Today, the James Madison Center for Free Speech filed an amicus brief with the Wisconsin Supreme Court advising the Court that a judge is not constitutionally required to remove herself from a case simply because a party made independent expenditures years ago supporting their candidacy. The brief is in response to a motion filed by the state, seeking to have various justices remove themselves from the case, a process known as recusal.

The case is a consolidation of cases relating to “John Doe” proceedings. The proceedings are secret, with those involved bound by a gag order, but according to publicly available information, Wisconsin prosecutors have targeted conservative groups, alleging they contributed to candidates by coordinating their speech with candidates in an effort to influence elections. The motion, filed by the prosecutors, asking justices to recuse is an apparent effort to remove known conservative justices from hearing the case.

The United States Supreme Court in 2009 reviewed the Caperton v. A.T. Massey Coal Company case, where a West Virginia Supreme Court justice, who was sitting on a pending case, received over three million dollars in independent expenditure support from a litigant in the pending case, in an effort to retain the justice on the case and secure a win for the litigant. The Supreme Court held that a judge should remove herself from a case only “when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent.” Under this very narrow test, it held that due process required Justice Benjamin to recuse.

However, there was no case pending in the Wisconsin Supreme Court when the independent spending by various groups subject to the John Doe investigation occurred. Thus, no recusal is required here.

“Caperton is an extreme case, as the Supreme Court repeatedly states,” says attorney James Bopp, Jr., lead counsel for the Madison Center. “The test established in that case makes clear that it is not independent expenditures alone that disqualify a judge from a case, but the fact that a litigant with a case pending before a judge attempts to influence the judge by making their independent expenditure.” Mr. Bopp continues, “Removing judges from cases based simply on past support of the judge will chill constitutionally protected speech and participation in the election process.”

In 2002, Mr. Bopp successfully argued Republican Party of Minnesota v. White, the watershed case striking down restrictions on judicial candidates' political speech, and he filed an amicus brief in the Caperton case.

The case is Wisconsin, et al. v. Peterson, et al. A copy of the amicus brief is available here.