Republican senators urge Justice Protasiewicz to allow recusal complaints against her to be released

State Senate Republicans are asking liberal Wisconsin Supreme Court Justice Janet Protasiewicz to waive her right to confidentiality in order to make complaints filed against her public. Democrats say Republicans are trying to “extort” Protasiewicz into recusing herself from two redistricting lawsuits that could overturn GOP drawn voting maps.

A Sept. 8 letter to Protasiewicz from Sen. Van Wanggaard, R-Racine, and four other Republican members of the Senate’s Committee on Judiciary and Public Safety, obtained by Wisconsin Public Radio through an open records request, starts with an accolade:

“Congratulations on your recent election to the Wisconsin Supreme Court.”

From there, the Republicans’ tone shifts. It cites another letter received by Protasiewicz from the Wisconsin Judicial Commission May 31, notifying her that “several complaints” had been filed, accusing the justice of violating the state’s Code of Judicial Conduct for calling Republican drawn voting maps “rigged” ahead of her 11 point victory over former conservative Justice Dan Kelly. Protasiewicz entered the commission’s finding and one of the complaints against her into the docket for redistricting lawsuits.

“By releasing the Commission’s May 31, 2023 letter, you have concluded that the public’s interest in the Judicial Commission’s activity outweighs any personal privacy interest you wish to protect,” the Republicans wrote. “But releasing only the conclusion and one of the ‘several’ complaints made against you leaves the public with an incomplete record and invites speculation.”

The letter also voices frustration with unconfirmed Democratic appointees of the Democratic Judicial Commission who testified before the Senate committee. During those hearings in late August and early September, Wanggaard and his GOP colleagues grilled appointees about how the commission handles issues of recusal when a judge has publicly commented on a case. The appointees said they couldn’t comment on theoretical situations.

The Republicans’ letter ends by telling Protasiewicz they “look forward to your waiver of confidentiality, and to learning more about the Commission and its process.”

Sen. Wanggaard was unavailable for comment Friday, but his chief of staff, Scott Kelly, told WPR the senators want to know what other complaints filed against Protasiewicz say.

“We don’t know what she’s cleared up from the judicial commission,” Kelly said. “And that’s what we’re trying to find out. It could be anything. And by releasing the letter, she’s just inviting speculation.”

Chapter 60 of Wisconsin’s Code of Judicial Conduct requires a judge to recuse if he or she has made a public statement while campaigning that commits the judge with respect to an issue in the proceeding. But a U.S. Supreme Court decision from 2002 found judges have First Amendment protections while campaigning that allow them to express opinions about issues of the day.

Kelly said the issues Republicans have with Protasiewicz are about more than her stating what she believes or the fact that she received around $10 million in donations from the Democratic Party of Wisconsin. He said Protasiewicz’s comments during the campaign closely match arguments in the redistricting lawsuits filed by liberal law firm Law Forward on behalf of Democratic voters.

“The words that Justice Protasiewicz used on the campaign trail mirror, almost exactly, the words that are in the Law Forward brief for new maps,” Kelly said

Protasiewicz did not respond to a WPR email asking if she would waive her right to confidentiality or comment on the letter from the GOP senators.

State Sen. Kelda Roys, D-Madison, also sits on the senate’s judiciary committee. She told WPR the GOP request is “a naked attempt to extort” Protasiewicz into recusing herself from lawsuits seeking to overturn GOP voting maps.

“Robin Vos and the conservatives in the legislature are beating this impeachment drum, even though they know that there is no legitimate basis and such an impeachment would be unconstitutional,” Roys said.

Roys also said the questions her Republican colleagues asked the Democratic appointees of the Judicial Commission were “completely inappropriate.”

“It really is the height of hypocrisy and irony that the Republicans on the committee were trying to force the judicial commissioners to prejudge something based on a wild hypothetical,” Roys said.

Protasiewicz has yet to decide whether to recuse herself from the redistricting lawsuits. Meanwhile, Wisconsin Assembly Speaker Robin Vos, R-Rochester, is consulting with former Supreme Court justices to review and advise him on impeachment criteria.

Vos didn’t name the former justices, but the Associated Press has reported former conservative Justice David Prosser is one of them. The report highlights a $500 donation Prosser made to Protasiewicz’ opponent, Dan Kelly, and the fact that Prosser didn’t recuse from cases involving a law he helped pass while he was a Republican member of the Legislature.

WPR requested emails and other documents from a number of legislative leaders and members of the Supreme Court referencing Protasiewicz, recusal and impeachment.

Records from Sen. Wanggaard’s office revealed a memo titled “Talking Points” outlining much of what Republicans have been saying publicly about Protasiewicz. It focuses on the justice’s comments about GOP maps and the $14 million spent by the Democratic Party of Wisconsin on campaign contributions and an ad campaign aimed at pressuring Republicans to oppose impeachment.

“Would $14 million influence your judgment?” one heading said. “How can you be impartial after a life-changing amount of money was spent on your behalf?”

The talking points also accuse Democrats of “overreacting to a potential impeachment because they expect Justice Protasiewicz will do their bidding regardless of the facts of the case before her.”

The memo also contains prepared quotes that include a sports analogy.

“Justice Protasiewicz hearing a case regarding legislative maps is no different than Mike Ditka refereeing a Packer Game,” the document said. “Any claim of impartiality is unreasonable, and Justice Protasiewicz must recuse herself.”

Kelly, Van Wanggaard’s chief of staff, wouldn’t say who drafted the talking points document and that the senator hasn’t taken a position on whether he would vote to convict Protasiewicz if she was impeached by Assembly Republicans.

The records request also revealed dozens of emails from constituents and residents living outside Wanggaard’s Senate district encouraging him to oppose impeachment. Many of the letters are identical. Kelly said that points to an organized campaign by the Democratic Party.

“They’re all clearly Democratic people — we track who contacts us — who are all opposed to impeachment and their rationales are different from overruling the will of the people or saying this is all political,” Kelly said. “It runs the gamut.”

One of those emails came from former chair of the Town of Somers board of supervisors Carol Matteucci, who identifiers herself as an independent who leans liberal. She told Wanggaard that impeachment would be “an attack on democracy” and noted she was elected to the town board while supporting a power plant that was also up for referendum.

“That’s what an elected official does, the will of the people,” Metteucci wrote.

In an interview with WPR, Metteucci said she voted for Protasiewicz and thinks she can still be impartial despite her campaign comments on the GOP maps.

“It’s not the town of Carol, for crying out loud,” Metteucci said. “It’s not the state of Vos. It’s the state of Wisconsin. It’s not the state of Wanggaard. And so, these guys have got to realize that.”