The Wisconsin Supreme Court voted Thursday to create a committee that will study and assess the state’s recusal rules for judges and justices — delaying immediate action on an issue that has gained public prominence as the cost of the state’s Supreme Court elections has risen. 

The Court voted after holding a public hearing and open conference on a petition from a group of retired judges to update the state’s recusal rules, which currently put the decision of recusal in the hands of each individual judge or justice.  

The existing rules were adopted in 2010 and largely written by two powerful lobbying groups, Wisconsin Manufacturers and Commerce and the Wisconsin Realtors Association. In 2017, the Court’s then-conservative majority voted 5-2 to reject a petition to enact stricter recusal rules. 

In recent years, as the Court’s liberals worked year by year to gain a majority, the conservative justices and many Republican officials in the state have complained that they were in league with the state Democratic party and called for the recusal of justices on high profile issues. Those accusations continued Thursday. 

“I oppose the creation of this committee, because I think it will ultimately waste the time of all of the members,” Justice Rebecca Bradley said. “Because 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 in recent elections, which is to telegraph how you will rule on cases and receive up to $10 million from a party, and then sit on that party’s cases. So I ultimately think it’s going to waste a lot of people’s time.”

During the public hearing, the petition authors were among the speakers pushing for a committee to study the issue rather than adopt the suggested new rules because of the complexity involved. Speakers questioned how recusal rules might conflict with the First Amendment, whether they would adhere to existing state law, the state of Wisconsin’s legal culture and Supreme Court campaigns were questioned. 

“We want to have the correct rule, the best rule,” said retired Dane County Judge Richard Niess, one of the petitioners. “There is no one single rule that is demanded by the circumstances. There are a number of options, but they all need to be vetted within the context of Wisconsin and within the context of the constitutions, both state and federal.” 

Throughout the day, Justice Brian Hagedorn was especially vocal, pushing speakers to say what they hoped to accomplish with a new rule. He noted that every member of the Supreme Court has decided cases in which one of the parties spent money campaigning for or against them. 

“A lot of this feels like PR cover to me that doesn’t really do anything, and so I’m trying to figure out what problem you’re trying to solve,” Hagedorn said. “Who should have recused that’s not recusing, that you think this rule is meant to resolve. Like your petition is described as something ‘toughening recusal.’” 

He added that it “goes both ways. From my perspective, I don’t know whether it matters whether somebody campaigned for or against somebody, so for example, SEIU [the Service Employees International Union], they spent, according to public records, under $40,000 campaigning against me. I sat on the case. They gave $400,000 plus to the Chief Justice [Jill Karofsky]. She sat on the case. Is that problematic? None of us, neither of us seem to think it was under those circumstances.” 

The justices also debated how modern campaigns have affected the issue of recusal — with political parties and their allies spending millions of dollars to elect their preferred candidate while the candidates themselves more directly reference their personal views  on important issues. 

“There’s this question about what kind of legal culture we want in the state of Wisconsin,” Hagedorn said. “What kind of judicial elections we want in the state of Wisconsin. When I travel around the country, frankly, judges of all stripes kind of aghast at what has become of Wisconsin’s elections. We’re kind of considered a bit of a national disgrace about how elections are run nowadays, and part of that’s the resources that flow into these races. Part of it’s the nature of how campaigns have played out, because they’re no longer about often the legal questions.” 

Karofsky said that those frustrations about Wisconsin’s system also go the other way, noting that observers are just as annoyed by nominees to the U.S. Supreme Court telling senators they’ll just “call balls and strikes” when clearly they will bring a political frame to the Court. 

“The utter frustration of members of the Senate, members of the public, members of the legal community who know that’s probably — and as it turns out, in many cases — just not the truth, and that there’s this veneer that they hide behind and say that they are just going to be fair and impartial,” she said. 

During the hearing, Ann Jacobs, a former president of the Wisconsin Association of Justice and chair of the Wisconsin Elections Commission, said that whatever the rule is, the Court needs to be careful that it doesn’t punish attorneys for being politically involved. 

“It appears that in considering recusal, a judge has to consider a lawyer’s or a litigant’s prior political activities, and what does that mean? Door knocking, signature gathering, fundraiser holding, social media posts, hours spent on behalf of a campaign, meetings attended,” she said, referring to the draft rule written by the petitioners. 

“How does a judge ascertain this?” she asked. “Does a lawyer have to divulge this as a matter of course, does the judge have to question lawyers about their political activities? Is a judge required to search the internet looking for political activity?”

Jacobs warned against the prospect of “a system where parties, litigants, their lawyers, etc. are cross examined” about their political activity and possibly excessive partisanship.

She said she has a “selfish interest in this” because she’s a co-chair of a Democratic party caucus, a partisan appointee to a state commission and sits on the board of a political organization.  

“I’m sort of the definition of politically active, and what I can’t tell from this proposed rule is whether and when and how my political activity that I am proud of, within the party of my choosing could cause the recusal of a judge,” she said. “We must be extraordinarily careful not to penalize lawyers and litigants for being politically active. That’s the heart of our democracy. It’s what we want people to do.”

