By Matthew DeFour and Jack Kelly, Wisconsin Watch

This article was first published by Wisconsin Watch.

Wisconsin Republican leaders have fueled speculation in recent weeks that they could impeach new liberal Supreme Court Justice Janet Protasiewicz over comments she made about Wisconsin’s Republican-gerrymandered legislative maps, which are being challenged in court.

The fever pitch over impeachment has grown to the point that Assembly Speaker Robin Vos, R-Rochester, on Sept. 12 announced support for using the Iowa nonpartisan model for redrawing legislative maps ahead of the 2024 election.

Vos told reporters Sept. 12 the surprise proposal should prevent a court ruling on redistricting and subsequent impeachment discussion, though some Democrats, including Gov. Tony Evers, were quick to reject the proposal as disingenuous. The Assembly subsequently passed its bill on Sept. 14, which would still need approval from the state Senate before going to the governor for signing or a veto.

If Iowa-style redistricting is adopted, “there’s really no need for the lawsuit that was filed, there’s no need for the recusal, there’s no need for the millions of dollars of legal fees that are being spent by both sides,” Vos said. “So obviously, then there’d be no need for impeachment.”

Still, Vos wouldn’t rule out the possibility. The implication is that Protasiewicz has prejudged the case because during her campaign she called the maps “rigged,” and prejudging a case that benefits a major campaign contributor constitutes what Vos has called a “serious offense.”

But there’s a problem with the entire debate: Wisconsin’s laws prescribe a specific remedy for Supreme Court justices who fail to recuse from a case in which they are biased — and it’s not impeachment.

Impeachment is intended for “corrupt conduct in office or for the commission of a crime or misdemeanor,” the Legislature’s nonpartisan attorneys wrote in a memo.

The constitution and law lay out a separate process for removing justices who violate the Judicial Code of Conduct. That process, known as “address,” requires a two-thirds majority of the Assembly to advance to the Senate, not the simple majority required for impeachment.

Republicans control two-thirds of the Senate, giving them the power to remove a justice. But they hold 64 of 99 Assembly seats, making impeachment possible with votes to spare, but not the address process.

“I think that the main reason that we’re hearing more about impeachment than address is that the Assembly is more likely to have the votes to impeach than it would be to try to remove her by address,” said Rob Yablon, a University of Wisconsin Law School professor and an expert on federal and state court systems.

What does the constitution say?

The Wisconsin Constitution lays out two impeachable offenses for civil officers: “corrupt conduct in office” and “crimes and misdemeanors.”

The Wisconsin Constitution’s impeachment clause lays out that the grounds for impeachment include crimes and corrupt conduct in office. (Source: Wisconsin Legislative Reference Bureau)

Corrupt conduct is not defined in the constitution, but historically it has meant “bribery.” The only impeachment of a judge in state history was for bribery.

State law defines bribery as “any public officer or public employee who directly or indirectly accepts or offers to accept any property or any personal advantage, which the officer or employee is not authorized to receive, pursuant to an understanding that the officer or employee will act in a certain manner in relation to any matter which by law is pending or might come before the officer.”

The constitution describes a separate method for removing justices and judges who are the subject of some kind of complaint, known as address. The address process requires a two-thirds vote of all elected members of the Assembly and Senate and only after the justice has been served with a written charge and given a chance to offer a defense.

The Wisconsin Constitution has a separate clause for removing justices who commit misconduct, but it requires a two-thirds majority of the Assembly. (Source: Wisconsin Legislative Reference Bureau)

The constitution doesn’t specify which offenses fall under “address,” but state law does. The law states address can be used for allegations of “misconduct” or for a judge who isn’t “physically or mentally qualified to exercise the judicial functions of the judge’s office.”

Wisconsin statutes define the grounds for removing a justice through address as misconduct or if a justice is incapacitated. (Source: Wisconsin Legislative Reference Bureau)

The Wisconsin Judicial Commission states that “judicial misconduct” includes “failure to perform duties impartially and diligently” and “failure to recuse based upon a conflict of interest.”

In other words, impeachment is reserved for the most serious offenses, but has a lower bar for advancing in the Assembly. Address is for less serious offenses, but has a higher bar for advancing, according to University of Wisconsin Law School professor Miriam Seifter.

“Impeachment is not the mechanism for ordinary disagreements or even judicial discipline,” Seifter said.

Impeachment vs. address: Why does it matter?

One notable distinction between the two processes is the Assembly vote threshold.

On paper, Republicans have enough votes to impeach Protasiewicz — though some Assembly Republicans have indicated they wouldn’t support an impeachment effort — but not enough votes to remove via the address process. To reach the 66 votes needed to remove Protasiewicz via address, they would need to sway two Democrats — unlikely given all Democrats have already said they oppose removal.

One recent theory put forward is that if Assembly Republicans impeach Protasiewicz, the Senate could delay holding an impeachment trial, sidelining the justice from ruling on cases until a Senate impeachment vote. That would put the state into further uncharted territory, Yablon said.

“This just isn’t something that’s happened in Wisconsin before — where you had a Senate that was kind of strategically trying to sit on an impeachment,” Yablon said. “But that’s something that could be litigated or it’s something that even potentially the governor could just say, ‘Look, as far as I see, there’s now a temporary vacancy in the court, that I should be allowed to fill at least on an interim basis.'”

He also noted that if the Senate did not vote before the end of the current legislative session, a potential impeachment would likely expire when the current Legislature adjourns.

What about corrupt conduct in office?

If Republicans push for impeachment, they would likely argue that Protasiewicz committed “corrupt conduct in office.”

