The Special Committee on Judicial Discipline and Recusal has unveiled its specific proposals dealing with judicial discipline and recusal. The Committee will discuss each item at its next meeting on Thursday, November 18 (10:00 a.m., Room 328 Northwest, State Capitol). It is not clear from the meeting agenda whether the Committee will formally vote to adopt these proposals and recommend them to the Legislature. WCJC will  provide updates as the Committee continues its work.

Below is a synopsis of each the eight draft proposals and a link to the actual language:

Judicial disqualification based on an objective standard (WLC: 0005/1): This proposed legislation would create an “objective standard” under Wisconsin’s law pertaining to disqualification of judges and justices. Under current law, a judge must disqualify himself or herself in any civil or criminal action or proceeding when the judge determines that he or she cannot act in an impartial manner. The Wisconsin Supreme Court has ruled that this is a subjective determination made by the judge. Under current law, when a judge’s refusal to disqualify himself or herself under this standard is made, the only question before a reviewing court is whether the record shows that the judge made this determination; there is no further investigation of what a reasonable person might believe. This proposed legislation would thus give a reviewing court more leeway to force a judge off of a case or vacate an order issued by the judge.

Notice of campaign contributions made to a judge/justice (WLC: 0008/1): This proposed legislation would require a “contributor” to notify the judge or justice and every party in the pending civil or criminal action or proceeding that a contribution was made to the judge or justice. A “contributor” is a party to the case; an affiliate of a party; spouse, minor child, or minor stepchild of a party; an attorney representing the party; or the attorney’s law firm, partners, or associates. The proposal dfails to define “affiliate.” Ostensibly, this could be extended to entity, such as a business or medical/hospital association, with an interest in the case.

Addressing equally divided decisions of the Supreme Court in cases of judicial misconduct or permanent disability (WLC: 0010/1): This proposed legislation provides that in any decision of the Supreme Court in a case of misconduct or permanent disability is equally divided, the findings of fact, conclusions of law, and recommendations of the panel or jury verdict are binding. The purpose of this case is to address a recent complaint filed against Justice Michael Gableman by the Wisconsin Judicial Commission for alleged violations of the Code of Judicial Conduct for advertisements his campaign ran against his judicial candidate opponent. In that case, the Wisconsin Supreme Court deadlocked 3-3, with three justices agreeing with the decision of the three-judge panel dismissing the complaint against Justice Gableman, and three justices disagreeing with the panel’s decision. Under this proposal, if the Court deadlocks, the lower panel’s decision or jury verdict would stand.

Amending Wisconsin Constitution by creating panel of judges to determine disciplinary proceedings involving a Supreme Court Justice (WLC: 0011/1): This proposed joint resolution would amend the Wisconsin Constitution when it comes deciding disciplinary proceedings for a Supreme Court Justice. Under Article VII, Section 11 of the Wisconsin Constitution, justices and judges are subject to reprimand, censure, suspension, and removal for cause or for disability, by the Wisconsin Supreme Court pursuant to procedures established by the legislature. Under the proposed joint resolution, when a disciplinary proceeding is brought against a Supreme Court Justice, the Supreme Court would appoint a panel of three judges of the court of appeals by seniority rather than allow the Supreme Court to decide the outcome.

Passing a Constitutional amendment requires a lengthy three-vote process:

• First, a majority of members in both houses of the state legislature must vote in favor of the amendment.
• Once the proposed amendment passes both houses for the first time, any further progress in the amendment’s adaptation must wait until after general elections have been held and the state legislature has reconvened with the members chosen in the new elections; then, both houses must vote a second time to accept the proposed amendment (without changes).
• Should the amendment pass the legislature twice, it must be approved in a third vote, the popular vote cast by Wisconsin citizens.

The Constitution can also be amended or fully replaced if a new state constitutional convention is called. In order to call a constitutional convention, a majority of the state legislators must vote in favor of holding a new convention, and then the people of Wisconsin must vote to call a convention during the next general elections.

Thus, this proposal is not likely to pass.

Amending Wisconsin Constitution to allow for temporary service by a court of appeals judge in the Wisconsin Supreme Court in judicial disciplinary proceedings (WLC 0012/1): This proposed joint resolution also seeks to amend the Wisconsin Constitution. Under Article VII, Sect. 1, disciplinary proceedings against judges and justices are determined by the Wisconsin Supreme Court. This proposed amendment to the Constitution would allow the Supreme Court to assign, on a temporary basis, a court of appeals judge to sit on the Supreme Court when it is necessary to provide seven justices for the consideration of an issue before the Court.

Similar to the above provision, because this requires an amendment to the Wisconsin Supreme Court, its passage is unlikely.

Judicial disqualification based on campaign financial support (WLC 0013/1): This proposed legislation provides that if a judge or justice receives financial support from a party (or a party’s business or immediate family; party’s attorney; party’s law firm, partners, or associates) for his or her judicial election campaign, he or she would be disqualified from hearing the case. The proposed legislation is not yet completely finished. It provides two scenarios. First, there would be a set amount (yet to be determined) that would automatically disqualify a judge. Second, a judge or justice would be disqualified if the amount contributed to his or her campaign would cause that judge or justice to conclude that his or her impartiality might be reasonably questioned.

The proposed legislation provides various considerations for a judge or justice to consider when making this decision:

• The total amount of financial support provided by the party relative to the total amount of the financial support for the judge’s/justice’s election.
• The timing between the financial support and the pendency of the civil or criminal action or proceeding.
• Any additional circumstances pertaining to disqualification.

Granting the Supreme Court authority to review a decision of a fellow justice to deny a motion to disqualify that justice (WLC 0014/1): Currently, the Wisconsin Supreme Court appears divided over whether the Court may review a fellow justice’s denial of a disqualification motion. Under current law, the Wisconsin Supreme Court reviews the denial of a disqualification motion by a circuit court judge or an appellate court judge. This proposed legislation would allow the Wisconsin Supreme Court to review a fellow justice’s denial of a motion to disqualify that justice.

Requiring a judge or justice to file a statement of reasons when he or she denies a motion for disqualification (WLC 0018/1): This proposed legislation requires a judge or justice to file a written statement providing the reasons for denying a motion seeking to disqualify that judge/justice from the case. The written statements would be required within a yet to be determined amount of time after a final judgment or final order has been issued in the civil or criminal action or proceeding.