Wis. business group proposes rule allowing justices to hear cases involving campaign backers

Wis. group: Justices shouldn’t have to step aside

MADISON, Wis. — A powerful business group that spent millions of dollars to help elect two Wisconsin Supreme Court justices is proposing a rule that would allow them to hear its cases.

The court will consider the rule proposed by Wisconsin Manufacturers & Commerce during a public hearing Wednesday. Under the proposal, judges would not be required to step aside from cases involving groups or individuals no matter how much they spent to help their campaigns.

The rule would have immediate ramifications for two justices, Annette Ziegler and Michael Gableman, who were backed by WMC when elected to the court in 2007 and 2008. The group spent an estimated $2.2 million advocating for Ziegler and $1.76 million for Gableman, according to the Wisconsin Democracy Campaign, which tracks campaign spending.

The proposal comes as the state high court is considering whether to write specific rules for when judges must recuse themselves in cases involving campaign supporters. Current rules are silent on the issue but advise judges to step aside when a reasonable observer would question their impartiality.

The court on Wednesday also will consider competing rules proposed by the League of Women Voters and the Wisconsin Realtors Association.

The league’s rule would require judges to recuse themselves in cases in which a party has spent $1,000 or more helping their campaign within the last two years. Under the association’s rule, recusal would not immediately be triggered by donations as long as they are within legal limits.

Retired Supreme Court Justice William Bablitch has asked the court to require justices to sit out cases involving parties that have donated $10,000 or more to their campaigns or spent that much to help them get elected.

The justices are expected to hear testimony and debate the proposals Wednesday, but it’s not clear whether they will adopt any of them, court spokeswoman Amanda Todd said.

The proposals come after the U.S. Supreme Court ruled in June that elected judges must step aside from cases when large campaign contributions from interested parties create the appearance of bias.

In that case, the court said a West Virginia judge who heard a lawsuit against a company whose chief executive spent $3 million to help him get elected deprived the other side of the constitutional right to a fair hearing.

Mike McCabe, director of the Wisconsin Democracy Campaign, which advocates for campaign finance reform, said WMC’s proposed rule would have allowed the West Virginia judge to hear that case.

“If it adopts the WMC rule, the court would basically be thumbing its nose at the U.S. Supreme Court and also would be saying it’s OK for anyone or any group to put millions of dollars behind an election campaign of a justice and that doesn’t cause any conflict of interest,” he said. “I think that’s something the public won’t buy.”

In its petition, WMC argues the Supreme Court decision only requires judges to consider several factors before deciding whether to step aside, such as the relative amount of the campaign support and the impact it had on the election.

WMC argues that its rule would prevent individuals and groups from being penalized for independent speech about candidates and public policy matters involving the courts. The group notes that such spending is largely unregulated and cannot be coordinated with a candidate or campaign.

“Individuals and organizations spend money to help elect a judicial candidate precisely because they want that candidate to be a judge — that is, to preside over cases, including their own,” WMC attorney Mike Wittenwyler said in the petition. “There is nothing corrupt about that. That is democracy.”

After Ziegler was elected, she declined to recuse herself from a case in which WMC had filed a friend-of-the-court brief on behalf of business interests. She then authored a 4-3 decision that said the state wrongly collected hundreds of millions of dollars in taxes on computer software, which caused the state to issue refunds and blew a hole in the budget.

Sachin Chheda, a Democratic consultant who has worked on judicial races, said lawmakers should first approve a plan to require publicly funded Supreme Court campaigns and write recusal rules later.