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Lawsuit filed to block potential impeachment of Wisconsin Supreme Court Justice Janet Protasiewicz

Lawsuit claims impeachment would violate GOP lawmakers' constitutional authority and 'nullify the vote' of more than a million residents

Wisconsin Supreme Court Justice Janet Protasiewicz, who is being targeted for possible impeachment by Republican lawmakers because of donations she received from the Democratic Party and comments she made during her campaign, attends her first hearing as a justice Thursday, Sept. 7, 2023, in Madison, Wis. Morry Gash/AP Photo

A former candidate for the state’s highest court filed a lawsuit aimed at blocking Republican lawmakers from impeaching liberal Supreme Court Justice Janet Protasiewicz, claiming impeachment would violate the state constitution and “nullify the vote” of more than one million residents.

Attorney Timothy Burns lost a 2018 state Supreme Court primary to fellow candidate Michael Screnock and current liberal Justice Rebecca Dallet. He is asking the court to issue an injunction blocking Assembly Speaker Robin Vos, R-Rochester, and other Assembly lawmakers from voting to impeach Protasiewicz or any other justice unless a majority of the court rules constitutional standards have been met.

The suit, filed on behalf of two Protasiewicz voters, is in response to comments made by Vos and other Republican legislators signaling that impeachment could be on the table if the justice doesn’t recuse herself from two redistricting lawsuits before the court because of comments she made on the campaign trail calling GOP-drawn voting maps “rigged.”

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Protasiewicz also told supporters she would recuse herself from cases brought forward by the Democratic Party of Wisconsin. While the party isn’t directly involved in the redistricting cases, it has long called for Republican maps to be thrown out.

“You cannot have a judge who said, you know, the maps are rigged because she bought into the argument that that’s why we’re winning elections, not the quality of our candidates, and then she sits on that trial acting like she’s gonna listen and hear both sides fairly — that just can’t happen,” Vos told a conservative radio host in August.

Chapter 60 of Wisconsin’s Code of Judicial Conduct requires judges or justices to recuse themselves from a case if the judge has a financial interest or has made “pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office.” However, a 2002 U.S. Supreme Court decision ruled that judges have First Amendment protections while campaigning allowing them to express opinions about issues of the day.

The lawsuit claims impeaching Protasiewicz would violate the constitutional authority granted to the Assembly and constitutional rights of the voters who elected her.

“An emergency, temporary restraining order is warranted in these circumstances as the mere act of an unconstitutional impeachment, even without a conviction, would nullify the vote of over one million Wisconsin voters, including and specifically those of the Petitioners,” Burns said.

There are two main routes for Republican lawmakers to attempt to keep Protasiewicz from ruling on the redistricting cases. The Assembly can initiate impeachment proceedings to remove any civil officer of the state with a simple majority for “corrupt conduct in office, or for crimes and misdemeanors.”

It would then be up to Wisconsin State Senators to conduct an impeachment trial. Senators could convict Protasiewicz with a two-thirds majority vote.

In the interim between an Assembly vote to impeach and the conclusion of the Senate trial, Protasiewicz would not be allowed to sit on the Supreme Court.

“If Justice Protasiewicz now cannot hear cases due to an unconstitutional impeachment, (the petitioners’) fundamental right will not be ‘substantially impaired,’ it will be ‘destroyed,’ the lawsuit states.

Justices and judges can also be subject to “removal by address” on “allegations of misconduct, or that a judge is not physically or mentally qualified to exercise the judicial functions of the office.” In that instance, the Legislature would serve Protasiewicz with a copy of charges warranting removal with an opportunity for the justice to defend herself. The Legislature could then vote to remove her with a two-thirds majority vote in the Assembly and Senate.

On Sept. 6, Protasiewicz released a letter from the Wisconsin Judicial Commission stating that complaints filed about her comments on redistricting and Wisconsin’s near-total abortion ban have been dismissed.

In response, Vos issued a statement claiming the commission’s finding “only muddies the waters” and does not address whether she can sit on the redistricting cases.

This month, the Democratic Party of Wisconsin launched a $4 million ad campaign aimed at pressuring Republican lawmakers to back away from impeachment.

On Tuesday, the Republican Accountability Project also launched ads targeting 12 GOP members of the Assembly and nine GOP senators. The ads call Protasiewicz’s 11-point victory in April “a landslide” and states impeachment discussions among Republican lawmakers is “not how democracy works in Wisconsin.”

It’s unclear whether impeachment will happen. Republican State Rep. Scott Johnson, R-Jefferson, has vowed to vote against removing Protasiewicz from the court. He said he doesn’t agree with the justice’s “openness on election maps in our state” and hopes she recuses from the redistricting cases.

“The people of Wisconsin have historically shown that they do not support uprooting a duly elected official on the sheer basis of political disagreement,” Johnson said. “Our court has shifted in a new direction, which is the consequence of an election.”

On Sept. 6, Vos told conservative radio host Dan O’Donnell he’s not “predicting we’re going to impeach because I don’t know that we will.”

“But I do think that the idea that somebody is going to blatantly break the rules and then have no consequence, you know, the Constitution really only allows for a few remedies if somebody makes a big mistake like this,” Vos said.

Vos said he’s an “eternal optimist” and expects Protasiewicz to recuse herself from the case. If she does, that would leave the court with three conservative justices and three liberals deciding the redistricting cases. He noted conservative Justice Brian Hagedorn sided with liberals on accepting Democratic Gov. Tony Evers’ proposed voting maps in 2022.

“She could easily recuse, keep her honor and integrity, still give the Democrats a darn good chance to win the case, which I don’t like,” Vos said. “But the reality is the reality. And then we move forward from there. The difference is having to have somebody who doesn’t care about their oath. I just don’t believe that’s where a new justice is.”

O’Donnell himself has questioned whether impeaching Protasiewicz would be the right move.

“Should Republicans move forward with impeachment, it would likely be unsupported by the Wisconsin Constitution, but America is now a post-constitutional state in which political power is the only governing authority,” O’Donnell wrote Sept. 6.

He said the decision will be up to Assembly Republicans and “The rest of the state can only hope it’s the correct one.”