Why You Should Care About Judges Excusing Themselves?
The Wisconsin REALTORS® Association is at the forefront of a state and national debate over when judges are required to recuse themselves from cases. “Recusal” is the process by which a judge is disqualified – either by his or her own action or upon the request of either party – from hearing a case because of self interest, bias or some other prejudice.
Courts regularly shape public policy issues that impact REALTORS®, property owners, buyers and sellers as much as any legislative, executive or regulatory body at the national, state and local government level. How this issue of recusal is resolved will impact every REALTOR® directly and perhaps profoundly.
Some History – the WRA and Judicial Elections
Wisconsin, like 39 other states, elects its judges. While the format of these judicial electoral systems varies, common among all of these systems is the fact that the judges sooner or later are on the ballot. And, like all candidates for public office, these judicial candidates or their campaigns seek the support of organizations like the WRA – support in the form of endorsements, member outreach and campaign contributions.
The WRA, like many organizations across the political spectrum, is regularly involved in judicial elections. We have consistently supported candidates with demonstrated competence, commitment to public service and an awareness of the issues affecting private property rights and real estate professionals. While judicial elections certainly are different from partisan elections in some ways, the WRA long ago concluded that it cannot ignore these campaigns because so much is at stake. We interview judicial candidates and introduce them to our membership and our issues. We regularly make endorsements and communicate with our membership about the candidates we are supporting. And, at times, we provide direct financial support to these candidates through the REALTOR® Political Action Committee and the Direct Givers Fund – not only legal, but indispensible in a democracy.
In 2007, the WRA endorsed then-Judge Annette Ziegler in her successful race for Wisconsin Supreme Court, and RPAC provided financial support. Apparently, because of this $8,625 legal RPAC contribution to her campaign committee, Justice Ziegler then recused herself from participating in a 2008 decision that was very important to the WRA, Wisconsin REALTORS® Association v. Town of West Point (whether state law permits a town to impose a blanket moratorium on real estate development while it develops a master zoning plan). And, since Justice Ziegler did not participate, the case resulted in a three-to-three tie and, ultimately, a decision against the WRA.
The WRA’s Petition to Amend Wisconsin’s Code of Judicial Conduct
In conjunction with the Town of West Point appeal, the WRA filed a petition to amend the Code of Judicial Conduct to make clear that the receipt of a lawful campaign contribution or endorsement by a judicial campaign committee does not, by itself, warrant recusal. The League of Women Voters filed a competing petition several months later suggesting that a contribution of even $1,000 by a party, its officers or its legal counsel would trigger recusal – even though the statutory contribution limit to a candidate for the Wisconsin Supreme Court is $10,000. The League amended its petition in July to clarify that the limitation would apply to $1,000 or more in total contributions within the two-year period before an election.
Caperton
As this issue evolved in Wisconsin, a parallel debate was unfolding nationally in the United States Supreme Court in the case of Caperton v. A.T. Massey Coal Company. In Caperton, the chief executive officer of a coal company with a case before the West Virginia Supreme Court spent approximately $3 million on lawful independent political communications supporting a candidate for the state Supreme Court. In addition to these independent communications, over which the judicial candidate had no control, the CEO also contributed $1,000 – directly and legally – to the candidate’s campaign.
The candidate who benefited from the independent spending won the election and joined the West Virginia Supreme Court. Citing this independent spending, the attorneys for the party on the other side of the coal company in a civil case requested that the new justice recuse himself. He refused and, in two instances, cast a vote in favor of the coal company’s position, invalidating a $50 million verdict against the coal company. With the lawsuit pending, the unsuccessful party appealed to the U.S. Supreme Court arguing that due process required the judge to recuse himself from the case.
On June 8, 2009, in a 5-4 decision, the U.S. Supreme Court held that constitutional due process required the justice to recuse himself. The Court concluded that the CEO’s financial support that undoubtedly benefited the justice’s campaign “had a significant and disproportionate influence in placing [the justice] on the case.” While the Court emphasized that its opinion in Caperton addressed “an extraordinary situation,” it is an important decision that will affect any membership organization – like the WRA – that is involved in state judicial elections and litigation where the organization or its members are parties.