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The Wisconsin Supreme Court is scheduled to hear from members of the public this week on a request to require judges to recuse themselves if past donations to or support of their judicial campaign could affect their impartiality in a case.

But it appears unlikely changes to the court’s recusal rules will happen right away. 

In letters to the court over the last month, some legal organizations and research groups have argued that the justices should reject the proposal, including the five retired circuit court judges from Dane, Milwaukee and Monroe counties who proposed the changes in the first place. 

Instead, the former judges, representatives of Law Forward, the Wisconsin Association for Justice and directors of the State Democracy Research Initiative at the University of Wisconsin-Madison suggest the Wisconsin Supreme Court should establish an advisory committee to study what process would work best in Wisconsin. 

The groups said the proposed rule changes before the court on Thursday stem from valid concerns about an impartial judiciary, but could have unintended consequences, such as chilling speech of attorneys who want to participate in elections. 

“Having solid judicial recusal standards is very important, and so it seems that the best way to move forward is to pull together a variety of different perspectives to come up with the best solution,” said Rachel Snyder, policy counsel for Law Forward. “More brain power and more thoughtful consideration … could produce a better workable recusal standard that meets the goals of ensuring confidence in the judiciary and ensuring that conflicts are addressed when they need to be, without going too far in the other direction, and chilling speech that we wouldn’t want chilled or opening the door to recusal being something that can then be weaponized.” 

The Wisconsin Supreme Court is expected to hold an open conference following the public comment period Thursday morning at the Capitol in Madison to decide next steps, a spokesperson said. The high court could vote on the proposal, decide to form an advisory committee or make other related decisions, the spokesperson said. 

Opting for further study would keep the current rules in place ahead of the next state Supreme Court election in 2027. Two candidates already launched campaigns for the April election after Justice Annette Ziegler in March said she would not seek another term on the bench. 

Snyder said it’s understandable some people want changes sooner rather than later, but expediency should not supersede reaching the best policy. In the meantime, judges can still voluntarily recuse themselves, she said. 

“If we’re going to do it, we should try to get it right to the best of our ability,” Snyder said. 

Former Dane County Judge Richard Niess, one of the retired judges who petitioned for the change, said the group had not considered a study committee as a possibility, but thought it was a “terrific” suggestion. To balance concerns about timing for a study, Niess said his colleagues asked the justices to put a deadline on when an advisory committee would share any recommendations. 

“We were delighted to receive the responses that we did, all of them, because it was precisely the type of discussion that we want to have, and we want to have it in public, so that whatever is decided upon by the Supreme Court, the public will know what the reasoning is,” Niess said. 

Current rules written by business lobby

The debate is part of a decades-long battle over what to do about increasing spending in Wisconsin’s nonpartisan, but increasingly political state Supreme Court races. 

“Broadly the question of recusal is important because it gets to the sort of core feature of our judiciary, which is the right to a fair and impartial tribunal,” said Derek Clinger, senior counsel and director of partnerships for the State Democracy Research Initiative, who has studied judicial recusals in and outside of Wisconsin. “That kind of independence and fairness is what gives the courts legitimacy, and so just the fact that the court is considering this shows that they’re taking this issue quite seriously.” 

It’s also significant that the court is debating recusal rules given the history of the issue in Wisconsin over the last 15 years, Clinger said. 

The rules were crafted after record spending in the 2007 and 2008 Wisconsin Supreme Court elections led to conservative control of the court. State Supreme Court election spending has exploded since then as liberals gained control. The 2025 Wisconsin Supreme Court race drew $144.5 million in spending, topping Wisconsin’s 2023 race as the most expensive high court election in U.S. history. 

The former conservative-majority Wisconsin Supreme Court in 2010 adopted the existing rules drafted by Wisconsin Manufacturers and Commerce and the Wisconsin Realtors Association. The rules state judges do not have to recuse from a case because a party or an attorney donated to their political campaigns. WMC did not respond to questions from Wisconsin Watch about whether the rules should change.  

The conservative-majority court in 2017 also rejected a petition from 54 retired judges who sought tighter recusal rules. 

Nearly a decade later, the five former circuit court judges submitted their petition in January and were granted a hearing in early April. In a memo tied to their petition, the former judges noted that since the 2010 rules were adopted, “the amount of money contributed to Supreme Court elections, and even to some of the state circuit court elections, has exploded.” 

“It is not a stretch to conclude some cause and effect relationship,” they wrote.

Niess said he recalled ongoing debates around recusals with Chief Justice Jill Karofsky and Justice Susan Crawford while they were all on the Dane County Circuit Court. 

“We were just kind of shaking our heads about how did we get to this point,” Niess recalled. “And since … these two individuals have joined as justices, it seemed the perfect time for us to just serve up a petition to get a discussion going.” 

At a WisPolitics event in October, Karofsky committed to holding a public hearing about establishing a recusal rule for the court. 

“We need to bring people into the Supreme Court hearing room and we need to hear about what kind of rule and what kind of parameters on a rule people think that we should have,” Karofsky said at the time.

Wisconsin Supreme Court revisits recusal rules amid debate over money and impartiality is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.