Wisconsin Republicans call on Protasiewicz to recuse from hearing Act 10 case

Wisconsin Republican leaders have called on Supreme Court Justice Janet Protasiewicz to recuse herself from hearing a lawsuit about Act 10, the law that ended collective bargaining rights for most public sector employees more than a decade ago.

Their motion argues that, before she was elected, Protasiewicz took actions opposing that law in a way that gives the appearance of premature bias.

“As Justice Protasiewicz emphasized on the campaign trail, no party who comes before this Court should feel there is a thumb on the scale against it,” the filing reads. “To comply with state and federal guarantees of fundamental fairness, Justice Protasiewicz should recuse from all proceedings in this appeal.”

In a joint statement, Senate Majority Leader Devin LeMahieu, R-Oostburg, and Assembly Speaker Robin Vos, R-Rochester, argued that Protasiewicz had effectively pre-judged the case while campaigning for her seat.

“Justice Protasiewicz promised Wisconsin voters that she would not prejudge cases. On the campaign trail, she repeatedly mentioned and prejudged Act 10,” the statement reads. “Today’s motion asks her to do what she acknowledged to be right and ethical: step aside on this case.”

Act 10 was a signature policy achievement of former Republican Gov. Scott Walker, which severely weakened most public sector unions. In December, a lower court judge issued a ruling that would effectively overturn the law. The state Supreme Court will have the final say.

Enacted in 2011, Act 10 was upheld by the state Supreme Court’s then-conservative majority in 2014, but not before sparking intense protests at the state Capitol and motivating an ultimately failed attempt to recall Walker from office.

When running for her Wisconsin Supreme Court seat in 2023, Protasiewicz said she disagreed with the court’s original finding.

“I agree with the dissent in that case, where the authors said Act 10 is unconstitutional,” she said at an event in Madison.

She told the Milwaukee Journal Sentinel shortly before her election that she would consider recusing herself from hearing any challenges to Act 10 because she had participated in the protests and signed the petition to recall Walker.

Protasiewicz declined to comment to WPR on Tuesday.

Wisconsin Supreme Court justices must recuse themselves from cases where they believe themselves to be unable to be objective, or if they’ve made a commitment to rule in a certain way, said Derek Clinger, an attorney with the State Democracy Research Initiative at the University of Wisconsin-Madison. But it’s up to individual justices to decide if that conflict is there, he said.

“Simply sharing an opinion about a legal or political issue isn’t enough to require recusal, but it would ultimately be up to Justice Protasiewicz to decide if she is going to recuse,” he said.

American judges have First Amendment protections to share opinions, according to a decision by the U.S. Supreme Court.

“The justices decide herself or himself whether or not to recuse in a case, and any other members do not review that decision, nor can they override it,” Clinger said.

Where does Act 10 stand now?

Protasiewicz’s election to the Wisconsin Supreme Court in April 2023 swung its ideological balance to a liberal majority for the first time in 15 years. That offered opportunities for groups to bring legal questions before a different kind of court.

Unions filed a challenge to Act 10 in November 2023, just a few months after Protasiewicz took her seat. The lawsuit argued that the law was unconstitutional because it carved out exemptions for some types of police, thereby creating two different classes of public sector workers.

In December 2024, Dane County Circuit Court Judge Jacob Frost agreed with that argument, finding that Act 10 violates the Wisconsin Constitution’s promise of equal protection. That lower court decision would overturn Act 10 if upheld.

But that decision is currently on hold, so the law is still in effect while the case is appealed. It is expected to make its way before the state Supreme Court, but the timing is unclear.

Meanwhile, another election for the state Supreme Court is underway — one that will again determine the court’s ideological balance. Depending on the outcome of the April 1 election to replace an outgoing liberal Justice Ann Walsh Bradley, the court will either have a slim conservative or liberal majority.

Protasiewicz has been called on to recuse before

This isn’t the first time that Republican lawmakers have called on Protasiewicz to recuse herself from hearing a case after her highly publicized and high-cost election drew renewed attention to the stakes of judicial elections.

Weeks after she took her seat on the court in August 2023, Vos argued that Protasiewicz should recuse herself from certain cases and cautioned that lawmakers would explore the possibility of impeachment if she did not.

One of those cases emerged the day after Protasiewicz was sworn in: a challenge to the state’s Republican-drawn legislative maps. Republicans immediately called for Protasiewicz to recuse from hearing that dispute, arguing she’d effectively pre-judged the case when she called those maps “rigged” on the campaign trail.

Protasiewicz did not step aside, and the Wisconsin Judicial Commission rejected complaints related to her comments, too.

The court’s liberal majority ultimately ruled those maps were unconstitutional, and new, more competitive maps were drawn by Gov. Tony Evers and passed by Republicans in the Legislature.

Republicans also argued that Protasiewicz should not hear a lawsuit involving mobile voting sites, stemming from the use of an early voting van in Racine in 2022. That’s because Protasiewicz pledged not to hear any cases involving the Democratic Party of Wisconsin, which donated $10 million to her campaign. The conservative Wisconsin Institute for Law and Liberty argued that, because the mobile voting case involved the national Democratic Party, Protasiewicz should recuse.

In a rebuttal, the Democratic National Committee argued that such a recusal would have a chilling effect on political parties’ ability to support judicial candidates. Both parties have donated to judicial campaigns in Wisconsin.

A previous conservative majority on the Wisconsin Supreme Court declined to adopt a rule that would have banned justices from hearing cases involving parties that had donated to their campaigns.