Recuse Yourself – Transcript

May 17, 2016
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Judges are supposed to hear the case before them and make a fair judgement based on the law. But what if the judge has a bias? Maybe a conflict of interest? When should a judge  step aside or recuse themself from hearing a case?

If a judge’s family member has an interest in a case that’s coming before him, that’s pretty clear. The judge should step down. Bow out. But what about this? What if a judge stands to directly profit from the outcome a case? That seems pretty cut and dry too. But say one of the parties in a case contributed money to a judge’s campaign in a tight judicial election? What then?

So. As money floods into judicial elections across the country, states grapple with this question. Perhaps no state more than Wisconsin where like in many other states, the final decision of whether or not a judge should step aside, or recuse themself, is left to the judge. Reporter Chloe Prasinos has our story.

I wanted to find an expert who could help me grapple with this question: why are judges who are accused of bias tasked with determining whether or not they’re in fact biased? Enter Charlie Geyh.

GEYH: Hi. My name is Charlie Geyh, I’m a professor of law at the Indiana University School of Law in Bloomington, Indiana.

He’s also the author of the book Courting Peril: The Political Transformation of the American Judiciary. He thinks about judicial ethics for a living.

GEYH: In the 1600’s the presumption was that judges were incapable of bias. We presume a judge to be impartial and anyone challenging that will cause the system to fall to pieces, cats will consort with dogs, whatever.

But, Professor Geyh says, judges are human beings and human beings have personal experiences that inevitably produce bias. Judges are, of course, taught how to be fair and impartial, but bias is a tricky thing to nail down.

GEYH: The problem with bias specifically is, of course, it’s hard to prove, it’s hard to crawl inside a judge’s head and say, ‘you be biased.’

The question of bias in the judiciary is especially acute in Wisconsin, where like many states, judges are elected to the state court, but the price-tag on those elections has skyrocketed over the past decade.

GEYH: And so we really have a  new issue arising … as a consequence of all of this money flowing into judicial elections — at what point does money become so significant that we need to disqualify the judge for fear that the judge won’t be able to impartially hear the case?

That, that is the question at the heart of our story. So. To start, I’m going to tell you about a family directly impacted by a judge’s decision to remain on a case in Wisconsin.

Meet Elijah Glover:

ELIJAH: My name is Elijah and I’m 8 yrs old, my favorite color is red, my favorite color is red. And I love my momma, my brother, and my sister

CHLOE: Where do you live?

ELIJAH: I live in Milwaukee.

Elijah has asthma, and Tonisha Howard is his mom.

HOWARD: I am Tonisha Howard, I’m 31 year old mother. I have 4 children — 2 boys, 2 girls. My eldest is 11, my youngest is 3.

In the winter, Elijah’s asthma gets especially bad — he’s up all night coughing, which means Tonisha Howard is up all night, too. And he can’t go to school, which means Howard can’t go to work.

Howard works in healthcare and also as a paraprofessional in the Milwaukee Public school system. She doesn’t have paid sick days. And she’s been a single mom for much of her kids’ lives. So when Elijah’s sick, things get complicated quick.

One time when Elijah was little, his asthma flared up. So, Howard called into work and explained that she couldn’t come in that day — she needed to take care of her son.

HOWARD: You know I called in. They of course had the attitude, ‘Well why do you need to be off?’ ‘My child is sick.’ ‘Well how sick is your child?’ ‘Uh he has asthma, he’s very sick, he can’t go to school, he can’t go to daycare, I have to stay home with him.’ ‘Well how long will this last?’ ‘I don’t know.’ She was just basically like, ‘Don’t come back to work until you have an excuse.’

Howard says she felt like she was being asked to choose between her family and her livelihood.

HOWARD: It’s been challenging and it still is challenging because you don’t have that support from companies to say, ‘Well ok you matter as an employee, if somebody in your household is sick, I’m gonna go that extra mile to make sure you still get paid and that your kid is ok and you can come back to work and be productive.’ I mean, like, I am very dependable, I usually pick up extra hours, I usually try and put a lot into wherever I am working so I just feel like in a sense you owe me that, so don’t…. it’s a mess. I dunno…

QUINDEL: Some people really found it hard to believe that there were places of business that did not provide sick days.

