Rule of Law

Chisholm v. Two Unnamed Petitioners

In Chisholm v. Two Unnamed Petitioners, the U.S. Supreme Court is being asked to grant review to consider whether it violated the Due Process Clause for two Wisconsin Supreme Court Justices to have participated in a case that asked them to decide whether interest groups that had played a critical role in their own election (and with which they may have had even more direct involvement) had engaged in illegal conduct in connection with another campaign.

Case Summary

In 2012, prosecutors in Milwaukee County launched an investigation into possible illegal coordination between Wisconsin Governor Scott Walker’s campaign committee and certain independent 501(c)(4) interest groups. Following the commencement of similar investigations in four other counties, a special prosecutor was appointed, and a Wisconsin Circuit Court judge issued subpoenas permitting the collection of relevant documents. The Circuit Court judge recused herself shortly thereafter and was replaced by a different judge, who granted motions to quash the subpoenas and ordered that documents that had already been collected be returned. When the case made its way to the Wisconsin Supreme Court, the special prosecutor requested that two Justices, David Prosser and Michael Gableman, recuse themselves on the ground that the interest groups at issue had spent more than $6 million to help elect both Justices to the Wisconsin high court. The special prosecutor also raised concerns that there might be even more direct connections between the Justices and those interest groups. Despite the clear conflicts of interest, both Justices refused to recuse themselves. The Wisconsin Supreme Court, with both Justices voting with the majority, proceeded to halt the investigation and order that all relevant evidence be returned and destroyed.

On August 15, 2016, CAC filed a friend-of-the-court brief in support of petitioners, arguing that the two Justices’ refusal to recuse themselves was inconsistent with the Due Process Clause’s promise of an impartial justice system. As we explain in our brief, the promise of an impartial justice system is central to the constitutional guarantee that all persons are entitled to “due process of law” under the Fifth and Fourteenth Amendments. Accordingly, the U.S. Supreme Court has recognized that the Due Process Clause requires impartial adjudicators. Our brief argues that the significant expenditures made in support of these Justices’ elections—expenditures that one of the Justices acknowledged was critical to his election—created a conflict of interest so extreme that it violated the Due Process Clause for the Justices to participate in this case, and warrants the Supreme Court’s review.

On October 3, 2016, the Supreme Court denied Chisholm’s petition for a writ of certiorari.

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