2023 WI 66

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2023AP1399-OA

STATE OF WISCONSIN : IN SUPREME COURT

Rebecca Clarke, Ruben Anthony, Terry Dawson, 

Dana Glasstein, Ann Groves-Lloyd, Carl Hujet, 

Jerry Iverson, Tia Johnson, Angie Kirst, Selika 

Lawton, Fabian Maldonado, Annemarie McClellan, 

James McNett, Brittany Muriello, Ela Joosten 

(Pari) Schils, Nathaniel Slack, Mary SmithJohnson, Denise Sweet, and Gabrielle Young, 

Petitioners, 

v.

Wisconsin Elections Commission, Don Millis, 

Robert F. Spindell, Jr., Mark L. Thomsen, Ann 

S. Jacobs, Marge Bostelmann, Joseph J. 

Czarnezki, in their official capacities as 

Members of the Wisconsin Election Commission; 

Meagan Wolfe, in her official capacity as the 

Administrator of the Wisconsin Elections 

Commission; Andre Jacque, Tim Carpenter, Rob 

Hutton, Chris Larson, Devin LeMahieu, Stephen 

L. Nass, John Jagler, Mark Spreitzer, Howard 

Marklein, Rachael Cabral-Guevara, Van H. 

Wanggaard, Jesse L. James, Romaine Robert 

Quinn, Dianne H. Hesselbein, Cory Tomczyk, Jeff 

Smith, and Chris Kapenga, in their official 

capacities as Members of the Wisconsin Senate, 

Respondents. 

FILED

Oct. 6, 2023

Samuel A. Christensen

Clerk of Supreme Court

MEMORANDUM DECISION AND ORDER OF

JUSTICE JANET C. PROTASIEWICZ
No. 2023AP1399-OA 

2

Before JANET C. PROTASIEWICZ, J. 

¶1 On August 1, 2023, I swore a sacred oath to "faithfully

and impartially discharge the duties of [my] office."1 In taking

that oath, I promised——above all else——to decide cases based only

on the rule of law, not my own personal opinions. Each of my

colleagues has taken the same oath. We all strive to be fair and

impartial in our work: "We're people . . . . We have opinions on

the issues of the day. Once we put the black robe on . . . we put

those opinions aside."

2

¶2 Here, individual Wisconsin citizens ask the court to

hear an original action concerning the State's legislative

districts. The Wisconsin Legislature seeks to intervene——and,

joined by a group of senators, has asked me to recuse.3

 

1 See Wis. Stat. § 757.02(1) (2021-22) (setting forth the oath 

of office for judges and justices). All subsequent references to 

the Wisconsin Statutes are to the 2021-22 version unless otherwise 

indicated.

2 Patrick Marley, Election 2016: Bradley, Kloppenburg Clash 

Again During Debate, Milwaukee J. Sentinel (Mar. 17, 2016) 

https://www.jsonline.com/story/news/politics/elections/2016/03/1

8/election-2016-bradley-kloppenburg-clash-again-duringdebate/84898270 (quoting Rebecca G. Bradley).

3 I refer to the movants as "the Legislature."
No. 2023AP1399-OA 

3

¶3 Recusal decisions are controlled by the law. They are

not a matter of personal preference. If precedent requires it, I

must recuse. But if precedent does not warrant recusal, my oath

binds me to participate. As Justice Alito has emphasized: "When

there is no sound reason for a Justice to recuse, the Justice has

a duty to sit."

4 That is true even when a case is controversial,

or when my decision may upset those who would rather I step aside.

Respect for the law must always prevail. Allowing politics or

pressure to sway my decision would betray my oath and destroy

judicial independence. As Justice Prosser has warned, unjustified

recusal can affect the integrity of the judicial branch:

"Successful recusal motions alter the composition of the Wisconsin

Supreme Court, so that, in a very real sense, a party moving for

a justice's recusal is trying to change the composition of the

court that will hear its case."

5

¶4 Strict adherence to the law is especially important

here. This recusal motion has been filed by a co-equal branch of

government. I take its request seriously. I also appreciate that

 

4 Moore v. United States, No. 22-800, at 1 (U.S. Sept. 8, 

2023) (Statement of Alito, J.).

5 See Appendix B, Justice David T. Prosser's Decision

Accompanying Order Denying Mot. for Recusal, State ex rel. Three

Unnamed Petitioners v. Peterson, Nos. 2013AP2504-08-W, at 9 (Wis. 

July 29, 2015).
No. 2023AP1399-OA 

4

this motion has engendered strong feelings in some quarters among

people of good faith.

¶5 In deciding this motion, I have searched the law books—

—and my conscience——to ensure a correct and impartial ruling. I

have reviewed the parties' arguments. I have studied the facts.

And I have examined every relevant precedent. Ultimately, I have

found I must deny the recusal motion. Before turning to my full

analysis, I will summarize why I have reached that conclusion.

I. SUMMARY

¶6 The Legislature first argues that I must recuse because

the Democratic Party of Wisconsin (DPW) made substantial

contributions to my campaign ($9.9 million) and would benefit if

this court were to order the adoption of new maps. In the

Legislature's view, due process prohibits me from hearing this

case because a particular possible resolution may benefit a

campaign donor.6

¶7 This claim lacks merit for two reasons. First, the

Legislature has not cited——and I have not found——any case in which

a judge recused because a political party that was not involved in

the litigation had contributed to their campaign. To the contrary,

 

6 The Legislature presses this argument in reliance on 

Caperton v. A.T. Massey Coal Company, Inc., 556 U.S. 868, 129 S. 

Ct. 2252, 173 L. Ed. 2d 1208 (2009), which I discuss at greater 

length below.
No. 2023AP1399-OA 

5

judges of all political affiliations have denied such motions.7

And justices of this court have repeatedly participated in

redistricting cases despite receiving substantial support from

politically affiliated groups during their campaigns. For

example, no justice recused from Johnson v. Wisconsin Elections

Commission, 2022 WI 19, 401 Wis. 2d 198, 972 N.W.2d 559, even

though many had received outsized partisan or ideological

financial support during their latest campaigns.8

¶8 Here, the Legislature focuses on contributions that I

received from the DPW. But the DPW is not a litigant and plays no

role in this case. Rather, this original action petition has been

filed by citizens who allege violations of their own individual

rights. Those citizens, moreover, are not mere stand-ins for a

political party. As voters, they claim to advance legal interests

in excluding partisan influence of all kinds from the districting

process. Taken at face value, those interests may, in some

circumstances, contradict the interests of the DPW. Thus, for me

 

7 See, e.g., Harper v. Hall, 867 S.E.2d 326 (N.C. 2022); 

Dickson v. Rucho, 735 S.E.2d 193 (N.C. 2012).

8 See Derek Clinger & Robert Yablon, Explainer: Judicial 

Recusal in Wisconsin and Beyond, State Democracy Research 

Initiative, at 26-28 (Sept. 5, 2023), available at: 

https://uwmadison.app.box.com/s/k2bx0l2b9vwsgiqfl4sfoiwt8m3j43qc

(discussing examples involving Justices Rebecca Grassl Bradley, 

Rebecca Frank Dallet, Brian Hagedorn, and Jill J. Karofsky).
No. 2023AP1399-OA 

6

to recuse myself based on campaign contributions from the DPW——a

non-party to this case——would be unprecedented.

¶9 Accepting the Legislature's theory would also raise a

swarm of continuing difficulties for each justice. In recent

Wisconsin Supreme Court races, the victor has received substantial

financial support from a single entity. In 2016, the Wisconsin

Alliance for Reform spent $2.6 million supporting Justice Rebecca

Grassl Bradley's campaign (comprising 46.2 percent of total

spending in that election). In 2018, Greater Wisconsin Committee

spent $940,000 supporting Justice Rebecca Frank Dallet's campaign

(comprising 17 percent of total spending in that election). In

2019, the Republican State Leadership Committee spent $1.25

million supporting Justice Brian Hagedorn's campaign (comprising

15.2 percent of total spending in that election). In 2020, A

Better Wisconsin Together Political Fund spent $1.88 million

supporting Justice Jill J. Karofsky's campaign (comprising 18.8

percent of total spending in that election). And in 2023——where

the total amount of money spent in support of both candidates

obliterated historical records——the DPW spent $9.9 million

supporting my campaign (still comprising only 19.4 percent of total

spending in that election). This trend is likely to persist.9

 

9 The facts in this paragraph are drawn from Clinger & Yablon, 

supra note 8, at 26-28.
No. 2023AP1399-OA 

7

¶10 It would be unworkable, and again unprecedented, to

conclude that the Due Process Clause requires every elected judge

to recuse whenever their involvement might be predicted (before

they have even cast a vote) to benefit non-parties who supported

their campaign. Indeed, this court would grind to a halt if that

were the constitutional standard for recusal. We would be flooded

with requests for "conservative" or "liberal" justices to recuse

whenever a case involved issues of great social or political

importance to any major campaign funder. See County of Dane v.

