*1 Plaintiff-Respondent, State of Wisconsin,
v. Aaron Antonio Allen, Defendant-Appellant-Petitioner.
Supreme Court
No. 2007AP795.
February
Decided
Gableman *2 in the con- court's participation withdrawing was and of Allen's recusal motions was withdraw- sideration six are opinion. Only justices separate his written ing participating. therefore Abra- Shirley Chief Justice S. justices, 3. Three
¶ N. hamson, Bradley, Ann Walsh and Justice Justice order and oral Crooks, argument, would briefs Patrick requested. as the have parties Prosser, David T. Jus- 4. Three Justice justices,
¶ Annette and Justice Roggensack, tice Patience Drake an order denying would issue Kingsland Ziegler, motions. Bra- and 5. Chief Justice Abrahamson Justices
¶ of their support proposed and Crooks write dley disposition. Justices Roggensack, joined by Justice
¶ and writes in their Ziegler, support proposed Prosser disposition. Crooks, Justices Individual writings
¶ Prosser, and are also filed. Ziegler as of the court disagree 8. Because members above, set of Allen's motions as forth disposition to the have not No four granted. the motions are grant the motions. agreed ABRAHAMSON, C.J.; ANN S. 9. SHIRLEY CROOKS, J. Chief BRADLEY, J.; N. PATRICK
WALSH Ann Walsh Abrahamson, Justice Shirley Justice S. join opinion and N. Patrick Crooks this Bradley, Justice Allen's recusal motions.1 regarding order proposed effectively are "disqualification" "recusal" words as interchangeably, we use them synonymous and often used pro 10. When Allen's bono filed counsel first 17, 2009, recusal April motions on challenging Gableman's participation, none would have perhaps foreseen the extent to which these motions would court, us, this and have all challenge challenged that have followed, months even though recusal issues have been percolating under and above years.2 surface many distinguish
here. Some do between the two words. "Whereas normally 'recusal' judge's refers to a decision to stand down voluntarily, 'disqualification' typically has been reserved for involving statutorily situations constitutionally or man- dated judge upon removal of a request moving party Flamm, its counsel." Richard E. Disqualification: Judicial (2d Disqualification 2007); § Recusal and 1.1 Judges at ed. terms). (noting but see at 4 n.4 id. some dissonant use *3 issues, resolve, Some of these which the court needs to have been identified at since least 1990. It would have been practice better to address our thoughtfully pro recusal and spectively having rather than to react particular when a challenges motion an justice. A, individual Appendix See reprints which the entire texts dissents in State ex rel. National Union Fire Insurance Co. v. Circuit Court St. (Wis. County, unpublished Croix No. order Ct. S. 90-0935-W 1990) May 29, (Abrahamson, J., dissenting), and Matter of Disciplinary Crosetto, Proceedings Against 160 Wis. 2d (1991) (Abrahamson, J., dissenting), N.W.2d relating to recusal. Crosetto,
In the recusal motion justice asked each individu- ally to recuse himself or per decision, herself. The curiam which join, then-Justice not reports Abrahamson did justice that each individually responded. sought No motion court review of these Accordingly, individual decisions. question because the was not raised, per neither the curiam nor Justice Abrahamson's dissent addressed the issue of what a court should do when a motion asks the entire justice's court review an individual recusal decision. proposed Justice Abrahamson's dissent actions handling court should take for recusal motions. February
¶ 4, 2010, Justice Gableman 11. On participation in the court's con- withdrew from further against recusal motions of Allen's sideration writing separate and withdrew his this Gableman matter. Roggensack, Ziegler Prosser, and 12. Justices need have Justice Gableman not with-
conclude that deciding participating in drawn from whether (power) jurisdiction Allen's court consider lacks at See J. recusal motions directed Justice Gableman. Roggensack, ¶¶ 196-197. Roggensack, Ziegler Prosser, and 13. Justices (1) indepen-
further that this court cannot determine dently deny justice's a recusal decision review except to whether the individual motion decide required, determination the motion made the although independently re- this court can and should judges of the view of recusal motions elected denials (2) appeals; that Allen's circuit court court no recusal motions have merit. long, During the court's drawn-out consid- disqualification,
eration Allen's motions for his Jus- participating between tice Gableman has alternated participating in the of the recusal and not consideration finally withdrawing court, directed to the motions February participation 2010.3 *4 II.L. Operating Internal Procedure disqualifies justice a himself or provides: "When recuses herself, in part no further the court's consid takes cases, challenged justice previous matter." In eration of the response to a determining not the court's participated has Appliance challenging justice. v. Am. TV & motion See State (1989); Madison, Inc., 175, City 151 2d 443 N.W.2d662 Wis. 510, Wis., 527 Edgerton 190 Wis. 2d N.W.2d v. Gen. Cas. Co. of ¶ 15. Allen's motions Justice Gableman indi- (on vidually process grounds) and to the court due were April Nearly 17, filed on later, 2009. five months September 10, 2009, Gableman Justice denied the re- individually him cusal motion directed in a one- explanation.4 order sentence that contained no Thus, process the recusal motion directed to the due court on grounds really ripe not for the was court's consideration September until Justice Gableman's 10, 2009 denial of Allen's motion. September supple- 21, 2009, 16. On Allen filed requesting
mental
court,
motion addressed to the
court to review whether
had
Justice Gableman
consid-
required
§
757.19(2)(g),
ered, as
Stat.
Wis.
whether
appeared
impartially.
he
it
could not or
he could not act
January
15,
On
2010,
17.
Justice Gableman
September
supplement
filed a
order,
to his
this time
providing
10-paragraph explanation
his
decision
deny
individually
the recusal motion directed
to him.
supplemental
This
order discusses the
merits Allen's
allegations
allegations
"The
concludes:
Allen's
simply wrong."5
motion are
Benson,
(1995);
Jackson v.
249 Wis. 2d
(2002); Inc., Donohoo v. Action 2008 WI 314 Wis. 2d 510, 754 N.W.2d mentions, In writing, Roggensack her Justice in reference order, September to the that Justice Gableman "had plenty carefully of time to research arguments consider the support made in of and in opposition Roggen to the J. motion." sack, 5Although Roggensack's writing Justice purports to review whether Justice Gableman made the required determination statute, about under the writing recusal her fails to review 15, 2010, January supplemental Gableman's order. *5 16, Prosser, On Justices 18. October Ziegler press Roggensack, release, com- and issued responded plaining that court should have to Allen's April 17, 2009, within 5 weeks after when motion complaint recusal was filed. Their about Allen's motion charges delay ignore process and their about complexities challenging and nature obvious ripe presented. The recusal was not until issue issues Sep- denied the recusal motion on Justice Gableman supplemen- filed a 10, 2009; Justice Gableman tember explaining participation his in case on tal order January 15, withdrew from 2010. Gableman participation court's of Allen's in the consideration February It clear should be recusal motions everyone has a difficult and time- this been to consuming process justices. for all the writings not 19. The of the three who do join opinion palpably the difficulties this demonstrate joining together they one voice to have faced in with respond court. to Allen's recusal motions directed to the writings target, justices' moving been The three have ever-changing variety an of rationales. based on requested that if the court were State give plenary recusal motions— consideration Allen's Roggensack, Ziegler Prosser, would and Justices given you they plenary have have believe only should come consideration consideration —"such argument by parties briefing on the full after below, case, challenged West Caperton In the discussed he explaining why an Virginia justice opinion also wrote He, decision. how thought participate he should the case's "authority ever, acknowledged Virginia court had that West (1986)] Lavoie, 813, 821-22 Aetna Ins. Co. v 475 U.S. under [Life Co., Caperton Massey me v. A.T. Coal to remove from the case." (W.Va.2008) (Benjamin, C.J., concurring). 679 S.E.2d similar Responding matter."6 motions several *6 cases, other the have State's briefs that "the recognized issues are and potentially broad of full deep, deserving and oral briefing argument."7 We Allen agree 21. with and the about State the ¶ oral need for full and briefing argument. 22. The court should have ordered briefs in
¶ 2009 when Allen filed his first motions April and the State did responded. court not. The writings today
6 Plaintiff-Respondent 's Response Supple [State] Second to Gableman, ment to Motion Recusal Justice Michael Whole, 21, the Directed to Court as a filed Dec. 2009. 7 Sveum, 2008AP658-CR, v. Plaintiff-Respondent State No. Response Disqualify [Statefs to Petitioner's Motion to Justice Gableman, 4, also, Carter, Michael J. filed Jan. 2010. See State v. 2006AP1811-CR, Plaintiff-Respondent-Petitioner No. [Statefs Response Motion for to the Hon. Michael J. Recusal Gableman ("If on Constitutional the up Grounds full court takes a number motion... of other issues... have would to he briefing by addressed court after parties."); full State v. Cross, 2009AP3-CR, Plaintiff-Respondent No. Response [State]'s Gableman, Disqualify to Motion to Michael J. filed Nov. ("[T]he 17, 2009 respectfully State following identifies the related are the proper governing legal issues: What standards? Is an necessary?... evidentiary hearing How would Justice disqualification judicial Gableman's affect... all in elections As reflects, [Defendant's] Wisconsin? motion for disqualification are potentially deserving issues and deep, broad of full Dearborn, briefing argument"); and State v. No. CR, Plaintiff-Respondent Response [State]'s to Mo 2007AP1894— tion Disqualify Gableman, 4, to Justice Michael J. filed Dec. 2009 (similar Cross, Jones, supra); to v. 2008AP2342-CR, State No. Plaintiff-Respondent Response [State]'s to Jones' Constitutional Statutory Gableman, Motions for Recusal of Hon. Michael J. (similar 28, Cross, filed Dec. supra); Littlejohn, State v. 2007AP900-CR, No. Plaintiff-Respondent Response [State]'s Disqualify Gableman, Motion to 4, Justice Michael J. filed Dec. (similar Cross, supra). to decide way proceeding the court's usual show that be argument, and oral should matters, with briefs followed. "reach out this court should not Opinions briefing by full decide issues" without benefit of Park, Inc. v. Greyhound See Dairyland parties. 107, 335, 1, 295 Wis. 2d 719 N.W.2d
