Editor’s note: Attorney General J.B. Van Hollen said March 18 that he would ask the 7th U.S. Circuit Court of Appeals to overturn U.S. District Judge Barbara Crabb’s ruling that Wisconsin judges can join political parties.
MADISON, Wis. — Wisconsin judges can join political parties, endorse partisan candidates for office and solicit campaign donations after a federal judge struck down rules prohibiting those activities.
In a decision released Feb. 17, U.S. District Judge Barbara Crabb found the rules do little to advance an independent judiciary and violate judges' First Amendment rights to free speech.
Jim Alexander, Wisconsin Judicial Commission’s executive director, says the decision means the rules cannot be enforced. He said he was disappointed and was consulting with Attorney General J.B. Van Hollen — who has called the case "a defining moment in Wisconsin's history" — on whether to appeal.
Judicial elections in Wisconsin have been nonpartisan since 1913. The Wisconsin Supreme Court amended the judicial code in 1968 to prohibit judges from joining parties. In 2004, the court prohibited judges from making partisan endorsements and personally soliciting donations. Fundraising must be done through campaign committees.
Lawyers representing the state argued the rules kept judges from being influenced by party affiliations, promoted confidence in the judiciary and kept donors from feeling coerced into giving money to judges.
But in her 65-page decision, Crabb said partisanship wasn't as much of a threat to judicial independence in Wisconsin as were special interest groups spending big money to get judges elected.
She said rules barring party membership and partisan endorsements didn't eliminate bias, they only hid it from voters and litigants. A number of Wisconsin judges likely have strong political preferences but those in their courtrooms have no way to know that, she said.
"The best way to eliminate potential bias is to shine a light on it, not cover it up," she said.
Crabb said that in other elections, including recent races for the Wisconsin Supreme Court, it had been clear which candidates were supported by the two major political parties. Candidates should be able to say "what everyone already knows," she wrote.
And the rule forcing judges to raise money through committees rather than personal appeals does nothing to promote confidence in the judiciary, Crabb wrote. Judges can still find out who donated to them and voters are still suspicious of them ruling on cases involving donors, she said.
Rather than bar party membership or fundraising, the state should consider tougher rules requiring judges to recuse themselves in cases where their partiality is questioned, she wrote.
The ruling doesn’t mean judges will have partisan affiliations listed on the ballot or give political parties control over judicial nominations. Judicial candidates will still be barred from "appealing to partisan interests."
Milwaukee County Circuit Court Judge John Siefert, who filed the lawsuit challenging the rules, said he was now free to rejoin the Democratic Party — which he did yesterday morning — raise money for his 2011 campaign and endorse Democrats without violating ethics rules.
He predicted the vast majority of judges, unlike him, would remain nonpartisan.
"But I want the public to know that I am a law-and-order Democrat," said Siefert, who was once a delegate to the party's national convention and an alternate elector for President Clinton. "It's a shorthand way of summarizing where I stand on basic issues."
Van Hollen spokesman Bill Cosh said the attorney general was reviewing whether to appeal the decision. In a statement last year, the Republican said he wanted to keep Wisconsin judges nonpartisan.
"When someone walks into a courtroom they shouldn't have to worry about whether or not the judge sitting there has an R or a D behind their name," he said.