Pub. Serv. Comm'n, 2022 WI 61, ¶91, 403 Wis. 2d 306, 976 N.W.2d

790 (Hagedorn, J., concurring) ("We have seen bias and recusal

allegations increase greatly in recent years, turning the

obligation of adjudicator impartiality into a litigation

weapon."). In a system of elected judges, it is inevitable that

outside groups and political parties will support candidates whose

judicial philosophies are hoped to align with their own worldviews.

When those groups participate in a case as litigants, recusal may

well be warranted as a matter of good judgment (though it is not

currently required by Wisconsin law).10 Yet it would turn precedent

on its head, and confound the administration of this court, for

justices to recuse whenever a possible outcome of a case could

 

10 See SCR 60.04(7).
No. 2023AP1399-OA 

8

potentially be seen as beneficial to a non-party campaign

supporter.11

¶11 For that reason alone, the Legislature's argument based

on campaign contributions cannot succeed. But there is a separate,

second reason: under binding United States Supreme Court

precedent, the nature and amount of the DPW's contribution comes

nowhere close to requiring my recusal.

¶12 In this respect, the Legislature's position is

foreclosed by Caperton v. A.T. Massey Coal Company, Inc., 556 U.S.

868 (2009). Caperton is the first and only decision of the United

States Supreme Court to require judicial recusal based on campaign

contributions. And the facts of that case were "exceptional."

Id. at 884. While a case was pending against his company, a CEO

spent $3 million promoting the election of a judge who won a spot

on West Virginia's highest court by merely 50,000 votes——and who

then cast the deciding vote to overturn a $50 million verdict

against the CEO's company in that very same pending case. Id. at

873-76. The CEO's $3 million in donations, moreover, had totally

 

11 In reaching this conclusion, I do not foreclose the 

possibility that Caperton could require an elected judge to recuse 

based on contributions from a non-party. But cases involving 

campaign contributions from a political party are an especially 

weak fit for that possibility. Indeed, many states have partisan 

judicial elections, and it has not been suggested that partybacked judges must recuse from all cases where the outcome could 

matter to their party.
No. 2023AP1399-OA 

9

flattened the field: it vastly exceeded the amount spent by all

other supporters of the judge; it was more than three times the

amount spent by the judge's own campaign committee; and it

surpassed by $1 million the total amount spent by the campaign

committees for both of the candidates combined. See id. at 873.

¶13 Caperton recognized that its rule would apply only in

"rare instances." Id. at 890; see also id. at 887 ("The facts now

before us are extreme by any measure."). Indeed, "nowhere in the

Caperton decision does the Supreme Court state that any lesser

fact situation would have required [the judge's] recusal in that

case, and nowhere does the Supreme Court conclude that he would be

required to recuse himself from an unrelated civil case that

involved different parties." State v. Allen, 2010 WI 10, ¶269,

322 Wis. 2d 372, 778 N.W.2d 863 (Ziegler, J., concurring).

¶14 Here, as explained above, the Legislature seeks recusal

in an "unrelated civil case that involve[s] different parties."

Id. Moreover, this is obviously a "lesser factual situation."

Id. In Caperton, the CEO spent 300 percent more than the judge's

campaign committee; here, the DPW's contribution was only 57

percent of the spending by my campaign committee, and was merely

33 percent of the total spending in support of my campaign. In

Caperton, the CEO's donations fully eclipsed all other spending in

the election; here, the DPW's contribution was just 19 percent of

all spending on the race. In Caperton, the CEO's expenditures
No. 2023AP1399-OA 

10

were concerning partly because his favored judge won by only 50,000

votes; here, I defeated Justice Kelly by a decisive 11 percent of

the vote (the very same margin by which Justice Kelly lost to

Justice Karofsky only three years earlier). And in Caperton, the

CEO spent $3 million while his own case was already pending before

the West Virginia courts; here, these original action petitions

were filed months after the election had already concluded.

¶15 Under Caperton, these distinctions make all the

difference. The DPW's contribution was too small a percentage of

my campaign committee's fund, and too small a percentage of the

overall spending on the race, to warrant my disqualification——

especially given that the election was not close and this original

action petition was not even pending at the time. While the total

amount of the DPW's contribution was surely substantial, the 2023

election broke all historical records in Wisconsin. Compared to

total election spending, it falls far short of Caperton's recusal

standard.

¶16 This brings me to the Legislature's second argument:

that the Due Process Clause of the United States Constitution

requires recusal because, while campaigning, I described the

legislative maps as "gerrymandered," "rigged," and "unfair," and

I expressed disagreement with the Johnson case (which ordered the

adoption of these maps). The Legislature views this as legally

impermissible.
No. 2023AP1399-OA 

11

¶17 There are two fundamental issues with the Legislature's

position. The first is factual. While making many of the

statements that the Legislature spotlights, I also emphasized that

these were descriptions of my personal "values," not pledges of

"what I'm going to do on a particular case." Elsewhere, I

explained: "I plan to follow the law. I tell you what my values

are because I think that Supreme Court candidates should share

with the community and the electorate what their values are.

Nonetheless, I will uphold the law [and] follow the Constitution

when I make any decisions. Nothing is prejudged." I also made

clear: "[W]hat my real values are and what's going to happen in

a case can be two different things, right? I mean, follow the

law, you look at the case law, you look at the statutes, you look

at the constitution, and you follow where . . . it leads you."

And again: "I follow laws I don't always necessarily like or agree

with. You follow the law."

¶18 These statements——and there are many of them——expressed

my fundamental commitments as a judge. I will set aside my

opinions and decide cases based on the law. There will surely be

many cases in which I reach results that I personally dislike.

That is what it means to be a judge. See Caperton, 556 U.S. at

891 (Roberts, C.J., dissenting) ("All judges take an oath to uphold

the Constitution and apply the law impartially, and we trust that

they will live up to this promise.").
No. 2023AP1399-OA 

12

¶19 The second issue with the Legislature's position is that

it is foreclosed by federal precedent. As two legal experts

recently explained, "[n]o Supreme Court case has ever held that

due process required a judge to recuse because of the judge's

expression of views, whether on the campaign trail or elsewhere.

In fact, the Court has rejected several such claims."

12 Thus, "[no]

decision of the [United States Supreme] Court would require us to

hold that it would be a violation of procedural due process for a

judge to sit in a case after he had expressed an opinion as to

whether certain types of conduct were prohibited by law." FTC v.

Cement Inst., 333 U.S. 683, 702-03 (1948).

¶20 More recently, the United States Supreme Court struck

down a Minnesota rule that banned judicial candidates from

announcing their views on disputed legal or political issues. See

Republican Party of Minn. v. White, 536 U.S. 765 (2002). Writing

for the Court, Justice Antonin Scalia made clear that "[a] judge's

lack of predisposition regarding the relevant legal issues in a

case has never been thought a necessary component of equal justice,

and with good reason." Id. at 777. "For one thing, it is virtually

impossible to find a judge who does not have preconceptions about

the law." Id. Nor should anybody want to elect such a judge:

"Proof that a Justice's mind at the time he joined the Court was

 

12 Clinger & Yablon, supra note 8, at 10.
No. 2023AP1399-OA 

13

a [blank slate] in the area of constitutional adjudication would

be evidence of lack of qualification, not lack of bias." Id. at

778 (quoted source omitted). The truth is that "avoiding judicial

preconceptions on legal issues is neither possible nor desirable."

Id. And it would violate the First Amendment to "censor what the

people hear as they undertake to decide for themselves which

candidate is most likely to be an exemplary judicial officer."

Id. at 794 (Kennedy, J., concurring).