Doyle, 2006 WI J., dissenting concurring part and (Roggensack, in part). judicial making requires "Sound decision and a defense' prosecution vigorous
'both a vigorous Co. v. dispute, Christiansburg Garment issues 699, L.Ed.2d EEOC, 434 U.S. 98 S.Ct. sua (1978), and a rule announced constitutional *7 addressed entitled to less deference than one sponte is United on and Ladner v. briefing argument. full Cf. 173, 209, 211, U.S. S.Ct. 3 L.Ed.2d States, 358 79 (1958)"8 199 herein, the forth we con- 25. For reasons set it is not to order and schedule
clude that too late briefs 8 Hialeah, Aye, City Church the Lukumi Babalu Inc. v. of (1993) J., (Souter, concurring). Souter 508 572 Justice U.S. States, (1958), in Ladner v. 169, 173 United states that U.S. important complex' issue the declined "to address 'an and sen concerning scope upon the attack criminal of collateral 'only meagre argument' from the it had received tences because of a parties, thought the Court it 'should have the benefit and question'." dealing argument full before with expressed the The United States Court has well (1988) See, Ohio, v. 75, 84 e.g., Penson briefing. U.S. value ("This principle that system premised on the well-tested by powerful 'best discovered well as fairness —is truth —as (citations omitted)); question.'" statements on both sides of the Dodson, (1981) ("The v. system County Polk U.S. testing ultimately will advance the that adversarial assumes Mackey Montrym, v. fairness."); public in truth interest Indeed, oral on Allen's motions. argument key differing in writings today issued approaches evidence the need for additional We input. conclude that the parties should directed file briefs in be this court on the writings issues as raised issued well as the today, by issues raised Allen and State. 26. Briefs key would assist on four issues:
I Prosser, Briefs are needed on Roggensack, Justices Ziegler's attempt legal questions presented to divide the segments into in a attempt persuade failed (court on participate jurisdic- Gableman to one issue tion) refrain participating but other issues 27-32) (¶¶ disposition recusal Allen's motions.
II Briefs are needed on the substantive issue whether jurisdiction (power) this court has to decide recusal challenging participation motions of a in a particular Prosser, case. Justices Roggensack, and arguments Ziegler's analyze Rather, jurisdiction. do not 33-71) (¶¶ they policy. are directed at III question protect Briefs are needed on the of how to rights litigants fair, to a impartial Su- Wisconsin *8 (1979) ("[O]ur legal U.S. regards adversary tradition the process ascertaining as the best means and minimizing truth .."). the risk of error . . Stephan Landsman,
See Readings also on Adversarial Approach Adjudication (1988); Justice: American to Jerold Israel, Process, H. Cornerstones the Judicial Kan. J. L. & Pub. Pol'y, 5; Sward, Values, Spring at Ellen E. Ideology and System, the Adversary Evolution 64 Ind. L. J. 316-19 willing to decide justices are not if the preme jus- of a challenging participation motions recusal 72-88) (¶¶ tice. IV grounds upon which on whether the are needed Briefs justify disqualifying Justice Gable- rest Allen's motions case. merits of Allen's sitting on the man from 87-116) (¶¶ $ ‡ ‡ ‡ I justices' the three are needed on First, briefs presented legal questions attempt into to divide the challenged justice participate in segments to enable a participating jurisdictional refrain from but issue disposition motions. of the recusal Ziegler try Roggensack, and Prosser, 28. Justices jurisdiction question of this court articulate the justices legal question that all as an abstract affects participate challenged could equally, that a so into whether is needed An examination on this issue.9 justice's jurisdiction to review the court's a decision equally. really participate all affects decision George Animal Orwell's reminded are We equal. are animals But some "All are animals Farm: equal others."10 than more fallacy betraying Perhaps the obvious
¶ 29. question court has whether their claim participate justice's jurisdiction decision to to review try justices," three, as "equal all affect on has an 196, 206. Roggensack, J. ¶¶ Farm, Orwell, ch. 10. George Animal *9 they might, question been have unable address the offering specific without a characterization of cir- allegations presented cumstances and in this case.11 allegations justice, relate to one not to the other six. jurisdictional question
¶ 30. The in raised Allen's phrased, motions, no matter how is tied the chal- lenged justice's relating interests. The law to recusal personally immediately. affects Justice Gableman and challenges participation The recusal his motion in the present perhaps case and similar cases rests on and forming similar facts to those the basis aof Judicial complaint against pending Commission him before this (as every justice every time, At court. some as well appellate, municipal judge court, circuit court in state) may recusal motion have directed to him or judicial All her. potentially those hold who office are therefore by a affected decision about recusal. But we jurisdictional are not or affected interested in the and in issue of Allen's outcome recusal motions in way the same immediate as Justice Gableman. Justice withdrawing participa- Gableman was correct in the tion court's decision on the recusal motions. certainly appears any challenged ¶ It personal disposition has a interest of a motion recusal directed to him her. How can Justices Roggensack, get Ziegler Prosser, around this fact? parties any Shouldn't the brief this issue? Is there case law on issue? Roggensack
¶ 32. Furthermore, Justice cites no authority dividing legal questions presented in a segments challenged recusal motion into so that a (court justice may jurisdiction), cast a vote on one issue 11J. Roggensack, ¶¶ 202-205. *10 casting being issues. from a vote on other barred
while a has never subdivided tell, the court As best we can single an the court to accommodate matter before legal justice to cast a vote on a who wishes interested aspect judicial needed on this issue. Briefs are disqualification.
II ¶ are on the substantive Second, briefs needed 33. jurisdiction (power) to this court has issue of whether challenging a member of decide recusal motions by (power) posed jurisdictional issue was This court. parties. Roggensack. It was not raised Justice jurisdiction the court has Allen and the State assumed Why they? (power).12 shouldn't jurisdiction the Allen
¶ has over 34. This court jurisdiction prop- over all issues case and therefore has erly presented. that all Wisconsin It is well established jurisdiction municipal including courts, have courts, claims.13 over federal constitutional writing argues Roggensack's that "a ¶ 35. Justice justices majority court do not have on this justice participation disqualify power to a fellow Roggensack, proceeding J. 207. before this court." a jurisdictional appears answer a This statement question disqualify power a the court have —"does analyzed justice?" question as a then not Yet the (or jurisdiction power) a but as of the court's matter 12 Roggensack, J. 207, 222, Wroten, 2d N.W.2d In 160 Wis. Milwaukee v. (1991), municipal power court has the declaring that a unconstitutional, court this municipal declare a ordinance court, court, appropri including municipal "[0]nce stated: to exercise all of ately jurisdiction, power it has the invokes its of that con powers within the framework its constitutional jurisdiction." ferred judicial
question policy, is, court, "should as judicial disqualify policy, justice?" a matter of Roggensack acknowledges fact jurisdiction, that the court has at for the least limited § required by 757.19(2)(g). Beyond Stat. review Wis. jurisdiction that, reasons for a offered lack of are policy inability including reasons, to substitute a court, of this the differences between judges this court and the circuit elected courts appeals, "deeply court and the divided" nature of membership. Roggensack, the court's current J. ¶¶ ¶¶ & 217-218 nn.9 & 226-227. arguments implicate judicial policy,
¶ 37. These *11 why at most reasons review offer of individual recusal by might negative decisions this court have conse- quences, why Roggensack Prosser, Justices Ziegler provide therefore not to choose such review. See analysis ¶¶ Prosser, also J. 248, 255-257. But such does jurisdiction, power, not affect the of the court as an institution. policy
¶ We 38. discuss such whether concerns outweigh litigant's right can to a fair tribunal at jurisdictional ¶¶ ¶ 86, 72 to after we discuss the (power) question below. jurisdiction
¶
This
court has exercised its
to
disqualification
against
decide
motions directed
indi
vidual
at least since
when it decided Case
(1897), reh'g
v.
100
Hoffman,
Wis.
¶ 43. These cases demonstrate that our re- justices' disqualification view of individual decisions has not been confined to a limited review of "whether that justice individual made the determination that required," Roggensack motion as Justice asserts.16 The reference to the determination of an individual applies only § 757.19(2)(g), only to Wis. Stat. which is disqualification only one of the bases for and the statutory disqualification provision requires judge subjective make a determination.17
16 Roggensack, J. § Wisconsin Stat. mandatory duty 757.19 creates a judges disqualify themselves in certain circumstances. The 757.19(l)-(2) § full text of Wis. Stat. reads: Disqualification judge.
