Walker recall petition shows name of judge overseeing challenge to Act 10

MADISON - A signature matching the name of a Dane County judge overseeing a lawsuit to overturn the most controversial law in recent state history appears on a 2011 petition to recall a former Wisconsin governor who designed the collective bargaining measure known as Act 10.

Jacob Frost, who was appointed to the Dane County Circuit Court in 2020 by Democratic Gov. Tony Evers, appears to have signed a petition to recall former Republican Gov. Scott Walker over his signature legislative effort that all but eliminated collective bargaining abilities for most public workers.

His signature appears on the petition next to an address he lived at in 2011 before Frost was a judge, according to property records. Conservative radio show host Dan O'Donnell of WISN-AM first reported Frost's signature on the petition.

Frost, who did not return phone calls and an email from the Milwaukee Journal Sentinel, said Tuesday he plans to issue a ruling in the coming weeks on a motion to dismiss a lawsuit challenging Act 10, the Walker-era law that sparked massive protests and reshaped Wisconsin's political climate for years afterward.

Reached by cell phone, the judge's wife, Nichole Frost, was asked how to get in touch with the judge about the signature on the Walker recall petition. "Call his office," she said, and then hung up.

The lawsuit argues the 2011 law violates equal protection guarantees in the state Constitution by dividing public employees into two classes: "general" and "public safety" employees. Public safety employees are exempt from the collective bargaining limitations imposed on "general" public employees.

Act 10 ended the ability of public-sector unions to negotiate over any issues other than raises, and those raises were capped at the rate of inflation. In addition, unions were required to hold annual elections to maintain their ability to negotiate for those raises. For those elections, they must win a majority of all eligible members, not just those who cast votes.

Evers on Wednesday said he did not think Frost's signature on the Walker recall petition justified a recusal.

"I don't think so," he told reporters at an event in Madison. "Recusal is kind of a death knell of the judiciary. Let's just let it play out.”

But Walker said Frost should “absolutely” recuse himself from the case.

“Somebody may dismiss it and say well that’s like signing someone’s nomination papers. That’s not it at all. That’s a proactive thing saying someone should be terminated from their job because of this particular policy that was enacted. Had there not been Act 10, we would not have had a recall," Walker told the Journal Sentinel.

“He was, like everybody else who signed it, saying I want there to be a recall because I want this guy out of office because I don’t like this policy. So if there was ever a strong case for recusal, it would be this.”

Asked about calls for U.S. Supreme Court Justice Samuel Alito to recuse himself from cases related to the Jan. 6, 2021, attack on the Capitol after it was revealed that an upside down American flag — a symbol of the riot — flew outside his home following the insurrection, Walker dismissed the comparison.

“The difference with that would be if he signed a petition saying he supported what happened on Jan. 6 — that would be the parallel,” Walker said, adding that a judge wouldn't have to recuse himself if he had “a flag of a union up just because you’re handling a case with unions.”

Walker noted Alito has said his wife flew the flag associated with the “Stop the Steal” movement. He said Alito’s wife is “not restricted from having an opinion any more than if this judge was married and his spouse signed a recall petition.”

A spouse signing the recall petition, Walker suggested in a hypothetical, “might raise a concern” but would not rise to the level of having to recuse from the Act 10 case.

In 2012, former Dane County judge David Flanagan drew criticism for not disclosing he had signed the Walker recall petition while overseeing a case involving the state's voter ID law signed by Walker. The state Republican party ultimately filed a judicial ethics complaint against him.

At the time, former Milwaukee County Circuit Judge Charles Kahn told the Journal Sentinel he would disclose he had signed the petition and likely recuse but stressed judges have a free speech right to participate in such activities.

"I don't belong to any party, or back anyone in particular," against Walker, Kahn said in 2012. "I just think as a matter of public policy the voters should get to decide. Other Republicans can run too."

"I didn't sign as a judge," Kahn said. "I signed as a voter," who's voted in almost every election for more than 40 years.

The question of whether to recuse from cases involving the polarizing law arose during the 2023 race for Wisconsin Supreme Court, when Justice Janet Protasiewicz said while campaigning she would consider stepping away from cases involving the law because she signed the petition to recall Walker and participated in protests against the law.

"I'd have to think about it," Protasiewicz told the Milwaukee Journal Sentinel in March 2023. "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."

Brian Hagedorn, a conservative justice who worked previously as Walker’s chief legal counsel, defended the Act 10 law against legal challenges in court and helped design the statute. During his campaign for the court in 2019, Hagedorn did not say he would recuse from cases before the Supreme Court involving Act 10 if he was elected.

According to state and federal campaign finance records, Frost also has donated to Democratic and liberal candidates, including to $500 to Protasiewicz in March 2023 and two donations totaling $110 to the state Democratic Party.

Laura Schulte of the Milwaukee Journal Sentinel contributed to this report.

Molly Beck and Daniel Bice can be reached at [email protected] and [email protected].

This article originally appeared on Milwaukee Journal Sentinel: Scott Walker recall petition shows name of Dane County judge overseeing challenge to Act 10