Impeachment in Wisconsin

Wisconsin's constitution includes a separate, broader, impeachment-like option for removal of judges, known as "removal by address". This power is defined in Article VII, Section 13, of the constitution, which reads:

Any justice or judge may be removed from office by address of both chambers of the legislature, if two−thirds of all the members elected to each house concur therein, but no removal shall be made by virtue of this section unless the justice or judge complained of is served with a copy of the charges, as the ground of address, and has had an opportunity of being heard. On the question of removal, the ayes and noes shall be entered on the journals.

Unlike the impeachment section, this section applies only to "any justice or judge". Also unlike impeachment, there are no limitations on the rationale for removal—those addressed can be removed for any reason. But the removal must meet a higher bar of concurrence in the Legislature, requiring two thirds of both chambers.[1]

Since a 1977 amendment, Wisconsin's constitution, in Section 11 of Article VII, also allows for the Wisconsin Supreme Court to censure, suspend, or remove state judges for cause or disability. The section reads:

Each justice or judge shall be subject to reprimand, censure, suspension, removal for cause or for disability, by the supreme court pursuant to procedures established by the legislature by law. No justice or judge removed for cause shall be eligible for reappointment or temporary service. This section is alternative to, and cumulative with, the methods of removal provided in sections 1 and 13 of this article and section 12 of article XIII.

Under current law, judges are eligible for removal if they have engaged in misconduct which includes violations of the judicial ethics code, failure to perform certain job duties, substance abuse which interferes with their job performance, or felony conviction.[1]

Current law also requires that any removal for cause or disability must begin with an investigation by the Wisconsin Judicial Commission, with the accused being allowed to respond to allegations, followed by a hearing before a jury or a panel of judges. Recommendations from that panel are then referred to the Wisconsin Supreme Court, which can take whatever action they deem appropriate (they are not bound by the recommendations of the panel).[1]

Wisconsin's constitution was amended in 1926 to add Section 12 of Article XIII, allowing for citizen-initiated recall of any elected official of state government after the first year of their term has concluded. Recalls are initiated by a public petition, which must be signed by eligible voters of the state, county, or district which elected the official equaling at least 25% of the votes cast in the state, county, or district in the most recent gubernatorial election.[1]

Once the petition is filed with the requisite number of valid signatures, the election administrator shall set a recall election for the Tuesday of the 6th week following the petition filing (or, if that Tuesday is a holiday, the next non-holiday Tuesday after that date).[1] Unlike impeachment, an officer facing recall may continue to perform the duties of their office until the recall election is held. In the event of an official surviving a recall election, that official cannot be recalled again during the same elected term.[1]

In Wisconsin, state legislators are subject to removal by expulsion. An expulsion occurs when two-thirds of the legislative chamber to which the legislator is a member votes to expel that member.[1]

The only impeachment in the state's history[3] occurred in 1853, when Levi Hubbell, a Wisconsin circuit court judge, was impeached by the Assembly for allegations of bribery and corruption. Hubbell had also recently served as chief justice of the Wisconsin Supreme Court, as the supreme court was made up of the state's five (later six) circuit judges between 1848 and 1853.

The impeachment effort was led by lawyer Edward George Ryan and other opponents of Hubbell.[4] Ryan and Hubbell had a relationship that had soured years earlier, in part due to Hubbell's refusal to take Ryan's advice while serving on the original incarnation of the Wisconsin Supreme Court about how to address what Ryan considered to be the inadequacies of the court. Their relationship worsened further due to Ryan's anger at how Hubbell presided over a murder trial in which Ryan was the prosecutor.[5][6]

On January 18, 1853, Ryan told Caleb Cushing that impeachment charges that had been "drawn under the direction of myself and other gentlemen here" had been authored.[5] Hubbell was accused by Ryan of having accepted bribes and having heard cases in circuit court on matters in which he had a personal financial interest.[4] On January 26, William K. Wilson gave State Assembly Speaker Henry L. Palmer a communication signed to "a citizen and elector of the State" which accused Hubbell of "high crimes, misdemeanors, and malfeasances in office."[5] This communication was read in the State Assembly that day. The communication was then, after some discussion, referred to a five-member select committee. On February 23, the select committee reported its recommendation that Hubbell be removed from office, recommending removal by address,[5][7] a means which would require two-thirds of each house and the approval of the governor. Removal by address would not include a trial stage. However, the State Assembly instead opted to pursue an impeachment, adopting an impeachment resolution.[5] The impeachment resolution was adopted on March 3.[8] A five member Investigating Committee was appointed to author articles of impeachment and present them to the Senate.[5][8] On March 5, the members of this committee informed the Senate of the impeachment. On March 19, with the redaction of two specifications of the tenth charge, the articles of impeachment were reported to the State Assembly. One March 20, five impeachment managers were appointed by the State Assembly.[8] The full articles of impeachment that contained seventy different specifications were filed with the Senate on March 22, 1853.[5] The articles of impeachment accused Hubbell of such wrongdoings as:

• Accepting bribes (providing a specific allegation that he had taken a $200 loan from a litigant that was never repaid)[5]
• Having intermediaries recommend judgments and notes to him, and then arranging so that he could preside over cases on those matters[5]
• Handing-down criminal sentence below mandatory minimums[5]
• Presiding both in the circuit and supreme courts on cases for which he had acted as attorney[5]
• Making personal use of money paid to the court[5]
• Biased treatment of parties
• Meddling in lawsuits likely to come before his court or already pending before his court, as well as giving advice on such lawsuits[5]
• Immoral use of his position and his influence; an allegation primarily accusing him of suspicious circumstances in which he lured women into rooms hotels and boarding houses for "private interviews"[5]