This is Barbara Zack Quindel. She’s an attorney in private practice. In 2008, she represented an advocacy group called 9to5. 9to5 organized a big grassroots effort to get a city ordinance on the ballot in Milwaukee. That ordinance, if passed, would provide paid sick leave for all of Milwaukee’s workers, including Tonisha Howard.

QUINDEL: It would have guaranteed employees who work in the city of Milwaukee that they would have a certain number of paid sick days and that that would be like the minimum wage. That would be a basic labor standard that they would be entitled to use if they were sick or if their family member was sick.

And, the ordinance was very popular.

QUINDEL: The results were 70% of the people in Milwaukee voted that this paid sick days ordinance should become law.

Not everyone wanted the ordinance to pass. Steve Baas is with the Metropolitan Milwaukee Association of Commerce, or MMAC. They represent a bunch of businesses in the city.

BAAS: Well the day the referendum passed … we had our legal strategy preloaded and ready to go and so when the numbers came in, barring some shocking result that was counterintuitive to both our guts and the polling, we would be able to immediately respond.

MMAC responded by filing a lawsuit in state court, challenging the paid sick leave ordinance.

BAAS: When you fight something like this, it’s really hard to overcome perceptions that you’re the troll under the bridge just trying to pound down sick workers and poor moms who can’t get off to take care of their sick kid. And really one of the biggest areas of concern is in the job market that we have here in metro Milwaukee. It’s simple math, when you make something more expensive, people can buy less of it. And it’s the same thing for an employer. If you make it more expensive to hire an employee, they’re gonna hire less of them.

In short, MMAC argued the paid sick leave ordinance was bad for business: they didn’t want Milwaukee to become a more expensive place to do business than any other city in Wisconsin. And, as the local chamber of commerce, MMAC believed that employers should decide whether or not to offer paid sick leave to their employees — not voters.

Here’s Patrick Marley. He’s a veteran reporter for the Milwaukee Journal Sentinel and he says he remembers when the legal battle over the paid sick leave ordinance started to roil.

 MARLEY: It’s just one of those kinds of cases that there’s gonna be intense public interest in. You can just see that that’s the kind of cases that’s going to go all the way to the top.

The top, Marley’s talking about is the Wisconsin State Supreme Court. MMAC was represented by the law firm Michael Best & Friedrich, a national law firm, headquartered in Wisconsin.

MARLEY: Michael Best & Friedrich is a law firm that does all kinds of work in Wisconsin, one of the larger firms here. … It is a common firm to be used by Republican politicians. The legislature retained it when it wanted to do redistricting, they’ve done other work for candidates and campaigns…

Just to be clear, for those of you who don’t live in Wisconsin: today, in 2016, Milwaukee does not have paid sick leave. MMAC — they won the fight.

But the thing is, a year after the paid sick leave case had been decided, information surfaced that made some people wonder if one of the justices on the supreme court should have stepped aside.

According to 9to5 — the advocacy group that got the paid sick leave ordinance passed —  a Justice named Michael Gableman had received — and failed to disclose — a gift from the law firm, Michael Best & Friedrich … you may remember that law firm. It was the firm that represented MMAC before the supreme court [and Justice Gableman] on the paid sick leave case.

It was a pretty big gift. Like tens of thousands of dollars big.

From 9to5’s perspective, that gift from Michael Best & Friedrich meant that Justice Gableman could not rule impartially on the paid sick leave case; that he was biased towards the law firm that argued against paid sick leave, and that he should have stepped off the case or recused himself.

To understand these accusations of bias, we need to go back to 2008 and look at a judicial election that happened right around the same time Milwaukee initially passed the paid sick leave ordinance. It was an election for a seat on the Wisconsin State Supreme Court that experts still talk about to this day, an election rife with money and attack ads.

<<2008 ATTACK AD AMBI IN THE CLEAR, DUCK UNDER>>

For a long time, judicial elections in Wisconsin were sleepy affairs. One expert I spoke with, a lawyer and academic named Rick Esenberg, compared judicial elections in Wisconsin before 2007 to “playing checkers by mail.”

