the pendency of an election will be regarded by
a judge as more binding . . . than a carefully considered holding
that the judge set forth in an earlier opinion." Republican Party,
536 U.S. at 781.
¶22 Simply put: If issuing an opinion does not disqualify
a judge from hearing future cases that involve similar issues,
then neither does expressing agreement with an opinion or
describing my values about political issues. That is particularly
true here, where I made no pledge about the result of any case,
where I repeatedly disavowed any such pledge or promise, where
this case did not even exist during my campaign, and where I made
clear I will vote based only on the rule of law.15
¶23 That leaves only the Legislature's contention that my
recusal is required by Wis. Stat. § 757.19(2)(g) and (f).
Paragraph (g) simply requires me to make the subjective
determination that I can decide this case impartially both in fact
and appearance. I have determined that I can do both. Paragraph
(f) requires me to determine whether I have a "significant personal
interest" in the outcome of this case. The Legislature claims
that I have a personal interest in keeping my word by invalidating
This conclusion follows from all the precedents cited
15
herein and also under an application of the objective "actual bias"
standard from the Caperton case (which applies to campaign
statements, as well).
14
No. 2023AP1412-OA
Wisconsin's legislative maps. That argument fails because I made
no promise or commitment to voters about how I would decide any
case. I simply expressed my personal opinions as permitted by
Republican Party. When I put on my robe, I put my personal opinions
aside.
¶24 Consistent with the oath I swore, my highest obligation
is to "faithfully and impartially discharge the duties of [my]
office." Those duties include participating in a case when the
law does not require me to recuse. Here, under that legal
standard, I must respectfully deny this motion.
II. ANALYSIS
A. The Due Process Clause and Campaign Contributions
1. Facts
¶25 In 2016, Governor Scott Walker appointed Daniel Kelly to
the Wisconsin Supreme Court. After serving four years, he ran to
retain his seat in 2020. His opponent, now Justice Jill J.
Karofsky, won the election by almost 11 points.
¶26 In 2023, I ran for an open seat on the Wisconsin Supreme
Court, and Justice Kelly opposed me. Total spending on the race
smashed all records. Current estimates range from $51 million to
15
No. 2023AP1412-OA
$56 million, making it the most expensive state supreme court race
in the nation's history.16
¶27 In 2015, the Legislature (led by Republicans) enacted a
law permitting political parties to make unlimited donations
directly to a judicial candidate's campaign committee. See Wis.
Stat. § 11.1104(5). Pursuant to this law, the DPW donated $9.9
million to my campaign committee during the 2023 race.
¶28 Total spending in support of my campaign is currently
estimated to be $29.1 million. This figure includes the estimated
$17.4 million spent by my campaign committee and an estimated $11.7
million spent by outside groups. The DPW's contribution represents
about 33 percent of the total amount spent in support of my
campaign and 57 percent of the amount my campaign committee spent.
¶29 Total spending in support of Justice Kelly's campaign is
estimated to be over $20.5 million.
¶30 The DPW's $10 million contribution to my campaign
currently represents about 19 percent of the approximately $51
million price tag for the 2023 Wisconsin Supreme Court race.
The spending estimates in this section may be found at:
16
Wisconsin Supreme Court Race Cost Record $51M, Wis. Democracy
Campaign (July 18, 2023) https://www.wisdc.org/news/press-
releases/139-press-release-2023/7390-wisconsinsupreme-court-
race-cost-record-51m.
16
No. 2023AP1412-OA
2. Caperton
¶31 The United State Supreme Court has found a due process
violation based on allegations of judicial bias only in
extraordinary circumstances. Prior to Caperton, two types of cases
required a judge to recuse. One was where the judge had financial
incentives to rule one way in a case. Caperton, 556 U.S. at 876
(citing Tumey v. Ohio, 273 U.S. 510 (1927)). The other was where
the judge charged a defendant with criminal contempt and then tried
to preside over the contempt proceedings. Id. at 880 (citing In
re Murchison, 349 U.S. 133 (1955)). The first and only time the
Court found a due process violation in the context of a judicial
election is Caperton. Id. at 884. The Court carefully limited
its holding to circumstances it called "extraordinary,"
"exceptional," "rare," and "extreme by any measure." Id. at 884,
887, 890.
¶32 In Caperton, a jury awarded a verdict of over $50 million
against Massey Coal Company. Id. at 872. Two years later, Massey
lost post-verdict motions. Id. Its next logical step was to file
an appeal. At that point, West Virginia held a supreme court of
appeals election. Id. at 873. Don Blankenship, Massey's CEO,
contributed $3 million to Attorney Brent Benjamin's bid to replace
incumbent Justice Warren McGraw on that court. Id. Benjamin won
the election by fewer than 50,000 votes. Id.
17
No. 2023AP1412-OA
¶33 Once in office, Justice Benjamin cast the deciding vote
to reverse the $50 million verdict against Massey. Id. at 874.
Against this backdrop, Caperton recognized that in "extreme" or
"extraordinary" situations a judge's receipt of a campaign
contribution from a litigant or a lawyer may require his recusal
under the Due Process Clause. Id. at 884, 886-87.
¶34 Caperton noted that "[n]ot every campaign contribution
by a litigant or attorney creates a probability of bias that
requires a judge's recusal." Id. at 884. A campaign contribution
offends due process where "there is a serious risk of actual bias—
—based on objective and reasonable perceptions." Id. That occurs
"when a person with a personal stake in a particular case had a
significant and disproportionate influence in placing the judge on
the case by raising funds or directing the judge's election
campaign when the case was pending or imminent." Id. This test
requires a court to assess: (1) "the contribution's relative size
in comparison to the total amount of money contributed to the
campaign," (2) "the total amount spent in the election," and (3)
"the apparent effect such contribution had on the outcome of the
election." Id. at 884.
