Perspectives
May 29, 2024 | By Dan O’Donnell
Policy Issues
Accountable Government Constitution

Judicial Ethics, Judicial Shmethics

Dan O’Donnell–The Dane County judge overseeing the latest radical left challenge to Act 10 signed the petition to recall Governor Walker, as did Supreme Court Justice Janet Protasiewicz, who will almost certainly be the deciding vote to strike Act 10 down.

So why don’t they think they should have to recuse themselves from the case?

No one will ever accuse Wisconsin Supreme Court Justice Janet Protasiewicz of being a paradigm of judicial ethics, but she at least considered recusing herself from a challenge to Act 10, given that she signed a petition to recall Governor Walker over it.

Dane County Circuit Court judge Jacob Frost, who heard oral arguments in the case this week and also signed the recall petition in 2011, apparently never gave it a second thought.

By even hearing the case, Frost, a liberal Democrat who has donated to both Protasiewicz and the Wisconsin Democratic Party over the past two years, is openly flaunting the state’s Code of Judicial Conduct.

But does anyone really care? Certainly not Governor Evers, who dismissed the possibility on Wednesday, after “The Dan O’Donnell Show” broke the bombshell news that both Frost and his now-wife signed the Walker recall on November 16, 2011.

“I don’t think so,” Evers answered a reporter’s question regarding the possibility that Frost recuse himself. “Recusal is kind of a death knell of the judiciary. Let’s just let it play out. Everybody has to take a deep breath and just kind of let the system work the way it’s supposed to work.”

In what should be a surprise to no one, Evers is either woefully ignorant or blinded by partisanship: Recusal is how the system works. It’s even required by law.

Wisconsin’s Code of Judicial Conduct expressly provides that “a judge shall recuse himself or herself in a proceeding when the facts and circumstances the judge knows or reasonably should know” establish that “the judge has a personal bias or prejudice concerning a party or a party’s lawyer.”

The Wisconsin Legislature, controlled by Republicans, is a party to this case. In 2011, Frost so hated Republicans under the leadership of Governor Walker that he signed his name to a petition to recall Walker from office (just months after he was elected). The motivating factor for this disdain? The very law that is at issue in the case currently before Frost.

In what universe could he possibly adjudicate this case fairly? The very first section of the Code of Judicial Conduct holds that “a judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

Does hearing a case over a law that made a judge so enraged that he supported the political death penalty for the governor who crafted it sound like a move made with respect for the law and the promotion of public confidence in the judiciary? If Frost had any respect for the law as codified in the Code of Judicial conduct, he would have recused himself from the Act 10 case as soon as it was assigned to him.

That he didn’t, that he instead believed no one would ever discover his clear conflict of interest speaks volumes about his character as both a jurist and a man. In fact, even calling him a man or a jurist would be charitable: He was a child who threw a temper tantrum in 2011 and a Democrat activist in 2024.

Ultimately, though, his ruling won’t matter in a case that is sure to be appealed to the Supreme Court no matter which way he rules. And there, the liberal partisan hackery from the majority makes Frost’s look like, well child’s play.

While campaigning for the Court last year, Protasiewicz repeatedly pre-judged the case by saying flatly that “Act 10 is unconstitutional.” Like Frost, she openly flouted the Code of Judicial conduct, which forbids a “judge, judge-elect, or candidate for judicial office” from making “with respect to cases, controversies, or issues that are likely to come before the court, pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office.”

She at least floated the idea that her obvious and overwhelming bias might force her off the case once it inevitably reaches the Supreme Court, telling The Milwaukee Journal Sentinel during the campaign that, “Given the fact that I marched, given the fact that I signed the recall petition, would I recuse myself? Maybe, maybe, but I don’t know for sure.

Oh yes she does, and so does Frost. There is no way that they would ever recuse themselves because both were put on the bench specifically to make politically charged, patently biased rulings that benefit left-wing organizations and politicians.

Who’s going to stop them? A month after Protasiewicz was sworn in, Wisconsin’s Judicial Commission quietly dismissed the ethics complaints against her even though the evidence was overwhelming that she had violated the Code of Judicial Conduct by prejudging cases and making overt promises as to how she would rule on cases that would come before her.

Apparently, uttering the phrase “Act 10 is unconstitutional” isn’t enough for the Commission to determine whether Protasiewicz prejudged a case that will decide whether Act 10 is unconstitutional.

If Protasiewicz suffered no professional repercussions for such odious unethical conduct, Frost must have figured, then why would he? Besides, with the iVerifyTheRecall petition database down seemingly permanently, he assumed that no one would ever catch him.

That is the mindset of a criminal, not a judge, and it should no longer be tolerated.

Interested in the content of this Article?

Reach out to the MacIver Institute to aquire more information