Lawsuit asks Wisconsin Supreme Court to block impeachment before Assembly acts

One of the attorneys who filed a lawsuit seeking to have the Wisconsin Supreme Court block the state Assembly from beginning impeachment proceedings against a justice says he sees the action as one of the Court’s “sacred duties.” 

In the lawsuit filed Monday, the Court is asked to order that the Assembly can’t begin impeachment proceedings against a Court justice unless a majority of the court has ruled that the “constitutional standards for impeachment” have been met. 

The lawsuit, filed by a former liberal candidate for Supreme Court justice and former Democratic Assembly candidate on behalf of two voters, seeks to have the court itself step in before Republicans can move to impeach new Justice Janet Protasiewicz over comments she made and donations she received during her campaign this spring. 

Republicans have been threatening impeachment over Protasiewicz’s comments that the state’s legislative maps are “rigged” and the support her campaign received from the Democratic Party of Wisconsin. 

Only once in state history, in the 1850s, has a judicial officer been impeached. The attorney, Andrew Hysell says that silence from the Legislature since then sets a precedent that the body hasn’t been given the authority to impeach judges for political purposes and that precisely because this is such an untested area of state law, it must fall on the Court to weigh in — even though it’s part of the controversy itself. 

“Impeaching for other reasons is outside their granted authority,” he says. “It’s incumbent upon the courts to do this, I see it as them performing one of their most sacred duties.” 

Shortly after Protasiewicz was sworn into office last month, two lawsuits were filed to throw out the state’s maps because they unfairly benefit Republican candidates. The Court has not yet accepted either of the cases. 

Republicans have said that if she doesn’t recuse herself from the cases, they’ll move to impeach her, arguing that her comments amount to a “pre-judging” of the case and that her support from Democrats amounts to a conflict of interest. 

During the campaign, Protasiewicz said she was only sharing her “values” when she discussed the maps, which experts say are some of the most heavily gerrymandered in the country. She also said she would recuse herself from any case in which the Democratic Party of Wisconsin were a petitioner — which the party is not in either of the lawsuits. 

The Supreme Court’s recusal rules, set by conservatives in the last decade, say that a campaign donor’s involvement in a case is not enough to require a justice to step aside. Republicans also changed the state’s campaign finance laws to allow political parties to give unlimited amounts of money to Supreme Court candidates. 

The lawsuit states that Republicans’ threat of impeachment would be an “anti-democratic powerplay” to protect the maps unfairly keeping them in power. 

“The votes of over one million Wisconsinites are about to be assigned to the dustbin of history by an un-American, anti-democratic powerplay by the Wisconsin state Legislature that is designed to and will simultaneously destroy judicial independence and the right of voters to effectuate political change in Wisconsin,” the lawsuit states. “After a decade of receiving the political benefits of unconstitutional, heavily gerrymandered legislative districts in Wisconsin, State Assembly Speaker Robin Vos and members of the Wisconsin State Assembly have stated their intention of prolonging their improper hold on power by impeaching Justice Janet Protasiewicz because of her refusal to commit to recuse herself from redistricting litigation before the Court.” 

Hysell, who along with former Supreme Court candidate Tim Burns, brought the lawsuit, says that if the Assembly moves to impeach because of campaign statements, that would be a wild overreach from what the state constitution gives them the authority to do. Burns ran for the court in 2018, losing in the primary election.

The constitution states that a civil officer can be impeached for crimes, misdemeanors or corruption in office. Hysell, who spoke to the Wisconsin Examiner Tuesday, says that claiming a campaign comment amounts to any of those things is ignoring nearly 200 years of Wisconsin’s history of judicial elections. 

“There’s an assumption that if there’s words, they mean something,” he says. “Under no reasonable analysis of what has happened to date, what Justice Protasiewicz said or did in her campaign or what’s been said by Assembly leadership, she’s come nowhere close to a crime or corruption. We need to take decisive action to protect our democracy, constitution and our separate branches of government.”

“The silence of the Legislature to not use this power is actually deafening,” he continues. “It makes it very clear that the text means what it says. If there was a bribery scandal, there would be an impeachment. If there were corruption in office, there would be an impeachment. I think it’s a really strong argument that there has not been another impeachment. That this should not be used lightly and should not be used for political purposes.”

Aside from seeking to have the Court block the Assembly from moving to impeach, the lawsuit also asks the Court to decide soon, stating that Republican lawmakers — in control of the legislative schedule and the rules of each house — can move incredibly quickly. The suit noted that the Assembly could have taken up impeachment during its Tuesday session without the Court getting the chance to weigh in and then “the Supreme Court is likely to find itself without power to do so tomorrow.” 

Hysell said that even though impeachment proceedings were not taken up by the Assembly on Tuesday, the fact that the body can move forward without much notice remains. 

“They can act at any time and because they have a supermajority [in the Senate] they can amend the rules really quickly,” he says. “They can introduce articles and act on them before the court could take action.”