¶21 Consider the point practically. Many other justices

have written opinions expressing strong views on the legality of

the current legislative maps.13 Only a month ago, one justice wrote

an opinion in this very proceeding that describes the mere

consideration of this original action petition as a "mockery of

our justice system."

14 No other justice has decided that they must

recuse, even though their prior writings (including from just last

year) might indicate firm preconceptions of certain issues in this

action. And if prejudgment is the concern, their writings are

just as relevant as my campaign remarks. As Justice Scalia

explained, "we doubt . . . that a mere statement of position

 

13 See generally Johnson, 401 Wis. 2d 198.

14 See Clarke v. Wisconsin Elections Comm'n, No. 2023AP1399-

OA, unpublished order (Wis. Aug. 15, 2023) (Rebecca Grassl Bradley, 

J., dissenting), available at: https://acefiling.wicourts.gov/

document/eFiled/2023AP001399/692192.
No. 2023AP1399-OA 

14

enunciated during the pendency of an election will be regarded by

a judge as more binding . . . than a carefully considered holding

that the judge set forth in an earlier opinion." Republican Party,

536 U.S. at 781.

¶22 Simply put: If issuing an opinion does not disqualify

a judge from hearing future cases that involve similar issues,

then neither does expressing agreement with an opinion or

describing my values about political issues. That is particularly

true here, where I made no pledge about the result of any case,

where I repeatedly disavowed any such pledge or promise, where

this case did not even exist during my campaign, and where I made

clear I will vote based only on the rule of law.15

¶23 That leaves only the Legislature's contention that my 

recusal is required by Wis. Stat. § 757.19(2)(g) and (f). 

Paragraph (g) simply requires me to make the subjective 

determination that I can decide this case impartially both in fact 

and appearance. I have determined that I can do both. Paragraph 

(f) requires me to determine whether I have a "significant personal 

interest" in the outcome of this case. The Legislature claims 

that I have a personal interest in keeping my word by invalidating 

 

15 This conclusion follows from all the precedents cited 

herein and also under an application of the objective "actual bias"

standard from the Caperton case (which applies to campaign 

statements, as well).
No. 2023AP1399-OA 

15

Wisconsin's legislative maps. That argument fails because I made 

no promise or commitment to voters about how I would decide any 

case. I simply expressed my personal opinions as permitted by 

Republican Party. When I put on my robe, I put my personal opinions 

aside.

¶24 Consistent with the oath I swore, my highest obligation

is to "faithfully and impartially discharge the duties of [my]

office." Those duties include participating in a case when the

law does not require me to recuse. Here, under that legal

standard, I must respectfully deny this motion.

II. ANALYSIS

A. The Due Process Clause and Campaign Contributions

1. Facts

¶25 In 2016, Governor Scott Walker appointed Daniel Kelly to 

the Wisconsin Supreme Court. After serving four years, he ran to 

retain his seat in 2020. His opponent, now Justice Jill J.

Karofsky, won the election by almost 11 points.

¶26 In 2023, I ran for an open seat on the Wisconsin Supreme 

Court, and Justice Kelly opposed me. Total spending on the race 

smashed all records. Current estimates range from $51 million to 
No. 2023AP1399-OA 

16

$56 million, making it the most expensive state supreme court race 

in the nation's history.16

¶27 In 2015, the Legislature (led by Republicans) enacted a 

law permitting political parties to make unlimited donations 

directly to a judicial candidate's campaign committee. See Wis. 

Stat. § 11.1104(5). Pursuant to this law, the DPW donated $9.9

million to my campaign committee during the 2023 race.

¶28 Total spending in support of my campaign is currently 

estimated to be $29.1 million. This figure includes the estimated 

$17.4 million spent by my campaign committee and an estimated $11.7 

million spent by outside groups. The DPW's contribution represents 

about 33 percent of the total amount spent in support of my 

campaign and 57 percent of the amount my campaign committee spent.

¶29 Total spending in support of Justice Kelly's campaign is 

estimated to be over $20.5 million.

¶30 The DPW's $10 million contribution to my campaign 

currently represents about 19 percent of the approximately $51 

million price tag for the 2023 Wisconsin Supreme Court race.

 

16 The spending estimates in this section may be found at: 

Wisconsin Supreme Court Race Cost Record $51M, Wis. Democracy 

Campaign (July 18, 2023) https://www.wisdc.org/news/pressreleases/139-press-release-2023/7390-wisconsinsupreme-courtrace-cost-record-51m.
No. 2023AP1399-OA 

17

2. Caperton

¶31 The United State Supreme Court has found a due process 

violation based on allegations of judicial bias only in 

extraordinary circumstances. Prior to Caperton, two types of cases 

required a judge to recuse. One was where the judge had financial 

incentives to rule one way in a case. Caperton, 556 U.S. at 876

(citing Tumey v. Ohio, 273 U.S. 510 (1927)). The other was where 

the judge charged a defendant with criminal contempt and then tried 

to preside over the contempt proceedings. Id. at 880 (citing In 

re Murchison, 349 U.S. 133 (1955)). The first and only time the 

Court found a due process violation in the context of a judicial 

election is Caperton. Id. at 884. The Court carefully limited 

its holding to circumstances it called "extraordinary,"

"exceptional," "rare," and "extreme by any measure." Id. at 884, 

887, 890.

¶32 In Caperton, a jury awarded a verdict of over $50 million 

against Massey Coal Company. Id. at 872. Two years later, Massey 

lost post-verdict motions. Id. Its next logical step was to file 

an appeal. At that point, West Virginia held a supreme court of 

appeals election. Id. at 873. Don Blankenship, Massey's CEO, 

contributed $3 million to Attorney Brent Benjamin's bid to replace 

incumbent Justice Warren McGraw on that court. Id. Benjamin won 

the election by fewer than 50,000 votes. Id.
No. 2023AP1399-OA 

18

¶33 Once in office, Justice Benjamin cast the deciding vote 

to reverse the $50 million verdict against Massey. Id. at 874. 

Against this backdrop, Caperton recognized that in "extreme" or 

"extraordinary" situations a judge's receipt of a campaign 

contribution from a litigant or a lawyer may require his recusal 

under the Due Process Clause. Id. at 884, 886-87.

¶34 Caperton noted that "[n]ot every campaign contribution 

by a litigant or attorney creates a probability of bias that 

requires a judge's recusal." Id. at 884. A campaign contribution 

offends due process where "there is a serious risk of actual bias—

—based on objective and reasonable perceptions." Id. That occurs 

"when a person with a personal stake in a particular case had a 

significant and disproportionate influence in placing the judge on 

the case by raising funds or directing the judge's election 

campaign when the case was pending or imminent." Id. This test 

requires a court to assess: (1) "the contribution's relative size 

in comparison to the total amount of money contributed to the 

campaign," (2) "the total amount spent in the election," and (3) 

"the apparent effect such contribution had on the outcome of the 

election." Id. at 884.

¶35 Applying this test, Caperton found the risk that 

Blankenship's influence engendered actual bias was sufficiently 

substantial that due process required Benjamin's recusal from the 

case. Id. at 886-87. Blankenship donated $3 million to unseat 
No. 2023AP1399-OA 

19

the incumbent and replace him with Benjamin. Id. at 873. 

Specifically, he contributed $1,000 to Benjamin's campaign 

committee, almost $2.5 million to a political organization 

supporting Benjamin, and $500,000 in independent expenditures to 

pay for mailings, solicitations, and advertisements for Benjamin. 

Id. Blankenship's contributions exceeded the total amount

contributed by all of Benjamin's other supporters by 300 percent. 

Id. He spent $1 million more than the total amount spent by the 

campaign committees of both candidates combined. Id. And Benjamin 

won by less than 50,000 votes. Id.

¶36 Caperton also found the temporal relationship between 

the campaign contributions, the justice's election, and the 

pending case troubling. When Blankenship made his donations, it 

was reasonably foreseeable that Benjamin would be reviewing a 

judgment that cost his biggest donor $50 million. Id. at 886. 

Caperton held: "On these extreme facts the probability of actual 

bias rises to an unconstitutional level." Id. at 886-87.

3. Application of Caperton

a. "A Person With A Personal Stake In A Particular Case"

¶37 The Legislature's claim that the DPW's donation offends 

due process fails for one simple reason: Caperton applies to 

campaign spending by a "person with a personal stake in a

particular case." Id. at 884. Unlike Blankenship, who had a 

direct personal and financial interest in the judgment against his 
No. 2023AP1399-OA 

20

company, the DPW is not a party to this case. I am not reviewing 

a judgment against the DPW. Neither the petitioners in this case

nor their attorneys are alleged to have contributed to my campaign. 