757.19 (1) section, "judge" supreme justices, In this includes the court appeals judges, judges municipal judges. court of circuit court (2) Any judge disqualify any shell himself or herself from civil or proceeding following criminal action when one of the situations occurs: (a) judge any party When a is related or counsel spouses degree
thereto or their within kinship. the 3rd Ob) judge party witness, except When a is a or a material judge disqualify that a need not himself or herself if the judge any pleading purporting determines to make party false, him or her a sham or frivolous. *13 Furthermore, even mo disqualification tions determination of a involving subjective § 757.19(2)(g),18 under Wis. Stat. the court reviews the determination stand judge's subjective using objective Harrell, 654, 663-64, ards.19 State v. 199 Wis. 2d 546 (1996).20 N.W.2d (c) judge previously any party When a acted as counsel to proceeding.
in the same action or
(d)
judge
any legal
prepared
When a
as counsel
instru-
paper
validity
ment or
whose
or construction is at issue.
(e)
judge
appellate
previously
When a
of an
court
handled
proceeding
judge
the action or
while
of an inferior court.
(f)
judge
significant
personal
When a
has a
financial or
interest
in the outcome of the matter. Such interest does
judge
solely
being
political
not occur
a member of a
taxing body
party.
or
that is a
(g)
judge
that,
reason,
any
When a
determines
for
he or
cannot,
cannot,
appears
it
she
he or she
act in an
impartial manner.
"objective"
court
This
has drawn a distinction between the
"subjective"
mandatory disqualification
criteria for
based on
statutory language
757.19(2)(a)-(g).
past
§
of Wis. Stat.
Our
disqualification,
cases have held that the first six criteria for
757.19(a)-(f),
susceptible
objective
§
Wis. Stat.
"are
determi-
nation,
is,
judge's
without recourse to the
state of mind."
TV,
175,
Am.
2d
151 Wis.
at
757.19(2)(g)requires disqualification only
Section
"whena
that,
judge
any reason,
cannot,
determines
he or she
or it
cannot,
appears
added).
impartial
(emphasis
he or she
act in an
manner"
TV,
175,
2d
See State v. Am.
151 Wis.
determine whether disqualification. subjective statutory ground this court review of a provides Inasmuch as statutory grounds, decision on state justice's recusal process cannot discriminate a due against this court to a challenge justice by refusing disqualification Federal "[T]he review the federal constitutional issue. jurisdic- state courts of general Constitution prohibits right] solely tion from enforce a federal refusing [to A because the suit is under a federal law.... brought against rights arising state not discriminate under may federal laws."21 ability subjective impartiality
made a
decision about his
and his
757.19(2)
present
(g).
§
in the
under
participate
case
21
Co.,
Ry.
McKnett v. St. Louis & S.F.
292 U.S.
233-34
(1990) ("The
Rose,
(1934);
v.
371
see also Howlett
496 U.S.
Supremacy Clause forbids state courts to dissociate themselves
disagreement
with
content or a
federal law because
its
authority
source.");
recognize
superior
refusal to
of its
York,
Co.,
&
R.R.
Mondou v.New
New Haven
U.S.
Hartford
1, 57
shortly
founding
Republic,
after
"Since
it has
obliged
are
enforce
been well established that state courts
applicable principles
they adjudicate
law
federal
when
state
Muench, Adju-
causes of action." Martin H. Redish & John E.
Courts,
dication Federal
Action in State
75 Mich. L.
Causes
(1977)
(1
Lessee,
(citing Martin
Rev.
v.Hunter's
U.S.
Wheat.)
(1816)).
Kolski,
475, 482,
Terry
This court declared
v.
78 Wis. 2d
(1977),
only
alist and Charles Dowd Courtney, Box Inc. v. *15 (1962): 502, U.S. 507-08 "We start with the premise that nothing in the concept system of our prevents federal state courts enforcing rights created federal law. Concurrent jurisdiction has phenomenon been common in judicial our history, and jurisdiction exclusive federal court over cases arising under federal law has been exception rather than rule.").
The doctrine that state courts must enforce federal claims
generally
has
arisen not
in
involving
cases
constitutional
claims, but in
involving
authority
cases
obligation
and
state courts to enforce
general
federal statutes. The
rule ema-
nating from these
Congress
cases is that
prohibits
unless
adjudication
court,
in a state
"a state court cannot
'refuse to
right
enforce the
arising from the law of the United States
conceptions
Katt,
because of
of impolicy ....'" Testa v.
330 U.S.
(1947)
(quoting
Minneapolis & St. Louis R.R. Co. v.
(1916)).
Bombolis,
doctrine,
U.S.
developed
This
regard
with
implementation
statutes,
to state court
of federal
clearly applies
obligation
to the
of state courts to enforce federal
rights.
constitutional
addition,
I,
In
Article
Section 9 of the Wisconsin Consti
guarantees
every
tution
person
remedy
shall be afforded a
wrongs
against
committed
his or
person, property,
her
liberty.
long
"The court has
held
remedy'
that the 'certain
clause
provision,
of this
while
guaranteeing
litigants
not
to
the exact
discussing
Furthermore,
the court's
power
motions,
examine the
recusal
we should
over
judicial powers. The court has inherent author-
court's
efficiently
ity
and
to ensure "that the court functions
jus-
effectively
provide the fair administration of
to
express,
has stated that it "has
inher-
tice."23The court
judicial power.
implied
incidental
Judicial
ent,
adjudicate
par-
beyond
power
power
the
encompasses
to
extends
regu-
controversy
power
ticular
adjudication."24
regard
With
late matters related
powers
explicit
court,
of this
our
constitutional
judiciary's 'superintending
that "the
court has stated
necessary
power
to insure
is as broad and as flexible as
justice in
administration of
the courts of this
the due
"25Moreover, the court has stated that "it was
state.'
judicial
jurisprudence to refuse to exercise
unsound
power
there
an
need for it and no
where
was
established
explicit
to its exercise."26Don't
constitutional barrier
recusal motions addressed to the court establish a need
remedy they desire,
day
'to their
entitles Wisconsin residents
grounds
litigant challenging
process
A
on due
court.'"
day
presented.
the claim
is entitled to a
in a Wisconsin court on
Fund,
v.
Masons Health Care
211 Wis. 2d
Estate
Wis.
of Makos
(1997)
41, 552,
(citing Metzger
Dep't
24
Holmes,
31, 44,
106 Wis. 2d
Wis. 26 508, 523, Kading, E. 2d In re Hon. Charles 70 Wis. 235 N.W.2d 409 judicial power? for the leagues to court exercise its Our col- judicial powers. are silent about the court's express, implied, ¶ 49. Because this court has powers; incidental, and inherent because the court has supervisory authority and administrative over all including supreme Wisconsin, courts in court;27 obligated support court because this is to the United supreme States land;28 Constitution as the law of the justice required because each to an and does take support constitutions;29 oath to and federal state competency adjudi- because court this has inherent cate claims; federal constitutional both because guarantee process;30 federal and state constitutions due disqualify and this because court decides motions to objective and other decision makers on subjective statutory grounds process grounds, and due only power (jurisdiction) doesn't this court have not process to hear a due recusal motion but consti- also obligation tutional to hear Allen's motions and to decide disqualified whether a process grounds of this court is on due sitting appears on a case? It to us authority. that the court does have Briefs such would help. Roggensack, Ziegler
¶ 50. Prosser, Justices want us to believe that court have the this does not power disqualify justice, regardless of the nature of allegations. they statutory Yet no constitu- cite or provisions law, tional either in or in case Wisconsin any system, support other or in state the federal their jurisdiction. assertion that the court lacks 3(1). VII, § art. Wis. Const. clause). VI, § art. 2 (supremacy U.S. Const. VI, 3;§ § U.S. Const. art. Const. art. Wis. IV XIV; I, § U.S. Const. amend. Const. art. Wis. *17 seeking litigants imply seem They ¶ on the Wisconsin justice partial an allegedly disqualify Con- the Wisconsin only must look Supreme the next impeachment, for stitution, provides which of the legis- address election, proceedings, disciplinary Thus our age.31 retirement lature, mandatory or a partici- from justice disqualifying confuse colleagues removing a of cases with or a number in a case pating sought Allen has not from office. totally justice only removal office; he asks removal from Gableman's case. from the present is arare and from office justice of a 52. Removal for a option is not a serious measure
extreme Wisconsin case in the a pending who has litigant a court to be heard before Court and seeks justices.32 only impartial composed that the concluding colleagues three 53. Are our are removing for means constitutional 31 n.15. Roggensack, & J. are limited and grounds impeachment for Constitutional elections for a The next grounds for recusal. are unlike April April April of this court are member eight is about for Justice Gableman The next election (or deliberately ignore) colleagues forget away. three years Our judge's] [a . . . has no effect on Ethics "[t]he Code Judicial TV, Am. to act. ..." disqualification legal qualification not benefit a Code route does Thus the Judicial 2d at 185. Wis. TV, Am. impartial tribunal. like Allen who seeks an litigant English legislature" back to dates 2d at 185. "Address Wis. It allows constitution. original 1848 Wisconsin law and to of all the office a vote two-thirds judge removal of a never done. William It has been elected to each house. members on Judicial Moser, Heritage: A Its Populism, Wisconsin R. Effect State, 12-19 Marq. L. Rev. Accountability in the mandatory age retirement legislature not enacted has judges. *18 ways excluding participation
exclusive from disqualification grounds? they in a case on so, If cite no authority. Indeed, the court has summarized the cases stating judge as removed, "when a he must be by [Prior cases] removed the constitutional method. do say not that sanctions short removal are constitu- tionally defective."33
¶ 54. Briefs are needed on whether the court has jurisdiction (power) over Allen's recusal motions under express, implied, the court's inherent, and incidental powers, superintending and administrative author- ity, provisions or whether the constitutional on removal preempting power office are exclusive, the court's challenged justice's participate review decision to in a case. colleagues
¶ support 55. Our three their stun- ning, legal counter-intuitive conclusion that this court jurisdiction "by past practices lacks of this court and by past, practices and current, of the United States Supreme they acknowledge "practices Court."34Yet precedent."35 do not establish
¶ past practices 56. We have discussed the court's They ¶¶ support recusal. See 39-45. do not position justices. of the three regard
¶ practices 57. With to the of the United Supreme Roggensack States Court, offers no why practice Supreme reasons at the United States practices, jurisdiction, powers Court, rules, whose The Wisconsin constitution and provide statutes also by elections, removal recall another method unavailable to an litigant. individual 33In re Hon. Kading, Charles E. 522-23, 70 Wis. 2d
35 Roggensack, J. 208. practice own, should control from our are different jurisdiction this court. or any event, the United States In handling motions consistent has not been justice. of a Some- for recusal to the Court
addressed simply entry statement has a docket times the Court justice, seeking denying with the recusal of a the motion participating justice apparently challenged in the de- nial.36 entry the Court has docket Other times stating merely of the motion a denial
statement
explanation
justice,
challenged
without an
with or
*19
justice.37
by
challenged
statement
entry statement was used
A
docket
different
Cheney
Court
the District
States District
v. United
for
(2004).
