The Complexity of Aggressive Recusal Laws

The five conservative jurists on the Wisconsin Supreme Court were heavily criticized in April for rejecting proposed rules that would have forced judges off of cases involving those who helped get them on the bench. As the Milwaukee Journal Sentinel reported back then:

The retired judges who asked for the rule to be rewritten argued there should be a bright line for conflicts of interest to make it clear when judges cannot hear cases. They contended such a rule is essential because money has flooded into high court races over the last decade, much of it spent by special interests running so-called issue ads that face no spending limits.

But is it really that simple to draw a “bright line” for conflict of interest? Take a recent state appeals court case.

1st District Appeals Court Judge Joan Kessler wrote a recent opinion that Wisconsin’s $750,000 cap on medical malpractice claims is unconstitutional.  The case can serve as an object lesson in the dangers in imposing aggressive and mandatory rules for judges and justices. The case involved  a Milwaukee woman who lost all four limbs should collect the $16.5 million for pain and suffering awarded to her and her husband:

“We conclude that the statutory cap on non-economic damages is unconstitutional on its face,” Judge Joan Kessler wrote in the 19-page unanimous opinion by the three-judge First District Court of Appeals panel.


Kessler added that “Wisconsin’s cap on non-economic medical malpractice damages always reduces non-economic damages only for the class of the most severely injured victims who have been awarded damages exceeding the cap, yet always allows full damages to the less severely injured malpractice victims.”


The appeal involves the $25.3 million award given in 2014 to Ascaris Mayo, a 57-year-old mother of four who had her limbs amputated in 2011 after a Strep A infection — the kind that causes strep throat — went undetected, leading to septic shock. The damage caused by the infection led to the amputations.

Kessler’s  husband State Representative  Fred Kessler’s largest source of political contributions are attorneys, several of which are personal injury attorneys that potentially could profit from his wife’s decision in the future. It’s entirely possible that some people would feel that a judge’s spouse’s donors potentially benefiting from her ruling creates an appearance of impropriety. Rick Esenberg of the Wisconsin Institute for Law and Liberty says the case illustrates that there are not easy stopping points once you start imposing aggressive and mandatory recusal laws:

I do not believe that Judge Kessler was obliged to recuse herself. But the case does illuminate the problem with aggressive recusal standards..The rule that the court recently rejected would have required recusal for independent advocacy. Such expenditures are likely to be made by advocacy or interest groups such as trial lawyers.  If independent advocacy by an organized interest group is sufficiently problematic to force recusal, it’s not clear why you’d only require recusal when that group is a party. The trial lawyers association’s  interest in striking down malpractice limits is very strong even though it is not a party to any particular case. And, since the rules often require recusal because of the financial interest of a judge’s family member, why not extend the obligation to step aside to cases of contributions made to a spouse? 

Esenberg says that, in his view, requiring recusal in cases like this would put an unacceptable burden on political participation and it illustrates why the type of rule that the court recently rejected lacks a logical stopping point and raises troubling First Amendment questions.