Robin Vos now silent on impeachment after former justice David Prosser tells him not to pursue

MADISON - After warning impeachment could be possible for Wisconsin Supreme Court Justice Janet Protasiewicz if she did not recuse from a lawsuit before the court challenging the Legislature's boundaries, Republican Assembly Speaker Robin Vos is not saying whether he will pursue the unprecedented move now that the liberal justice has announced she will stay on the case.

Vos is pulling back from the idea of impeachment three days after a former conservative state Supreme Court Justice advised Vos not to pursue the idea.

In his first comments since Protasiewicz said she would not step away from a lawsuit seeking to redraw the state's electoral maps that give Republicans an advantage in the state Legislature, Vos said the U.S. Supreme Court will "have the last word" on whether Protasiewicz should have recused.

"Justice Protasiewicz should have recused herself. We think the United States Supreme Court precedent compels her recusal, and the United States Supreme Court will have the last word here," Vos said in a statement.

“Justice Protasiewicz is asking to be taken at her word that she will apply the law. Given the Wisconsin Supreme Court is limiting its review of the redistricting case to two questions, legal contiguity and separation of powers, applying the law should be straightforward. The Wisconsin Supreme Court addressed these very questions less than two years ago, and the law remains the same.”

Vos and a spokeswoman for Vos did not respond to questions seeking to clarify to his plans.

Vos sought legal opinions from former Supreme Court justices on whether to pursue impeachment. One of them, David Prosser, emailed a letter to Vos on Friday that concluded Protasiewicz had not met the standard for impeachment.

Under state law, impeachment is reserved for corruption in office or for crimes and misdemeanors.

“In my view, ‘corrupt conduct’ is not a term that is open to a mere political grievance,” Prosser wrote in the email to Vos. “If that were the case, legislative bodies could be trading questionable impeachments with considerable frequency.”

"To sum up my views, there should be no effort to impeach Justice Protasiewicz on anything we know now,” he wrote. “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.’”

Prosser released his letter to Vos along with text and voicemail messages to liberal watchdog group American Oversight under the public records law and as part of a lawsuit the group filed against the group of justices Vos empaneled to research the idea of impeachment.

The group filed a lawsuit alleging the group was skirting government transparency laws by not making their work public. Vos and Prosser argued the work was not public and the group did not qualify as a government body governed by public access laws.

While disagreeing with the group's argument, Prosser said he was voluntarily releasing the documents and messages.

The messages indicate former conservative Supreme Court Chief Justice Patience Roggensack studied the idea of impeachment with Prosser.

Vos had previously indicated a third former justice was involved but a voicemail left by Roggensack for Prosser does not mention a third former justice would join the pair in looking at the matter.

A spokeswoman for American Oversight said the group is not interpreting the messages as evidence of just two justices being involved in the research of impeachment.

"... there is still a lot we don’t know about the panel’s work or its makeup. I’m hopeful that our work will continue to bring more information to light, including knowing for sure who else is involved," Amanda Teuscher, spokeswoman for American Oversight, said.

The highest offices of Wisconsin government are locked in a ferocious power struggle ahead of the 2024 presidential election now that the new liberal majority on the state Supreme Court agreed to take up a lawsuit that could upend the Republican majority in the Legislature.

The four liberals who control the Wisconsin Supreme Court agreed on Friday to take up a legal challenge to the state's legislative boundaries that have helped Republicans secure just shy of a supermajority of seats in the statehouse of this battleground state.

Protasiewicz also on Friday rejected calls from GOP legislative leaders to recuse herself from lawsuits before the court challenging the state's legislative maps, which she described on the campaign trail as "rigged" — a decision Vos warned in August could push him to start impeachment proceedings.

In September, Vos also said he was consulting with three former state Supreme Court justices on the criteria for impeachment should Protasiewicz stay on the case.

But on Monday, Vos did not mention the idea.

Democratic Gov. Tony Evers told the Milwaukee Journal Sentinel on Monday he had not yet formulated strategies to respond to an impeachment of Protasiewicz.

"Impeaching is just a really horrible imposition on our democracy. I'm hopeful that they won't do it. We can discuss strategies at some time when we know what they are going to do," Evers said after attending an Indigenous Peoples Day event in Baraboo. "It's it's an attack on our democracy and it just shouldn't happen."

Republican lawmakers raised the prospect of impeaching Protasiewicz, arguing she is biased because she called the maps "rigged" on the campaign trail and because her campaign received about $10 million from the Democratic Party of Wisconsin.

Protasiewicz defeated conservative Daniel Kelly by 11 points in the April election, flipping control of the court 4-3 in favor of liberals when she assumed the bench in August.

Wisconsin's Code of Judicial Ethics contains a unique provision that says a judge "shall not be required" to recuse based solely on an endorsement or campaign contribution. Wisconsin's rules require recusal in situations including when the judge or an immediate family member has a significant financial interest in the case's outcome, or if the judge has made “pledges, promises, or commitments” to rule in a particular way.

In the 2007 case Duwe v. Alexander, a Wisconsin federal district court ruled that there is a “very real distinction between a judge committing to an outcome before the case begins … and a judge disclosing an opinion and predisposition before the case."

It is up to the individual justice to decide whether to recuse from a case.

If lawmakers were to try to impeach Protasiewicz, proceedings would begin 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.

State law sets narrow rules for impeachment: corruption or crimes.

In the case of a judicial officer, once the Assembly votes to impeach, the official cannot perform the duties of their office without being acquitted by the Senate. That leaves open the possibility the Senate could sit on the Assembly action without scheduling a trial, effectively sidelining Protasiewicz and leaving the court evenly divided at 3-3 on ideological lines.

Journal Sentinel reporter Laura Schulte contributed to this report from Baraboo.

This article originally appeared on Milwaukee Journal Sentinel: Vos now silent on impeachment of Protasiewicz after former justice Prosser tells him not to pursue