Gerald C. Nichol: Big donations to judges should require recusal

June 5, 2017 GMT

I was one of 57 reserve judges, including two former state Supreme Court justices, who petitioned the Wisconsin Supreme Court to adopt a rule requiring all Wisconsin elected judges to disqualify themselves if a party appearing before them contributed to the judge’s campaign beyond certain limits.

We proposed limits of $10,000 for Supreme Court, $2,500 for the court of appeals and $1,000 for circuit court judges. Our petition cited the U.S. Supreme Court’s Caperton decision, which states a court could not be a fair tribunal if a judge failed to recuse himself when a party in litigation appearing before the judge gave large sums of money to the judge’s election campaign. Other states have such rules.

The petition also cited the 2015 Wisconsin Supreme Court case Unnamed Petitioners v. Peterson, where two justices (Michael Gableman and David Prosser), on a motion to recuse by a special prosecutor, refused to do so. These justices had received large sums of money from 501c4 committees that were litigants in the lawsuit. These 501c4s promote views on public affair issues. Existing law prohibited them from directly, or through coordination, supporting the election of a candidate for public office.

After the judge’s recusal petition was filed with the court, it refused to even hold a public hearing on the petition, claiming to side with due process and free speech.

As a member of the Government Accountability Board at the time, I was very aware of the Peterson case. The matter was referred to the GAB by then Republican Attorney General J.B. Van Hollen, who had been requested by the Milwaukee County district attorney to assist his office in a case involving possible violations of state campaign finance statutes. The case related to coordination between Gov. Scott Walker’s recall campaign finance committee, Friends of Scott Walker and various 501c4 committees

After reviewing the evidence brought to the GAB by the Milwaukee DA, the GAB unanimously voted to conduct an investigation. This evidence documented that the governor solicited various wealthy individuals for millions of dollars, directing contributors to make their donations to Wisconsin Club for Growth 501c4 and not to the Friends of Scott Walker. By doing this, individuals’ identities would not be revealed, and their contributions would not be made public. Evidence also revealed people were retained or employed by both of these political fundraising organizations. This strategy ensured consistent messaging to the public. The GAB, which the Legislature later abolished, hired a retired assistant U. S. attorney to lead the investigation.

The Milwaukee DA, with the cooperation of four county DAs, petitioned for a John Doe proceeding (much like a grand jury) in those counties, and five trial court judges granted those petitions. A special prosecutor was appointed by the John Doe judge. Search warrants were executed, and subpoenas issued for records. The 501c4s reacted by filing multiple lawsuits in federal and state courts against the DA, special prosecutor and staff to halt the John Doe.

Ultimately, the Wisconsin Supreme Court in the Peterson case issued a 4-2 decision written by Justice Gableman. It declared that coordination between candidates campaign finance committees (Friends of Scott Walker) and 501c4s (Wisconsin Club for Growth) was protected “free speech” and shut down the investigation. Justice Shirley Abrahamson dissented and wrote: “Issue ads developed in coordination with the candidate or the candidate’s committee are as useful to the candidate as cash.”

Big surprise: Justices Gableman and Prosser voted with the majority.

The Peterson case illustrates the overwhelming need for the adoption of a recusal rule as proposed in the petition to the state’s high court. Every citizen of the state who stands for equal justice and honest government should come on board.