¶38 Nor are the petitioners stand-ins for the DPW. They are 

citizens who allege violations of their own individual rights. As 

voters, they claim to advance legal interests in excluding partisan 

influence of all kinds from the districting process. They want 

the maps ungerrymandered. For this reason, their interests may be 

contrary to those of the DPW because they could also foreclose a 

Democratic gerrymander in the future. To be blunt:

Ungerrymandering the map favors voters, not parties.

¶39 For me to recuse myself based on campaign contributions 

from the DPW——a non-party to this case——would be unprecedented.

It would also raise unprecedented problems for my colleagues. In 

recent Wisconsin Supreme Court elections, the winning candidate 

has received substantial financial support from a single entity. 

In 2016, Wisconsin Alliance for Reform spent $2.6 million 

supporting Justice Rebecca Grassl Bradley's campaign, comprising 

46.2 percent of total spending in that election. In 2018, Greater 

Wisconsin Committee spent $940,000 supporting Justice Rebecca

Frank Dallet's campaign, comprising 17 percent of total spending 

in that election. In 2019, the Republican State Leadership 

Committee spent $1.25 million supporting Justice Brian Hagedorn's 

campaign, comprising 15.2 percent of total spending on that 
No. 2023AP1399-OA 

21

election. In 2020, A Better Wisconsin Together Political Fund 

spent $1.88 million supporting Justice Jill J. Karofsky's 

campaign, comprising 18.8 percent of total spending that 

election.17

¶40 The Legislature's dramatic expansion of Caperton would 

force Wisconsin justices to recuse whenever their involvement in 

a case might somehow indirectly benefit groups that provided 

substantial support to their campaigns. It would invite litigants 

to seek recusal of "conservative" or "liberal" justices whenever 

a case involved issues of great social, political, or commercial 

importance to any major campaign funder. See County of Dane, 403 

Wis. 2d 306, ¶91 (Hagedorn, J., concurring) ("We have seen bias 

and recusal allegations increase greatly in recent years, turning 

the obligation of adjudicator impartiality into a litigation 

weapon."). Instead of being rare, "disqualification would be 

routine and even structural. Members of the court would be 

prevented from hearing a substantial number of cases for the entire 

duration of the terms they were elected by voters to serve, and 

the court's ability to do its work would be compromised." See

Philip Morris USA, Inc. v. Appellate Ct., No. 117689 at 11 (Ill. 

Sept. 24, 2014) (Order of Karmeier, J.).18

 

17 Clinger & Yablon, supra note 8, at 28.

18 Available at: https://perma.cc/5TYD-ZHCF.
No. 2023AP1399-OA 

22

¶41 The supreme court would grind to halt. This is not 

hyperbole. As Wisconsin law stands, when a justice recuses, there 

is no back-up justice to step in. The court proceeds with less 

than a full bench. If even one justice recuses, the remaining six 

justices may divide equally on the case, leaving a lower court 

decision on an issue of statewide importance unreviewed and 

unreviewable. State v. Henley, 2010 WI 12, ¶35, 322 Wis. 2d 1, 

778 N.W.2d 853 (Memorandum of Roggensack, J.) (citing Laird v. 

Tatum, 409 U.S. 824 (1972) (Memorandum of Rehnquist, J.)). If two 

or more justices recuse, the supreme court may be unable to issue 

a majority opinion in the case.

b. "Significant and Disproportionate Influence"

¶42 The Legislature's due process claim also fails under 

Caperton's three-factor test for assessing whether campaign 

spending had "a significant and disproportionate influence" in 

placing a judge on a case. In Caperton, Blankenship bankrolled 

Benjamin' campaign. The facts of this case are nowhere close to 

those "extreme" and "extraordinary" circumstances.

¶43 First, the DPW's contribution was 57 percent of the 

spending by my campaign committee. The relative size of the DPW's 

contribution is not unusual for a Wisconsin Supreme Court race. 

In 2019, Justice Brian Hagedorn's campaign committee spent an 

estimated $1.7 million. The Republican State Leadership Committee 

spent $1.25 million (or 73 percent of his committee spending)
No. 2023AP1399-OA 

23

supporting his campaign.19 In 2020, Justice Jill J. Karofsky 

received about $1.36 million from the DPW, which was about 50

percent the amount spent by her campaign committee.20 Both justices 

sat on the last redistricting case, Johnson, 401 Wis. 2d 198.21

¶44 Second, while the total amount of spending in support of 

my campaign is unknown, it is currently estimated at $29.1 million. 

The DPW's contribution represents about 33 percent of it. Total 

spending in support of both candidates is currently estimated to 

be $51 million, which means that the DPW's $9.9 million 

contribution is just 19 percent of all spending on the race.

 

19 Spending estimates for Justice Hagedorn's campaign and

Justice Karofsky's campaign come from: Wisconsin Supreme Court 

Finance Summaries, Wis. Democracy Campaign (Apr. 26, 2021), 

available at: https://www.wisdc.org/follow-the-money/31-

nonpartisan-candidates/656-wisconsin-supreme-court-financesummaries.

20 The Democratic Party of Wisconsin's contribution is noted 

in: PAC, Political Committee Contributions More Than Double in 

Four Years, Wis. Democracy Campaign (Aug. 21, 2020), available at: 

https://www.wisdc.org/news/press-releases/131-press-release2020/6669-pac-political-committee-contributions-more-thandouble-in-four-years.

21 Again, it is not unusual for justices to sit on 

redistricting cases despite having received substantial financial 

support from either the Republican Party or the Democratic Party. 

See, e.g., Harper v. Hall, 867 S.E.2d 326 (N.C. 2022) (regarding 

recusal decisions by Justice Anita Earls and Justice Paul Newby); 

Dickson v. Rucho, 735 S.E.2d 193 (N.C. 2012) (North Carolina 

Supreme Court's one-sentence order denying the motion for Justice 

Newby's recusal).
No. 2023AP1399-OA 

24

¶45 Third, the 2023 Wisconsin Supreme Court election was not 

even close. I won by a landslide. Cf. Caperton, 556 U.S. at 896 

(Roberts, C.J., dissenting) (questioning whether a contribution 

has any effect in a landslide election). The historical record 

suggests that the DPW's contribution had no impact on the outcome 

of the 2023 election. Justice Kelly has never won a judicial race. 

He was appointed to the supreme court. In 2020, he ran to retain 

his seat and lost to Justice Karofsky by almost 11 points. In 

2023, he lost to me by 11 points. The logical conclusion is that 

the DPW's $10 million donation did not move the needle. It had no 

discernible influence in placing me on this case.

c. "Temporal Relationship"

¶46 Caperton held that "[t]he temporal relationship between 

the campaign contributions, the justice's election, and the 

pendency of case is also critical." Id. at 886. Blankenship 

contributed $3 million to Benjamin's campaign while Massey's case 

was pending but before it filed an appeal. Id. at 873. This 

timing made it "apparent that, absent recusal, Justice Benjamin 

would review a judgment that cost his biggest donor's company $50 

million." Id. at 886.

¶47 Again, the facts of this case are different. When the 

DPW contributed to my campaign there was no pending or imminent 

case for me to review. Yes, I said that I would enjoy taking a 

fresh look at Wisconsin's legislative maps. However, the 
No. 2023AP1399-OA 

25

Legislature does not allege that I knew the identity of the 

petitioners in this case or the nature of their claims. The 

petitioners filed their original action four months after the 

election. This is not the sort of temporal relationship that 

alarmed the Caperton Court.

4. State ex rel. Three Unnamed Petitioners

¶48 My understanding of Caperton is supported by Justice 

David Prosser's recusal decision in State ex rel. Three Unnamed 

Petitioners v. Peterson, 2015 WI 103, 365 Wis. 2d 351, 875 N.W.2d 

49. That case involved a John Doe investigation of alleged illegal 

campaign coordination among certain candidates for elected office 

and issue-advocacy groups. Several targets of the investigation 

spent an estimated $3.3 million in support of Justice Prosser's 

reelection effort——nearly eight times the amount spent by his 

campaign committee. See Appendix B, Prosser Decision at 6.