¶35 Applying this test, Caperton found the risk that
Blankenship's influence engendered actual bias was sufficiently
substantial that due process required Benjamin's recusal from the
case. Id. at 886-87. Blankenship donated $3 million to unseat
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No. 2023AP1412-OA
the incumbent and replace him with Benjamin. Id. at 873.
Specifically, he contributed $1,000 to Benjamin's campaign
committee, almost $2.5 million to a political organization
supporting Benjamin, and $500,000 in independent expenditures to
pay for mailings, solicitations, and advertisements for Benjamin.
Id. Blankenship's contributions exceeded the total amount
contributed by all of Benjamin's other supporters by 300 percent.
Id. He spent $1 million more than the total amount spent by the
campaign committees of both candidates combined. Id. And Benjamin
won by less than 50,000 votes. Id.
¶36 Caperton also found the temporal relationship between
the campaign contributions, the justice's election, and the
pending case troubling. When Blankenship made his donations, it
was reasonably foreseeable that Benjamin would be reviewing a
judgment that cost his biggest donor $50 million. Id. at 886.
Caperton held: "On these extreme facts the probability of actual
bias rises to an unconstitutional level." Id. at 886-87.
3. Application of Caperton
a. "A Person With A Personal Stake In A Particular Case"
¶37 The Legislature's claim that the DPW's donation offends
due process fails for one simple reason: Caperton applies to
campaign spending by a "person with a personal stake in a
particular case." Id. at 884. Unlike Blankenship, who had a
direct personal and financial interest in the judgment against his
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No. 2023AP1412-OA
company, the DPW is not a party to this case. I am not reviewing
a judgment against the DPW. Neither the petitioners in this case
nor their attorneys are alleged to have contributed to my campaign.
¶38 Nor are the petitioners stand-ins for the DPW. They are
citizens who allege violations of their own individual rights. As
voters, they claim to advance legal interests in excluding partisan
influence of all kinds from the districting process. They want
the maps ungerrymandered. For this reason, their interests may be
contrary to those of the DPW because they could also foreclose a
Democratic gerrymander in the future. To be blunt:
Ungerrymandering the map favors voters, not parties.
¶39 For me to recuse myself based on campaign contributions
from the DPW——a non-party to this case——would be unprecedented.
It would also raise unprecedented problems for my colleagues. In
recent Wisconsin Supreme Court elections, the winning candidate
has received substantial financial support from a single entity.
In 2016, 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 on that
20
No. 2023AP1412-OA
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 that
election.17
¶40 The Legislature's dramatic expansion of Caperton would
force Wisconsin justices to recuse whenever their involvement in
a case might somehow indirectly benefit groups that provided
substantial support to their campaigns. It would invite litigants
to seek recusal of "conservative" or "liberal" justices whenever
a case involved issues of great social, political, or commercial
importance to any major campaign funder. See County of Dane, 403
Wis. 2d 306, ¶91 (Hagedorn, J., concurring) ("We have seen bias
and recusal allegations increase greatly in recent years, turning
the obligation of adjudicator impartiality into a litigation
weapon."). Instead of being rare, "disqualification would be
routine and even structural. Members of the court would be
prevented from hearing a substantial number of cases for the entire
duration of the terms they were elected by voters to serve, and
the court's ability to do its work would be compromised." See
Philip Morris USA, Inc. v. Appellate Ct., No. 117689 at 11 (Ill.
Sept. 24, 2014) (Order of Karmeier, J.).18
17 Clinger & Yablon, supra note 8, at 28.
18 Available at: https://perma.cc/5TYD-ZHCF.
21
No. 2023AP1412-OA
¶41 The supreme court would grind to halt. This is not
hyperbole. As Wisconsin law stands, when a justice recuses, there
is no back-up justice to step in. The court proceeds with less
than a full bench. If even one justice recuses, the remaining six
justices may divide equally on the case, leaving a lower court
decision on an issue of statewide importance unreviewed and
unreviewable. State v. Henley, 2010 WI 12, ¶35, 322 Wis. 2d 1,
778 N.W.2d 853 (Memorandum of Roggensack, J.) (citing Laird v.
Tatum, 409 U.S. 824 (1972) (Memorandum of Rehnquist, J.)). If two
or more justices recuse, the supreme court may be unable to issue
a majority opinion in the case.
b. "Significant and Disproportionate Influence"
¶42 The Legislature's due process claim also fails under
Caperton's three-factor test for assessing whether campaign
spending had "a significant and disproportionate influence" in
placing a judge on a case. In Caperton, Blankenship bankrolled
Benjamin' campaign. The facts of this case are nowhere close to
those "extreme" and "extraordinary" circumstances.
¶43 First, the DPW's contribution was 57 percent of the
spending by my campaign committee. The relative size of the DPW's
contribution is not unusual for a Wisconsin Supreme Court race.
In 2019, Justice Brian Hagedorn's campaign committee spent an
estimated $1.7 million. The Republican State Leadership Committee
spent $1.25 million (or 73 percent of his committee spending)
22
No. 2023AP1412-OA
supporting his campaign.19 In 2020, Justice Jill J. Karofsky
received about $1.36 million from the DPW, which was about 50
percent the amount spent by her campaign committee.20 Both justices
sat on the last redistricting case, Johnson, 401 Wis. 2d 198.21
¶44 Second, while the total amount of spending in support of
my campaign is unknown, it is currently estimated at $29.1 million.
The DPW's contribution represents about 33 percent of it. Total
spending in support of both candidates is currently estimated to
be $51 million, which means that the DPW's $9.9 million
contribution is just 19 percent of all spending on the race.
19Spending estimates for Justice Hagedorn's campaign and
Justice Karofsky's campaign come from: Wisconsin Supreme Court
Finance Summaries, Wis. Democracy Campaign (Apr. 26, 2021),
available at: https://www.wisdc.org/follow-the-money/31-
nonpartisan-candidates/656-wisconsin-supreme-court-finance-
summaries.