entry
The first docket
Columbia,
U.S. 913
541
the Court
addressed to
referred the motion
statement
requesting
to Justice Scalia.38
Scalia's recusal
36See,
Attorney
the S. Dist.
e.g., Ernest v. U.S.
for
(1985) (J.
Powell); Kerpelman v.
Alabama, 474 U.S.
(1981)
Maryland,
¶ 61. The
Prosser,
citation
Justices
Ziegler, ¶
sack,
to Justice Jackson's concur-
ring
Ridge
Corp.
statement in Jewell
Coal
v. Local No.
(1945), misguided.
6167,
¶ 63. The should be invited to forth Supreme more information about the United States Columbia, Cheney v. U.S. Dist. Court the Dist. for (2004) J.). (Scalia, U.S. 913 this court about informing be may helpful Court It would he practice. and recusal jurisdiction issues of whether, if United even for briefs to address helpful its authority were to disavow States have such a would justice, pronouncement a disqualify which jurisdiction, effect on this court's controlling a law.40 rests on Wisconsin Prosser, briefs, Roggen- Justices 64. Without con- extraordinary have reached the
sack, Ziegler guarantee court never has power clusion that this If believe they truly members are impartial. that all Allen's this, just deny not dismiss why they would lack of motions, jurisdiction?41 the court's explaining not take this course of action. But the do their decision to Rather, they deny base the substance of Allen's Allen's recusal motions on that Allen's motions are The three conclude allegations. under insufficient to state a claim cognizable "legally country's to other com Looking beyond our own borders jurisdiction systems courts of ultimate mon law confirms that relating to one of disqualification review recusal or motions will Australia, of last resort in South their own members. "Courts Africa, recognize right all of a Kingdom and the United by single a petitioner negative review of a recusal decision seek Pearson, Note, high judge." R. Matthew Duck Duck Recuse? court Improving Law Guidance & Recusal Su Foreign Common Justices, 1799, 1828 & Lee L. Rev. preme Court 62 Wash. a denial of a recusal A dismissal of a recusal motion and appellate practice, meanings. motion have different In our denial motion, review, petition appeal for or an addresses the of a contrast, motion, presented. merits of the issue In a dismissal of review, ordinarily signifies that there petition appeal or an filing jurisdiction defect in the or that the court lacks to reach is a presented. For a discussion of dismissal the merits issue and Practice appeal, Callaghan's Pleading 6A Wisconsin an see 2005). (Rev. (With Forms) §§ 53.7-53.24 *21 "[n]o . constitutions,"42 the .. potential federal and state and that process constitutional due violation has been alleged participation here based on Justice Gableman's in Allen's case."43 Roggensack,
¶ Thus, Prosser, 66. Justices and Ziegler gone lengths have to extreme to write on the jurisdiction court's over Allen's recusal motions ad- dispose court, dressed to the and then would not motions on this basis. explored disqualification
¶ 67. We have also experience country of other states. Around the and over years, high some state courts have reviewed recusal members; decisions of their individual others have not. Appendix practice ¶¶ See procedure C, 172-184. Recusal prudential
has been matter of tradition or espousal jurisdiction considerations, not an of a lack of power. Appendix ¶ or C, See 171 & n.39.44 Roggensack, Ziegler
¶ Prosser, 68. Justices attempt distinguish sup- have made no this court's posed jurisdiction (power) lack of from the views of supreme acknowledged they state courts that have jurisdiction have such and have exercised it. Rather addressing distinguishing than au- considerable thority position, they simply that undermines their ignore it. Nothing
¶ 69. we have learned thus far about the practices supreme provides recusal of other state courts 42 Roggensack, 199; id., J. see also 43 Roggensack, J. surveys For practices various recusal standards and (focused mainly courts), see, the states e.g., on the trial Richard (2d Flamm, Disqualification 2007); E. Judicial ch. 28 ed. Leslie Abramson, Deciding Judges W. Recusal Motions: Who (1993-94). Judges?, L. 28 Val. U. Rev. 543 *22 important divest itself of an a reason for this court to depart jurisdiction aspect or to of its established providing practice of an indi- review its established disqualify justice's himself decision not vidual especially claim is ar- herself, when a constitutional continuing gued. In concern about whether the wake hardly impartial, judges the time now is elected can be impartial protections for tribunals. to lessen our writings Prosser, ¶ of Justice sum, 70. In Ziegler Roggensack, on the court's and Justice appear jurisdiction have three recusal motions over others): They major (among that a chal- assert flaws deciding justice personal lenged has no interest jurisdiction. writings Their have no issue of the court's writings juris- support the court's in the law. Their (power) are not determinative of issues diction presented Allen's recusal motions. parties
¶ Briefs from adversarial are needed 71. jurisdiction a of the court's to review on challenged issue justice's participate in decision to individual a case.
Ill implications Third, turn to the of a we jurisdiction that the court must not exercise decision motions addressed to it. Briefs are needed over recusal protect rights litigants fair, to a on how to impartial Supreme Court when the Wisconsin willing, policy, a matter of to decide recusal are not as justice challenging participation of a motions particular case. Allen and the State have assumed litigants impartial trump rights tribunal to an anxiety about the conse- the court's discomfort or quences judging one of its own. challenging justice's disqualifica- A motion challenged disquieting and to the to the
tion is personally justices. Any question to a related other justice, of the Code recusal or violation whether fellow only one, but is Conduct, "is not a serious of Judicial one to his associ- and a delicate an unwelcome also question is, it must be as the But, unwelcome ates. . .. single squarely, met and with met, and it must be it is."45 administer the law as ascertain and desire to colleague against a motions 74. Recusal pose significant personal proposed rules about recusal *23 justices. legal These difficul- for all the and difficulties by present the Judicial in the case are exacerbated ties against pending Justice Gableman action Commission's Judicial Conduct. of the Code of for violation allegations factual basis with share some in that matter present allegations disqualification in the for Allen's order. fully capture our
¶ not cannot and do 75. Words judg- feelings disquiet asked to sit when we are knowing peer, with that that we have worked ment of a justice justice for to work with and will continue justice every years at oral see the to come. We shall petition argument, opinion conference, court decision ceremony lawyers, rules conference, to admit review judicial hearing, open con- conference, administrative seminar, court and non- ference, and other educational court functions. challeng- disquiet Despite
¶
that a motion
ing
justice's disqualification causes, this court has
integ-
questioned
has
that when a "movant
stated
integrity
rity
court and hence
of a
of this
(1897),
Hoffman, 100
N.W.
Case v.