¶49 According to Justice Prosser, Caperton did not require 

his recusal. Id. at 9. There was no pending or imminent litigation 

against the John Doe targets when they financially supported his 

campaign several years earlier. Unlike Justice Benjamin, he was 

an incumbent. And unlike West Virginia, Wisconsin had no procedure 

for replacing a justice who withdraws from a supreme court case. 

Justice Prosser observed that "in a very real sense, a party moving 

for a justice's recusal is trying to change the composition of the 

court that will hear its case." Id. He admitted that the relative 
No. 2023AP1399-OA 

26

size of the targets' campaign contributions——nearly eight times 

the amount spent by his campaign committee——appeared "significant 

and disproportionate" under Caperton. Id. at 10. He reasoned 

that the contributions were necessary because, under Wisconsin 

campaign finance law, there was no other way for his campaign 

committee to respond to issue advocacy distorting his record. Id.

¶50 If Caperton did not compel Justice Prosser's recusal, it 

certainly does not demand mine. The DPW is not party——or even a

subject of——this case. Its financial support is a fraction of, 

not eight times, my campaign committee spending. Wisconsin still 

does not have a procedure for replacing a justice who recuses from 

a case. The Legislature is simply trying to change the composition 

of the court that hears this case.

¶51 In sum, under Caperton, the distinctions above make all 

the difference. The DPW's contribution was too small a percentage 

of my campaign committee's fund and too small a percentage of the 

overall spending on the race to warrant my disqualification——

especially given that the election was not close and this original 

action petition was not pending at the time. While the total 

amount of the DPW's contribution was surely substantial, the 2023 

election broke all historical records in Wisconsin, and compared 

to total election spending, the contribution falls short of 

Caperton's recusal standard.
No. 2023AP1399-OA 

27

B. Due Process And Campaign Statements

1. Facts

¶52 During my campaign, I gave interviews, participated in 

candidate forums and debates, and traveled the state to speak with 

voters. I expressed my frank opinions on Wisconsin's legislative 

maps.22 My remarks at a January 9, 2023 candidate forum are 

representative of what I said on the campaign trail:

So let's be clear here——the maps are rigged. Bottom 

Line. Absolutely positively rigged. They do not reflect 

the people in this state. They do not reflect 

accurately, representation in either the state assembly 

or the state senate. They are rigged. Period. I'm 

coming right out and saying that. I don't think you 

could sell to any reasonable person that the maps are 

fair . . . .

I believe the gerrymandering decision was wrong. But as 

I indicated to you before I can't ever tell you what I'm 

going to do on a particular case. But I can tell you my 

values and common sense tell you that it's wrong . . . .

So as I've indicated, I think those maps are rigged, I 

think they're unfair. I don't think they fairly reflect 

the population in our state.23

 

22 The Legislature's brief includes more than 50 footnotes 

citing nearly 20 articles that quote me. They boil down to just 

nine instances where I commented on Wisconsin legislative maps: a

January 9, 2023 candidate forum; a January 30, 2023 Wisconsin State 

Journal Candidate Questionnaire; a February 14, 2023 interview on 

Wisconsin Public Radio's Central Time; a March 1, 2023 Wedge Issues 

podcast; tweets on March 3, 2023, and March 7, 2023; a PBS 

interview on March 9, 2023; and a March 21, 2023 candidate debate. 

I provide citations for my comments on each of the occasions in 

Appendix A.

23 Wisconsin Supreme Court Candidate Forum. See Appendix A.
No. 2023AP1399-OA 

28

¶53 I made very similar comments on other occasions during 

my campaign. I also told voters the following:24

I can't ever tell you what I'm going to do on a 

particular case.25

I'll always be an impartial justice who upholds our

Constitution.26

[W]hile I talk about some of the other issues that are 

important to both me and all Wisconsinites, all of my 

decisions are going to be rooted in the law. I plan to 

follow the law. I tell you what my values are because 

I think that Supreme Court candidates should share with 

the community and the electorate what their values are. 

Nonetheless, I will uphold the law [and] follow the 

Constitution when I make any decisions. Nothing is 

prejudged.27

[W]hat my real values are and what's going to happen in 

a case can be two different things, right? I mean, 

follow the law, you look at the case law, you look at 

the statutes, you look at the constitution, and you 

follow where, you know, it leads you.28

[R]emember I'm running for a judicial spot. I can't 

promise anybody anything. I can tell you what my 

personal value is.29

But the question is am I able to fairly make a decision 

on a case. Of course I am. That's what I spent my 

entire career doing. I follow laws I don't always 

necessarily like or agree with. You follow the law. 

 

24 I made these statements on occasions noted in Appendix A.

25 Wisconsin Supreme Court Candidate Forum. See Appendix A.

26 Wisconsin State Journal. See Appendix A.

27 Wisconsin Public Radio. See Appendix A.

28 Wedge Issues Podcast. See Appendix A.

29 Pod Save America. See Appendix A.
No. 2023AP1399-OA 

29

That's what you do. I can assure you that every single 

case that I will ever handle will be rooted in the law. 

One hundred percent.30

¶54 The Wisconsin Judicial Commission investigates and 

prosecutes allegations that a judge or judicial candidate has 

violated the Wisconsin Code of Judicial Conduct. The commission 

received multiple complaints alleging that on several occasions, 

including at the January 9, 2023 candidate forum, I violated 

several code provisions by stating my personal views on 

"contentious political issues."

31

¶55 First, I allegedly violated the Preamble to the Code, 

which requires me to "respect and honor the judicial office as a 

public trust and strive to enhance and maintain confidence in our 

legal system."

¶56 Second, I allegedly violated SCR 60.02, which provides, 

in part, that a judge shall maintain "high standards of conduct 

and shall personally observe those standards so that the integrity 

and independence of the judiciary will be preserved."

 

30 Wisconsin Supreme Court Candidate Debate. See Appendix A.

31 The complaint and the Wisconsin Judicial Commission's 

decision are attached to my September 5, 2023 order for 

supplemental briefing. See Clarke v. Wisconsin Elections Comm'n, 

No. 2023AP1399-OA, unpublished order (Wis. Sept. 5, 2023),

available at: https://acefiling.wicourts.gov/document/eFiled/

2023AP001399/700502.
No. 2023AP1399-OA 

30

¶57 Third, I allegedly violated SCR 60.06(3)(a), which, in 

part, requires a candidate for judicial office to 

"maintain . . . the dignity appropriate to judicial office and the 

integrity and independence of the judiciary" and prohibits a 

candidate for judicial office from manifesting "bias or prejudice 

inappropriate to judicial office."

¶58 Fourth, I allegedly violated SCR 60.06(3)(b), which 

prohibits a candidate for judicial office from making "pledges, 

promises, or commitments" "with respect to cases, controversies, 

or issues that are likely to come before the court."

¶59 On May 31, 2023, the commission issued a decision stating 

it had held a meeting, reviewed the complaints, and "carefully 

considered" the Code of Judicial Conduct provisions noted above in 

addition to Republican Party, 536 U.S. at 788; Duwe v. Alexander, 

490 F. Supp. 2d 968, 976 (W.D. Wis. 2007); and other authorities. 

The commission dismissed the complaints without action and 

declared the matter "closed." By declining to file a formal 

complaint against me, the commission determined that the 

allegations against me lacked probable cause. See Wis. Stat. 

§ 757.85(3), (5).

2. Due Process and Prejudgment

¶60 The Legislature assails my statements that Wisconsin's 

legislative maps are "gerrymandered," "rigged," and "unfair;" that 

the Johnson decision was wrong; and that I agree with the dissent 
No. 2023AP1399-OA 

31

in that case. According to the Legislature, these statements show 

that I "promise[d] to 'ma[k]e new law' to achieve a desired 

outcome," "clearly prejudged the case" in a way irreconcilable 

with the Due Process Clause, and "announced that [my] mind is 

firmly made up on the outcome" of this case. Allegedly, when I 

"declared [my] prejudgment of the maps, 'it became at once apparent 

that, absent recusal,' [I] would be deciding the validity of 

something [I] already believed to be invalid."