20The Democratic Party of Wisconsin's contribution is noted
in: PAC, Political Committee Contributions More Than Double in
Four Years, Wis. Democracy Campaign (Aug. 21, 2020), available at:
https://www.wisdc.org/news/press-releases/131-press-release-
2020/6669-pac-political-committee-contributions-more-than-
double-in-four-years.
21Again, it is not unusual for justices to sit on
redistricting cases despite having received substantial financial
support from either the Republican Party or the Democratic Party.
See, e.g., Harper v. Hall, 867 S.E.2d 326 (N.C. 2022) (regarding
recusal decisions by Justice Anita Earls and Justice Paul Newby);
Dickson v. Rucho, 735 S.E.2d 193 (N.C. 2012) (North Carolina
Supreme Court's one-sentence order denying the motion for Justice
Newby's recusal).
23
No. 2023AP1412-OA
¶45 Third, the 2023 Wisconsin Supreme Court election was not
even close. I won by a landslide. Cf. Caperton, 556 U.S. at 896(Roberts, C.J., dissenting) (questioning whether a contribution
has any effect in a landslide election). The historical record
suggests that the DPW's contribution had no impact on the outcome
of the 2023 election. Justice Kelly has never won a judicial race.
He was appointed to the supreme court. In 2020, he ran to retain
his seat and lost to Justice Karofsky by almost 11 points. In
2023, he lost to me by 11 points. The logical conclusion is that
the DPW's $10 million donation did not move the needle. It had no
discernible influence in placing me on this case.
c. "Temporal Relationship"
¶46 Caperton held that "[t]he temporal relationship between
the campaign contributions, the justice's election, and the
pendency of case is also critical." Id. at 886. Blankenship
contributed $3 million to Benjamin's campaign while Massey's case
was pending but before it filed an appeal. Id. at 873. This
timing made it "apparent that, absent recusal, Justice Benjamin
would review a judgment that cost his biggest donor's company $50
million." Id. at 886.
¶47 Again, the facts of this case are different. When the
DPW contributed to my campaign there was no pending or imminent
case for me to review. Yes, I said that I would enjoy taking a
fresh look at Wisconsin's legislative maps. However, the
24
No. 2023AP1412-OA
Legislature does not allege that I knew the identity of the
petitioners in this case or the nature of their claims. The
petitioners filed their original action four months after the
election. This is not the sort of temporal relationship that
alarmed the Caperton Court.
4. State ex rel. Three Unnamed Petitioners
¶48 My understanding of Caperton is supported by Justice
David Prosser's recusal decision in State ex rel. Three Unnamed
Petitioners v. Peterson, 2015 WI 103, 365 Wis. 2d 351, 875 N.W.2d
49. That case involved a John Doe investigation of alleged illegal
campaign coordination among certain candidates for elected office
and issue-advocacy groups. Several targets of the investigation
spent an estimated $3.3 million in support of Justice Prosser's
reelection effort——nearly eight times the amount spent by his
campaign committee. See Appendix B, Prosser Decision at 6.
¶49 According to Justice Prosser, Caperton did not require
his recusal. Id. at 9. There was no pending or imminent litigation
against the John Doe targets when they financially supported his
campaign several years earlier. Unlike Justice Benjamin, he was
an incumbent. And unlike West Virginia, Wisconsin had no procedure
for replacing a justice who withdraws from a supreme court case.
Justice Prosser observed 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." Id. He admitted that the relative
25
No. 2023AP1412-OA
size of the targets' campaign contributions——nearly eight times
the amount spent by his campaign committee——appeared "significant
and disproportionate" under Caperton. Id. at 10. He reasoned
that the contributions were necessary because, under Wisconsin
campaign finance law, there was no other way for his campaign
committee to respond to issue advocacy distorting his record. Id.
¶50 If Caperton did not compel Justice Prosser's recusal, it
certainly does not demand mine. The DPW is not party——or even a
subject of——this case. Its financial support is a fraction of,
not eight times, my campaign committee spending. Wisconsin still
does not have a procedure for replacing a justice who recuses from
a case. The Legislature is simply trying to change the composition
of the court that hears this case.
¶51 In sum, under Caperton, the distinctions above make all
the difference. The DPW's contribution was too small a percentage
of my campaign committee's fund and too small a percentage of the
overall spending on the race to warrant my disqualification——
especially given that the election was not close and this original
action petition was not pending at the time. While the total
amount of the DPW's contribution was surely substantial, the 2023
election broke all historical records in Wisconsin, and compared
to total election spending, the contribution falls short of
Caperton's recusal standard.
26
No. 2023AP1412-OA
B. Due Process And Campaign Statements
1. Facts
¶52 During my campaign, I gave interviews, participated in
candidate forums and debates, and traveled the state to speak with
voters. I expressed my frank opinions on Wisconsin's legislative
maps.22 My remarks at a January 9, 2023 candidate forum are
representative of what I said on the campaign trail:
So let's be clear here——the maps are rigged. Bottom
Line. Absolutely positively rigged. They do not reflect
the people in this state. They do not reflect
accurately, representation in either the state assembly
or the state senate. They are rigged. Period. I'm
coming right out and saying that. I don't think you
could sell to any reasonable person that the maps are
fair . . . .
I believe the gerrymandering decision was wrong. But as
I indicated to you before I can't ever tell you what I'm
going to do on a particular case. But I can tell you my
values and common sense tell you that it's wrong . . . .
So as I've indicated, I think those maps are rigged, I
think they're unfair. I don't think they fairly reflect
the population in our state.23
22The Legislature's brief includes more than 50 footnotes
citing nearly 20 articles that quote me. They boil down to just
nine instances where I commented on Wisconsin legislative maps: a
January 9, 2023 candidate forum; a January 30, 2023 Wisconsin State
Journal Candidate Questionnaire; a February 14, 2023 interview on
Wisconsin Public Radio's Central Time; a March 1, 2023 Wedge Issues
podcast; tweets on March 3, 2023, and March 7, 2023; a PBS
interview on March 9, 2023; and a March 21, 2023 candidate debate.