But “corrupt conduct,” especially in the era when the Wisconsin constitution was adopted, was mostly understood to be about people using public office for personal gain — not policy or legal disagreements, said Marquette University Law School professor Chad Oldfather.

“That’s consistent with the longstanding American norm that judges are not to be impeached simply because the authority with impeachment power doesn’t like the judges’ decisions,” Oldfather said.

From left, Wisconsin Supreme Court justices Rebecca Bradley, Brian Hagedorn and Janet Protasiewicz participate in the first hearing of the new session on Sept. 7, 2023, at the Wisconsin State Capitol in Madison. (Credit: Andy Manis for Wisconsin Watch)

Republicans have suggested that because Protasiewicz’s campaign received nearly $9 million from the Democratic Party of Wisconsin, which stands to benefit from her ruling on redistricting, she would commit some kind of corruption by ruling on the case.

“I think any reasonable person that looks at the situation and sees the campaign that was run, how it was funded, the things that (Protasiewicz) said, comes to the natural conclusion that she has prejudged this case,” Assembly Majority Leader Tyler August, R-Lake Geneva, said on WISN’s “UpFront” on Sept. 10. “So it’s appropriate for her to recuse herself, and I think ultimately, at the end of the day, that that’s what she’s going to do.”

Rick Esenberg, president of the conservative Wisconsin Institute for Law and Liberty, said he hasn’t taken a position on recusal or impeachment, but he noted there are violations of the ethics code that could also be considered corrupt conduct.

“It wouldn’t be hard to conclude that, if a person agreed to rule in a different way in exchange for campaign contributions, to call that corrupt,” Esenberg said. “Whether that’s what happened here is another matter.”

Protasiewicz has not indicated she will recuse herself from the redistricting case. She has also not said how she would rule in the pending cases. The Democratic Party of Wisconsin is not a party in the lawsuit.

In 2017, when 54 former judges asked the state Supreme Court to require judges and justices to recuse themselves “when he or she has received the benefit of campaign contributions or assistance from a party or lawyer,” the court’s then-conservative majority denied the request.

“Every judge and justice in Wisconsin should be highly offended by this petition because it attacks their integrity,” Justice Rebecca Bradley said in April 2017. In August, Bradley criticized Protasiewicz for not recusing herself from the redistricting case, saying “the outcome of this original action has been predetermined.”

Did Protasiewicz violate the Wisconsin Code of Judicial Conduct?

Republicans are calling on Protasiewicz to recuse herself under the U.S. Constitution’s Due Process Clause and the Wisconsin Code of Judicial Conduct.

The Wisconsin Judicial Commission already found her campaign statements did not violate the judicial ethics code.

The Supreme Court’s recusal rules — authored by Wisconsin Manufacturers & Commerce and the Wisconsin Realtors Association in 2010 and adopted by the high court when conservatives controlled the majority — also don’t mandate recusal for comments made on the campaign trail or campaign contributions. WMC spent heavily in 2007 to help elect conservative Annette Ziegler, now the court’s chief justice.

Wisconsin Supreme Court Chief Justice Annette Ziegler talks at a hearing on Sept. 7, 2023, at the Wisconsin State Capitol. In 2010, Ziegler supported rules that don’t require justices to recuse from cases involving campaign donors. (Andy Manis / For Wisconsin Watch)

In 2002, the U.S. Supreme Court ruled the First Amendment protects justices who state their political views on disputed issues during a campaign.

On Sept. 10, two Protasiewicz voters filed a preemptive action against the Assembly asking the Wisconsin Supreme Court to block an unconstitutional impeachment proceeding before one has even begun. They pointed to the 1853 impeachment and acquittal of Milwaukee Circuit Court Judge Levi Hubbell for bribery and the 2010 recusal rules that don’t require justices to recuse themselves from cases involving campaign donors.

“The conduct of Justice Protasiewicz cannot be in any sense historically deemed as ‘corrupt,'” they argue. “Justices routinely do not recuse themselves from issues upon which they have expressed clear points of view or in the context of previous donors to their campaigns appearing before them as litigants.”

Who decides if the Assembly brings an unconstitutional impeachment case?

Lawmakers would have the first pass at determining if an impeachable offense has been committed, Yablon said. The proceedings would start in the Assembly where members could determine if there was an impeachable offense and cast their vote accordingly. The Senate would then convict or acquit.

“Beyond that, it gets a little bit trickier,” Yablon said. “It is possible that you might have a court review whether an impeachable offense has been committed. There have been some states where impeachments have been judicially reviewed. But we don’t have any precedent one way or another in Wisconsin.”

In 2018 in West Virginia, for example, lawmakers impeached all five members of the state’s highest court. One of the impeached justices filed a lawsuit, and a panel of lower court justices — filling in as the state’s high court — ruled lawmakers didn’t properly follow their own procedures and violated the separation of powers doctrine, halting her impeachment trial.

Yablon noted the accusations leveled against the West Virginia justices, which included misuse of state funds, were more severe than what Protasiewicz could face.

If courts do get involved, the question of whether Protasiewicz committed an impeachable offense could ultimately end up in front of the Wisconsin Supreme Court, Yablon said, only making the whole situation murkier.

He said Protasiewicz would likely have to recuse herself in that situation, “in which case, the state Supreme Court could deadlock. And if they did, then the rule is that the lower court decision that is being appealed would remain the binding decision in the case.”

Seifter agreed that like “courts in other states, the Wisconsin Supreme Court likely has authority to hear cases about the scope and meaning of impeachment under its broad judicial power.”

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