¶61 There are two fundamental flaws in the Legislature's 

position. The first is factual. As noted above, while making the 

statements that the Legislature spotlights I also stressed that 

these were descriptions of my personal "values," not pledges of 

"what I'm going to do on a particular case." My repeated 

assurances that I would follow the law where it leads me expressed 

my fundamental commitments as a judge. I will set aside my 

opinions and decide cases based on the law. There will surely be 

many cases where I reach results that I personally dislike. That 

is what it means to be a judge. See Caperton, 556 U.S. at 891 

(Roberts, C.J., dissenting) ("[A]ll judges take an oath to uphold 

the Constitution and apply the law impartially, and we trust that 

they will live up to this promise.").

¶62 The second flaw in the legislature's position is that it 

is foreclosed by federal precedent. The Due Process Clause 

requires "[a] fair trial in a fair tribunal." In re Murchison, 
No. 2023AP1399-OA 

32

349 U.S. 133, 136 (1955). It does not prohibit a judge from 

sitting on a case after expressing an opinion on an issue. As two 

legal experts recently explained, "[n]o Supreme Court case has 

ever held that due process required a judge to recuse because of 

the judge's expression of views, whether on the campaign trail or 

elsewhere."32 In fact, the Court has rejected such claims. See

FTC v. Cement Inst., 333 U.S. at 702-03 ("[No] decision of this 

Court would require us to hold that it would be a violation of 

procedural due process for a judge to sit in a case after he had 

expressed an opinion as to whether certain types of conduct were 

prohibited by law."); United States v. Morgan, 313 U.S. 409, 421

(1941) ("That [the Secretary of Agriculture] not merely held but 

expressed strong views on matters believed by him to have been in 

issue, did not unfit him for exercising his duty in subsequent 

proceedings ordered by this Court."); id. (like judges, cabinet 

officers charged with adjudicatory functions "are assumed to be 

men of conscience and intellectual discipline, capable of judging 

a particular controversy fairly on the basis of its own 

circumstances."); see also Franklin v. McCaughtry, 398 F.3d 955, 

962 (7th Cir. 2005) ("We are not saying that due process would be 

offended if a judge presiding over a case expressed a general 

opinion regarding a law at issue in a case before him or her.").

 

32 Clinger & Yablon, supra note 8, at 10.
No. 2023AP1399-OA 

33

¶63 More recently, the United States Supreme Court struck 

down a Minnesota rule that banned judicial candidates from 

announcing their views of disputed legal or political issues. See

Republican Party, 536 U.S. 765. Writing for the Court, Justice 

Scalia made clear that "[a] judge's lack of predisposition 

regarding the relevant legal issues in a case has never been 

thought a necessary component of equal justice, and with good 

reason." Id. at 777. "For one thing, it is virtually impossible 

to find a judge who does not have preconceptions about the law." 

Id. Nor would anybody want to elect such a judge: "Proof that a 

Justice's mind at the time he joined the Court was a complete 

[blank slate] in the area of constitutional adjudication would be 

evidence of lack of qualification, not lack of bias." Id. at 778 

(quoting Laird v. Tatum, 409 U.S. 824 (1972) (Memorandum of 

Rehnquist, J.)). And it would violate the First Amendment to 

"censor what the people hear as they undertake to decide for 

themselves which candidate is most likely to be an exemplary 

judicial officer." Id. at 794 (Kennedy, J., concurring). 

¶64 Justice Scalia explained that judges "have often 

committed themselves on legal issues that they must later rule 

upon." Id. at 779 (majority opinion). "Most frequently, of 

course, that prior expression will have occurred in ruling on an 

earlier case." Id. But before arriving on the bench, judges also 

state their views on disputed legal and political issues when
No. 2023AP1399-OA 

34

teaching classes, giving speeches, or writing books. Id. Thus, 

they cannot be barred from expressing their views while campaigning 

for judicial office. Id. at 779-80 (noting that it is permissible 

for a judicial candidate to say "I think it is constitutional for 

the legislature to prohibit same-sex marriage" during his 

campaign).

¶65 Disclosing a predisposition on an issue "is nothing more 

than acknowledgement of the inescapable truth that thoughtful 

judicial minds are likely to have considered many issues and formed 

opinions on them prior to addressing the issue in the context of 

a case." Duwe, 490 F. Supp. 2d at 975. In contrast, a pledge, 

promise, or commitment "requires affirmative assurance of a 

particular action. It is a predetermination of the resolution of 

a case or issue. It is not a statement of belief or opinion."

Id. at 976. A judicial candidate violates the prohibition against 

pledges, promises, or commitments when she uses phrases like "I 

will" or "I will not." See id. "Phrases like 'I believe' or 'It 

is my opinion' signal the absence of a commitment." Id. at 976.

¶66 Justice David Wecht of the Pennsylvania Supreme Court 

recently applied these same principles to a situation closely 

resembling this one. See League of Women Voters of Pa. v. 

Commonwealth, 179 A.3d 1080 (Pa. 2018). After the court declared 

the state's legislative maps an unlawful partisan gerrymander, the 

legislative respondents sought to disqualify him from the case. 
No. 2023AP1399-OA 

35

They asserted a due process violation based on Justice Wecht's 

campaign statements calling gerrymandering "an absolute 

abomination," "a travesty," "insane," and "deeply wrong." Id. at 

1084. Justice Wecht said: "[e]xtreme gerrymandering 

is . . . antithetical to the concept of one person, one vote." 

Id. He had also described how Pennsylvania's maps favored 

Republicans and said: "I challenge anybody to look at a map of 

our districts and deem them to be compact and contiguous." Id.

¶67 Applying the Due Process Clause, Republican Party, and 

Duwe, Justice Wecht held that his campaign statements "expressed 

[his] thoughts on the topic, something manifestly distinct from a 

clear commitment to rule in a certain way if presented with a 

specific challenge based upon a well-developed factual record and 

the benefit of full and fair advocacy." Id. He admitted that his 

campaign rhetoric was "sometimes ardent" and that he "did not 

always qualify [his] statements to clarify that [he] would view 

each case on its individual merits." Id. at 1091. But he concluded 

that the circumstances of his case were "wholly unlike" the narrow 

situations in which the United States Supreme Court has mandated 

recusal based on the Due Process Clause. Id. at 1092.

¶68 Now consider the practical implications of the 

Legislature's argument. Many current justices on the Wisconsin 

Supreme Court have written opinions expressing strong views on the 
No. 2023AP1399-OA 

36

legality of the current legislative maps.33 Only a month ago, one 

justice wrote an opinion in this very proceeding that describes 

the mere consideration of the petitioners' claims as a "mockery of 

our justice system" and "degrad[ing] this court as an 

institution."34 No other justice has decided that they must recuse, 

even though their prior opinions might appear to indicate clear 

preconceptions of certain issues here. And if prejudgment is the 

concern, their opinions are just as relevant as my campaign 

remarks. As Justice Scalia wrote, "[w]e doubt . . . that a mere 

statement of position enunciated during the pendency of an election 

will be regarded by a judge as more binding . . . than a carefully 

considered holding that the judge set forth in an earlier opinion." 

Republican Party, 536 U.S. at 780-81.

¶69 Simply put: If issuing an opinion does not disqualify 

a judge from hearing future cases that involve similar issues, 

then neither does expressing agreement with an opinion or 

describing my values about political issues. That is particularly 

true here, where I made no pledge about the result of any case, 

where I repeatedly disavowed any such pledge or promise, where 

 

33 See generally Johnson, 401 Wis. 2d 198.

34 See Clarke v. Wisconsin Elections Comm'n, No. 2023AP1399-

OA, unpublished order (Wis. Aug. 15, 2023) (Rebecca Grassl Bradley, 

J., dissenting), available at: https://acefiling.wicourts.gov/

document/eFiled/2023AP001399/692192.
No. 2023AP1399-OA 

37

this case did not even exist during my campaign, and where I made 

clear I will vote based only on the rule of law.

3. Caperton and Prejudgment

¶70 Lacking a single case holding that the Due Process Clause 

requires a judge to recuse based on her campaign statements, the 

Legislature again resorts to Caperton. As far as I can tell, no 

court has ever applied Caperton in that way. In fact, some 

justices on the Wisconsin Supreme Court dismissed an attempt to do 

just that. See State v. Allen, 2010 WI 10, 322 Wis. 2d 372, 778 

N.W.2d 863. Allen had filed a collateral attack on his criminal 

conviction. On appeal, he asked the supreme court to disqualify 

Justice Michael Gableman from the case due to his many campaign 

statements portraying himself as a judge who will support the 

prosecution over the defense in criminal cases and expressing bias 

against people accused of crimes, the lawyers who defend them, and 

the judges who uphold their rights.35

¶71 Justice Ziegler regarded the facts of Allen so far 

removed from Caperton that the prisoner had no due process claim. 