I provide citations for my comments on each of the occasions in
Appendix A.
23 Wisconsin Supreme Court Candidate Forum. See Appendix A.
27
No. 2023AP1412-OA
¶53 I made very similar comments on other occasions during
my campaign. I also told voters the following:24
I can't ever tell you what I'm going to do on a
particular case.25
I'll always be an impartial justice who upholds our
Constitution.26
[W]hile I talk about some of the other issues that are
important to both me and all Wisconsinites, all of my
decisions are going to be rooted in the law. I plan to
follow the law. I tell you what my values are because
I think that Supreme Court candidates should share with
the community and the electorate what their values are.
Nonetheless, I will uphold the law [and] follow the
Constitution when I make any decisions. Nothing is
prejudged.27
[W]hat my real values are and what's going to happen in
a case can be two different things, right? I mean,
follow the law, you look at the case law, you look at
the statutes, you look at the constitution, and you
follow where, you know, it leads you.28
[R]emember I'm running for a judicial spot. I can't
promise anybody anything. I can tell you what my
personal value is.29
But the question is am I able to fairly make a decision
on a case. Of course I am. That's what I spent my
entire career doing. I follow laws I don't always
necessarily like or agree with. You follow the law.
24 I made these statements on occasions noted in Appendix A.
25 Wisconsin Supreme Court Candidate Forum. See Appendix A.
26 Wisconsin State Journal. See Appendix A.
27 Wisconsin Public Radio. See Appendix A.
28 Wedge Issues Podcast. See Appendix A.
29 Pod Save America. See Appendix A.
28
No. 2023AP1412-OA
That's what you do. I can assure you that every single
case that I will ever handle will be rooted in the law.
One hundred percent.30
¶54 The Wisconsin Judicial Commission investigates and
prosecutes allegations that a judge or judicial candidate has
violated the Wisconsin Code of Judicial Conduct. The commission
received multiple complaints alleging that on several occasions,
including at the January 9, 2023 candidate forum, I violated
several code provisions by stating my personal views on
"contentious political issues."31
¶55 First, I allegedly violated the Preamble to the Code,
which requires me to "respect and honor the judicial office as a
public trust and strive to enhance and maintain confidence in our
legal system."
¶56 Second, I allegedly violated SCR 60.02, which provides,
in part, that a judge shall maintain "high standards of conduct
and shall personally observe those standards so that the integrity
and independence of the judiciary will be preserved."
30 Wisconsin Supreme Court Candidate Debate. See Appendix A.
31The complaint and the Wisconsin Judicial Commission's
decision are attached to my September 5, 2023 order for
supplemental briefing. See Wright v. Wisconsin Elections Comm'n,
No. 2023AP1412-OA, unpublished order (Wis. Sept. 5, 2023),
available at: https://acefiling.wicourts.gov/document/eFiled/
2023AP001412/700504.
29
No. 2023AP1412-OA
¶57 Third, I allegedly violated SCR 60.06(3)(a), which, in
part, requires a candidate for judicial office to
"maintain . . . the dignity appropriate to judicial office and the
integrity and independence of the judiciary" and prohibits a
candidate for judicial office from manifesting "bias or prejudice
inappropriate to judicial office."
¶58 Fourth, I allegedly violated SCR 60.06(3)(b), which
prohibits a candidate for judicial office from making "pledges,
promises, or commitments" "with respect to cases, controversies,
or issues that are likely to come before the court."
¶59 On May 31, 2023, the commission issued a decision stating
it had held a meeting, reviewed the complaints, and "carefully
considered" the Code of Judicial Conduct provisions noted above in
addition to Republican Party, 536 U.S. at 788; Duwe v. Alexander,
490 F. Supp. 2d 968, 976 (W.D. Wis. 2007); and other authorities.
The commission dismissed the complaints without action and
declared the matter "closed." By declining to file a formal
complaint against me, the commission determined that the
allegations against me lacked probable cause. See Wis. Stat.
§ 757.85(3), (5).
2. Due Process and Prejudgment
¶60 The Legislature assails my statements that Wisconsin's
legislative maps are "gerrymandered," "rigged," and "unfair;" that
the Johnson decision was wrong; and that I agree with the dissent
30
No. 2023AP1412-OA
in that case. According to the Legislature, these statements show
that I "promise[d] to 'ma[k]e new law' to achieve a desired
outcome," "clearly prejudged the case" in a way irreconcilable
with the Due Process Clause, and "announced that [my] mind is
firmly made up on the outcome" of this case. Allegedly, when I
"declared [my] prejudgment of the maps, 'it became at once apparent
that, absent recusal,' [I] would be deciding the validity of
something [I] already believed to be invalid."
¶61 There are two fundamental flaws in the Legislature's
position. The first is factual. As noted above, while making the
statements that the Legislature spotlights I also stressed that
these were descriptions of my personal "values," not pledges of
"what I'm going to do on a particular case." My repeated
assurances that I would follow the law where it leads me expressed
my fundamental commitments as a judge. I will set aside my
opinions and decide cases based on the law. There will surely be
many cases where I reach results that I personally dislike. That
is what it means to be a judge. See Caperton, 556 U.S. at 891(Roberts, C.J., dissenting) ("[A]ll judges take an oath to uphold
the Constitution and apply the law impartially, and we trust that
they will live up to this promise.").
