Signing a recall petition doesn’t disqualify the judge presiding over an Act 10 lawsuit

If you think a Dane County judge presiding over an Act 10 lawsuit is compromised because he signed a recall petition, keep in mind that we live in a state where Republican-backed justices have insisted on their right to remain on cases not only where they’ve expressed opinions that sounded prejudicial, but where the parties involved have given millions to get them elected. | Getty Images Creative

Reports that Dane County Circuit Court Judge Jacob Frost signed a petition to recall former Republican Gov. Scott Walker in 2011 set off a media storm this week. Frost is presiding over a lawsuit challenging the law that made Walker famous — Act 10, which ended most collective bargaining rights for most public employees in Wisconsin.

That fact that 13 years ago Frost endorsed the movement to recall Walker, which was driven by outrage over Act 10, represents a conflict, according to conservative talk radio personality Dan O’Donnell, who dug up Frost’s signature on the recall petition and publicized it Tuesday. O’Donnell, after breaking the story, wrote on X that the judge “has no choice” but to recuse himself.

Actually, Frost does have a choice.

Under Wisconsin law , Frost does not meet any of the six criteria for automatic recusal. He’s not a relative of any party in the lawsuit; he’s not a material witness; he hasn’t previously represented any of the parties; he didn’t prepare a legal paper whose validity is at issue; he didn’t previously handle the case now on appeal; and he has no financial or personal interest at stake.

The only reason he might recuse is under the section of the law that says “if a judge determines that, for any reason, he or she cannot, or it appears he or she cannot, act in an impartial manner” he should step aside.

Before Tuesday, when O’Donnell publicized his name on the recall petition, Frost had obviously determined he could be impartial. His situation was the same as every other judge who, as a private citizen, cast a vote in an election and later determined he could still fairly judge a case involving an issue that came up in that election.

But now the news stories about Frost’s signature on the petition years ago, before he became a judge, have made the appearance of impartiality an issue. And so maybe Frost should recuse himself. If he does, it will be because a story that started on rightwing talk radio created enough of an appearance of bias that he agrees he can’t stay on the case.

The same question confronts Wisconsin Supreme Court Justice Janet Protasiewicz, who has not said whether she would recuse herself from an Act 10 challenge. During her campaign, Protasiewicz acknowledged that the appearance of impartiality might be an issue: “Given the fact that I marched, given the fact that I signed the recall petition, would I recuse myself? Maybe. Maybe, but I don’t know for sure,” she told the Milwaukee Journal Sentinel in an interview.

Wisconsin’s ethics rules allow judges to make the call themselves about whether to recuse in most cases.

Judges are not even required to recuse themselves from cases brought by their own campaign donors, because of looser rules pushed through by conservatives on the Wisconsin Supreme Court,

The University of Wisconsin Law School’s State Democracy Research Initiative has a helpful explainer on its website summarizing the state of judicial recusal in Wisconsin.

Here’s what it has to say about political and legal opinions expressed by judges:

“Wisconsin’s Code of Judicial Conduct requires a judge to recuse when the judge, while a judicial candidate, makes statements committing the judge to rule in a particular way,” the paper states. “The relevant precedent makes clear, however, that this provision only covers unmistakable promises or commitments and leaves judges free to express views on legal issues on the campaign trail and to participate in cases involving those issues.”

The law school explainer includes a brief history of Wisconsin Supreme Court justices’ recent refusal to recuse themselves from cases involving their donors. This provides a pretty interesting backdrop against which to evaluate the demands that both Frost and Protasiewicz recuse themselves from Act 10 cases.

• In 2007 now-Chief Justice Annette Ziegler declined to recuse from a case shortly after she was elected that involved Wisconsin Manufacturers & Commerce, which spent more than $2 million on her campaign.
• Former Justice Michael Gableman denied a similar request to recuse based on $1.8 million WMC spent on his behalf during his 2008 campaign.
• Gableman also rejected a request to recuse in a criminal appeal based on concerns that his “tough on crime” campaign messages called into question his ability to be fair to the defendant.
• In 2015, the Republican-controlled Legislature loosened campaign finance laws, allowing political parties to make unlimited contributions to judicial candidates.
• In 2017, the Wisconsin Supreme Court’s then-conservative majority rejected a petition to adopt a rule requiring the state’s judges to recuse from matters involving their financial supporters.

None of this is to say that Frost shouldn’t seriously consider recusing himself from the Act 10 case.

But if you think Frost is compromised by supporting the recall, keep in mind that we live in a state where Republican-backed justices have insisted on their right to remain on cases not only where they’ve expressed opinions that sounded prejudicial, but where the parties involved have given millions to get them elected.

The Frost controversy is also playing out at the same time that U.S. Supreme Court Justice Samuel Alito is insisting to Congress that the flags of insurrection that flew at his Virginia home and his New Jersey beach house — symbols of insurrection and false claims that the 2020 presidential election was stolen — do not mean he should recuse himself from cases involving the Jan. 6 attempt to overturn the election results.

In a letter to lawmakers, Alito wrote that he is “duty-bound to reject your recusal request.”

U.S. Supreme Court Justice Clarence Thomas has been similarly defiant about recusing from cases involving big donors who showered him with money and gifts. Thomas’s speaking gigs for the politically powerful Koch network put him in “the extraordinary position” of serving as “a fundraising draw” for a network that has repeatedly brought cases before the Supreme Court, according to ProPublica .

Wisconsin used to be different. Before money began pouring into state Supreme Court races, our judicial system was a model.

The campaign finance arms race has overwhelmed that good government tradition, with business lobbyists, Republicans, Democrats and various interest groups turning judicial elections into massively expensive affairs. Wisconsin’s most recent Supreme Court race was the most expensive state judicial race in U.S. history .

Against that backdrop, the debate about whether Frost’s recall petition signature constitutes a breach of public confidence in an independent, impartial judiciary is pretty penny-ante stuff.

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