Soon a La Crosse County Circuit Court judge will rule in a high-stakes case involving frac sand mining and private property rights. Three property owners seeking to stop a frac sand operation opening in their neighborhood in Jackson County say their lives will be devastated by the operation’s noise, lights, blasting and dust. The company says the home owners have no right to block their business.
The losing side in this legal confrontation will surely be disappointed, angry, maybe outraged. But the judge’s ruling will be respected, regardless of their reactions, pending a possible appeal. In a society that respects and lives by the rule of law, that’s the way it works.
But with the growing amounts of money in judicial elections, that trusting scenario may be at risk, according to a group of retired judges.
Some 54 retired Wisconsin judges have petitioned the Wisconsin Supreme Court to require judges and justices to step aside in cases when they have received campaign contributions in certain amount from those involved in the case.
The Wisconsin Democracy Campaign points out that conduct rules approved by the Supreme Court in 2010 allow justices to stay on cases involving campaign donors who give them thousands of dollars and outside special interest groups that spend millions of dollars in judicial elections. The decision to stay on a case is up to the judge.
The judges’ petition said the fundamental purpose for the proposed rule “is to insure the public’s confidence in the ultimate fairness and integrity of the entire Wisconsin judicial system.”
They added, “As money in elections becomes more predominant, citizens rightfully ask whether justice is for sale. The appearance of partiality that large campaign donations cause strikes at the heart of the judicial function, which depends on the public’s respect for its judgments.”
Retired La Crosse County Circuit Judge John Perlich said on the Wisconsin Public Radio Newsmakers program Feb. 9: “I think the credibility of the judicial system has suffered.” He cited the importance of the appearance of impartiality as well as being impartial. “We have to make sure that the litigants before us trust us.” Perlich was one of the judges who signed the petition.
The judges’ petition noted that in a 2014 study by the Center for American Progress only three states ranked lower than Wisconsin in their ability to address the real or perceived conflicts created by campaign contributions to a judge.
The petition by the retired judges comes at a time when the credibility of judges and the courts has faced another challenge: the disparagement of judges and court decisions by the president of the United States.
President Donald Trump has launched Twitter attacks on judges who blocked his immigration order to the extent that his Supreme Court nominee Judge Neil Gorsuch called Trump’s attacks on the judiciary “disheartening” and “demoralizing.”
Trump said the federal judge in Seattle, James Robart, who blocked the order barring entry to refugees and immigrants from seven predominantly Muslim nations, was a “so-called judge” who had made a “ridiculous” ruling. He subsequently said, “Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!” He has also characterized judges as “so political.”
I asked Dale Pasell, retired La Crosse County Circuit Court judge, to comment on Trump’s disparaging remarks about judges. He said he agreed with the Supreme Court nominee that Trump’s comments were disheartening and demoralizing. Pasell is also one of the retired judges seeking reform in Wisconsin.
He acknowledged Trump’s First Amendment right to “speak his mind. But,” he added, “as president he has an obligation to respect the role of the court as an independent and separate branch of government. He needs to respect that function.” The judges “are not his subjects.”
There’s no doubt that the 54 judges need public opinion behind them if their petition is to result in the changes it seeks. Pasell suggested citizens could let elected officials know of their concern.
This is one of those grass roots actions where citizens can have an impact on strengthening our democratic institutions — especially critical now because of forces undermining the credibility of our courts whether it’s the president’s intemperate tweets or the state’s lack of adequate curbs on conflict of interest.