¶62 The second flaw in the legislature's position is that it
is foreclosed by federal precedent. The Due Process Clause
requires "[a] fair trial in a fair tribunal." In re Murchison,
31
No. 2023AP1412-OA
349 U.S. 133, 136 (1955). It does not prohibit a judge from
sitting on a case after expressing an opinion on an issue. As two
legal experts recently explained, "[n]o Supreme Court case has
ever held that due process required a judge to recuse because of
the judge's expression of views, whether on the campaign trail or
elsewhere."32 In fact, the Court has rejected such claims. See
FTC v. Cement Inst., 333 U.S. at 702-03 ("[No] decision of this
Court would require us to hold that it would be a violation of
procedural due process for a judge to sit in a case after he had
expressed an opinion as to whether certain types of conduct were
prohibited by law."); United States v. Morgan, 313 U.S. 409, 421
(1941) ("That [the Secretary of Agriculture] not merely held but
expressed strong views on matters believed by him to have been in
issue, did not unfit him for exercising his duty in subsequent
proceedings ordered by this Court."); id. (like judges, cabinet
officers charged with adjudicatory functions "are assumed to be
men of conscience and intellectual discipline, capable of judging
a particular controversy fairly on the basis of its own
circumstances."); see also Franklin v. McCaughtry, 398 F.3d 955,
962 (7th Cir. 2005) ("We are not saying that due process would be
offended if a judge presiding over a case expressed a general
opinion regarding a law at issue in a case before him or her.").
32 Clinger & Yablon, supra note 8, at 10.
32
No. 2023AP1412-OA
¶63 More recently, the United States Supreme Court struck
down a Minnesota rule that banned judicial candidates from
announcing their views of disputed legal or political issues. See
Republican Party, 536 U.S. 765. Writing for the Court, Justice
Scalia made clear that "[a] judge's lack of predisposition
regarding the relevant legal issues in a case has never been
thought a necessary component of equal justice, and with good
reason." Id. at 777. "For one thing, it is virtually impossible
to find a judge who does not have preconceptions about the law."
Id. Nor would anybody want to elect such a judge: "Proof that a
Justice's mind at the time he joined the Court was a complete
[blank slate] in the area of constitutional adjudication would be
evidence of lack of qualification, not lack of bias." Id. at 778(quoting Laird v. Tatum, 409 U.S. 824 (1972) (Memorandum of
Rehnquist, J.)). And it would violate the First Amendment to
"censor what the people hear as they undertake to decide for
themselves which candidate is most likely to be an exemplary
judicial officer." Id. at 794 (Kennedy, J., concurring).
¶64 Justice Scalia explained that judges "have often
committed themselves on legal issues that they must later rule
upon." Id. at 779 (majority opinion). "Most frequently, of
course, that prior expression will have occurred in ruling on an
earlier case." Id. But before arriving on the bench, judges also
state their views on disputed legal and political issues when
33
No. 2023AP1412-OA
teaching classes, giving speeches, or writing books. Id. Thus,
they cannot be barred from expressing their views while campaigning
for judicial office. Id. at 779-80 (noting that it is permissible
for a judicial candidate to say "I think it is constitutional for
the legislature to prohibit same-sex marriage" during his
campaign).
¶65 Disclosing a predisposition on an issue "is nothing more
than acknowledgement of the inescapable truth that thoughtful
judicial minds are likely to have considered many issues and formed
opinions on them prior to addressing the issue in the context of
a case." Duwe, 490 F. Supp. 2d at 975. In contrast, a pledge,
promise, or commitment "requires affirmative assurance of a
particular action. It is a predetermination of the resolution of
a case or issue. It is not a statement of belief or opinion."
Id. at 976. A judicial candidate violates the prohibition against
pledges, promises, or commitments when she uses phrases like "I
will" or "I will not." See id. "Phrases like 'I believe' or 'It
is my opinion' signal the absence of a commitment." Id. at 976.
¶66 Justice David Wecht of the Pennsylvania Supreme Court
recently applied these same principles to a situation closely
resembling this one. See League of Women Voters of Pa. v.
Commonwealth, 179 A.3d 1080 (Pa. 2018). After the court declared
the state's legislative maps an unlawful partisan gerrymander, the
legislative respondents sought to disqualify him from the case.
34
No. 2023AP1412-OA
They asserted a due process violation based on Justice Wecht's
campaign statements calling gerrymandering "an absolute
abomination," "a travesty," "insane," and "deeply wrong." Id. at
1084. Justice Wecht said: "[e]xtreme gerrymandering
is . . . antithetical to the concept of one person, one vote."
Id. He had also described how Pennsylvania's maps favored
Republicans and said: "I challenge anybody to look at a map of
our districts and deem them to be compact and contiguous." Id.
¶67 Applying the Due Process Clause, Republican Party, and
Duwe, Justice Wecht held that his campaign statements "expressed
[his] thoughts on the topic, something manifestly distinct from a
clear commitment to rule in a certain way if presented with a
specific challenge based upon a well-developed factual record and
the benefit of full and fair advocacy." Id. He admitted that his
campaign rhetoric was "sometimes ardent" and that he "did not
always qualify [his] statements to clarify that [he] would view
each case on its individual merits." Id. at 1091. But he concluded
that the circumstances of his case were "wholly unlike" the narrow
situations in which the United States Supreme Court has mandated
recusal based on the Due Process Clause. Id. at 1092.
¶68 Now consider the practical implications of the
Legislature's argument. Many current justices on the Wisconsin
Supreme Court have written opinions expressing strong views on the
35
No. 2023AP1412-OA
legality of the current legislative maps.33 Only a month ago, one
justice wrote an opinion in this very proceeding that describes
the mere consideration of the petitioners' claims as a "mockery of
our justice system" and "degrad[ing] this court as an
institution."34 No other justice has decided that they must recuse,
even though their prior opinions might appear to indicate clear
preconceptions of certain issues here. And if prejudgment is the
concern, their opinions are just as relevant as my campaign
remarks. As Justice Scalia wrote, "[w]e doubt . . . that a mere
statement of position enunciated during the pendency of an election
will be regarded by a judge as more binding . . . than a carefully
considered holding that the judge set forth in an earlier opinion."
