Polsky v. Virnich, 804 N.W.2d 80

On Sept. 22, 2010, the court granted Polsky's petition for review, with Roggensack participating in the order.
On Feb. 3, 2011, oral argument was held, with Roggensack participating.
On March 2, 2011, the court issued a per curiam decision affirming the court of appeals based on a 3:3 split among participating justices, with Roggensack participating.
On March 14, 2011, Polsky moved for reconsideration or voiding the March 2, 2011 per curiam decision, arguing Roggensack's participation should have been disqualified.
Virnich argued Polsky's motion was untimely and that disqualification is a case-by-case decision for each justice; Polsky identified no statutory basis requiring Roggensack's withdrawal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court can disqualify a justice on a case-by-case basis	Polsky seeks Roggensack's disqualification	Disqualification is not a court-wide power; each justice decides participation	Motion denied; court cannot remove a justice case-by-case.
Whether Polsky's motion was timely	Polsky timely pursued disqualification	Motion untimely given timing of grant, argument, and decision	Not dispositive; court's power issue controls.
Whether due process requires removal or disqualification of a participating justice	Due process demands disqualification when requested	Due process satisfied by each justice's participation decisions	Due process satisfied; decisions rest with participating justices.
Whether the majority's approach comports with precedent on recusal and participation	Cites need for rigorous recusal standards	Aligns with Henley and related precedent on individual participation	Court adheres to precedent; no per-case removal power.

State v. Henley, 802 N.W.2d 175 (2011 WI 67) (recusal motion; disqualification power limited to individual decisions)
State v. Allen, 778 N.W.2d 863 (2010 WI 10) (due process considerations in recusal context)
State v. American TV & Appliance of Madison, Inc., 443 N.W.2d 662 (1989) (motions to disqualify and participation standards)
Polsky v. Virnich, 800 N.W.2d 742 (2011 WI 13) (per curiam affirmance of a 3:3 decision; participation issues)