Faculty Notes

Professors James Sample, Monroe Freedman Comment on Union Donations’ Impact on Wisconsin Justices’ Act 10 Recusals

Union donations could affect justices’ Act 10 recusals
By Patrick Marley
Milwaukee Journal Sentinel
May 3, 2014


Madison — The state Supreme Court hasn’t yet delivered its ruling on Gov. Scott Walker’s union law, but the unions have rendered their opinion on the court.

Public-sector unions — whose fate will be determined by the high court in the coming months — have poured big bucks into court races over the years. That raises questions about whether the seven justices have conflicts of interest in hearing the cases.

“I’m troubled by (Chief Justice) Shirley Abrahamson and the union support” she has received, said James Sample, a law professor at Hofstra University in New York. “I guess the risk-averse approach would be to say she should step aside.”

Some other legal scholars said the union help for Abrahamson was small in relation to overall spending in her 2009 re-election bid and did not require her to step aside.

Sample said the Abrahamson situation is a tough call. He stressed that he is more troubled by other situations on Wisconsin’s Supreme Court over when justices should drop out of cases. …

Like many states, Wisconsin requires judges to bow out of cases if an observer knowing all the facts could reasonably question their impartiality. But another rule says political spending on its own isn’t enough to warrant getting out of cases.

The U.S. Supreme Court, meanwhile, ruled in 2009 that judges must recuse themselves from cases when a party has spent huge sums to help them win election because of the risk of bias such a situation creates. The decision left open questions about precisely how much money must be in play to create conflicts of interest, and legal experts differ over when judges can remain on cases involving campaign supporters.

Stephen Gillers, a New York University law professor who has written on judicial ethics, wrote in an email to the Milwaukee Journal Sentinel that most of the union spending wouldn’t require the justices to step aside in the Act 10 case because it was “too small to matter” in multimillion-dollar campaigns.

Too little is known about union donations to the Greater Wisconsin Committee to say whether that group’s spending would require justices to remove themselves from the case, he wrote.

But Monroe Freedman, a Hofstra University law professor and expert on legal ethics, said he believed most of the justices had to step aside because of spending by the unions. If that happened, the court wouldn’t have enough members to hear the case and it would be left to the Madison-based District 4 Court of Appeals to decide.

“The judges who have received significant contributions should recuse themselves,” he said in an interview. “They shouldn’t be deciding the case at all.”

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