But then, in the mid-2000’s, that all changed. Reporter Patrick Marley says both sides of the political aisle realized something huge:

MARLEY: Judicial decisions can have as much impact, sometimes more impact than state laws that are passed. Special interest money from both sides started pouring in and these became in many ways like partisan fights, even though they’re nonpartisan positions.

In 2007, candidates for Wisconsin’s Supreme Court and their third party supporters spent an estimated $6 million on the race – four times more than the state’s previous record for money spent in a judicial election, set in 1999. The trend continued the next year in the 2008 judicial election.

MARLEY: Judicial races are taking on more and more the color of legislative races and governor’s races

The 2008 race for a seat on the Wisconsin Supreme Court was between challenger Judge Michael Gableman, a former prosecutor, and the incumbent, Justice Louis Butler, a former defense attorney and the only African-American jurist on the state supreme court.

Louis Butler says that back in 2008, he felt at times like a bystander in his own campaign…

BUTLER: There was a ton of money that was spent in Wisconsin — a ton of outside money and the concern that I had was that my message might get lost or that either candidate’s message might get lost with influx of outside money spent and that at least from my perception — that’s the reality, that’s what happened

According to researchers at the Brennan Center for Justice, in 2008, more money was spent on TV ads in Wisconsin’s judicial election than was spent in any other state — upwards of $3.5 million. Just on TV ads! Not so sleepy, right?

One ad in particular made headlines. It was an anti-Butler ad. And it was sponsored by Michael Gableman’s campaign.

<<Anti-Butler attack ad>>Unbelieveable, Shadowy special interests supporting Louis Butler are attacking judge Michael Gableman. It’s not true. Judge, DA, Michael Gableman has committed his life to locking up criminals to keep families safe. Putting child molesters behind bars for over 100 years. Louis Butler worked to put criminals on the street, like Reuben Lee Mitchell who raped an 11 year old girl with learning disabilities. Butler found a loophole; Mitchell went on to molest another child. Can Wisconsin families feel safe with Louis Butler on the Supreme Court?

It’s intense. In the ad, a photo of Justice Butler’s face merges with a grainy image of his former client who’s also black.

BUTLER: I think by merging my face with that former client, I think it highlighted the fact that I was black. I mean, in this day and age, I don’t think a lot of people are going around saying, ‘Hey, Butler’s black, don’t vote for Butler.’ I don’t think anybody would do that. But my face was actually merged with a dark and grainy, if you wanna google the ad you can see it. And then you can draw your own conclusions

In Louis Butler’s opinion, the ad altered the course of his campaign.

BUTLER: We had a number of calls that came in towards the end of the election after the ad went up saying we didn’t know Butler was black, we can’t support a black for the Wisconsin Supreme Court. Somewhere in the vicinity of 10 – 12 calls an hour….If you’re asking me if race had an impact in my election, I’m sorry to say that at least for some people the answer is yes.

<<Archival news tape>>It hasn’t happened in more than 4 decades but today a Wisconsin justice is conceding an election — Justice Louis Butler defeated by Burnett county judge Michael Gableman in a close Supreme Court race. The final results weren’t clear until after midnight, Butler spoke to reporters late this morning…

Gableman unseated Butler with 51.1% of the vote — a margin of a little more than 20,000 votes.

BUTLER: If I had been more of politician, would I still be on the bench? Very possibly. But I think when you are a judge, and this is maybe a statement about judicial elections in general, should judges be politicians or should judges be judges? And I took the approach that a judge should be a judge.

I spoke to Justice Michael Gableman — he wanted our conversation to be off-the-record and he declined to be interviewed for this story.

A few months after Michael Gabelman was elected to the Wisconsin Supreme Court, the attack ad you heard earlier was grabbing headlines, yet again. The Wisconsin Judicial Commission charged Justice Gableman with violating the code of judicial ethics when his campaign ran that controversial ad.

