The Wisconsin Legislature's questionable power to impeach Justice Protasiewicz
If Wisconsin Republicans attempt to impeach Justice Protasiewicz for hearing a redistricting case, it'll proceed on uncertain legal grounds
Earlier this year, when Janet Protasiewicz won her election to the Wisconsin Supreme Court, flipping the court to liberal control for the first time since 2008, Wisconsin Republicans were talking about impeaching her. For what, exactly? Unclear! But, perhaps chilled by the size of Protasiewicz’s victory, Republicans largely stopped talking about impeachment.
Until more recently.
Shortly after Protasiewicz was sworn into office this month, several progressive legal groups filed lawsuits with the Wisconsin Supreme Court challenging the state’s legislative districts under the Wisconsin Constitution. During the 2023 Supreme Court campaign, Protasiewicz didn’t say how she would rule on the maps, but expressed her personal belief that the maps were “rigged” and not “fair.”
Accordingly, last week, Assembly Speaker Robin Vos re-ignited the impeachment talk by demanding that Protasiewicz recuse herself from the case. If she doesn’t, impeachment is apparently on the table.
The impeachment process under the Wisconsin Constitution is not terribly unique. The Assembly has the power to impeach “all civil officers” for “corrupt conduct in office, or for crimes and misdemeanors[.]” An impeachment resolution requires a majority vote of the Assembly, and once passed, suspends the official from office until (and unless) they are acquitted. Ordinarily, I’d have to reach back much further for an example of how this plays out, but I could just point to the impeachment of Texas Attorney General Ken Paxton from earlier this summer.
This raises two main questions. First, is there even a plausible argument that Protasiewicz has—or will—commit “corrupt conduct in office”? Second, when could any of this happen?
The first question is somewhat harder to answer than the second. The case for Protasiewicz’s recusal is weak at best. Recusal is governed by two different requirements—one of them statutory, the other part of the state’s Code of Judicial Conduct. Section 757.19(2) of Wisconsin Statutes sets forth a number of situations that require a judge to recuse themselves. Almost all of them relate to an actual conflict of interest—a relationship to a party or attorney of record, being a material witness, previous work on the case, et cetera. There is a catchall requirement that a judge recuse when they “determine[] that, for any reason, he or she cannot, or it appears he or she cannot, act in an impartial manner.”
This sounds like it could apply here, but it almost assuredly does not. The Wisconsin Supreme Court has explained that a judge’s self-determination is “subjective” and that a reviewing court can only determine “whether the judge made a determination requiring disqualification.” In the case of a Supreme Court justice, however, there is no appellate court that would review their determination that they do not need to recuse—so the court does some amount of self-policing. In 2008, for example, when Justice Louis Butler faced an argument that he should have recused himself in a case, the court applied this subjective-determination requirement to conclude that he did not need to recuse himself:
From the record before us, we find that Justice Butler clearly made a subjective determination regarding his ability to proceed in the case. In the December 3, 2007, letter he sent to the parties, Justice Butler stated that after consulting with the executive director of the Judicial Commission he chose to disclose Lester Pines' contribution and said because campaign contributions would in no way affect his judgment as to the outcome of the proceeding, he was advising the parties of his decision to participate in the case. By sending the December 3, 2007, letter and continuing to participate in the case, Justice Butler clearly determined that he could be impartial. This is all that is required by § 757.19(2)(g).
If Protasiewicz faces an argument from a litigant that she is required to recuse herself, then all that she has to do is conduct an individual determination as to whether she “cannot, or it appears . . . she cannot, act in an impartial manner.” If she does so, documents it properly, and ultimately determines that she can act impartially, there’s nothing more to be done.
Separately, there’s a requirement in Rule 60.04 of the Code of Judicial Conduct that
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 knowledgeable about judicial ethics standards and the justice system and aware of the facts and circumstances the judge knows or reasonably should know would reasonably question the judge's ability to be impartial:
. . .