The WRA and Legal Matters
A bit of history will help make the point about the importance of the judicial system to our profession. Almost 50 years ago, in State ex rel. Reynolds v. Dinger, the Wisconsin Supreme Court recognized an exception in the definition of the practice of law for “activities that the Supreme Court has determined by rule or published opinion do not constitute the unlicensed or unauthorized practice of law…” And, through that decision, the Wisconsin Supreme Court allowed real estate licensees the limited right to “practice law” in drafting and completing real estate forms. That landmark decision – as well as the State Bar of Wisconsin’s continuing efforts to have the Court redefine the practice of law – demonstrate the importance of a judiciary that understands our profession and the needs of our clients.
In 1978, the WRA leadership created the Legal Action Program to support REALTORS® and property owners involved in legal matters that have significance to the our industry. The cases in which the Program is involved include actions involving real estate law and practice, landuse and environmental issues, private property rights or development rights. On occasion, cases present significant constitutional issues that involve our right to participate in the political process.
The typical involvement by the WRA, through the Legal Action Program, is participation as an amicus curiae (filing an informational brief as a friend of the court); as a member of a coalition of similarly interested parties; as a party to a lawsuit; or by providing research on legal, land-use, environmental or other issues. Generally the cases in which the WRA participates are on appeal, having been already tried at the circuit court level.
Recent cases before the Wisconsin Supreme Court in which the WRA has been directly involved through the Legal Action Program include:
- Osborn v. Dennison (2009 WI 72) (whether seller’s option to seek actual damages for alleged breach are foreclosed when seller fails to direct the return of buyer’s earnest money prior to or at the same time the lawsuit is filed for actual damages);
- Hocking v. City of Dodgeville (2009 WI 70) (duties of uphill landowners to abate water intrusion nuisance);
- Baldwin-Woodville Area School District v. West Central Education Assoc. (2009 WI 51) (ability of arbitration award to withstand an appeal);
- Apple Valley Gardens Assoc. v. MacHutta (2009 WI 28) (restrictions on the use of a condominium unit in condominium declaration and bylaws);
- Novell v. Magliaccio (2008 WI 44) (application and reasonableness of buyer’s reliance on seller’s misrepresentations on condition report);
- State v. Beaver Dam Area Development Corp. (2008 WI 90) (application of open meetings/records law to quasi-governmental corporation);
- Solowicz v. Forward Geneva National, LLC (2009 WI App 9) (validity and application of uniform laws to master-planned communities);
- WIREdate, Inc. v. Village of Sussex (2008 WI 69) (application of open records laws to property assessment records);
- Below v. Norton (2008 WI 77) (application of economic loss doctrine to residential real estate transactions); and
- Walter Olson v. Town of Cottage Grove (2008 WI 51) (ability to request declaratory judgment in connection with land-use regulation).
Other organizations – from labor organizations to environmental groups – also actively participate in litigation and the judicial system to help accomplish their public policy objectives. Frequently, when a legislative effort does not succeed, the WRA will see the same policy arguments arise in litigation.
In the End, the Court Will Decide – As Always
The Wisconsin Supreme Court will meet in late October to hear the WRA’s arguments regarding the need for clear guidance on judicial recusals. The WRA will argue that Wisconsin has always elected its judges, both trial and appellate court, and we have long believed that REALTORS®, as individual members and as an association, appropriately support or, when warranted, oppose judicial candidates. And that support should not result in a judge’s recusal, whether in the highest court in the state or in a one-judge county trial court. In the words of the Wisconsin Supreme Court last year:
There is no case in Wisconsin or elsewhere that requires recusal of a judge or justice based solely on a contribution to a judicial campaign. The amounts of the contributions … are relatively insignificant. They were legal and well within the maximum for individual contributions in Supreme Court races as established by state law.
Donohoo v. Action Wisconsin, Inc., 2008 WI 110,¶ 19 (July 30, 2008).
This is precisely the point made by the WRA in its pending petition with the Wisconsin Supreme Court and that will be considered by the Court this month.
We welcome your thoughts on this important issue, which will affect judicial campaigns and litigation at every level and in every county across the state. Reluctantly, but unavoidably, the WRA has become a visible leader in this controversy. It involves important constitutional principles and, just as importantly, it involves our ability to represent you effectively.
Michael Theo is Vice President of Legal and Public Affairs for the WRA. Mike Wittenwyler is a partner in the law firm of Godfrey & Kahn in Madison and provides counsel to the WRA on matters relating to political and lobby laws.
Published: 11/8/2009