Republican Party, 536 U.S. at 780-81.
¶69 Simply put: If issuing an opinion does not disqualify
a judge from hearing future cases that involve similar issues,
then neither does expressing agreement with an opinion or
describing my values about political issues. That is particularly
true here, where I made no pledge about the result of any case,
where I repeatedly disavowed any such pledge or promise, where
33 See generally Johnson, 401 Wis. 2d 198.
See Wright v. Wisconsin Elections Comm'n, No. 2023AP1412-
34
OA, unpublished order (Wis. Aug. 15, 2023) (Rebecca Grassl Bradley,
J., dissenting), available at: https://acefiling.wicourts.gov/
document/eFiled/2023AP001412/692191.
36
No. 2023AP1412-OA
this case did not even exist during my campaign, and where I made
clear I will vote based only on the rule of law.
3. Caperton and Prejudgment
¶70 Lacking a single case holding that the Due Process Clause
requires a judge to recuse based on her campaign statements, the
Legislature again resorts to Caperton. As far as I can tell, no
court has ever applied Caperton in that way. In fact, some
justices on the Wisconsin Supreme Court dismissed an attempt to do
just that. See State v. Allen, 2010 WI 10, 322 Wis. 2d 372, 778
N.W.2d 863. Allen had filed a collateral attack on his criminal
conviction. On appeal, he asked the supreme court to disqualify
Justice Michael Gableman from the case due to his many campaign
statements portraying himself as a judge who will support the
prosecution over the defense in criminal cases and expressing bias
against people accused of crimes, the lawyers who defend them, and
the judges who uphold their rights.35
¶71 Justice Ziegler regarded the facts of Allen so far
removed from Caperton that the prisoner had no due process claim.
"[T]he allegations in Allen involve a judicial peer and fail to
state a due process claim because no 'person with a personal stake'
in Allen 'had a significant and disproportionate influence' in
35See Mot. for Recusal, Allen, 322 Wis. 2d 372 (Apr. 17,
2009), available at: https://perma.cc/8TAA-D7MU.
37
No. 2023AP1412-OA
placing Justice Gableman on the case 'by raising funds to directing
[his] election campaign when the case was pending or imminent."
Allen, 322 Wis. 2d 372, ¶271 (Ziegler, J., concurring) (quoting
Caperton, 556 U.S. at 884). "[N]owhere in the Caperton decision
does the Supreme Court state that any lesser fact situation would
have required Justice Benjamin's recusal in that case, and nowhere
does the Supreme Court conclude that he would be required to recuse
himself from an unrelated civil case that involved different
parties." Id., ¶269.
¶72 Requiring recusal when neither Allen nor the state had
any influence in placing Justice Gableman on the court, Justice
Ziegler reasoned, would "invent new law and . . . invite recusal
motions based upon 'spin' instead of whether a justice can be fair
and impartial." Id. By making allegations that "fail to state a
due process claim as set forth in Caperton, Allen's efforts
effectively amount to 'judge shopping.'" Id., ¶262. "'[J]udge
Shopping' damages this court as an institution, inappropriately
politicizes the court, and nullifies the votes of the electorate."
Id.
¶73 Justice Roggensack interpreted Caperton's holding even
more narrowly. She agreed that "Allen's allegations do not even
begin to approach a due process violation." Id., ¶231 (Opinion of
Roggensack, J.). She explained that his claim "is not comparable
to the claim made in Caperton. Caperton was based on claims of
38
No. 2023AP1412-OA
particularized bias against a party in a pending case because of
actions taken by the other party. . . . Those actions were alleged
to have directly benefitted a justice who at the time was about to
decide" the case. Id., ¶238 (citing Caperton, 556 U.S. at 884,
886).
¶74 The Legislature has likewise failed to state a claim
that my campaign statements about Wisconsin's legislative maps
violate due process under Caperton. Its motion is an attempt "to
invent new law" and amounts to judge shopping, which
inappropriately politicizes this court and attempts to nullify the
votes of the electorate. I decline to extend Caperton's holding
that far.
4. The Effect of the Wisconsin Judicial Commission's Decision
¶75 Finally, the Wisconsin Judicial Commission's May 31,
2023 decision provides the death blow to the Legislature's due
process argument. Codes of judicial conduct are the "principal
safeguard against judicial campaign abuses." Caperton, 566 U.S.
at 889 (quoted source omitted). "The Due Process Clause demarks
only the outer boundaries of judicial qualifications." Id.
"Because the codes of judicial conduct provide more protection
than due process requires, most disputes over disqualification
will be resolved without resort to the Constitution." Id. at 890;
see also State v. Hermann, 2015 WI 84, ¶120, 364 Wis. 2d 336, 867
N.W.2d 772 (Ziegler, J., concurring).
39
No. 2023AP1412-OA
¶76 The commission rejected claims that my campaign
statements undermined the integrity and independence of the
judiciary; demonstrated bias or prejudice; or committed me to a
decision on a case, controversy, or issue that was likely to come
before me.36 That disposes of the Legislature's claims that my
campaign statements violate due process.
¶77 For the sake of completeness, I want to clarify two
campaign statements that, as far as I can tell, the commission's
decision did not directly address. First, on the campaign trail
I said: "I would anticipate that I would enjoy taking a fresh
look at the gerrymandering question."37 Allegedly, this "invited
a legal challenge" to replace Wisconsin's maps. The Legislature
omits my qualification of that statement. I explicitly stated
that whether the issue "will come to the court is a completely
different question."38
¶78 Similarly, the Legislature isolates my comment
"[p]recedent changes when things need to change to be fair"39 from
my full remarks and calls it a "promise to 'ma[k]e new law' to
36 See supra note 31.
37 Wedge Issues Podcast. See Appendix A.
38 Wedge Issues Podcast. See Appendix A.
39 Wisconsin Supreme Court Candidate Debate. See Appendix A.
40
No. 2023AP1412-OA
achieve a desired outcome." I made this comment about precedent
in response to a general question about stare decisis. I was
talking about Plessy v. Ferguson, 163 U.S. 537 (1896). I was not
referring to Johnson.40
¶79 Like my other campaign statements about Wisconsin's
legislative maps, my expressed desire to take a fresh look at the
maps and my explanation of stare decisis show that I had opinions
on political and legal issues of the day. Nothing more.