Now, if the commission upheld the charges, they would then determine how Justice Michael Gableman would be penalized. Again, reporter Patrick Marley:

MARLEY: They have a very wide range from a reprimand, which is essentially a public scolding, to kicking you off the bench, and anything inbetween. They could have said you can’t sit on cases for 3 months. You gotta take a day’s loss of pay, there were a lot of things that they could have done.

Justice Gableman hired legal representation to defend himself against the ethics charges. The law firm was called Michael Best & Friedrich — one of his attorneys was James Bopp Jr.

BOPP: I helped defend Judge Gableman, who’s on the Wisconsin Supreme Court, from what I thought was an unconstitutional charge

Bopp says his defense of Justice Gableman on the ethics charge was rooted in a candidate’s First Amendment right to free speech.

BOPP: It’s not the government’s job to decide whether ads run by candidates for public office are true or false. That’s up to the people to decide whether the ads are true or false, and if you think they’re false, then run an ad that explains that. So anyway, those were the grounds that we defended and won the case.

But, Gableman didn’t technically win. The Wisconsin State Supreme Court — a court of Gableman’s peers — deadlocked on the ethics charge. Three of the justices found that there had been an ethics violation. And three justices found that the ad was First Amendment protected speech in the context of a political election. Reporter Patrick Marley explains how the case hung in this limbo:

MARLEY: There weren’t enough votes to dismiss the case. There weren’t enough votes to uphold the ethics complaint; it just sat there in this gray area.

Then, a few months later,  the fight over the paid sick leave ordinance had finally made its way up to the Wisconsin State Supreme Court. One of the judges on the Court had recused herself, so there were only 6 justices who heard the case. And they split: 3-3.

Which judge on the state’s highest court cast the vote that deadlocked the case? Justice Michael Gableman.

While the paid sick leave ordinance was winding its way through the state court system, Steve Baas of MMAC was working behind the scenes with state legislators to make SURE that the paid sick leave ordinance never became law, regardless of what the courts decided.

And it worked. Here’s Baas:

BAAS: So we convinced the legislature to pass legislation creating a unified state standard for benefits like these that pass the leg with a relatively strong vote, wasn’t unanimous, obviously, and was signed into law by Governor Scott Walker right here in our conference room..

And with that, Milwaukee’s paid sick leave ordinance was dead in the water.

Ok, here it is. Here’s where concerns about conflict of interest and judicial bias show up center stage.

In 2010, when Wisconsin’s Supreme Court was hearing the paid sick leave case, reporter Patrick Marley reached out to Michael Best & Friedrich — this was the same law firm that had defended Justice Gableman against the ethics charge and represented MMAC in the paid sick leave case before the Wisconsin State Supreme Court and… Justice Michael Gableman.

MARLEY: A lawyer with the firm told me that Michael Gableman has a standard agreement with the firm and had met his obligations. I took that to mean he had received an invoice and paid his bill and reported that as such in a news story.

Soon after Marley’s article ran in the Milwaukee Journal Sentinel, the law firm, Michael Best & Friedrich, wrote a letter to the State Supreme Court, correcting the public record. The letter said:

MARLEY: That the story had not accurately described the arrangement that Michael Best had with Michael Gableman and that the arrangement was that Gableman would not have to pay for services unless he won his case and then was able to persuade a state board that his fee should be reimbursed by the state, in which case Michael Best could be paid. So essentially Michael Gableman got free legal service and the firm would get money only if he prevailed and if he then was able to persuade the state to pay his bill. So the chances of Michael Best being paid were incredibly remote.

Critics argued that this contingency fee arrangement between a justice on the Wisconsin Supreme Court and a law firm arguing before him amounted to a gift to a public official. That would violate Wisconsin’s ethics law that a public official cannot accept anything of value for free.

According to Marley, experts have estimated that those legal fees would have amounted to tens of thousands of dollars.

MARLEY: So the public didn’t know about that relationship at the time in which he’s ruling on cases in which Michael Best is representing clients before the Supreme Court and the sick leave case is one of those cases. 9to5 didn’t know about it, the newspaper didn’t know about it, the general public didn’t know what the terms of that deal were. So no one challenged his ability to remain on that case. Now, he could have on his own decided that that relationship would prevent him from sitting on the case, but he didn’t feel that way. He stayed on the case.