"[T]he allegations in Allen involve a judicial peer and fail to 

state a due process claim because no 'person with a personal stake'

in Allen 'had a significant and disproportionate influence' in 

 

35 See Mot. for Recusal, Allen, 322 Wis. 2d 372 (Apr. 17, 

2009), available at: https://perma.cc/8TAA-D7MU.
No. 2023AP1399-OA 

38

placing Justice Gableman on the case 'by raising funds to directing 

[his] election campaign when the case was pending or imminent."

Allen, 322 Wis. 2d 372, ¶271 (Ziegler, J., concurring) (quoting 

Caperton, 556 U.S. at 884). "[N]owhere in the Caperton decision 

does the Supreme Court state that any lesser fact situation would 

have required Justice Benjamin's recusal in that case, and nowhere 

does the Supreme Court conclude that he would be required to recuse 

himself from an unrelated civil case that involved different 

parties." Id., ¶269.

¶72 Requiring recusal when neither Allen nor the state had 

any influence in placing Justice Gableman on the court, Justice 

Ziegler reasoned, would "invent new law and . . . invite recusal 

motions based upon 'spin' instead of whether a justice can be fair 

and impartial." Id. By making allegations that "fail to state a 

due process claim as set forth in Caperton, Allen's efforts 

effectively amount to 'judge shopping.'" Id., ¶262. "'[J]udge 

Shopping' damages this court as an institution, inappropriately 

politicizes the court, and nullifies the votes of the electorate." 

Id.

¶73 Justice Roggensack interpreted Caperton's holding even 

more narrowly. She agreed that "Allen's allegations do not even 

begin to approach a due process violation." Id., ¶231 (Opinion of 

Roggensack, J.). She explained that his claim "is not comparable 

to the claim made in Caperton. Caperton was based on claims of 
No. 2023AP1399-OA 

39

particularized bias against a party in a pending case because of 

actions taken by the other party. . . . Those actions were alleged 

to have directly benefitted a justice who at the time was about to 

decide" the case. Id., ¶238 (citing Caperton, 556 U.S. at 884, 

886).

¶74 The Legislature has likewise failed to state a claim 

that my campaign statements about Wisconsin's legislative maps 

violate due process under Caperton. Its motion is an attempt "to 

invent new law" and amounts to judge shopping, which 

inappropriately politicizes this court and attempts to nullify the 

votes of the electorate. I decline to extend Caperton's holding 

that far.

4. The Effect of the Wisconsin Judicial Commission's Decision

¶75 Finally, the Wisconsin Judicial Commission's May 31, 

2023 decision provides the death blow to the Legislature's due 

process argument. Codes of judicial conduct are the "principal 

safeguard against judicial campaign abuses." Caperton, 566 U.S. 

at 889 (quoted source omitted). "The Due Process Clause demarks 

only the outer boundaries of judicial qualifications." Id. 

"Because the codes of judicial conduct provide more protection 

than due process requires, most disputes over disqualification 

will be resolved without resort to the Constitution." Id. at 890; 
No. 2023AP1399-OA 

40

see also State v. Hermann, 2015 WI 84, ¶120, 364 Wis. 2d 336, 867 

N.W.2d 772 (Ziegler, J., concurring).

¶76 The commission rejected claims that my campaign 

statements undermined the integrity and independence of the 

judiciary; demonstrated bias or prejudice; or committed me to a 

decision on a case, controversy, or issue that was likely to come 

before me.36 That disposes of the Legislature's claims that my 

campaign statements violate due process.

¶77 For the sake of completeness, I want to clarify two 

campaign statements that, as far as I can tell, the commission's 

decision did not directly address. First, on the campaign trail 

I said: "I would anticipate that I would enjoy taking a fresh 

look at the gerrymandering question."

37 Allegedly, this "invited 

a legal challenge" to replace Wisconsin's maps. The Legislature 

omits my qualification of that statement. I explicitly stated 

that whether the issue "will come to the court is a completely 

different question."

38

 

36 See supra note 31.

37 Wedge Issues Podcast. See Appendix A.

38 Wedge Issues Podcast. See Appendix A.
No. 2023AP1399-OA 

41

¶78 Similarly, the Legislature isolates my comment 

"[p]recedent changes when things need to change to be fair"

39 from 

my full remarks and calls it a "promise to 'ma[k]e new law' to 

achieve a desired outcome." I made this comment about precedent 

in response to a general question about stare decisis. I was 

talking about Plessy v. Ferguson, 163 U.S. 537 (1896). I was not 

referring to Johnson.

40

¶79 Like my other campaign statements about Wisconsin's 

legislative maps, my expressed desire to take a fresh look at the 

maps and my explanation of stare decisis show that I had opinions 

on political and legal issues of the day. Nothing more.

C. Wisconsin Law

1. Recusal Under Wis. Stat. § 757.19(2)(g)

¶80 The Legislature contends that under § 757.19(2)(g) I 

must recuse due to my campaign statements. Section 757.19(2)(g) 

provides that "[a]ny judge shall disqualify himself or herself 

from any civil or criminal action or proceeding . . . [when] a 

judge determines that, for any reason, he or she cannot, or it 

appears that she or she cannot, act in an impartial manner."

¶81 This determination is purely subjective. The judge 

alone decides whether she can be impartial, and whether there is 

 

39 Wisconsin Supreme Court Candidate Debate. See Appendix A.

40 Wisconsin Supreme Court Candidate Debate. See Appendix A.
No. 2023AP1399-OA 

42

an appearance of partiality. Section 757.19(2)(g) "does not 

require disqualification in a situation where one other than the 

judge objectively believes there is an appearance that the judge 

is unable to act in an impartial manner" or in a situation where 

"the judge's impartiality 'can reasonably be questioned' by 

someone other than the judge." State v. Am. T.V. & Appliance of 

Madison, Inc., 151 Wis. 2d 175, 183, 443 N.W. 662 (1989); see also

Donohoo v. Action Wis. Inc., 2008 WI 110, ¶24, 314 Wis. 2d 510, 

754 N.W.2d 480.

¶82 When a justice decides that, both in fact and in 

appearance, she can act in a fair and impartial manner, the supreme 

court's role is limited to determining that she went through the 

required exercise of making the subjective determination. 

Donohoo, 314 Wis. 2d 510, ¶24; State v. Harrell, 199 Wis. 2d 654, 

663-64, 546 N.W.2d 115 (1996); Am. T.V., 151 Wis. 2d at 182-84.

¶83 In Donohoo, the appellant, citing § 757.19(2)(g) and the 

Wisconsin Code of Judicial Conduct, moved to disqualify Justice 

Louis Butler from a lawsuit against an organization dedicated to 

protecting the civil rights of lesbian, gay, bisexual, and 

transgender people. Justice Butler had received campaign 

contributions from two board members of a political action 

committee for the organization and a reelection endorsement by the 

organization's attorney. He also gave a speech at a fundraiser 
No. 2023AP1399-OA 

43

for a political action committee that supported LGBTQ equality. 

Donohoo, 314 Wis. 2d 510, ¶¶8-14.

¶84 Despite these facts, Justice Butler declined to recuse 

himself from the case. In a letter to the parties, he said that 

he had consulted the Executive Director of the Judicial Commission 

about these matters. He disclosed the campaign contributions and 

concluded: "Because campaign contributions will in no way affect 

my judgment as to the outcome of this proceeding, I am writing to 

advise you of my decision to participate in this case." Id., ¶32. 

Donohoo held that by sending the letter and continuing to 

participate in the case "Justice Butler clearly determined that he 

could be impartial. That is all that is required by 

§ 757.19(2)(g)." Id., ¶25.

¶85 Similarly, in Three Unnamed Petitioners the state moved 

for Justice Prosser's recusal based partly on § 757.19(2)(g). 