C. Wisconsin Law
1. Recusal Under Wis. Stat. § 757.19(2)(g)
¶80 The Legislature contends that under § 757.19(2)(g) I
must recuse due to my campaign statements. Section 757.19(2)(g)
provides that "[a]ny judge shall disqualify himself or herself
from any civil or criminal action or proceeding . . . [when] a
judge determines that, for any reason, he or she cannot, or it
appears that she or she cannot, act in an impartial manner."
¶81 This determination is purely subjective. The judge
alone decides whether she can be impartial, and whether there is
an appearance of partiality. Section 757.19(2)(g) "does not
require disqualification in a situation where one other than the
judge objectively believes there is an appearance that the judge
is unable to act in an impartial manner" or in a situation where
40 Wisconsin Supreme Court Candidate Debate. See Appendix A.
41
No. 2023AP1412-OA
"the judge's impartiality 'can reasonably be questioned' by
someone other than the judge." State v. Am. T.V. & Appliance of
Madison, Inc., 151 Wis. 2d 175, 183, 443 N.W. 662 (1989); see also
Donohoo v. Action Wis. Inc., 2008 WI 110, ¶24, 314 Wis. 2d 510,
754 N.W.2d 480.
¶82 When a justice decides that, both in fact and in
appearance, she can act in a fair and impartial manner, the supreme
court's role is limited to determining that she went through the
required exercise of making the subjective determination.
Donohoo, 314 Wis. 2d 510, ¶24; State v. Harrell, 199 Wis. 2d 654,
663-64, 546 N.W.2d 115 (1996); Am. T.V., 151 Wis. 2d at 182-84.
¶83 In Donohoo, the appellant, citing § 757.19(2)(g) and the
Wisconsin Code of Judicial Conduct, moved to disqualify Justice
Louis Butler from a lawsuit against an organization dedicated to
protecting the civil rights of lesbian, gay, bisexual, and
transgender people. Justice Butler had received campaign
contributions from two board members of a political action
committee for the organization and a reelection endorsement by the
organization's attorney. He also gave a speech at a fundraiser
for a political action committee that supported LGBTQ equality.
Donohoo, 314 Wis. 2d 510, ¶¶8-14.
¶84 Despite these facts, Justice Butler declined to recuse
himself from the case. In a letter to the parties, he said that
he had consulted the Executive Director of the Judicial Commission
42
No. 2023AP1412-OA
about these matters. He disclosed the campaign contributions and
concluded: "Because campaign contributions will in no way affect
my judgment as to the outcome of this proceeding, I am writing to
advise you of my decision to participate in this case." Id., ¶32.
Donohoo held that by sending the letter and continuing to
participate in the case "Justice Butler clearly determined that he
could be impartial. That is all that is required by
§ 757.19(2)(g)." Id., ¶25.
¶85 Similarly, in Three Unnamed Petitioners the state moved
for Justice Prosser's recusal based partly on § 757.19(2)(g).
Despite having received $3.3 million in campaign support from the
targets of the John Doe investigation under review, he determined
that he could decide the case impartially and it would not appear
otherwise to a reasonable person who understands the facts.41
¶86 I likewise find no basis for my recusal under
§ 757.19(2)(g). I was a circuit court judge for 10 years before
becoming a supreme court justice. I have decided many difficult
cases. I approached them with an open mind and decided them based
on the facts and the law. I approach supreme court cases the same
way. In fact, during my campaign, I assured voters that "I will
always be an impartial justice who upholds the Constitution," "I
follow laws I don't always necessarily agree with," and that "every
41 See Appendix B, Prosser Decision at 2.
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No. 2023AP1412-OA
single case that I handle will be rooted in the law." At my
investiture I solemnly swore that I would "faithfully and
impartially discharge the duties of the office to the best of my
ability so help me God." I meant what I said. I have considered
all of the facts and legal authorities presented for and against
recusal under § 757.19(2)(g). I determine that I can, in fact and
appearance, act in an impartial manner in this case.
2. Recusal Under Wis. Stat. § 757.19(2)(f)
¶87 The Legislature also contends that § 757.19(2)(f)
requires my recusal. Section 757.19(2)(f) provides that a judge
shall disqualify herself from a case when she "has a significant
financial or personal interest in the outcome of the matter." The
Legislature does not claim that I have a "financial interest" in
this case. It argues that because I "repeatedly declared to voters
how [I] would vote on the merits of this case" I have "a substantial
interest in keeping [my] word and preserving [my] reputation among
voters by invalidating the maps."
¶88 A recusal motion based on § 757.19(2)(f) is different
from a motion based on § 757.19(2)(g). Whereas § 757.19(2)(g)
requires the judge to make a subjective determination about her
ability to be impartial in fact and appearance, § 757.19(2)(f)
requires the judge to make an objective determination that she
does or does not have significant personal interest in the outcome
of a case as established by evidence and reasonable inferences.
44
No. 2023AP1412-OA
State ex rel. Dressler v. Cir. Ct. for Racine Cnty., 163 Wis. 2d
622, 643, 472 N.W.2d 532 (Ct. App. 1991). If the evidence and
inferences establish that the judge does have a significant
personal interest in a case, § 757.19(2)(f) requires her recusal.
