REDACTED REDACTED SUPREME COURT OF WISCONSIN ?g Case No. 2013AP2504 .- 2508-W Case No. Case No. 2014AP417 - STATE OF WISCONSIN ex rel. THREE UNNAMED PETITIONERS, Petitioner, V. Case Nos. 2013AP2504 - 2508-W THE HONORABLE GREGORY A. PETERSON, John Doe Judge, THE HONORABLE GREGORY POTTER, Chief Judge, and FRANCIS D. SCHMITZ, Special Prosecutor Respondents, L.C. Nos. 2013JD11, 2013JD9, 2013JD6, 2013JD1, 2012JD23 STATE OF WISCONSIN ex rel. TWO UNNAMED PETITIONERS, Petitioner, V. Case No. 2014AP296-OA THE HONORABLE GREGORY A. PETERSON, John Doe Judge, and FRANCIS D. SCHMITZ, Special Prosecutor Respondents, L.C. Nos. 2012JD23, 2013JD1, 2013JD6, 2013JD9, 2013JD11 MOTION FOR RECUSAL AND NOTICE OF ETHICAL CONCERNS RELATED TO SCR 60.03 and SCR 60.04 CONTINUED ON FOLLOWING STATE OF WISCONSIN ex rel. FRANCIS D. SCHMITZ, Special Prosecutor, Petitioner, V. Case Nos. 2014AP417 THE HONORABLE GREGORY A. PETERSON, John Doe Judge, Respondent, and EIGHT UNNAMED MOVANTS, Interested Parties. L.C. Nos. 20131D11, 2013JD9, 2013JD6, 2013JD1, 20121D23 The Special Prosecutor, Francis D. Schmitz, hereby moves for the recusal from all further proceedings in this matter based upon the information set forth herein. Additionally, based upon this same and additional information, notice is provided to the court pursuant to Wisconsin Stat. ?797.l9, SCR 60.03, 60.04(1) and (4), so that other ustice(s) of the court may make individual appropriate determinations of whether the Code of Judicial Ethics should or would preclude their further participation in the above entitled appeals. I. INTRODUCTION After a John Doe investigation was halted over one year ago, this court is now being called upon to make important rulings, inter alia, related to the legal the consequences of the control exercised by a over the operations of "231%;32 1 For the most part, 42.5, .2 Those individuals (and consequently those entities) also worked closely with 2'5; during those elections.3 A critical issue before the court in this matter is whether this control and interdependence gave rise to reporting obligations under Wisconsin campaign ?nance laws. Although the work of the Special Prosecutor is far from complete, it is the position of the Special Prosecutor that the evidence gathered and reviewed thus far establishes, inter alia, that - was a and are tax exempt corporations under I.R.S. code They are ?social welfare? organizations that may be involved in ?limited? poiitical activity, provided that supporting or opposing candidates does not become the organizations primary purpose. See Vol. Sehmitz Affidavit dated February 14, 2014 (Case No. 14AP417), Pg. 345 ?76; Pg. 321 - ?19; and Vol. 11., Pg. 148 1116. 2 See Vol. 11., Schmitz Af?davit dated February 14, 2014 (Case No. 14AP4I7), Pgs. 155 156, Vol. Pgs. 35-36, 1167-68. 3 is a trade organization that used its 501(c)(4) organization, the . . . to fund advertisements during the recall and Supreme Court elections. Both are parties to the present proceedings. functional extension of personal campaign committee during the recall elections.4 See Wisconsin Stat. In the opinion of the Special Prosecutor serious ethical issues now arise because several of these individuals and entities also had signi?cant involvement in the election of particular Justices to the Wisconsin Supreme Court. Those - -. - Unnamed Movant No. 2), Unnamed Movants No. 4 and 5), i (Unnamed Movant N0. nnamed Movant N0. 6), an 7). With regard to ?nancial support during the last four Supreme Court to the bene?t of four current Justices: - Furthermore, - also elections, on behalf of .2 ,2 also spent at least 5 during the last .. to the bene?t of the above . spent a total of Supreme Court elections. is the fact that for the Of further signi?cance with regard Through her last several years, has served as the treasurer of 4 These statements are quali?ed, of course, by the observation that, in this halted investigation, only limited facts are known at this point in time. =3 has been associated with the campaign and other committees established for as well. The amounts contributed controlled by several of the movants to individual Justices is alone cause for concern. Together with other information and set forth herein, the recusal of clearly warranted. The close involvement of the individuals and entities set forth above in the elections of the aforementioned Justices, implicates Due Process and ethical considerations that warrants the recusal of these Justices from any further participation in this case under the provisions of SCR 60.03, 60.040) and Wis. Stat. ?797.19. II. LEGAL STANDARDS As set forth in Storms v. Action Wisconsin Inc, 2008 WI 110 ?