Despite having received $3.3 million in campaign support from the 

targets of the John Doe investigation under review, he determined 

that he could decide the case impartially and it would not appear 

otherwise to a reasonable person who understands the facts.41

¶86 I likewise find no basis for my recusal under 

§ 757.19(2)(g). I was a circuit court judge for 10 years before 

becoming a supreme court justice. I have decided many difficult 

 

41 See Appendix B, Prosser Decision at 2.
No. 2023AP1399-OA 

44

cases. I approached them with an open mind and decided them based 

on the facts and the law. I approach supreme court cases the same 

way. In fact, during my campaign, I assured voters that "I will 

always be an impartial justice who upholds the Constitution," "I

follow laws I don't always necessarily agree with," and that "every 

single case that I handle will be rooted in the law." At my 

investiture I solemnly swore that I would "faithfully and 

impartially discharge the duties of the office to the best of my 

ability so help me God." I meant what I said. I have considered 

all of the facts and legal authorities presented for and against 

recusal under § 757.19(2)(g). I determine that I can, in fact and 

appearance, act in an impartial manner in this case.

2. Recusal Under Wis. Stat. § 757.19(2)(f)

¶87 The Legislature also contends that § 757.19(2)(f) 

requires my recusal. Section 757.19(2)(f) provides that a judge 

shall disqualify herself from a case when she "has a significant 

financial or personal interest in the outcome of the matter." The 

Legislature does not claim that I have a "financial interest" in

this case. It argues that because I "repeatedly declared to voters 

how [I] would vote on the merits of this case" I have "a substantial 

interest in keeping [my] word and preserving [my] reputation among 

voters by invalidating the maps."

¶88 A recusal motion based on § 757.19(2)(f) is different 

from a motion based on § 757.19(2)(g). Whereas § 757.19(2)(g) 
No. 2023AP1399-OA 

45

requires the judge to make a subjective determination about her 

ability to be impartial in fact and appearance, § 757.19(2)(f) 

requires the judge to make an objective determination that she 

does or does not have significant personal interest in the outcome 

of a case as established by evidence and reasonable inferences. 

State ex rel. Dressler v. Cir. Ct. for Racine Cnty., 163 Wis. 2d 

622, 643, 472 N.W.2d 532 (Ct. App. 1991). If the evidence and 

inferences establish that the judge does have a significant 

personal interest in a case, § 757.19(2)(f) requires her recusal.

¶89 The Legislature cites no case where a judge's campaign 

statements were held to create a "significant personal interest"

in the outcome of a case thereby requiring recusal under 

§ 757.19(2)(f). Moreover, the Legislature does not cite a single 

instance during my campaign where I "declared to voters how [I] 

would vote on the merits of this case." This case did not even 

exist during my campaign. The petitioners filed it four months 

after the election.

¶90 During my campaign, I told voters my personal values and 

beliefs about Wisconsin's legislative maps and said that I would 

enjoy taking a fresh look at them——as permitted by the First 

Amendment and Republican Party. I did not say "I will" or "I will 

not" decide this case or any other case a certain way. See Duwe, 

490 F. Supp. 2d at 976. To the contrary, I repeatedly told voters 

that I could not say how I would decide any particular case and 
No. 2023AP1399-OA 

46

that I must follow the law where it leads me, even if I disagree 

with it. 

¶91 While Republican Party did not concern § 757.19(2)(f), 

it considered and rejected the premise of the Legislature's 

argument. In that case, Justice Scalia responded to the argument

that campaign statements pose a special threat to open-mindedness 

because once the candidate becomes a judge he will feel reluctant 

to contradict them. Republican Party, 536 U.S. at 780. He

observed that this "might be plausible, perhaps, with regard to 

campaign promises. A candidate who says 'if elected, I will vote 

to uphold the legislature's power to prohibit same-sex marriages'

will positively be breaking his word if he does not do so." Id.

(emphasis in original). But it is not true that a judge who states 

his position on issues during a campaign will feel compelled to 

rule in accordance with them. Justice Scalia explained:

We doubt, for example, that a mere statement of position 

enunciated during the pendency of an election will be 

regarded by a judge as more binding——or as more likely 

to subject him to popular disfavor if reconsidered——than 

a carefully considered holding that a judge set forth in 

an earlier opinion denying some individual's claim to 

justice. 

Id. at 780-781.

¶92 The Legislature offers no facts establishing or creating 

a reasonable inference that my campaign statements created a 

"significant personal interest" in the outcome of this case. Nor 

does it cite any case to support that argument. I therefore 
No. 2023AP1399-OA 

47

objectively determine that § 757.19(2)(f) does not require my 

recusal.

¶93 The Legislature makes one passing reference to SCR 

60.04(1)(b) without developing an argument. Rule 60.04(1)(b) 

provides in part that "a judge may not be swayed by partisan 

interests, public clamor, or fear of criticism." It does not 

support recusal under § 757.19(2)(f) because "a judge's propensity 

to decide cases consistent with statements made or opinions 

expressed during a campaign tend to demonstrate that he or she is 

acting on personal principles previously stated and not deciding 

the pending case on the basis of 'partisan interests, public clamor 

or fear of criticism.'" Duwe, 490 F. Supp. 2d at 973. Accordingly, 

IT IS ORDERED that the Motion to Recuse filed by proposed 

intervenor Wisconsin Legislature and the Republican State Senator 

respondents is denied.
Appendix A

APPENDIX A

Campaign Statement Sources

1. Wisconsin Supreme Court Candidate Forum – Jan. 9, 2023

a. WisPolitics State Supreme Court Election Forum, 

WisconsinEye (Jan. 9, 2023), available at: 

https://wiseye.org/2023/01/09/wispolitics-statesupreme-court-election-forum.

2. Wisconsin State Journal – Jan. 30, 2023

a. Alexander Shur, Candidate Q&A: Wisconsin Supreme

Court, Wis. State J. (Jan. 30, 2023), available at: 

https://madison.com/news/local/govt-andpolitics/elections/candidate-q-a-wisconsin-supremecourt/article_fb416ee5-a99e-5a8f-b43dd4652861a65e.html [https://perma.cc/EE2H-ZKZB].

3. Wisconsin Public Radio – Feb. 14, 2023

a. Jonah Beleckis, Janet Protasiewicz Thinks Judicial

Candidates Should Be Open About Their Values, Wis. 

Pub. Radio (Feb. 14, 2023), available at: 

https://www.wpr.org/janet-protasiewicz-wisconsinsupreme-court-justice-primary-election 

[https://perma.cc/C9V6-N9C8].

4. Wedge Issues Podcast – Mar. 2, 2023

a. Jessie Opoien & Jack Kelly, Janet Protasiewicz

Discusses Supreme Court Bid On Wedge Issues Podcast, 

Cap Times (Mar. 2, 2023), available at: 

https://captimes.com/news/government/janetprotasiewicz-discusses-supreme-court-bid-on-wedgeissues-podcast/article_111d3475-e040-5e43-a932-

06819cadc036.html.

5. X (f.k.a. Twitter) – Mar. 3, 2023

a. @janetforjustice, X (Mar. 3, 2023, 5:31PM), 

https://x.com/janetforjustice/status/16317996097511178 

25?s=46&t=9FuOdnLF34m1gMWomZ5G-g.
Appendix A 

6. X (f.k.a. Twitter) – Mar. 7, 2023

a. @janetforjustice, X (Mar. 7, 2023, 1:15PM), 

https://x.com/janetforjustice/status/16331847362636963 

86?s=20.

7. PBS Wisconsin – Mar. 9, 2023

a. Zac Schultz, Janet Protasiewicz, Daniel Kelly On

Wisconsin Redistricting, PBS Wis. (Mar. 9, 2023), 

available at: https://pbswisconsin.org/newsitem/janet-protasiewicz-daniel-kelly-on-wisconsinredistricting [https://perma.cc/4HH9-PXHP].

8. Pod Save America – Mar. 20, 2023

a. Pod Save America: Mugshots and Milk Shots (Live from

Wisconsin!), Crooked Media (Mar. 20, 2023), available

at: https://crooked.com/podcast/mugshots-and-milkshots-live-from-wisconsin.

9. Wisconsin Supreme Court Candidate Debate – Mar. 21, 2023

a. State Bar of Wisconsin, WISC-TV, WisPolitics.com

Supreme Court Debate, WisconsinEye (Mar. 21, 2023), 

available at: https://wiseye.org/2023/03/21/state-barof-wisconsin-wisc-tv-wispolitics-com-supreme-courtdebate.