State Supreme Court Debate Possible New Recusal Rules

The members of the Wisconsin Supreme Court are divided over whether to revise the state’s judicial ethics code. The most controversial item in that code is when and whether a justice should withdraw from a case in which he or she has a conflict of interest.

The court held a contentious open conference on Friday to discuss a proposal from Chief Justice Shirley Abrahamson to update the judicial code, by adopting provisions from a new model code created by the American Bar Association. Justice David Prosser says it includes new rules about recusal that attorneys and interest groups will use to force justices off of cases.

“They will manufacture a controversy, and as a result of that most people out there will think ‘I can’t sit on a case, yet I want to my job. I want to be impartial. I don’t want to be terrified by people in the press and by the judicial commission.’”

Other justices on the court object to revising the code in an open meeting. Justice Pat Roggensack says because the code revision is not a rules petition, it should be discussed only in a closed meeting.

“A rules petition is one that when granted, results in the creation of either a Supreme Court rule or a statutory rule. This petition will not. It is a little like putting a label on this and calling it a rules petition – putting stripes on a donkey and calling it a zebra.”

But Justice Anne Walsh Bradley and Chief Justice Abrahamson both say changing the code by which all judges in the state are expected to behave should be done in the open.

For now the court agreed to have court staff create a chart so justices can compare the current code with the ABA’s new one and decide later what, if any, changes to make.