Lest anyone miss it, Justice Michael Gableman sought to make abundantly clear in his majority opinion Thursday that the investigation into coordination between Gov. Scott Walker’s recall campaign and third-party groups was finished.
“To be clear, this conclusion ends the John Doe investigation,” Gableman repeated three times, noting for good measure elsewhere that his conclusion “invalidates the special prosecutor’s theory of the case and ends the John Doe investigation.”
But others say possible conflicts of interest involving the four conservative justices who voted to toss out the inquiry provide grounds for appealing the decision to the U.S. Supreme Court. They cite a 2009 U.S. Supreme Court decision involving a judge who refused to recuse himself in a case featuring a large campaign donor.
The 2009 case, Caperton v. A.T. Massey Coal Co., involved a coal company executive who spent $3 million to elect a West Virginia Supreme Court of Appeals justice, more than three times all other donors.
That judge later voted to reverse a $50 million judgment against the company.
In a 5-4 decision, the high court made it unconstitutional for an elected Supreme Court justice to hear a case involving the financial interests of major donors of that justice’s election campaigns.
Justice Anthony Kennedy wrote the ruling resulted from highly unusual circumstances that likely wouldn’t happen again.
Brendan Fischer, counsel to the liberal advocacy group Center for Media and Democracy, said he believes the Caperton ruling could be applied to the Wisconsin Supreme Court in the John Doe case and open the door for a federal appeal.
That’s because the four members of the state Supreme Court conservative majority who voted to end the John Doe investigation did not recuse themselves from the case even though it involved groups — Wisconsin Manufacturers and Commerce, the Wisconsin Club for Growth and Citizens for a Strong America — that spent more than $8 million to help get them elected.
Justices David Prosser and Gableman were elected by narrow margins, making the donations more effective in deciding the outcome of their elections, Fischer argued.
Tara Malloy, senior legal counsel for the Campaign Legal Center, agreed that at least Prosser and Gableman should have recused themselves. Prosecutor Francis Schmitz’s requests for both to recuse were denied.
“The U.S. Supreme Court has not looked kindly on such blatant conflicts of interest, holding as recently as 2009 that the due process concerns required that a judge recuse himself from a case involving an individual who had spent millions of dollars to aid his election,” said Malloy, referring to Caperton v. Massey.
But Rick Esenberg, president and general counsel of the conservative legal group Wisconsin Institute for Law & Liberty, said the 2009 case was too narrow to be applicable.
Esenberg said in a conference call with reporters Thursday that if elected judges had to recuse themselves from cases involving groups that donate to their campaigns, then so would judges who were targets of campaign spending.
“If a judge has to recuse himself for a debt of gratitude,” he said, “it seems likely that a judge should recuse because of a natural desire for vengeance.”
He said if a broad view is taken of the Caperton v. Massey decision, “it’s basically impossible to have judicial elections” because there will always be an array of political parties supporting or opposing judges.