{[309 314 Wis.2d 510, 529, 754 480, 490, motions addressing recusal ?must be raised in a timely fashion.? This provides the court or individual justice(s) with the opportunity to determine the legitimacy of such concerns before a decision on the merits of a particular case. Id. at The Special Prosecutor is mindful of the sensitive and contentious nature of this motion; however the Special Prosecutor is obligated to provide the court with information in his possession which could assist members of the court in complying with applicable rules of the court. Because the individual Justiee(s) cannot make such determinations in a vacuum, the information provided will hopefully allow them to make a subjective determination of whether in fact or in appearance, the particular Justice(s) cannot act in an impartial manner. Id. at s24? Relevant to a consideration of the issues raised in this notice, the ?Code of Judicial Conduct? provides that ?a judge shall perform the duties of judicial of?ce impartially and diligently. See SCR 60.04. A judge shall avoid impropriety and the appearance of impropriety in all of the judge?s activities. See SCR 60.03. SCR 60.04 (1) provides that: (1) In the performance of the duties under this section, the following apply to adjudicative responsibilities: A judge shall hear and decide matters assigned to the judge, except those in which recusal is required under sub. (4) or disquali?cation is required under section 757.19 of the statutes and except when judge substitution is requested and granted. Finally SCR 60.04 (4) provides: (4) Except as provided in sub. (6) for waiver, a judge shall recuse himself or herself in a proceeding when the facts and circumstances the judge knows or reasonably should know establish one of the following or when reasonable, well-informed persons knor-rledgeable about judicial ethics standards and the justice system and mvare of the facts and circumstances the judge knows or reasonably should know would reasonably question the judge's ability to be impartial . . . (emphasis added). The comment to SCR 60.04 notes that, ?Under this rule, a judge must recuse himself or herself whenever the facts and circumstances the judge knows 5 The information provided may also be useful as it will enable particular Justices make their own or reasonably should know raise reasonable question of the judge's ability to act impartially, regardless of whether any of the Speci?c rules in SCR 60.04 (4) applies.? This comment underscores both the subjective nature of this determination and the obligation of the parties to the court to disclose relevant circumstances known to the party.6 The comment to this section also notes that, judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of recusal, even if the judge believes there is no real basis for recusal.? For this reason, the respective Justices have a corresponding obligation to disclose to the parties facts and circumstances relating to the issues raised in this motion or the underlying litigation that bear on the relevant constitutional and ethical considerations. In addition to the above determinations, the United States Supreme Court has held that the 'Due Process Clause incorporated the common-law rule that recusal is required not only when a judge has ?a direct, personal, substantial, pecuniary interest? in a case, but also in those circumstances ?in which experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.? See Caperton v. A.T. Massey Coal C0., 566 U.S. 868, 876?877, 129 2252, 2259 (2009). In inquiry into the workings of their campaigns. 6 For example in the present case, Justice Bradley determined that her son?s employment as an attorney with one of the law firms representing . "1:132:33 (Unnamed Movant No. 7) necessitated her recusal in order to avoid any appearance of impropriety. Justice Bradley did this even though her son had no involvement in the present litigation. That decision by Justice Bradley Caperton, the United States Supreme Court held that the Due Process Clause required Justice Brent Benjamin of the West Virginia Supreme Court to recuse himself from participation in an case where the appellant (a company for which Don Blankenship was the chairman, CEO and president) had recently contributed $2.5 million to a ?527 organization that supported the election of Justice Benjamin."F The $2.5 million spent was triple the amount spent by the Justice Benjamin campaign during that election. Blankenship himself also spent $500,000 in support of Justice Benjamin during that election. Id. at 873. The Special Prosecutor is aware that SCR 60.040) and (8) explicitly do not require recusal solely based upon the receipt of a campaign contribution from an individual or entity involved in the proceeding, nor from the sponsorship of an ?independent? expenditure or issue advocacy communication by an entity involved in the proceeding. However, the above rules are tempered by the Due Process Clause and related considerations as detailed in Caperton. Here, the facts set forth in the Petition and Memorandum