Brief: Legal Ethicists Urge Wisconsin Justices to Consider Recusal in Gov. Scott Walker Campaign Finance Case

Madison, Wisconsin – The Brennan Center for Justice at NYU School of Law submitted an amicus brief on behalf of legal ethicists urging Wisconsin Supreme Court justices to consider constitutional requirements for judicial recusal. Last month, the special prosecutor in the challenge to the ‘John Doe’ investigation into Gov. Scott Walker’s campaign filed a recusal motion under seal asking one or more Wisconsin justices to step aside.

Although the details of the challenge are sealed, reports indicate that three special interest groups — the Wisconsin Club for Growth, Citizens for a Strong America, and Wisconsin Manufacturers and Commerce — are under investigation for possible campaign finance violations in connection with Wisconsin Gov. Walker’s campaign during the recall election of 2011 and 2012. These same special interest groups also reportedly spent millions in support of the election campaigns of four of the state’s supreme court justices, who are now hearing a constitutional challenge to the ‘John Doe’ investigation.

The Brennan Center’s brief argues that the Wisconsin Supreme Court must consider the recusal motion in a manner consistent with the U.S. Supreme Court’s decision in Caperton v. Massey, which ruled that judges may be required to recuse themselves when a litigant provides significant campaign support to a judge.

Recusal is a vital tool that helps judges avoid potential conflicts of interest or bias, especially when campaign contributors are involved,” said Charles Geyh, Law Professor at Indiana University Maurer School of Law. “Based on reports of campaign spending by targets of the John Doe investigation, a reasonable person would doubt the capacity of some of the justices to be impartial.”

“When judges receive money from lawyers and special interests groups who may later appear before them, Americans rightly worry that our courts are for sale,”said Matthew Menendez, Counsel at the Brennan Center for Justice. “The Constitution requires judges to step aside from cases when there is a serious risk that campaign spending will impact their ability to faithfully apply the law to the facts before them.”

Notably, the Wisconsin Supreme Court amended the state’s code of judicial conduct in 2010 to specifically exclude campaign contributions and independent expenditures as bases for recusal in Wisconsin.

The Brennan Center filed the brief on behalf of the following legal ethicists: Barbara Gillers, Professor, NYU School of Law, Stephen Gillers, Professor, NYU School of Law; Lawrence Fox, Visiting Lecturer in Law at Yale Law School; Steven Lubet, Professor, Northwestern University School of Law; Charles Geyh, Professor, Indiana University School of Law; and Bruce Green, Professor, Fordham Law School.

Read the Brennan Center’s case page here.