Petitioners argue GOP plan to remove recently seated Justice violates state Constitutional limitation to 'crimes' or 'corrupt conduct in office'...
UPDATE 10/3/23: Wisconsin Supremes declined to hear the case...
By Ernest A. Canning on 9/18/2023, 9:35am PT  

Last week at the Wisconsin Supreme Court, a pair of voters filed an Emergency Petition [PDF] seeking to block a GOP scheme to impeach a newly seated Justice on the High Court.

The filing includes an ex parte request for a temporary restraining order (TRO) to prevent Republicans in Wisconsin's gerrymandered state Assembly from carrying out their recent threats to impeach Justice Janet Protasiewicz. Petitioners charge that an impeachment brought by the state legislature at this point would be in violation of The Badger State Constitution.

Shortly after Protasiewicz was sworn-in last month --- giving liberals a majority on the WI Supreme Court for the first time in more than 15-years --- voters and a group of mathematicians and computer scientists filed two petitions, Clarke v. Wisconsin Elections Commission and Wright v. Wisconsin Elections Commission, in the state's High Court. The petitions allege Wisconsin's wildly gerrymandered legislative maps violate multiple provisions of the state Constitution. The Clarke and Wright petitioners seek the creation of a fair map prior to the 2024 election.

The new emergency petition, Hanson-Hysel v. Wisconsin State Assembly, was filed last week on behalf of the 1,021,370 Badger State electors whose votes handed Protasiewicz an 11-point victory over her right-wing opponent, Dan Kelly, last April.

The Hanson-Hysel petition advances several core contentions. Most notably: Article 7, Section 1 of the state's Constitution mandates the WI Assembly may initiate impeachment against a judge or justice only in response to "corrupt conduct in office, or for crimes and misdemeanors."

In the 175 years since Wisconsin adopted its founding document, just one member of the Badger State judiciary, Circuit Judge Levi Hubbel, was impeached, in 1853 in relation to bribery accusations. He was acquitted of the charges.

Protasiewicz, on the other hand, has not been accused of either a crime or corrupt conduct in office. She has yet to even hear a case. But her presence on the Badger State's high court has arguably become an existential threat to the survival of the Republicans' more than a decade of unfairly gerrymandered majorities in both chambers of the state legislature...

'Improper Hold on Power'

Per the emergency petition, the GOP threat to impeach the newly seated justice is a purely political effort to prevent a liberal majority on the Court from redrawing the Badger State's legislative maps: "After a decade of receiving the political benefits of unconstitutional, heavily gerrymandered districts, State Assembly Speaker Robin Vos...and members of the Wisconsin State Assembly have stated their intention of prolonging their improper hold on power by impeaching Justice Janet Protasiewicz."

Wisconsin law, unlike federal impeachments, does not require conviction in the Badger State Senate in order to prevent the Court's newly elected 4-3 liberal majority from hearing the legal challenge to what one law professor described as "the worst, court-adopted maps we've seen anywhere in the country." Under state procedures, a simple majority vote to impeach in the GOP-dominated Assembly would immediately prevent Protasiewicz from participating in any of the Court's cases until her fate was resolved via a trial in the state Senate.

Because of the Republicans' significant majority in the gerrymandered Assembly, petitioners contend: "Unconstitutional articles of impeachment could be introduced and passed in a matter of hours." This would not only "nullify the vote of over one million Wisconsin voters", but would also amount to a direct assault on the independence of Wisconsin's judiciary, resulting in irreparable harm. They also explain why the full Court should hear and decide their emergency filing...

The legislature's threatened conduct places each of the current Wisconsin Supreme Court justices and any subsequent justice at the same risk of unwarranted impeachment. Accordingly, under the Rule of Necessity, no justice is required to recuse from hearing this Emergency Petition...

As explained by the U.S. Supreme Court, in United States v. Will (1980), the Rule of Necessity is an ancient common law exception to the judicial obligation to recuse, that would otherwise apply in cases in which a judge has a personal interest in the outcome. Where all judges, as in this case, according to petitioners, "have an interest in the outcome...failure to apply the Rule of Necessity [could deny] some litigants their right to a forum. And the public might be denied resolution of the crucial matter involved..."