(f) The judge, while a judge or a candidate for judicial office, has made a public statement that commits, or appears to commit, the judge with respect to any of the following:
1. An issue in the proceeding.
2. The controversy in the proceeding.
Here, though, Protasiewicz’s comments, as made to the Capital Times during the campaign, definitely don’t rise to that level. Protasiewicz said that “anybody with any sense knows our maps are rigged”; that “I don’t think you can sell, to any rational person, that our maps are fair”; and that she would “enjoy taking a fresh look at the gerrymandering question.”
But even if describing the maps as “unfair” and “rigged” was impolitic, it doesn’t suggest how she’d rule on their constitutionality. Protasiewicz may very well feel, on a personal level, that the maps are “gerrymandered,” but that doesn’t mean that she believes that partisan gerrymandering is a justiciable political question under the state constitution, or that if it is, she would vote to adopt a standard that would determine that the maps are unconstitutional.
So the case that Protasiewicz should recuse is, at best, weak. Does that rise to the level of “corrupt conduct” in office? Almost assuredly not.
Moreover, the question of whether Protasiewicz should recuse is a question for the Wisconsin Judicial Commission—and it may not be one for the legislature. As several courts around the country have explained in different contexts, where responsibility for regulating conduct ultimately lies with the state supreme court, the legislature is without power to deem the conduct an impeachable offense. In 2018, the West Virginia Supreme Court of Appeals invalidated the impeachment proceedings against Justice Margaret Workman for allegedly violating provisions in the state judiciary’s code of conduct, which it determine that it alone had the power to regulate. Likewise, earlier this year, the Pennsylvania Commonwealth Court reached a similar decision on the impeachment proceedings against Philadelphia District Attorney Larry Krasner, many of which involved allegations of attorney misconduct. There, the court concluded that these allegations fell within the judiciary’s exclusive power to regulate the conduct of attorneys.
What gives me pause about that conclusion is that the judiciary’s constitutional power to police itself—spelled out in Article VII, Section 11—is “alternative to, cumulative with,” the impeachment powers of the legislature. The Wisconsin Supreme Court has asserted an “exclusive authority to discipline judges” under its Section 11 powers, but has caveated that it “shares the removal power with the legislature” and with the people through the “recall process.”
In any event, it’s not implausible to me that the Supreme Court has the “exclusive authority to discipline judges” (including by removing them) when they violate the Code of Judicial Conduct or other canons of conduct, and that this power is shared with the legislature to the extent that the judges’ actions extend beyond mere conduct violates to include “corrupt conduct in office.” Unlike the U.S. Constitution, the Wisconsin Constitution does not say that the lower house possesses the “sole” power of impeachment and that the upper house possess the “sole” power to try impeachments. The U.S. Supreme Court has found significance in use of the word “sole”1—its absence in the Wisconsin Constitution likely suggests an alternative meaning.
Therefore, if the basis of the allegations against Protasiewicz is that she didn’t recuse herself—again, at most, a judicial-conduct violation reviewed by the court itself—the legislature may be without jurisdiction to impeach her.
But assuming for a second that the legislature does have the power to impeach Justice Protasiewicz, when could any of this happen?
The Wisconsin Legislature is currently out of session, and resumes for a floorperiod from September 12-23 of this year. It’s possible that the legislature could call itself into an “extraordinary” session earlier than that, but I’m skeptical that this would be lawful. The Wisconsin Constitution, in Article IV, Section 11, provides that:
The legislature shall meet at the seat of government at such time as shall be provided by law, unless convened by the governor in special session, and when so convened no business shall be transacted except as shall be necessary to accomplish the special purposes for which it was convened.
Accordingly, section 13.02 of Wisconsin Statutes requires the legislature to convene “on the first Monday of January in each odd-numbered year,” with the “regular session” to begin “on the first Tuesday after the 8th day of January in each year.” The legislature is also required to “develop a work schedule for the legislative session.” This year, Senate Joint Resolution 1 established the work schedule.
