Justice Janet Protasiewicz is under pressure to step away from a case. What to know about impeachment and recusal

MADISON – With the specter of impeachment over her head, the Wisconsin Supreme Court's newest justice is facing calls from Republican lawmakers to remove herself from a lawsuit challenging the state's electoral maps.

Liberals involved in the lawsuit argue the GOP effort is an attempt "to nullify the election" Janet Protasiewicz won with an 11-point margin in April. Her election flipped the court's ideological majority from politically conservative to politically liberal.

Protasiewicz, who was sworn in earlier this month, has pledged to rule impartially regardless of having communicated personal beliefs during her campaign — but Republicans have argued that's not possible.

Here's what Wisconsin's laws and policies say about recusal and impeachment.

What does it mean for a judge to recuse from a case?

When a judge or justice recuses from a case, it means they remove themselves from deliberations and don't play any role in deciding the outcome.

What kinds of recusal rules exist in Wisconsin?

There are two types of recusal standards: federal and state.

Under the U.S. Constitution's due process clause, a judge must recuse if they have a financial interest in the case, or if there is a strong possibility of bias.

"The federal due process standard is viewed as setting a really high bar for recusal," said Rob Yablon, a professor and co-director of the State Democracy Research Initiative at the University of Wisconsin Law School.

There are also state laws and rules — mostly spelled out within the Code of Judicial Conduct — that spell out when recusal is necessary.

What does Wisconsin's Code of Judicial Conduct say about recusal?

Under the state's rules for judges, recusal is required in situations including when:

• The judge has a personal bias related to a party or a party's lawyer.
• An appeals court judge previously handled the case on another court.
• The judge served as a lawyer as part of the disputed issue.
• The judge or an immediate family member has a significant financial interest in the case's outcome.
• The judge made a statement as a candidate that "commits, or appears to commit" the judge with respect to an issue in the proceeding.

In short, if a judge's impartiality can be reasonably questioned, recusal can come into play.

What role does campaign spending play in recusal?

In Wisconsin, none. The state Supreme Court adopted rules in 2010 that a judge "shall not be required" to recuse based solely on an endorsement or campaign contribution.

That's a unique provision, Yablon said, noting that while some states don't explicitly address the issue of campaign contributions, some have policies counter to Wisconsin's — setting a recusal standard at a particular financial threshold.

Who decides whether a judge must recuse?

It's up to the individual to determine whether they will recuse from a case.

The state Supreme Court ruled in 2011 that a majority of justices cannot force a colleague off a case.

"A majority of this court does not have the power to disqualify a judicial peer from performing the constitutional functions of a Wisconsin Supreme Court justice on a case-by-case basis," the 4-3 decision said.

OK, so what about impeachment?

There are several ways to remove an elected official from office in Wisconsin, and impeachment is one of them.

Impeachment can be used to remove "civil officers of the state," although state law does not define "civil officers."

A person can be impeached for corrupt conduct in office or for committing a crime.

How does impeachment work?

Proceedings start in the state Assembly, where a simple majority must vote to impeach before the state Senate can take it up.

From there, the Senate can conduct a trial based on the evidence. If two-thirds of the senators present vote to convict, the official is removed from office. There are no criminal sentences or penalties involved.

What happens if the Assembly votes to impeach, but the Senate does nothing?

Once the Assembly votes (with a simple majority) to impeach, the official cannot perform the duties of their office without being acquitted by the Senate.

The state Constitution says this: "No judicial officer shall exercise his office, after he shall have been impeached, until his acquittal. Before the trial of an impeachment the members of the court shall take an oath or affirmation truly and impartially to try the impeachment according to evidence; and no person shall be convicted without the concurrence of two-thirds of the members present."

Such a move could potentially sideline Protasiewicz indefinitely and create a 3-3 split on the court between conservatives and liberals.

What has Protasiewicz said about the state's legislative maps?

In January, Protasiewicz called the state's legislative maps "rigged" in a public forum and in March, she told Capital Times reporters in a podcast interview she would "enjoy taking a fresh look at the gerrymandering question."

"They do not reflect people in this state. I don't think you could sell any reasonable person that the maps are fair," Protasiewicz, a former Milwaukee County judge, said in the January forum. "I can't tell you what I would do on a particular case, but I can tell you my values, and the maps are wrong."

What did Protasiewicz say during the campaign about recusal?

Protasiewicz said in March that she would recuse herself from cases brought by or against the Democratic Party of Wisconsin, because of the millions of dollars the state party funneled into her campaign. There are two redistricting lawsuits before the court, neither of which involves the party.