Wright v. Wis. Elections Comm'n

• Docket Number: 2023AP1412-OA
• Decision Date: 06 October 2023
• Citation: 2023 WI 67,995 N.W.2d 699
• Parties: 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, Robert F. Spindell, Jr., Mark L. Thomsen, Ann S. Jacobs, Marge Bostelmann, Joseph J. Czarnezki, in their official capacities as Members of the Wisconsin Elections Commission; and Meagan Wolfe, in her official capacity as Administrator of the Wisconsin Elections Commission, Respondents.
• Court: Wisconsin Supreme Court

2023 WI 67

995 N.W.2d 699

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, Robert F. Spindell, Jr., Mark L. Thomsen, Ann S. Jacobs, Marge Bostelmann, Joseph J. Czarnezki, in their official capacities as Members of the Wisconsin Elections Commission; and Meagan Wolfe, in her official capacity as Administrator of the Wisconsin Elections Commission, Respondents.

No. 2023AP1412-OA

Supreme Court of Wisconsin.

Filed October 6, 2023

MEMORANDUM DECISION AND ORDER OF JUSTICE JANET C. PROTASIEWICZ

¶1 On August 1, 2023, I swore a sacred oath to "faithfully and impartially discharge the duties of [my] office."¹In 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

¶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."⁴That 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 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

¶6The 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, judges of all political affiliations have denied such motions.⁷And 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 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

¶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.SeeCounty 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).¹⁰Yet 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 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, 129 S.Ct. 2252, 173 L.Ed.2d 1208(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, 129 S. Ct. 2252.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, 129 S. Ct. 2252.The CEO's $3 million in donations, moreover, had totally 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.Seeid. at 873, 129 S. Ct. 2252.

¶13Caperton recognized that its rule would apply only in "rare instances."Id. at 890, 129 S. Ct. 2252;see alsoid. at 887, 129 S. Ct. 2252("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 were concerning partly because his favored judge won by only 50,000 votes; here, I defeated Justice...