Lengthy hearing on proposed recusal rule revision includes concerns of court transparency and free speech

Entrance to the Wisconsin Supreme Court. Photograph by Margo Kirchner.

By Alexandria Staubach

Wisconsin Supreme Court Chief Justice Jill Karofsky last week made good on a November 2025 promise to hold a public hearing regarding judicial recusal rules.
 
The hearing on June 4 addressed a rule change petition filed by five retired judges regarding recusals related to campaign donations. Sarah B. O’Brien, John W. Markson, Richard G. Niess, J. David Rice, and Richard J. Sankovitz filed the petition in January.
 
Karofsky opened the public hearing by quoting comments submitted by Wisconsin Justice Initiative Action in support of the rule change. Karofsky said these WJI Action comments “put it well”: When people trust the judicial system, they are more likely to accept court decisions and maintain confidence in the rule of law. If the public believes our judges and justices are fair, impartial, and free from influence by money or politics, they are more likely to follow the law, serve on juries, and engage with the legal process in good faith. Without that confidence, compliance weakens and the authority of the law is diminished.
 
At an open conference immediately following the hearing, the court determined that a new rule, if any, will take shape after further study. The Supreme Court indicated it would create a committee to examine the issue. A written order setting up the committee is expected in the near future.
 
The hot bench during the three-hour hearing raised multifaceted questions about the nature of judicial campaigns in Wisconsin.
 
Two questions drove the hearing: what judges or justices can say about their values when campaigning and whether significant campaign contributions are grounds for recusal.
 
Justice Rebecca Grassl Bradley voiced heavy skepticism and asked petitioners’ representative Niess whether he thought “it’s impacted the reputation of the court to have justices that freely express how they feel about issues that they know are going to come before the court.”
 
Niess said that on the question of campaign speech, “for better or worse the judges in this state are elected and the electorate needs to be fully informed about what the past positions of candidates have been on all issues.”
 
“The problem that we are trying to resolve, in part, is the public perception that the court can be for sale. It isn’t a universal perception, but it is a broad-based perception. Part of the problem is that there is very little discussion by this court when it chooses not to recuse,” he argued.
 
Since Citizens United, the U.S. Supreme Court decision that characterized corporate campaign spending as free speech, both statements and spending have been considered to raise constitutional questions.
 
In their written memorandum supporting the petition, the retired judges indicated that the proposed amendments mainly “flip the implied presumption to favor recusal where the source or amount of any campaign contribution or independent communication raises an objectively reasonable question about a judge's ability to preside on a case impartially.” The proposed changes would also clarify “that statements of a judge or judicial candidate, other than those that expressly commit the speaker to rule on a case or issue in a particular manner, are not grounds for recusal,” they said.
 
“It might make sense what you’re saying if someone is going to rule as a judge consistent with what their values are, perhaps that should be something they say to the public,” said Justice Annette Ziegler at the hearing. “But if someone is not a judge that is going to rule based on their personal values and instead just look at the law and figure out what the law says and reach a conclusion based solely on the law and the facts in that case, then your personal opinion is absolutely irrelevant to the determination you make as a judge.”
 
Niess disagreed. “If the law is clear the law has to be followed irrespective of the personal beliefs of the judge,” he said in response. But he noted that “there are so many areas where the law is not clear and you are attempting to clarify it, and whether or not you think it is appropriate to bring your values to bear, they are going to somehow inform your view on the intricacies between these various issues that are not resolved by the current law.”
 
“The personal beliefs (of a judge) are relevant to the electors to the people of the state of Wisconsin to decide who they want on their court,” he said.
 
Karofsky seemed to agree with Niess on the point. “We have all looked at the law and wished it said something different than it says, but I took an oath to uphold the constitution of the United States and the state and the statutes,” said Karofsky. “I think you the voters deserve to know who I am as a person and I will make a commitment to continue to follow the rule of law when I put on a black robe and sit behind the bench,” she said.
 
Justice Brian Hagedorn wrestled with the Niess over the petition’s objective.
 
“A lot of this feels like PR coverage to me that doesn’t really do anything,” said Hagedorn.  “I’m trying to figure out what problem you’re trying to solve that isn’t being resolved, who should have recused that’s not recusing.”
 
“These things were not problems historically,” said Hagedorn, talking about deep conflicts of interest without recusal in the early days of the U.S. Supreme Court.
 
Because the proposed rule change would restrain discretion around campaign contribution recusals, Hagedorn asked what kind of climate the state is encouraging regarding campaigns. “What kind of legal culture do we want in Wisconsin?” he asked. “Do you think we should be concerned at all about greenlighting what’s become of our elections?”
 
