By David Gordon, associate editor
The petition by 54 retired circuit judges asking the Wisconsin Supreme Court to require all state judges to step away from cases involving large donors to their election campaigns reflects broader concerns about the way the state’s highest court is functioning, according to retired Circuit Judge Thomas Barland of Eau Claire.
Barland, who signed the petition, told the Chippewa Valley Post in a recent interview that, to his knowledge, the state’s retired judges had never taken this kind of a step. The Supreme Court last week, on a 5-2 vote that split along perceived ideological lines, rejected the petition with the two liberal-leaning justices in dissent.
The dismissal of the petition leaves it up to each jurist to decide whether or not to withdraw from hearing a case. Under current state law, Supreme Court candidates can receive up to $20,000 from an individual donor and lower court candidates can receive correspondingly lower individual donations.
Political groups, however, can spend much larger sums in judicial elections and increasingly have done so.
Barland noted that the state Supreme Court’s stance on the retired judges’ petition is at least somewhat at odds with a 2009 U.S. Supreme Court decision – Caperton v A. T. Massey Coal Co. – that said due process requires elected judges to refrain from participating in cases involving disproportionately large contributors to their campaigns.
Barland, who retired in 2000 after a 33-year career on the bench, said the state Supreme Court’s action didn’t surprise him. He said it did disappoint him, and added that he is not alone in his concerns about the Court.
“Great Disappointment With the Supreme Court”
“Within the judiciary as a whole there’s great disappointment with the Supreme Court,” he said.
Some of that, Barland said, stems from the Court’s 2015 ruling that ended the John Doe investigation into alleged illegal coordination during 2012 recall election campaigns between conservative political organizations and candidates including Gov. Scott Walker. In that ruling, the Supreme Court also ordered the destruction of all evidence that had been collected.
Barland stressed, though, that concerns about the Supreme Court arose among members of both the judiciary and the state bar well before the John Doe decision. He said these developed because of “bad feelings and in-fighting on the Court” that at times boiled over into public view, along with “some poor decision-making.”
The John Doe decision became “a factor, but not a primary factor” in those concerns, he said.
Barland said that going back perhaps a decade, there have been both formal and off-the-floor discussions of Supreme Court problems at statewide meetings of Wisconsin’s judges. These have paralleled growing concerns among lawyers in the state.
“Generally speaking, the bar is disappointed in the actions of the Supreme Court,” he said.
Justices Declined Recusal Request
Before the Court’s John Doe decision, the special prosecutor leading the investigation asked Justices William Gableman and David Prosser to recuse themselves from the case because groups under investigation had spent millions of dollars supporting their candidacies. Both justices declined to do so, in brief statements that contained no rationale for their decisions, and Gableman wrote the majority opinion that ended the investigation.
Barland said that in the months following Gableman’s John Doe opinion, informal conversations among some of the retired judges led to email efforts and a series of meetings to draft – and redraft – the petition to the Supreme Court.
“Retired judges have absolutely nothing to lose,” Barland noted.
He wasn’t directly involved in those efforts, but said he was copied on the email exchanges. When a final draft was circulated, 54 retired judges signed it. Eleven other retired circuit judges told the Court they opposed the petition.
One result of all of these various factors, Barland said, is an interest among lawyers in recruiting a candidate to oppose Gableman in the spring, 2018 Supreme Court election. Gableman’s 10-year term expires next year and he is expected to seek a second term on the Court.