Petitioners have thus requested the prompt issuance of a TRO to prevent the initiation of impeachment proceedings by Assembly Republicans in order to preserve the Court's status quo pending full briefing and a hearing on their emergency petition. Petitioners also seek a permanent injunction that would prevent the Assembly from initiating future impeachment proceedings absent grounds that have been found to be Constitutional by at least four (4) members of the Wisconsin Supreme Court.

The emergency TRO has been sought in an instance where, as set forth below, there is no legal basis for the GOP demand that the newly elected liberal Justice recuse herself from participation in either the Clarke and Wright petitions, as Republican state lawmakers are demanding.

'Rigged' Maps and the First Amendment

In their Motion for Recusal, seeking to prevent Protasiewicz from hearing or ruling on either of the two challenges to the state maps, Wisconsin Republicans charged:

During [her] campaign, Justice Protasiewicz publicly declared the current legislative maps "unfair" and "rigged" in favor of Republicans. She publicly stated that she would like to take "a fresh look at the gerrymandering question."

But as we previously reported, when candidate and then Milwaukee County Circuit Court Judge Protasiewicz made those remarks, she also stated: "I can't tell you what I would do in a particular case." She made no promises as to how she would rule in any legal challenge to the Wisconsin maps which have permitted Republicans to retain a 2/3 super-majority in the WI State Senate even when the Wisconsin GOP received as little as 44.8% of the statewide vote.

In the first week of September, after receiving responses from petitioners in Clarke and Wright filed in opposition to the Republican recusal motion, Justice Protasiewicz issued an Order directing the parties to file a supplemental brief on or before September 18 that addresses a prior, unanimous decision by the Wisconsin Judicial Commission to summarily dismiss complaints against Protasiewicz regarding these very same remarks.

The Commission expressly relied upon a U.S. Supreme Court decision, Republican Party of Minnesota v. White (2003), in which SCOTUS ruled that a Minnesota cannon of judicial ethics prohibiting a "candidate for judicial office" from "announc[ing] his or her views on legal or political issues" violated the candidate's free speech rights under the 1st Amendment to the U.S. Constitution.

The state's Judicial Commission also cited a U.S. District Court decision, Duxe v. Alexander (WD-WI 2007), making clear that then candidate Protasiewicz' description of the maps as "unfair" and "rigged" did not violate the cannons of judicial ethics because they did not entail a commitment or promise on how she would rule. "A promise, pledge or commitment typically includes one of...three words or phrases like 'I will' or 'I will not.' Phrases like 'I believe' or 'It is my opinion, signal the absence of commitment," the Duxe court observed.

In their Response to the GOP motion to recuse, the Wright petitioners also cited a Pennsylvania Supreme Court decision in which it found that a justice's description of a gerrymandered map as "an absolute abomination," "a travesty," and "deeply wrong"...did not give rise to a due-process problem under existing U.S. Supreme Court precedents."

Campaign contributions

In seeking Protasiewicz' recusal, Republicans also cited a 5-4 U.S. Supreme Court decision, Caperton v. Massey Coal Co. Inc (2013), to argue they will be denied due process because the Democratic Party of Wisconsin (DPW) spent $10 million in support of the Protasiewicz campaign. Right-wing Justice Rebecca Bradley, who The Nation's John Nichols described as "the most over-the-top judicial activist" on the WI Supreme Court, made the same argument in her own "intemperate dissent" to the Court's decision when it simply ordered briefing in Clarke and Wright.

As observed by the Clarke petitioners in their Response to the GOP motion to recuse, a careful analysis of the SCOTUS decision they cite reveals that Caperton does not even remotely support the GOP demand that Protasiewicz recuse, let alone provide a basis for her impeachment.

Caperton arose out of long-running disputes between two West Virginia coal barons: Hugh Caperton and the notorious Don Blankenship, then CEO of Massey Coal.