All alleged misconduct were said to have taken place during Hubbell's first term as a judge.[4]

At the time of the impeachment, the Democratic Party held majorities in both the State Assembly and Senate. The impeachment trial did not see a partisan divide. It nevertheless, became contentious. Historian and reporter A. M. Thompson observed that the trial, "was not an occasion that called for any display of partisanship, and none was shown. Personal prejudice, hatred, jealousy, and rivalry took its place."[5]

On June 13, 1853, at the start of his impeachment trial, Hubbell plead "not guilty". The trial lasted for almost one month, with the local weather seeing very high temperatures and humidity throughout the trial. Ryan acted as a prosecuting attorney, acting on behalf of the State Assembly. Hubbell was defended by Jonathan Earle Arnold and James H. Knowlton. All attorneys were members of the Democratic Party.[5]

Ryan's arguments were heated and displayed cruelty towards Hubbell. Hubbell's lawyers ignored Ryan's presentation, instead largely focusing on arguing against each charge. They argued that in order to be corrupt conduct or crimes and misdemeanors rising to removal, each alleged act would need to be clearly proven; would have been committed with malicious or guilty intent; and would need to be wrongful, illegal, or unconstitutional. They also told senators that some of the conduct alleged would be encouraged by the low pay which judges received.[4]

Ryan's conduct might have hurt the case against Hubbell. Marilyn Grant observes,

Ryan's scathing and vindictive attacks on Hubbell and his failure to present arguments in a concise manner weakened his case and probably provoked sympathy for the emotion ally distraught Hubbell, who wept openly on occasion.[4]

Hubbell was acquitted after none of the charges reached the necessary two-thirds threshold to convict. However, the vote evidenced that the Senate was divided. Only twelve of the twenty-four senators had consistently voted to acquit on every count, with the remaining twelve splitting their votes. Seven of the eleven charges received unanimous acquittal, while the reminder saw a share of senators consider Hubbell guilty.[4] While Hubbell was acquitted in his impeachment trial, he suffered harm to his reputation.[4][6][9]

Lawyer and historian Joseph A. Ranney opined that, "Many people at the time felt Ryan went too far in his crusade against Hubbell, but in the long run he may have helped save Wisconsin's justice system from permanent damage", opining that the trial, "made clear that Hubbell's conduct had been far from exemplary and that in future judges would be expected to act impartially both in and outside the courtroom."[6] Ryan went on to become the 5th chief justice of the Wisconsin Supreme Court, appointed to the position in 1874.[10][11]

Within days of her election in April 2023,[12] and increasing by August 2023 (the month she took office, and before she had even heard a single case) notable Republicans in Wisconsin, including State Assembly speaker Robin Vos and former governor Scott Walker, discussed the idea of impeaching liberal justice Janet Protasiewicz. Protasiewicz had been handily elected in April 2023 over a conservative opponent.[13][14]

This impeachment effort is widely viewed as being motivated by Republican concern about the court's new liberal majority potentially ruling the state's gerrymander to be unconstitutional. Many of the Republicans discussing impeachment assert that it should be pursued if Protasiewicz hears a case challenging the maps, rather than recusing herself from such a case. Republicans who support impeachment claim that Protasiewicz having commented on the electoral fairness of the state's election maps amounts to prejudging any case on the legality of the maps. Subsequent to her election, a legal challenge was filed in state court to the legality of the maps. The Wisconsin Judicial Commission has dismissed complaints that alleged that statements by Protasiewicz on her personal views about the legislative maps were a violation of the state's judicial code of ethics.[14]

Reid J. Epstein of The New York Times has noted,

As at the U.S. Supreme Court, recusal decisions are left to the Wisconsin justices themselves. In years past, conservative justices have argued that personal views they had previously stated did not mean they were required to recuse themselves from relevant cases.[14]

After the initial pushback, Vos announced the creation of a panel of former Wisconsin Supreme Court justices that would investigate criteria for an impeachment.[15] The first publicly-known member of that panel was retired justice David Prosser Jr., whose thoughts on impeachment were explained in an October 6 letter to the speaker:[16]

Section 1 of Article VII states that before the trial of impeachment, "the members of the court [Senate] shall take an oath or affirmation truly and impartially to try impeachment according to evidence." In my view, there is no assurance that two-thirds of the present "court" would be convinced that they are bound "impartially" by the "evidence" to vote for impeachment. Once again, the "evidence" has to persuade members of the court... and a large percentage of the public... that impeachment is legitimate. Impeachment that appears to be solely partisan will likely backfire.

Even if a Supreme Court Justice were impeached and convicted, the governor would promptly name a successor who might be more problematic.

The Constitution also provides that "no judicial officer shall exercise his [or her] office, after he [or she] shall be impeached, until his [or her] acquittal." To impeach a justice solely to delay a case or cases will be viewed as unreasonable partisan politics.

To sum up my views, there should be no effort to impeach Justice Protasiewicz on anything we know now. Impeachment is so serious, severe, and rare that it should not be considered unless the subject has committed a crime, or the subject has committed indisputable "corrupt conduct" while "in office."

Shortly after the release of the Prosser letter, the other members of the speaker's commission were revealed to be former chief justice Patience Roggensack and former justice Jon P. Wilcox. Wilcox agreed with Prosser's opinion that impeachment was not justified in this case.[17]

In mid-September 2023, five Republican assemblymen proposed articles of impeachment against Megan Wolfe, the administrator of the Wisconsin Elections Commission. The previous week the Wisconsin Senate had voted to fire her from her position, but State Attorney General Josh Kaul filed a lawsuit to deem that vote unlawful.[18]