in Support of a Supervisory Writ undercut any claim of ?independence? of any expenditure that may be asserted by the and principals of those entities. In fact, given the history of control, collaboration and coordination of those individuals and entities with political campaign committees that may potentially was a consequence of a self-examination of her obligations under SCR 60.0401) and Wis. Stat. ?797.19. See Justice Bradley?s letter of March 19, 2014, Case No. 14AP296-OA. include judicial candidates, the provisions of SCR 60.040) and (8) are possibly rendered irrelevant due to the lack of ?independence.? DISCUSSION The Petition for Supervisory Writ and Writ of Mandamus establishes that the principals As established in the af?davit supporting that petition, Evidence gathered during the investigation and examined thus far also establishes that besides the Recall elections, were involved in was the Wisconsin Supreme Court election in which {53 7 A 26 U.S.C. ?527 organization is atax exempt organization formed primarily to in?uence an election of a candidate for of?ce. dted bruary 14,2014, Pg. 149 (Case No. 14A417. I I I 9 See Petition for a Supervisory Writ, pgs. 10-11, and pg. 15 (Case No. 14AP417). running for reelection to the Wisconsin Supreme Court. Signi?cantly, re-election campaign, as exempli?ed by a In that e?mail,? -. email is attached as Exhibit 1. The Special Prosecutor would note that the email referenced in this ?ling came to the attention of prosecutouring a rv ev'dence at was ?elevan to the issue of control exercised by t2": because that ver A comprehensive search for e-mail re elections has not been conducte recnsal in evidence that has not yet been examined The recipients of the e-mail included iated to the Surem Court cl, and there may be other communications releVant to the issue of 10 .. in the The importance of the involvement 0 campaign cannot be overstated. .12 At the same during the primary elections to the bene?t of 1: approximately Within a month after the above campaign email, (Exhibit 2) See Vol. Schmitz Af?davit dated Febmary 14, 2014, Pg. 366 (Case No. 14AP417). 11 spent At that time, In other words, acting through the non?pro?t corporations they controlled, were directly responsible for well over in election spending related to the campaign of if? ?6 ee Vol. Af? Supreme Court election. ase No. 14AP417). ?7 Se footnote l3. ?3 151;}: a . (Exhibit 3 mclucled as Ex1t 7. 12 Additionally, (Unnamed Movant N0. 5), Spent The importance of these expenditures, eSpeeially in light of 33.555; was recognized by a key representative of the campaign. In an email dated . xhibitl?) I 13 the treasurer of A ?nal concern is the fact that ampai gn campaign committee, has also been associated with According to committee as W611 ?33 reports filed with the GAB, fees for work done for the committee as well. Since campaign committee ?rst ?led reports in has also been listed as the This relationship is noteworthy because :1 3 rep in registration reports ?led from the .f reporting period which was ?led period through the The concern of course is the fact that one of the moving parties in these matters before the court is the .. While the Special Prosecutor stops well short of saying nevertheless has a central role in the investigation inasmuch as a 14 main premise of the investigation is campaign with The close connection of t; (and consequently movant is also worth pointing out. This was demonstrated when th campaign director stated: Placing all of these facts in perspective the evidence of the involvement the involvement of and the 1.- the estimated entities under their effective control - contributed by the combined entities to the bene?t of the Due Process considerations warranting recusal exist here as existed in Caperton. There, the court did not take issue with Justice Benj amin?s subjective ?ndings of impartiality, or whether there was actual bias. Rather, the court framed the question as to whether ?there was a serious objective risk of actual bias that required Justice Benjamin?s recusal.? Id. at 886. This was based upon ?objective .). 15 and reasonable perceptions.? Id. at 884. In making that determination, the court examined ?whether, ?under a realistic appraisal of tendencies and human weakness? the interest ?poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.? Id. at 883?884, citing Withrow v. Larkinin: reelection, several identical With respect to the factors present the same serious risk of actual bias based upon ?objective and reasonable perceptions.? The first is the direct involvement of campaign. As a consequence of their involvement, there is a potential overlap between the activities of the i during the - election which is the -, also a party to this which was nearl) appeal, alone spent 5'35:le campaign received.? Fourth, the overall 2? See footnote 10. 