Partisanship creeping into state Supreme Court race: Are candidates violating judicial code of conduct?

 

MADISON Wis. (CBS 58) -- In political campaigns, voters are used to candidates sharing their views and certain positions on a variety of issues, but judicial candidates are not supposed to.

So, what can a judicial candidate say and not say? What's considered crossing the line?

This conversation comes as some conservatives are raising concerns about liberal state Supreme Court candidate Janet Protasiewicz's comments about the state legislative maps and the 1849 criminal abortion ban.

Protasiewicz, a Milwaukee County Circuit Court Judge, has been the most outspoken candidate on issues that could come before the court. She is running against another liberal candidate, Dane County Circuit Court Judge Everett Mitchell.

The two conservatives in the race are former Supreme Court Justice Daniel Kelly and Waukesha County Judge Jennifer Dorow.

The race will determine the court's ideological balance and its anticipated justices will face many high-profile cases including reproductive rights, redistricting, election laws and other controversial issues.

Code of Conduct

In nonpartisan judicial races, candidates must follow the Wisconsin Code of Judicial Conduct, which "prohibits a candidate for judicial office from making statements that commit the candidate regarding cases, controversies or issues likely to come before the court."

"For other elected officials it's common for them to make promises and pledges, but judges are supposed to decide cases in an unbiased and impartial manner," said UW-Madison Law School Associate Professor Robert Yablon.

Beliefs vs. Pledges

During a WisPolitics forum, Protasiewicz called the maps enacted by the state's high court "rigged" and when asked what the worst ruling by the U.S. Supreme Court was, she said the overturning of Roe v. Wade.

“I think when you talk about a decision which I call fraught with judicial activism from the right on our U.S. Supreme Court, I think people should know what my values are in regard to women’s reproductive rights," Protasiewicz said during an appearance on WISN UpFront.

On Thursday, Protasiewicz launched a statewide ad buy leading up to the Feb. 21 primary. In the spot, Protasiewicz looks into the camera and says, "I believe in a woman’s freedom to make her own decision on abortion."

In his view, Yablon said, Protasiewicz's comments throughout the campaign don't break the judicial code of conduct.

"It's one thing to express your views broadly on a subject like abortion or gerrymandering, but if you start opining on the merits of a particular kind of legal claim that might be made -- you say -- I promise that claim comes before me -- that's really what's forbidding," said Yablon.

A spokesman for Protasiewicz defended her statements.

“Judge Protasiewicz’s comments are based in the law -- agreeing with court decisions in some cases and dissents in others,” campaign spokesperson Sam Roecker said in a statement. “As a member of the Wisconsin Supreme Court, she will be committed to impartially following the law, keeping people safe, protecting our constitutional rights, and returning the court to being a nonpartisan body.”

Recusal Petitions

If Protasiewicz is elected, there's a high probability she would hear cases on redistricting and the state's criminal abortion.

UW-Madison Political Science Professor Ryan Owens, who studies law and courts, said Protasiewicz could face recusal petitions in the future.

"We want to make sure candidates can state their views on things like judicial philosophy and policies, but there is a line at some point we do not want to cross," Owens said. "In the short run, they might be able to benefit electorally from this. In the long run however, we may see it do damage to the integrity of the court, we may see people come in and say you have to recuse yourself."

While recusal challenges are possible, Yablon and Owens said it tends to be difficult to remove a judge or justice from a legal case.

"I don't know if that would be a successful case. Recusal tends to be disfavored," Yablon said.