Wis.
reh'g granted,
¶ 77. Yet Prosser, Justices Ziegler appear policy to conclude that reasons such as collegiality public perception justify the court's not deciding challenging recusal motions a member of the indepen- court.47The three seem to believe by justice's dent review the court of an individual might public perception recusal decision exacerbate the that members of the court are biased result in an increased volume of recusal Prosser, motions. See J. ¶ 255.48 suggests 78. Justice Prosser at 256 that the "quickly,
court should have denied Allen's motion with- "exposing controversy comment," out to avoid within the court." We think otherwise. We believe that a Anglo-American jurispru- hallmark of our courts explains dence is that a court its A decision. court transparent by giving should be and accountable rea- sons for its decisions, reasons that can be evaluated and litigants, used to inform future decisions review- ing public. courts, and the very 79. "An unreasoned decision has little *24 acceptance by party,
claim to
the defeated
and is diffi-
impossible
accept
reflecting system-
cult or
to
as an act
application
legal principles.
atic
of
Moreover, the neces-
sity
stating
infrequently changes
of
reasons not
46City
Co.,
Edgerton v.
Gen. Cas.
190 Wis. 2d
of
(1995).
513-14,
48There is no routinely indication that the states that and rationally provide such review are either beset with excessive recusal any motions or suffer public lessened confidence.
400
judges
grips
by forcing
to come to
with
results
normal instincts
issues which their
facts or
nettlesome
to avoid."49
cause them
would otherwise
Roggensack, and Zie-
¶
Prosser,
Do Justices
80.
any public perception
gler truly
of this
believe that
any
places
improved
chal-
if this court
be
court will
lenged
impartiality
justice's
of
be-
individual decision
meaningful
yond any
review?
form of
Kading
upholding the court's
case
In the
judges,
impose
power
for
Judicial Conduct
a Code of
response
explained
"a
that the Code was
the court
public
in the
compelling
confidence
to maintain
need
[Njothing
bring
judiciary.
or the
tends to
courts
.
.'.
disrespect
justice
more than
of
into
administration
judgment upon
judge sitting
prejudiced
spectacle
of a
litigants.
rights
in the
A
of confidence
lack
the
integrity
of
orga-
very
foundations
rocks
courts
society, promotes
dissatisfaction, and
and
unrest
nized
"50
encourages revolution.'
even
greater public re-
it not command
82. Would
heard
spect
if the court read briefs
confidence
analyzed
arguments
motions,
recusal
on Allen's
opinion,
applied
as we would
in a full
the law
facts and
any judge
against
allegations
asserted
in review of
any
in the state?
another court
willing
due
decide
is not
If the court itself
justice
disqualification
process
because
issues of
judicial policy
on the
is it not incumbent
reasons, then
impartial
procedure
an
state
court to establish
challenging motions
to decide recusal
tribunal
al.,
Appeal, Carrington et
Justice on
Paul D.
508, 524,
2d
Kading, 70
Charles E.
Wis.
In re Hon.
(1975)
Stolen,
(quoting In re
193 Wis.
N.W.2d 409
(1927)).
379,
¶ 84. As a matter, Prosser, Justices Roggensack, Ziegler implicitly telling are all liti- gants they go in Wisconsin that need to to the federal they courts to seek relief from a Wisconsin who Roggensack, believe is If biased. Prosser, Justices Ziegler believe that the court should not review an justice's participate individual decision to in a case on policy grounds, good judicial policy is it to close the litigants Wisconsin courthouse doors and force into the federal courts? easy litigant. Federal review is not for a It delay. Litigants
involves
ing
challeng-
more costs and more
may go
state court recusal decisions
to federal
using
application
district court
an
for a writ of habeas
corpus,
bringing
§
a suit under 42 U.S.C. 1983.52Or
they can seek
review in the United States
Cannon,
534,
(1928).
State v.
196 Wis.
Allen's most recent filing, recusal dated 11, 2009, December states that he is attempting perfect the record here should the matter go have to to federal court. See Justice Crooks' concurrence, n.5. *26 only There is a for certiorari. way petition by
Court grant- States Court Supreme of the United 1.1% chance such a ing petition.53 Ziegler and Prosser, Roggensack, 86. Justices
¶ per- motions from their fixated on the recusal appear and from the perspec- members of the court as spective insen- totally justice.54 They appear of a challenged tive Caperton in wrote in dissent Chief Justice John Roberts Inc., (2009), 2252, 2272 Massey 129 S. Ct. v. A.T. Coal Co. only grants certiorari for Supreme States the United petitions of all filed. 1.1% indigent proceeding pauperis, as petitioners For forma must, percentage petitions like Allen often
prisoners See, Saul lower, perhaps e.g., as low as 0.3%. granted is even Brenner, Granting by Certiorari the United States Studies, Law Science Court: An Overview Social (2000) 193, 195 (analyzing data from the Court's 1995 Library J. term), http://www.aallnet.org/products/pub_llj_ at available v92n02/2000-17.pdf. concern, 224, that a colleagues express three ¶ Our if the justice's process rights due will be violated
challenged
Prosser,
Their
motions. J.
court acts on
recusal
not, however,
rights
challenged
spell
just
do
out
what
writings
process guarantees
due
what
justice
protected
has that are
Also, they forget that if the court
liberty interest is at stake.
justice's
participate,
to review a
decision
were
judges
rights
processes
and
afforded
afforded the same
would be
court
decision makers when this
of the circuit courts and other
appeal.
on
reviews recusal motions
appeal recusal motions directed
reviewing
court
For this
2d
judges, see, e.g.,
Walberg,
State v.
109 Wis.
to trial court
(1982) (the
held that a circuit
105-09,
court
IV Fourth, briefs are needed on whether grounds upon which Allen's motions rest justify dis- qualifying Justice Gableman. 88. One of the grounds which upon Allen's mo
tions challenging Justice Gableman's participation rest
is due process
guarantee of a fair
trial
a fair
—the
*27
tribunal —as most recently addressed by the United
States Supreme Court in Caperton v. A.T.
Coal
Massey
Co.,
¶ at They announce paragraphs. shrift —two brief devote They relevance here." has no that "Caperton 238. Our col- Caperton at paragraph brief single are it.56 All state courts get seem to don't leagues just is and Caperton Caperton, teachings bound more than involving major as a case viewed generally court affecting practice contributions campaign our analysis, significant Without country.57 across the fully Caperton. writing more addresses Ziegler's Justice helpful. She not be that briefs would Ziegler concludes Justice Caperton of "a by herself the nature determined apparently has which this "level" below a threshold analysis" and established one opinion, 261. No Ziegler's analysis required. not dis just like the basis for allegations are Allen's argues that majority in Caperton. But as addressed in qualification cases in process due by applying previous recognized, Caperton have problems new elections "as judicial the context be standard must process the due 129 Ct. at emerged," S. precedents." in the presented "not factual situations applied 129 Ct. at 2262. Caperton, S. see, e.g, Caperton, effect of views on the For different *28 ("[I]t (Roberts, C.J., dissenting) is 2269 129 S. Ct. at
Caperton, is some of bias standard probability new whether the unclear elections, applies judicial in support financial limited to how Examining generally"); more questions judicial recusal Massey: Hear Caperton v. A.T. Judicial Recusals State after of Judiciary, Subcommit Committee on the House ings Before (2009) Cong. Policy, 111th Competition tee on Courts (available http://judiciary.house.gov/hearings/hear_091210 at (last & 12, 2009); Fidelity Ins. Guar. US. Dec. visited _2.html (Mich. Ass'n, 243 773 N.W.2d Catastrophic Claims Co. v. Mich. Due Massey Coal Co.: v. A.T. 2009); Caperton Comments: Bias, 123 Judicial Appearance on the Limitations Process of 405 treat seem to as an colleagues Caperton merely outlier rather an than statement about the important constitu- tional of fair requirement tribunals. should How in be articulated principles Caperton applied different settings? question factual this Answering easy task, no briefs, but and serious argument, deliberation would assist greatly us interpreting applying Caperton. courts, State other than supreme Michigan, not yet have address begun ramifications of Caperton. seq. (2009); Karlan,
Harv. L. Rev. 73 et
Pamela S.
Electing
Elections,
Judges, Judging
Caperton,
and the Lessons
123
of
(2009);
Lessig,
Harv. L. Rev. 80
Lawrence
Everybody
What
Knows
Accept,
104;
and Too Few
Penny White,
Harv. L. Rev.
J.
Relinquished Responsibilities,
(2009);
L.
123 Harv. Rev. 120
Terri
Day,
R.
Buying
Caperton
Justice:
A.T. Massey: Campaign
v.
Dollars,
Process,
Mandatory Recusal and Due
C. L.
Miss.
Rev.
359,
(2008-09);
Gibeaut, Caperton
Capers:
John
Court's
Ruling Sparks
Recusal
States to Mull Judicial Contribution
Laws,
J., Aug.
2009,
A.B.A.
21,
at
available
at
http://www.abajournal.com/magazine/article/
caperton_capers;
Caldeira,
Gregory
James L. Gibson &
A.
Campaign Support,
Interest,
Impartiality:
and Judicial
the Legiti-
Can
Conflicts of
?,
macy
Courts Be Rescued Recusals CELS
4th
Annual
on Empirical Legal
Conference
Paper,
Studies
available at
http://ssrn.com/abstract=1428723;
Stephen
Hoersting
M.
& Bra-
dley
Smith, Speech
A.
Caperton Caper
and Elections: The
and the
Conundrum,
Kennedy
319;
Sup.
Cato
Ct. Rev.
Kevin C.