When the news got out, Barbara Quindell, one of 9to5’s attorneys on the paid sick leave case, she was outraged.

QUINDELL: And I think most people would understand that if you’re going to be ruling on my case, I don’t want you to have gotten any favor or gift from the representative or the party that I’m up against. I just think that tilts the scale of justice in a way that isn’t fair.

Quindell’s firm filed a complaint with the State Government Accountability Board on behalf of 9to5. And community members, including Tonisha Howard, the mother we heard from earlier in the story, testified at town halls in protest. But Quindell says, nothing ever came of it.

QUINDELL: If he had recused himself, the vote would have been 3-2 in our favor and we would have won the paid sick leave battle in October of 2010.

Steve Baas of MMAC says he sees no conflict of interest — that Gableman’s fee arrangement with the law firm, Michael Best & Friedrich, did not get in the way of Justice Gableman’s ability to rule impartially on the paid sick leave case.

BAAS: To play guilt by association games and to try and use that as a way to stop judges from doing the job that people of the state elected them to do — it’s a little bit of dangerous road to go down. And it’s a very cynical attitude. And I think we’ve got enough cynicism in politics already.

When I asked about the fee arrangement between Justice Gableman and Michael Best & Friedrich, James Bopp, one of Gableman’s attorneys, says he doesn’t disclose “attorney-client privileged communications.”

However, Bopp did say that he thinks the idea that Justice Gableman should have recused himself, should have stepped aside, on the paid sick leave case is, in his opinion, absurd:

BOPP: I think he can be objective, just because you have one lawyer represent you in a part case does not mean you’re biased for whatever client that lawyer ever is involved with, I mean that’s a ridiculous proposition

When I talked to Tonisha Howard, the mother from earlier in the story, she had this to say:

HOWARD: I definitely think judges can be bought, I think they’re bought everyday. I feel like our justice system is set up to serve who they wanna serve. If you’re a minority, they don’t really care about you, if you’re poor, they really don’t care about you. If they feel like you’re uneducated, they don’t care about you. So a lot of decision is made in the state of Wisconsin is to benefit people who have money.

So where does this leave us? Well, remember the question at the start of this story: when does money in judicial elections become significant enough that we need to worry about a judge’s potential bias and their ability to rule impartially? Afterall, a judge has the final say on his or her own bias.

Some people think that the appearance of bias alone is enough reason for a judge to recuse him or herself in order to protect the public’s faith in a fair, unbiased judiciary.

BOPP: Appearance needs to be tied to reality, not some fantasy.

That’s James Bopp again, the attorney who defended Justice Gableman against the ethics charge in 2010. Bopp has devoted his career to loosening restrictions on political speech and campaign finance. For example, he argued Citizens United before the the United States Supreme Court.

BOPP: And people do not abandon their reason and their thought processes just because they feel a debt of gratitude to somebody that supported their campaign and if that would be true, it’s really a broad base attack on democracy completely.

Professor Charlie Geyh says he’s concerned. He says it’s not enough for a judge to voluntarily step aside because of bias, perceived or otherwise — and, he says, it is going to take more than recusal to protect the public’s faith in the courts.

GEYH: I don’t think that recusal is an adequate remedy, that it is a remedy at the end rather than at the beginning. Put another way in terms of a metaphor, it’s kind of like putting an ambulance at the base of a cliff rather than a fence at the top. In other words, rather than doing what we can to keep the money from buying influence, we’re saying once it buys influence we will disqualify judges who have been influenced. That is a way to protect litigants but it is not enough to preserve the integrity of the process which requires us to roll up our sleeves and be more aggressive in the ways we can pursue the issue of money in judicial politics.

For Life of the Law, I’m Chloe Prasinos.

This episode of Life of the Law was reported by Chloe Prasinos with sound design and production by Shani Aviram. We had production assistance from Alyssa Bernstein and Kirsten Jusewicz-Haidle. Howard Gelman was our engineer. Music by Blue Dot Sessions.

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