In 2002, a West Virginia jury handed down a tort verdict, directing Massey to pay Caperton $50 million. Before Massey Coal filed its appeal to the West Virginia Supreme Court, Blankenship contributed $3 million to the Supreme Court campaign of attorney Brent Benjamin. Benjamin aspired to replace a sitting justice on the Mountain State's highest court.

Blankenship's $3 million personal contribution, the Court in Caperton noted, was "more than the total amount spent by all other Benjamin supporters and three times the amount spent by Benjamin's own committee...Benjamin won the election."

After the WV Supremes initially reversed the lower court verdict, Caperton sought a rehearing, "arguing that three of the five justices who decided the appeal should have recused themselves," SCOTUS observed. "In addition to campaign contributions...'[p]hotos...surfaced of Justice [Elliot "Spike"] Maynard vacationing with Blankenship in the French Riviera while the case was pending'."

SCOTUS went on to note: "Although two of the three justices disqualified themselves, the third, Justice Benjamin, denied Caperton's recusal motion." That led to a subsequent 3-2 WV Supreme Court decision to overturn the jury's $50 million verdict against Massey. (A 2-2 decision would have left the jury's $50 million verdict against the coal company intact.)

In overturning that WV Supreme Court decision, the narrow SCOTUS majority made clear that any time a party files a motion to recuse, they do so against "a presumption of honesty and integrity in those serving as adjudicators." All nine justices, in Caperton, recognized that mere receipt of campaign contributions, of itself, does not mandate recusal. Recusal was mandated in Caperton, however, only because there was "a serious risk of actual bias". That risk of actual bias occurs when "a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the [same] case by raising funds."

In their response to the GOP recusal motion, the Clarke petitioners pounced on the fundamental distinctions between Caperton and their case. In Caperton, there was a direct temporal relationship between the $50 million verdict and Blankenship's tender of $3 million to Benjamin's campaign. Blankenship had a direct and significant pecuniary interest in the appeal Massey Coal filed at the WV Supreme Court. Any doubt about the corrupt nature of Blankenship's campaign contribution was eliminated by his decision to vacation with Justice Maynard while his appeal was pending.

The Democratic Party of Wisconsin (DPW), by contrast, has no pecuniary interest in the outcome of the petitions filed in Clarke and Wright, they argue. Indeed, the DPW is not even a party to the proceedings. Its campaign contributions were made before Protasiewicz won the statewide election by a whopping 11 points last April.

The temporal sequence in Caperton --- $50 million verdict followed by the $3 million campaign contribution during appeal --- is also missing, as is disproportionality. Both the Democratic and Republican Parties made contributions to the Protasiewicz and Kelly campaigns, respectively. While the DPW donated a significant amount ($10 million) to the Protasiewicz campaign, it was not "disproportionate". A "record $51.06 million was spent on the race," according to the emergency petition. "Kelly received thirty percent of his contributions from the Republican Party."

Wisconsin Republicans are in no position to complain about the size of those campaign expenditures. "In 2015," as noted by the Hansen-Hysel petitioners in support of their effort to prevent an unconstitutional impeachment proceeding, "the Republican legislature and the Republican Governor [Scott Walker] acted in tandem to remove the campaign limits to the contributions political parties could make to candidate committees."

Thus, the arguments presented by the petitioners in all three cases reflect that neither the comments Protasiewicz made over the course of her campaign, nor the contributions she received, provide legal justification for either her recusal or her impeachment.

UPDATE, 10/3/23: On Sept. 28 AP reported that the Wisconsin Supreme Court rejected the request that it exercise its original jurisdiction to enjoin the threatened impeachment. Justice Protasiewicz did not take part in the decision.

Attorney Tim Burns, who filed the case, "said in an email...that he did not plan to pursue the lawsuit in lower court," AP added.

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Ernest A. Canning is a retired attorney, author, and Vietnam Veteran (4th Infantry, Central Highlands 1968). He previously served as a Senior Advisor to Veterans For Bernie. Canning has been a member of the California state bar since 1977. In addition to a juris doctor, he has received both undergraduate and graduate degrees in political science. Follow him on twitter: @cann4ing

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