¶89 The Legislature cites no case where a judge's campaign
statements were held to create a "significant personal interest"
in the outcome of a case thereby requiring recusal under
§ 757.19(2)(f). Moreover, the Legislature does not cite a single
instance during my campaign where I "declared to voters how [I]
would vote on the merits of this case." This case did not even
exist during my campaign. The petitioners filed it four months
after the election.
¶90 During my campaign, I told voters my personal values and
beliefs about Wisconsin's legislative maps and said that I would
enjoy taking a fresh look at them——as permitted by the First
Amendment and Republican Party. I did not say "I will" or "I will
not" decide this case or any other case a certain way. See Duwe,
490 F. Supp. 2d at 976. To the contrary, I repeatedly told voters
that I could not say how I would decide any particular case and
that I must follow the law where it leads me, even if I disagree
with it.
¶91 While Republican Party did not concern § 757.19(2)(f),
it considered and rejected the premise of the Legislature's
argument. In that case, Justice Scalia responded to the argument
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No. 2023AP1412-OA
that campaign statements pose a special threat to open-mindedness
because once the candidate becomes a judge he will feel reluctant
to contradict them. Republican Party, 536 U.S. at 780. He
observed that this "might be plausible, perhaps, with regard to
campaign promises. A candidate who says 'if elected, I will vote
to uphold the legislature's power to prohibit same-sex marriages'
will positively be breaking his word if he does not do so." Id.(emphasis in original). But it is not true that a judge who states
his position on issues during a campaign will feel compelled to
rule in accordance with them. Justice Scalia explained:
We doubt, for example, that a mere statement of position
enunciated during the pendency of an election will be
regarded by a judge as more binding——or as more likely
to subject him to popular disfavor if reconsidered——than
a carefully considered holding that a judge set forth in
an earlier opinion denying some individual's claim to
justice.
Id. at 780-781.
¶92 The Legislature offers no facts establishing or creating
a reasonable inference that my campaign statements created a
"significant personal interest" in the outcome of this case. Nor
does it cite any case to support that argument. I therefore
objectively determine that § 757.19(2)(f) does not require my
recusal.
¶93 The Legislature makes one passing reference to SCR
60.04(1)(b) without developing an argument. Rule 60.04(1)(b)
provides in part that "a judge may not be swayed by partisan
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No. 2023AP1412-OA
interests, public clamor, or fear of criticism." It does not
support recusal under § 757.19(2)(f) because "a judge's propensity
to decide cases consistent with statements made or opinions
expressed during a campaign tend to demonstrate that he or she is
acting on personal principles previously stated and not deciding
the pending case on the basis of 'partisan interests, public clamor
or fear of criticism.'" Duwe, 490 F. Supp. 2d at 973. Accordingly,
IT IS ORDERED that the Motion to Recuse filed by proposed
intervenor Wisconsin Legislature is denied.
47
Appendix A
APPENDIX A
Campaign Statement Sources
1. Wisconsin Supreme Court Candidate Forum – Jan. 9, 2023
a. WisPolitics State Supreme Court Election Forum,
WisconsinEye (Jan. 9, 2023), available at:
https://wiseye.org/2023/01/09/wispolitics-state-
supreme-court-election-forum.
2. Wisconsin State Journal – Jan. 30, 2023
a. Alexander Shur, Candidate Q&A: Wisconsin Supreme
Court, Wis. State J. (Jan. 30, 2023), available at:
https://madison.com/news/local/govt-and-
politics/elections/candidate-q-a-wisconsin-supreme-
court/article_fb416ee5-a99e-5a8f-b43d-
d4652861a65e.html [https://perma.cc/EE2H-ZKZB].
3. Wisconsin Public Radio – Feb. 14, 2023
a. Jonah Beleckis, Janet Protasiewicz Thinks Judicial
Candidates Should Be Open About Their Values, Wis.
Pub. Radio (Feb. 14, 2023), available at:
https://www.wpr.org/janet-protasiewicz-wisconsin-
supreme-court-justice-primary-election
[https://perma.cc/C9V6-N9C8].
4. Wedge Issues Podcast – Mar. 2, 2023
a. Jessie Opoien & Jack Kelly, Janet Protasiewicz
Discusses Supreme Court Bid On Wedge Issues Podcast,
Cap Times (Mar. 2, 2023), available at:
https://captimes.com/news/government/janet-
protasiewicz-discusses-supreme-court-bid-on-wedge-
issues-podcast/article_111d3475-e040-5e43-a932-
06819cadc036.html.
5. X (f.k.a. Twitter) – Mar. 3, 2023
a. @janetforjustice, X (Mar. 3, 2023, 5:31PM),
https://x.com/janetforjustice/status/16317996097511178
25?s=46&t=9FuOdnLF34m1gMWomZ5G-g.
6. X (f.k.a. Twitter) – Mar. 7, 2023
a. @janetforjustice, X (Mar. 7, 2023, 1:15PM),
https://x.com/janetforjustice/status/16331847362636963
86?s=20.
7. PBS Wisconsin – Mar. 9, 2023
a. Zac Schultz, Janet Protasiewicz, Daniel Kelly On
Wisconsin Redistricting, PBS Wis. (Mar. 9, 2023),
available at: https://pbswisconsin.org/news-
item/janet-protasiewicz-daniel-kelly-on-wisconsin-
redistricting [https://perma.cc/4HH9-PXHP].
8. Pod Save America – Mar. 20, 2023
a. Pod Save America: Mugshots and Milk Shots (Live from
Wisconsin!), Crooked Media (Mar. 20, 2023), available
at: https://crooked.com/podcast/mugshots-and-milk-
shots-live-from-wisconsin.
9. Wisconsin Supreme Court Candidate Debate – Mar. 21, 2023
a. State Bar of Wisconsin, WISC-TV, WisPolitics.com
Supreme Court Debate, WisconsinEye (Mar. 21, 2023),
available at: https://wiseye.org/2023/03/21/state-bar-
of-wisconsin-wisc-tv-wispolitics-com-supreme-court-
debate.