[EL] Gableman and Prosser obligation to recuse on due process grounds?

[Mark Scarberry]

Without speaking to the merits of whether, on general ethical grounds, the
justices should have recused themselves:

Who was denied due process by their refusal to recuse?

Does a prosecutor have a constitutional right to due process as a
prosecutor?

Can it be said that one instrumentality of a state violates the 14th
Amendment by denying another instrumentality of the state due process of
law?

Does Caperton's holding extend, as a matter of constitutional law, to the
John Doe process, other than with respect to the rights of a person who is
being investigated?

Mark

Prof. Mark S. Scarberry
Pepperdine Univ. School of Law

On Thu, Sep 22, 2016 at 8:16 AM, Rick Hasen <rhasen at law.uci.edu> wrote:

...

> “Editorial: The ethical collapse of Justices Michael Gableman and David
> Prosser” <http://electionlawblog.org/?p=86780>
>
> Posted on September 22, 2016 7:43 am <http://electionlawblog.org/?p=86780>
>  by *Rick Hasen* <http://electionlawblog.org/?author=3>
>
> Cap Times:
> <http://host.madison.com/opinion/editorial/editorial-the-ethical-collapse-of-justices-michael-gableman-and-david/article_15ace076-2fd2-5641-92ab-f6a470c79df8.html?utm_medium=social&utm_source=facebook&utm_campaign=user-share>
>
> *Four years after Walker’s email declared that Johnson and the Wisconsin
> Club for Growth were vital to electing Prosser and Gableman, these two
> justices cast decisive votes in a state Supreme Court decision that shut
> down an investigation targeting the actions of Walker, Johnson and others.
> That investigation sought to determine whether the governor and his allies
> engaged in a conspiracy to illegally coordinate campaign activities in the
> recall fights of 2011 and 2012. The opinion in that 2015 high court ruling,
> which was written by Gableman, was so sweeping that the Milwaukee Journal
> Sentinel reported it could “reshape how campaigns are run in Wisconsin
> because it makes clear campaigns can work closely with outside groups,
> allowing more political money to flow without the names of donors being
> disclosed.”*
>
>
> *Prosser and Gableman were asked to recuse themselves from the John Doe
> case, but both refused to do so. In light of Walker’s assertion in his
> email to Rove — and all the information that has been made available over
> the past several years with regard to the John Doe inquiry — it is now
> evident that the refusal put the justices at odds with established law. The
> U.S. Supreme Court has determined that the due process clause of the U.S.
> Constitution’s 14th Amendment requires jurists to recuse themselves when
> there is evidence of actual bias and when so-called “extreme facts” create
> a “probability of bias.” That standard was established in the 2009 case of
> Caperton v. A.T. Massey Coal Co., which established that major campaign
> activity on behalf of a jurist by a party to a case that comes before the
> jurist creates an appearance of a conflict of interest so “extreme” that
> the jurist’s failure to recuse himself constitutes a violation of due
> process protections.*
>
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