Justice Janet Protasiewicz rejects calls to recuse herself from Act 10 public unions case
MADISON – For the second time since joining the state's highest court, the panel's newest justice has rejected calls from Republican legislative leaders to step away from a lawsuit before the court — this time over the future of the state's controversial law known as Act 10.
Wisconsin Supreme Court Justice Janet Protasiewicz, a member of the court's liberal majority, is refusing calls from GOP lawmakers to recuse from a case challenging the collective bargaining law that she had criticized and protested in 2011 and called unconstitutional on the campaign trail.
Protasiewicz said Wednesday in an order denying the lawmakers' request that her past criticisms do not meet the benchmark for recusal.
"(The Legislature) fails to cite a single case holding that a judge's family background and/or past activities can amount to a 'significant personal interest' that disqualify her from participating in a proceeding," Protasiewicz wrote. "There is no such case. If that were the rule, then a justice related to a doctor could be disqualified from medical malpractice cases. Former NRA members could be disqualified from Second Amendment cases. Participants in free speech rallies could be disqualified from First Amendment cases. Justices who voted in elections could be disqualified from cases challenging the election results. Where would it end?"
Her order was issued the same time the court denied a motion to hear an appeal in the case before it went through lower courts.
Protasiewicz's decision comes two weeks after conservative state Supreme Court Justice Brian Hagedorn issued an order announcing he would recuse from the same case, citing his work drafting the law at the heart of the legal challenge.
In the Jan. 30 court filing, Hagedorn said he determined that "the law requires" him to recuse himself from the case involving Act 10, which was signed into law by former Gov. Scott Walker in 2011 and drew massive protests. Hagedorn provided legal counsel in both creating the legislation and later defending Act 10 once it became law when he served as Walker's chief legal counsel.
"After reviewing the filings and the various ethical rules I am sworn to uphold, I have concluded that the law requires me to recuse from this case," Hagedorn wrote.
In their Jan. 28 motion to seek Protasiewicz's recusal, Senate Majority Leader Devin LeMahieu and Assembly Speaker Robin Vos cited Protasiewicz's past comments about the law, including telling the Milwaukee Journal Sentinel during her 2023 campaign she would consider recusing from the case if elected.
She told the Journal Sentinel in March 2023 she would "have to think about it," when asked if she would consider recusing from a potential Act 10 challenge.
"Given the fact that I marched, given the fact that I signed the recall petition, would I recuse myself? Maybe. Maybe. But I don't know for sure."
LeMahieu and Vos in the motion to the court referenced those comments and said their filing "asks her to do what she acknowledged to be right and ethical: step aside on this case."
Protasiewicz wrote Wednesday that by answering "maybe" to whether she would recuse, she "showed that I had not yet formed an opinion on the merits of any hypothetical, future Act 10 case."
The court's liberal bloc holds a 4-3 majority, and Hagedorn's recusal subtracts a conservative from that equation.
Hagedorn said in his January order that recusal from a case "should be rare — done only when the law requires it." But he added that recusal "is not optional when the law commands it."
Protasiewicz said the law does not require her to step aside. In 2023 she also rejected calls to step away from lawsuits before the court involving the state's legislative maps.
"The reality is, judges are human," she wrote. "They all have personal experiences. Some experiences may pertain to cases that come before the court. Judges come to the bench after practicing law for many years. During their legal careers, they form opinions about the law and the constitution. That does not prove that they are biased."
Molly Beck can be reached at molly.beck@jrn.com.
This article originally appeared on Milwaukee Journal Sentinel: Janet Protasiewicz rejects calls to recuse herself from Act 10 case
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