Note, though, that there’s no mention of an “extraordinary” session. There’s a difference in Wisconsin between a “special” session, which only the Governor can call, and an “extraordinary” session, which the legislature can call. In 2018, for example, the legislature convened itself into an extraordinary session to pass legislation stripping powers from Governor-elect Tony Evers and Attorney General-elect Josh Kaul. In 2019, the constitutionality of this extraordinary session was challenged—on the basis that the legislature can only meet at such times as are “provided by law,” and there was no “law” that provided for the session to convene.
The Wisconsin Supreme Court rejected the challenge. It concluded that
The plain text of § 13.02(3), directing a committee of the Legislature to “develop a work schedule for the legislative session,” satisfies the “provided by law” requirement under Article IV, Section 11 of the Wisconsin Constitution. The work schedule dictates when the Legislature will meet, in accordance with the constitution.
Ergo, because the work schedule allowed the legislature to convene itself into an extraordinary session, and the work schedule was authorized by section 13.02, this satisfied the “provided by law” requirement of the constitution. But the dissent quite rightly questioned how this could be true. If “provided by law” refers to state statutes—and it does—then how could a joint resolution, which is not a “law,” authorize an extraordinary session?
There’s a strong argument that the 2019 decision by the Wisconsin Supreme Court was just plain wrong. The idea that a statute allowing the legislature to develop a “work schedule for the legislative session” could be used to allow the legislature to convene itself into an extra session—when the words “extraordinary session” do not appear in the statute itself—is absurd, given that the state constitution vests the Governor with the exclusive power to call the legislature into a “special” session. What’s the point in delegating this authority to the Governor if the legislature can convene itself into an “extraordinary” session? Indeed, the Indiana Supreme Court recently rejected a nearly identical argument.
Accordingly, if the legislature tried to convene itself into a special—or, rather, “extraordinary”—session to impeach Protasiewicz, there’s a strong argument that they’d be without authority to do so. Even if Protasiewicz recuses from a case challenging the constitutionality of the “extraordinary” session, conservative Justice Brian Hagedorn (who wasn’t on the court when the 2019 case was decided) might well side with the liberals anyway.
But again, assuming that it would be constitutional for the legislature to convene itself, or supposing that the legislature waits until September 12, what then?
Protasiewicz would be suspended upon impeachment,2 and would only be restored to office upon being acquitted. Acquittal might be a close call in the Senate, given that Republicans have the requisite two-thirds majority. It’s possible that the Senate could drag out the trial, or simply delay holding it altogether, to deprive liberals of a majority on the Court. I’m skeptical that this would be constitutional. There’s no way that the Senate could keep an impeached official suspended in perpetuity—because that would effectively be an extraconstitutional “removal.” Accordingly, should that occur, Protasiewicz would be well advised to sue to force a trial.
Of course, none of this should come to pass. Speaker Vos is attempting to bully the Wisconsin Supreme Court into upholding the obvious partisan gerrymander that he’s used to put himself into near-permanent power. He’s apparently willing to do so by any means available—including launching the state’s first impeachment since 1853.
In Nixon v. United States (note: not that Nixon), the Supreme Court explained:
We think that the word “sole” is of considerable significance. Indeed, the word “sole” appears only one other time in the Constitution—with respect to the House of Representatives’ “sole Power of Impeachment.” Art. I, § 2, cl. 5 (emphasis added). The commonsense meaning of the word “sole” is that the Senate alone shall have authority to determine whether an individual should be acquitted or convicted. The dictionary definition bears this out. “Sole” is defined as “having no companion,” “solitary,” “being the only one,” and “functioning . . . independently and without assistance or interference.” Webster’s Third New International Dictionary 2168 (1971). If the courts may review the actions of the Senate in order to determine whether that body “tried” an impeached official, it is difficult to see how the Senate would be “functioning . . . independently and without assistance or interference.”
It’s rather unclear to me if Governor Evers could appoint a temporary replacement. Neither the constitution nor state statutes say. If the suspension counts as a “vacancy” under state law (and I don’t know how else you’d characterize a suspension), Evers likely has the power to fill it. But this question has never been answered. As far as I can tell, the 1853 impeachment of Judge Levi Hubbell—the only other impeachment in state history—was too swift to involve a temporary gubernatorial appointment.