25 In Capert?on, the inquily into the signi?cance of the campaign funding was evaluate on the following: the ?relative size? of the contribution by the litigant, in comparison to l) the total 16 signi?cance of the above conduct by the parties to this appeal to the re-election of is the fact that i is also associated with C. Justice to the Wisconsin Supreme Turning to the election of Court, evidence gathered and examined thus far similarly demonstrated that amount contributed to the campaign and 2) the totai amount spent during the election, and 3) the apparent effec uh t'ution had on the outcome. 25 The emaii -- is included as Exhibit 7. 17 This statement iS consistent with reports that during of even more signi?cance is the fact '23 It is also that to the bene?t of which received funding reported that from '3 See footnotes 13 and 19. 13 during the election.29 In perspective, the spent by and campaign during the election. Although the Special Prosecutor is not moving for recusal of {fig} I we provide the following additional information for their consideration. Evidence the special prosecutor has been able to examine thus far also tends to establish that as well. $931 to the bene?t of - Fm?thermore, reportedly spent 2 3 3?33 Those amounts were 10 .(Exhibit II See footnote 19. 19 spent by the approximately Mice the re-election. bene?ted from an estimated Finally, campaign. E. Additional Considerations There is a more subtle issue that the Special Prosecutor asks the Justices t0 consider. Based upon information developed during the investigation .. . I argue this interaction gave rise to a reportable contribution as a coordinated expenditure. And of course, the Justices remaining on this proceeding will decide. 20 In a sense then, the Justices will be deciding issues that may well re?ect back on their own campaign committees and any interaction that may have taken and/or the . Indeed, place between these committees, with signi?cant evidence ordered sealed and not yet examined, the extent of any such interaction beyond that disclosed here remains unknown, possibly forever if the investigation is not allowed to continue. It is human nature to disassociate one?s self from conduct that others may ?nd improper or objectionable (in this context, ?campaign coordination with supposedly independent entities"). A ruling by the Justices that all such interaction is outside the scope of ch. 11 and was in the exercise of Free Speech does exactly that, holding - in effect that any '3 committee and -1 Was done in the proper exercise of statutory and interaction between a particula constitutional rights. These concerns are not speculative because - and - despite questions regarding its legality. 21 Further, Finally in the present case, there is no ?safe harbor? to be found within the provisions of SCR 6004(7) and (8). Those sections explicitly do not require recusal solely based upon the receipt of a campaign contribution. First, Due Process considerations ?trump? any state statute that seeks to protect such conduct. Second, it is also troubling that the changes embodied in the above ethical rules were part of a joint proposa Whatever the actual facts, the appearance is that - spent millions of dollars to Exhibit 14. (Case No. 14AP417, Petition for Supervisory Writ 79.) 35 See 1 Schmitz Af?davit, Pgs. 377?3 3? (EM . 37 In the matter of amendment of the Code of Judicial Conduct's rules on recusal. In the matter of amendment of Wis. Stat. 757.19, 2010 WI 73. 22 help elect like-minded Justices to the Court and by Accordingly, particular Justices must address the potential con?ict of interest - and the consideration of issues presented here. In conclusion, the information provided herein shows the importance that had in the elections of several members of this court. Since these individuals and entities are not merely involved in the underlying John Doe investigation, but are in fact movants in the proceedings now under consideration by this court, in the opinion of the Special Prosecutor there are compelling reasons to provide this information to the court, and good cause for the recusal of certain Justices from participation in the present appeals. WHEREFORE the Special Prosecutor respectfully files this motion for the recusal 'of provides notice of such circumstances and facts for consideration by other Justices so that they may perform the duties of the judicial of?ce impartially and diligently, consistent with Code of Judicial Ethics noted above. 23 WHEREFORE the Special Prosecutor also requests the court to accept this ?ling under seal, consistent with the orders of December 16, 2014 and January 21, 2015. Dated this 11th day of February, 2015. Respectfully Submitted, 0 .. s, Francis D. Schmitz Special Prosecutor and Responde State Bar No. 1000023 P.O. Address Post Of?ce Box 2143 Milwaukee, WI 53201 (414) 278-4659 24