Ayers,
Newsom & Marc James
A Brave New World
Judicial
The
Supreme
Recusal ?
United States
Court
Fray,
Enters the
Ala.
5;
Lawyer, Sept. 2009,
Disqualification
at
Judicial
Caper-
After
ton,
Judicature,
4;
July-Aug.
at
Statement
Jr., President,
H. Thomas Wells
American Bar Association
Ruling
Re:
The United States in
(June
Co.,
Caperton
Inc.,
Et Al. v.
Massey
A.T.
Coal
Et Al.
2009),
available
http://www.abanet.org/abanet/media/
at
(last
visited Jan.
statement/statement.cfm?releaseid=671
2010).
*29
Supreme
Recently, Michigan
aban-
the
past practice
alone
that
individual
doned its
respond
In No-
recuse, without review.58
to motions to
adopted
stating
Michigan
a rule
2009, the
court
vember
challenged,
justice's participation in
a case is
if a
justice
publish
challenged
decide the
and
the
shall
issue
reasoning
challenged
the
his
for the decision. If
or her
upon
disqualification,
the
then
denies motion for
party's
court shall
motion to the court
entire
disqualification
explain
motion for
decide the
disquali-
grant
for its
or denial of motion for
reasons
59
fication
years
Adoption
rule
of acri-
of this
followed
Cap-
justices. Following
dispute among
monious
Michigan
decision,
Chief Justice Clifford
erton
former
Taylor
"Caperton
has mean that the
declared
challenged justice
decision
make
recusal
can't
alone."60
Catastrophic
Fidelity
& Guar. Co. v. Mich.
See U.S.
Ins.
(Mich.
Dep't
Ass'n,
v. State
Adair
2009);
Claims
Rule ADM No. effective Nov. http://courts.michigan.gov/SUPREMECOURT/ available at Although 112509.pdf. Resources/Administrative/2009-04 — long, adopting rule is not the order it newly adopted itself dissenting with many pages concurring opinions, includes attachments, change. sharply debating the merits of the challenge pre-Caperton §
A 1983 constitutional U.S.C. practice allowing in the sole discre- Michigan's recusal recusal challenged justice by a federal court tion of the was dismissed may granted. which relief be upon to state a claim failure (E.D. 2007). Fieger Ferry, v. Mich. WL 2827801 Catastrophic v. Fidelity & Guar. Co. Mich. U.S. Ins. (Mich. 2009). Ass'n, 243, 246 n.12 173 N.W.2d Claims *30 Caperton announced the need explicitly for to a objective review to recusal A challenges judge. judge's inquiry own into actual bias is not adequate Caperton, due Ct. at process purposes. S. declares that to objective "[t]he failure consider stan dards is not recusal consistent with the requiring of needed, due is imperatives process." Protection ac a cording Caperton, to his against judge making own recusal decision an court appellate because cannot or easily superintend judge's subjective review deter Caperton, Indeed, mination. 129 Ct. at S. 2263.61 when the challenged justice in the case Caperton explained his himself, individual decision not to recuse he ac knowledged court retained "authority under Lavoie, Aetna Ins. Co. v 475 U.S. 821-22 [Life (1986)] case," to remove me but that the court had not exercised this authority. v. A.T. Caperton Caperton originated where, Virginia in West unlike in Wisconsin, challenged do not review justice's in a case. See rel. decision State ex Cohen v. participate to Manchin, (W. 1984) ("[Wjhere 336 S.E.2d 175-76 Va. disqualify motion is made to justice recuse an individual of Court, question this by be decided the challenged by Court."); and not the other members of this West Virginia Appellate Procedure, of Rules Rule 29. appears
No issue to have been raised in either the West Virginia appeals of Supreme court or the United States Court regarding Virginia appeals whether West court of must or disqualification should decide the issue.
A collateral challenged lawsuit federal district court constitutionality Virginia practice. this West After the U.S. Supreme decision, Court this suit was without preju- dismissed by dice Massey Energy See stipulation parties. Co. v. Supreme Appeals Virginia, West 2:06-cv-00614, No. (S.D. 2007) 2007 U.S. Dist. LEXIS (stipulation W. Va. 2009). prejudice July 24, dismissal without filed 2008) (W. Massey Co., 223, 301 Va. Coal 679 S.E.2d Presumably concurring). (Benjamin, if the West C.J., keep willing Virginia house in had its own court been process occurred and would have order, no due violation not United Court would States review necessary. have been justices, how the three Justices So do Ziegler, Roggensack,
Prosser, review participate in the decision to Gableman's individual They contrary present dictates case? act *31 Caperton judge's inquiry adequate for that a not own colleagues expressly process. limit their due Our three judge "establishing de- the made a to whether review They requiring disqualification."62 state termination [Justice Gableman] they not whether will "address [disqualification] correctly incorrectly the or decided [to him]."63 presented issues Asking justice impartiality has
¶ whose 95. provide only challenged and final word as been impartial sense. or she is in fact makes little whether he judge pre- independent is to matters That an decide concepts of a tribunal is central to our normal sented to process.64 ¶ 190. Crooks, due See J. variously a
¶ have described 96. Commentators judge's independent on a of a decision lack of review challenge heavily as of the most criticized "one recusal 62 Wis., v. Action Roggensack, (quoting 240 Donohoo ¶ J. 510, Inc., 110, See 2d N.W.2d 480. 2008 WI 314 Wis. ¶ Roggensack, also J. 208. 63 Roggensack, J. Marshall, Adjudicatory C. Martin H. Redish & Lawrence Process, Yale Procedural
Independence and Values Due (1986) ("[T]he participation independent L. of an J. necessary satisfying adjudicator least condition ... is at process"). of due requirements disqualification law,"65 "Catch-22"66 features U.S. having "grade paper."67 and akin to a student his own justices agree ¶ 97. All that a recusal motion go justice individual in should the first instance. only cases at issue here are those in which litigant unbiased, determines that he she is but a judge's and believes otherwise seeks court review. The provide own no serious self-affirmations reassurance to litigant, protection little and for the values of uniformity, public confidence, and error-correction. Roggensack, Nevertheless, Prosser, Justices Ziegler ignore Caperton. these values and Does reasoning their demonstrate a disconnect between this § interpretation 757.19(2)(g) subjective court's as a objective recognized standard and the standard Ca perton? explains, ¶ Crooks' concurrence ignore Caperton that we cannot the ramifications of § interpretation our of Wis. Stat. 757.19 and on recusal proper interpretation A law Wisconsin. of the statute quest avoid could the need to reach constitutional interplay Caperton ions.68 Briefs are needed on the § mandating disqualification. 757.19, the statute Making Judicial Recusal Sample, Pozen, James David *32 Rigorous, (2007). More Judges' 17, J. 46 21 66 Appearances: A Keeping Up Process- Frost, Amanda Recusal, Approach Oriented to Judicial 531, 53 U. L. Kan. Rev. 571 67 Examining State Caperton the Judicial Recusals of after Massey: Hearing v. A.T. Judiciary House the Comm's Before On Competition, (2009) Subcomm. and Courts Cong. 111th 5 (testimony Geyh), of http://judiciary. Charles G. available at house.gov/hearings/pdf/Geyh091210.pdf.
68 Harrell, In State v. argued then-Justice Abrahamson that 757.19(2)(g) § applied objective Wis. Stat. should an using be reasonable, test: a "[Wlhether well-informed observer familiar judicial standards, judicial system, with ethical the the and facts Prosser, In of Roggensack, views Justices the ¶ guarantee independent Ziegler, procedural and to all decision impartiality applies of a judge's review court, this the seven where except makers and the most stakes challenging issues be legal may highest. merits to the need for briefs Turning
¶ Prosser, three Justices justices, Allen's allegations, "Allen's conclude at that Ziegler, and Roggensack, do due begin approach process not even to allegations allega- not decide whether Allen's violation."69 We do should be briefed tions would be successful. This issue argued. motions and 101. On the basis the parties' memoranda, only allegations can conclude we full briefs, argument, oral justify are sufficient consideration. doubts of the case would harbor reasonable
and circumstances
ability
impartial
the circumstances."