While much of the hearing focused on what judicial candidates say on the campaign trail, Justice Rebecca Dallet was quick to point out that campaign spending has long signaled political alignment and personal values.
 
“Doesn’t money communicate values?” she asked. “How are we opening up some flood gate or greenlighting?” 

“If you’re taking money from the Republican party, that communicates something, or the NRA,” she said.
 
Current campaign-related recusal rules were drafted by Wisconsin Manufacturers and Commerce in conjunction with the Wisconsin Realtors Association. They were adopted with little change by a conservative Supreme Court in 2010, according to the memorandum filed by the petitioners in support of the rule change.
 
WMC is historically a significant donor to conservative candidates.
 
The current rules “foster a presumption against recusal based solely on the source or the amount, however large,” they wrote.
 
Since 2010, “the amount of money contributed to Supreme Court elections, and even to some circuit court elections, has exploded,” they wrote. While record breaking spending occurred in 2007 and 2008, spending has continued to rise in the wake of the rule change.
 
Wisconsin’s 2023 Supreme Court election between Justice Janet Protasiewicz and former Justice Daniel Kelly broke national records as the most expensive race in U.S. judicial election history, with $51 million in spending by the campaigns and third parties. The 2024 Supreme Court race between now-Justice Susan Crawford and Judge Brad Schimel broke the record again, with more than $100 million in spending by the campaigns and third parties.
 
“It is not a stretch to conclude some cause-and-effect relationship,” wrote the retired judges in their memo.
 
WJI Action, an advocacy ally of Wisconsin Justice Initiative, submitted written comments in support of the petition. As indicated by the quotation Karofsky read, WJI Action focused on the need for transparency by the judiciary to maintain public trust. WJI Action board member Jill Kastner spoke at the hearing in support of the petition, emphasizing those reasons.
 
"Because this really does impact my practice, it (public lack of faith in the judiciary) can make it more challenging to convince my clients to utilize the justice system as opposed to taking matters into their own hands,” said Kastner. She suggested urgency in strengthening recusal rules.
 
Kastner said she was "not under the false notion” that this proposed rule change would end public perception that judges are bought and paid for. “But an assumption in favor of recusal and greater transparency—that parties are allowed to put forth their evidence and reasoning for recusal—would result in a greater sense of transparency and trust," she said.
 
Several other groups wrote in support of the intent of the petition but worried that the specific changes proposed had the potential to dampen political speech by attorneys and judges, failed to account for political action before any new rule took effect, and could leave courts shorthanded. Supreme Court justices, for instance, do not have substitutes who can step in for them if they recuse.

While those commenters generally expressed support for reform, most asked the court not to adopt the rule change petition in its current form.
 
“The proposed rule may swing the pendulum too far,” Law Forward in its written comments to the court.
 
Attorney Rachel Snyder spoke at the hearing on behalf of Law Forward. She called the hearing an "excellent first step" but cautioned against creating a rule that would chill First Amendment speech. Law Forward was also concerned about whether the rule would be retroactive, punishing lawyers and judges for past conduct if changes are made.
 
Attorney Danielle Schroder spoke on behalf of Wisconsin Association for Justice. She urged cautious change.
 
Professor Robert Yablon, co-director of the University of Wisconsin Law School’s State Democracy Research Initiative, suggested at the hearing that the court find "palatable" means to "dispel mistrust when jurists are deciding on their own recusals."
 
He also spoke on more technical concerns with the proposed rule change. Protasiewicz asked him how substitutions should work under a judicial structure in which judges are elected. Yablon suggested the high court in particular might identify a few judges from the lower courts at the start of each session who could be randomly tapped to substitute at the high court if recusal is necessary.
 
With Yablon, Hagedorn returned to questions on whether the recusal rules were in fact creating a presumption that jurists are "not to be trusted." Yablon suggested that a general "slippage of trust that people have generally in institutions" was to blame, having "less to do with the recusal regime and more to do with the influx of money."
 
At the open conference following the hearing, Bradley disagreed with the court’s formation of a study committee.
 
“I oppose the creation of this committee because I think it will ultimately waste the time of all of the members,” she said. “If the committee proposes anything that represents true reform in the recusal arena, the court as currently constituted will never adopt anything that will interfere with the successful formula for electoral success, which is to telegraph how you will rule on cases and receive up to $10 million dollars from a party and then sit on that party’s cases,” she said. 

WJI Action's comments on the rule petition are found below.

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