judge's
to be
under
about
(1996)
Harrell,
654, 666,
2d
Justice judiciary integrity maintain of the nized that order "to law[,] recusal may 'adopt rule of ... States choose and the requires.'" Caperton, rigorous process more than due standards Party v. (quoting Republican at Minn. 129 S. Ct. 2266-67 (2002) White, (Kennedy, J., concurring)). U.S. opinion, cites a Roggensack's pre-Caperton (1997) case, Bracy Gramley, v. 904-05 for the 520 U.S. guaranteed by that is due proposition preclusion that "the of bias every against specific party is bias who process party judge's having due a financial before the court or bias to the then pending." The particular case then interest the outcome only "the floor the Due Process case states established tribunal,' clearly requires a 'fair trial in a fair before Clause against in the judge no bias the defendant interest with actual U.S. at particular Bracy, of his case." 904-05. outcome *33 411 102. Allegations of bias in favor of prosecutors and against criminal defense counsel and crimi- against nal defendants are cognizable for a grounds motion to the court to disqualify judge. Cases have so held.70 70See, e.g., Walberg, 96, 106-07, State v. 109 2dWis. 325 (1982) (holding N.W.2d that required recusal is when a defendant can show that bias of against circuit court counsel affected interests); the defendant's State v. Hollingsworth, 160 (Ct. 1991) Wis. 2d App. N.W.2d 555 (holding that "dressing circuit court's down" defense counsel did not translate case). prejudice against into client al., See also James J. Alfini et Judicial Conduct and Ethics (4th 2007) (a § 4.05D judge's ed. antipathy party's toward a attorney should be aspect examined as an prejudice); bias or R. Phillips Poll, Thomas & Karlene Speech Dunn Free Judges for Fair Appeals Litigants: Judicial Recusal in a Post-White for World, (2007) 55 Drake L. Rev. 692 (asserting adequate remedy needed for litigants process rights whose due to an impartial may forum compromised by be judi overenthusiastic cial campaign speech); Randall T. Shepard, Campaign Speech: Liberty Ethics, Restraint and in Judicial Legal 9 Geo. J. Ethics (1996) ("[wjhether 1059, 1089 process due requires recusal based campaign promise on a adjudication question about likely fairly turn on the specific facts of the case: the nature of the promise and the nature of the case in promise which the might arguably decision."); Swisher, drive the Keith Pro-Prosecution Judges: Crime,' 'Tough on on Strategy, Ripe Disqualifi Soft for cation, forthcoming, 52 Ariz. L. (2010), *1 Rev._, draft avail able at http://papers.ssrn.com/abstract_id= (advancing "the following slightly scandalous Particularly claim: in our post-Caperton, political-realist world, crime' 'tough on elective judges should recuse cases"); themselves from all criminal Carol Vento, Schultz Disqualification Judge Against Bias Coun for (2009) Indigent, sel 54 A.L.R. 5th (collecting cases); Weiss, Note, Joanna Cohn Tough on Crime: How Campaigns For Judiciary State ViolateCriminal Rights, Due Process Defendants' (2006) 81 N.Y.U.L. Rev. (declaring remedy "a recusal way is the best to balance free, the need for open campaigns with *34 Court Justice John United States 103. campaign promise "[a] has Paul Stevens written the death crime,' penalty,' or 'to enforce on tough 'be a candidate that should disqualify of bias evidence cases."71 in criminal sitting in dissent Chief Justice Roberts "If the 2269, supporter at queried: 129 S. Ct.
Caperton, crime,' are on 'tough who judges wants to elect help cases?"72 in all criminal judge recuse must United States Posner, for the writing Judge Circuit, ruled on for the Seventh Court of Appeals Court, Circuit County a trial Milwaukee whether a trial by was presiding, Christ T. Judge Seraphim with con- federal the defendant's violating tribunal a biased by declaring their judges win votes dangers that arise when alleged criminals' crime and then hear tough to be intent cases"). grounds, inter motion on the objects to Allen's
The State questions and raises alia, First Amendment issues that it raises Although judicial candidates. independence of to the related White, Minnesota v. Republican Party refers to Caperton relationship of a (2002), about the Caperton is silent U.S. 765 topic rights recusal. This is another speech free candidate's helpful. be on which briefs would Address, American Stevens, Assembly Opening John Paul Orlando, Florida, August Meeting,
Bar Annual Association Legal Comment. 30-31 J. St John's defeating Virginia campaign West Indeed the well-funded McGraw, subject Caperton of the was the which Justice Warren accusing McGraw ads lawsuit, waged with TV was labelling him "too soft on free" and "[l]etting rapist go child al., Goldberg et our kids." Deborah dangerous for crime. Too (2005), at 4—5 available Education 2004 New Politics Judicial http://brennan.3cdn.net/dd00e9b682e3ca2fl7_xdm6io68k.pdf advertisements). (collecting campaign rights.73 Judge stitutional The issue was whether Seraphim's antipathy towards defense counsel for rais- ing legal issues on of his client behalf constituted bias or appearance against of bias the defendant. Judge
¶ 106. The federal court described Seraphim's attitude toward role defense Judge Seraphim counsel in case as follows: "indi- good [by counsel] cated that behavior the defendant's just avoiding meant not unethical conduct but also not *35 pressing hard, too even within ethical boundaries, well obviously guilty an favor of defendant."74 Judge explained
¶ 107. Posner that he was not Judge Seraphim actually against sure that was biased "[i]n judging the defendant but that the fairness of a helpful adopt vantage point trial it is sometimes of the defendant and ask whether a rational albeit persuaded criminal individual could be that he had had vantage point a fair trial. .. ."75From the of the defen- according appeals, "[t]he appear- dant, to the court of judge up of a ance was had who made his mind at the ,"76 guilty start that the was defendant ... appeals The court 108. federal ordered the brought
defendant released unless the State
the defen-
days.
dant to trial within 120
Broadly speaking,
allegations
¶ 109.
Allen's
against are
Gableman
that the Justice believes
(7th
1985) (in
Israel,
Walberg v.
defense counsel
a certain type
for a
client or
rights
guilty
perhaps
tional
client.77 This
is similar
allegation
Judge
of guilty
at the
"be-
angry
lawyer
he was
implying
Seraphim's
efforts
unworthy
protracted
cause the client was
was
on his behalf."78
lawyer
making
that
in the
case are
present
110. The recusal motions
Prosser,
would
not,
Roggensack,
Ziegler
as Justices
[to
heart...
believe,
[their]
us
limited "at
merely
have
issues
candidate's announced concerns for
judicial
a]
J.
Roggensack,
on law enforcement."
bearing
in the present
for the recusal motions
grounds
The
characterized in the same
case,
argued, may
it can be
be
Judge Seraphim's
Posner characterized
way
Judge
case,
as a
view
Walberg
namely
judge's
conduct
constituting
function of defense counsel
towards the
of bias
a defendant.79
appearance
against
bias or the
at
allegation
Justice Gableman looks askance
advocacy
at least some criminal defendants
zealous
on behalf of
of Allen's case. The issues we
arguably related to the merits
implicate
right
to effective
reviewing
are
in Allen's case
petition
appeal.
supplemental
Allen's
assistance
counsel
*36
requiring a
issue as follows: "Whether
for review formulates an
report
arguable claims
respond to a no-merit
with
defendant to
counsel,
barring the
by appointed
and
that were overlooked
raised,
any
conflicts
raising
ever
claim not so
defendant from
appeal."
direct
right
with the
to counsel on
78Walberg,
Sveum, 2008AP658, court. The pending now before this No. relies on against motion for recusal Justice Gableman Sveum 757.19(2)(f) (disqualification § mandated when Wis. Stat. interest) and due significant personal financial or judge has a process, asserting: this, "personal disqualifying interest"
Justice Gableman has statements, every, appeal perhaps direct and criminal because his Roggensack, Ziegler Prosser, 111. Justices and 238) (¶¶ allegations conclude that Allen's factual support cognizable process They cannot due claim. offering criticize Allen's motion for not documentation of "the manner which Justice Gableman has treated appeared proceedings defendants who have in criminal presided." in courts over which Justice Gableman has They supplement ¶¶ record, themselves 245-246. parties might bring briefs, If we had forth documen- argue proof tation and whether the the three offer relates to matters at issue here. argues Sveum, In State v. defense counsel
that Justice Gableman an has unbroken record of siding with the State in criminal cases in this court.80 arguments might accuracy Briefs and debate the and argument. relevance of this question may ultimately 113. The for this court determining "tough
revolve around when on crime" judicial electioneering depriving risks a criminal defen- right judge. dant of the constitutional to an unbiased easy question, important Not an but an one. The role of through lawyer-agent judges and his establish he first case, by subjective inherently defendant himself in a criminal an personal scale, only willing judge moral then is case, assuming merits of the defendant's that the defendant does evilness, heinousness, not fall despicable below a threshold of threshold, character. As to criminal defendants who fall below that arguments rightly Justice Gableman believes that meritorious pass cannot be made. ... If the defendant does not muster on the step, ought legal moral scale at the first he not have benefit of rules that otherwise favor him. Petitioner's Motion Disqualify [Sveum's] Justice Michael J. Gableman at 2.
80Petitioner's Disqualify [Sveum's] Motion to 31-34, Sveum, Michael J. Gableman at Exhibit F. State v. No. 2008AP658. *37 court should be to face and decide this challenging
this it. Briefs issue, not to avoid would recurring help. Furthermore, grounds for the recusal in the case can also be characterized as motions present facts," "extreme see J. stating Ziegler, passim, although there is a whether "extreme facts" is the question standard. We need briefs and oral argu- appropriate ment to the correct due standard and to explore process then demonstrate how that standard should be applied facts of case. Justice Crooks at 189 and 191 high- ¶¶ and circumstances lights highly allegations unusual comment, the instant case. We as did the United States Court in that we know of no Caperton, other case Wisconsin or elsewhere that presents similar facts: campaign
A. A television ad Justice Gableman's campaign characterizing "loophole" opponent his public found defender in a criminal as case. pending charge by subject
ad is the of a against Judicial Wisconsin Commission as Code of Gableman a violation Judicial 60.06(3)(c).81 Conduct, SCR (three Report B. The of the Judicial Conduct Panel judges) complaint on the Judicial Commission's Gableman, majority against Justice in which the panel judge found no violation. One on the having panel criticizes the television ad as a mis- leading implication showing and as disdain for the judge role criminal defense counsel. Another 81A copy video of the television ad is attached with similar Carter, 2006AP1811-CR, recusal filed in State v. motions No. Defendant's Motion for of Hon. Michael Recusal Gableman E-8). (Attachment Constitutional Grounds *38 misrep-
concludes that the ad was a statement that 60.06(3)(c).82 resented a fact violation of SCR C. The comments Justice Gableman's counsel at hearing before the Judicial Conduct Panel and media, meeting
at a with demeaning the role of attorneys.83 criminal defense D. The Board of Governors of the State Bar of
Wisconsin's Policy unanimous Public Position re- garding right the constitutional of criminal defen- assistance, legal apparently dants to effective response campaign to the ad at issue and com- ments counsel.84 Gableman's 82See In Re Disciplinary Proceedings against Judicial Gobiernan, 2008AP2458-J, *17-19, Honorable Michael J. No. at J., (Deininger, concurring; Fine, J., 20-36 concurring), available at http://wicourts.gov/news/archives/2009/docs/gableman.pdf. 83Justice Gableman's counsel defended the ad putting as willingness loopholes. "focus Butler's to find willing He is loophole to find a person for a so evil he raped an 11-year-old girl learning evil, with And disabilities. that he's so got jail, that once he out of he went on to molest another child. willingness So the focus on Butler's loopholes is to find for even people despicable person are as this .. . ." Hearing Transcript at 14.
See also Justice Gableman's counsel's comments at an inter- September 16, 2009, view with media on available on Wisconsin Eye, www.wiseye.org/wisEYE_programming/ARCHIVES-courts. html): The ad do [Justice has "to with his judgment Butler's] willingness his system to subvert the criminal—our of criminal —bringing raped criminals into account.... 11-year- Mitchell an girl learning old with disabilities. He [Justice Butler] didn't have represent to take that criminal. He could have walked. I that — you mean don't have standards?" Solberg, [State See Tom Bar Wisconsin] Board adopts policy position Governors reaffirming the essential role (Dec. attorneys in the system 2009), criminal defense easy ¶ 116. Even if this were an case on the merits allegations, supposes not, and it is and even if one that Allen's motions fail would to move the court in the analysis, up final the court should still take and decide provides guidance the matter in a manner that judges litigants presents in future cases. This case opportunity begin develop an for this court to sorely jurisprudence judicial disqualification. needed persuaded We are that the court needs briefs and oral *39 argument help puts to the court decide as the it, State potentially deep" presented. "broad and issues
%H*H* ¶ Roggensack, Ziegler Prosser, 117. Justices and conclude that Justice Gableman need not have with- participating deciding drawn from in whether the court jurisdiction lacks to consider Allen's recusal motions Roggensack, directed at Justice Gableman. See J. ¶¶ 196-197. Roggensack, Ziegler 118. Justices Prosser, and (1) indepen-
further determine that this court cannot dently justice's deny review a decision to a recusal except justice motion to decide whether individual required, made the determination that the motion although independently this court can and should re- judges view denials of recusal motions elected (2) appeals; circuit court and court of that Allen's recusal motions have no merit. writings by Roggen- 119. The Prosser, Justices Ziegler
sack, and make stretch, false accusations and http://www.wisbar.org/AM/Template.cfm?Section=News&Temp- (last plate=/CM/ContentDisplay.cfm&ContentId=88343 visited 2009) ("In Dec. response to recent statements made in connection dispute ads, with a over Supreme campaign the State Bar of Wisconsin reaffirms its commitment to the counsel."). right to such an
misconstrue, relevant law. Even with or omit It and incoherent. effort, are inconsistent writings had have justices joining that the three is evident three ques- their views on together disparate cobble (1) jurisdiction (power) the court has tions: whether (2) whether as all; reason at justice any for disqualify exercise such the court should ever a matter of policy (or disqualify any jurisdiction power) (3) stated these reason; grounds whether recusal. Because have merit justifying recusal motions distinctions between fuse and obfuscate Allen's allega- and the merits of jurisdiction, policy, convincingly do not or tions, writings cogently their Either miss they of these three issues. any answer the reader will miss hope these distinctions them. motions have spawned 120. Allen's recusal court,85 has not industry occupied
cottage motions have been filed seven other Similar recusal (mo Carter, No. 2006AP1811-CR criminal cases. See State v. 2, 2009; individually order filed Oct J. Gableman issued tion Cross, 21, 2009); State v. No. denying the motion Oct. *40 (motion 11, 2009; issued filed Nov. J. Gableman 2009AP3-CR 20, 2009); individually denying the motion on State order Nov. (motion Dearborn, 20, 2009; filed No. 2007AP1894-CR. Nov. v. individually denying on order the motion J. Gableman issued (motion Jones, 2009); 17, v. Dec. State No. 2008AP2342-CR 16, 2009; individually filed Dec. J. issued order Gableman 22, 2010); Littlejohn, denying motion on Jan. State v. No. (motion 19, 2009; filed J. Gableman 2007AP900-CR Nov. 20, individually denying the motion on Nov. issued order (motion McGuire, 2009); filed State v. No. 2007AP2711-CR 2009; 2, individually denying order Oct J. Gableman issued 20, 2009; 30, motion filed Nov. supplemental motion on Nov. (motion Sveum, 2009); Dec. State 2008AP0658-CR filed v. No. 21, 2009; individually denying the J. Gableman issued order 2010). 22, motion on Jan.
always We are constructively.86 concerned that because the issues raised by Allen's recusal motions have not been handled an open, transparent, comprehensive case,
In another criminal the defendant asserts that Justice Roggensack should disqualified be under Wis. Stat. 757.19(2)(e) standard) (setting § objective forth an because she "previously proceeding handled the action or judge while of an (motion Henley, inferior court." See State v. No. 2008AP697-CR 31, directed to Roggensack, 2009; Justice filed on Oct. Roggensack issued a denying memorandum decision the motion 25,2009; on Nov. defendant filed asking motion for court review 2010). argument motion, and oral on the filed on Jan. case, In a civil a motion for recusal of Justices Annette K. Ziegler and Michael J. 19, 2009, Gableman was filed on June on process grounds due relating to contributions in their election Villione, campaigns. See Krier v. Nos. 2006AP1573 & (motion 30, 2009; 2006AP2290 filed on June Ziegler Justices and 2009). individually Gableman each July 23, denied the motion on 86Here are some repercussions of the recusal motions. Counsel pending with other recusal motions have moved to delay argument oral on the merits of the cases until the recusal motions have been decided. The respond court did not defense postpone argument. counsels' motions to oral Yet in State v. Allen the court has not ordered briefs on the merits of argument. case scheduled oral Chief Justice Abrahamson and Bradley Justices Ann Walsh Patrick N. Crooks filed a statement with the clerk of court on October objecting Carter, treating 2006AP1811-CR, State v. differently No. from other cases. The statement asked that orders on the recusal simultaneously motions be issued and that the Carter case be removed from argument the oral response schedule. In filing, Prosser, to this Roggensack, Justices Ziegler issued a press 16, 2009, release October complaining that the court responded should have to Allen's motion five within weeks after April 17, motion was filed on argument 2009. Oral in these proceeded Allen, other cases proceeding, has or is except for with guarding against defense counsel possibility they may have motions; forfeited or waived their recusal the State *41 not position has offered its on waiver and forfeiture. a new writings generate will
manner, today's numerous consequences. of unintended series subject described some of the 121. We have needed. There are other briefs are areas which upon areas too.87 of these explore many We have had the assistance of in the literature without legal
subjects We offer the results arguments. focused fully briefs and (sometimes acrimony unfor- private displays of Public and Public discussion tunately among the flared. personal) internal conference matters ensued. addressing interim, adopted a recusal rule In the court regarding campaign contributions. collaterally related issue in op-ed piece publication Roggensack wrote an Justice rule, adopt writing newspapers defending her vote to to the issues at hand. The may tangentially as related some view Prosser, majority, when Justice rule was later rescinded vote, An wording with the of the rule. his dissatisfied withdrew January adopted on amended version of the rule was by 4-3 vote. perhaps understandable and ex-
Each of these events is occurred, time under the circumstances at the each plainable always praiseworthy. reflection not hindsight even if in and pending recusal motions in cases replies The State's this issues to be briefed considered have identified related court: implications? evidentiary Amendment Is an
What are First findings hearing necessary? Are the Judicial Conduct Panel's and, so, they resolving if are sufficient for conclusions relevant positions parties of third issues? Are statements or constitutional judicial potential Are a candidate's statements about relevant? judicial disqualifi- judicial philosophy legal relevant? If issues or so, found, purged, and if how? What would be cation were can it he Every Every scope disqualification? criminal-related case? attorney involving an who has moved for Justice Gableman's case Every disqualification? Public Defender case? How would State operations disqualification Gableman's affect this Court's sought? every How criminal-related case for which review is judicial in Wisconsin? would it affect all elections *42 Appendices, of our research as set forth margin.88 disqualification judges sum, In of development, espe is an issue significance
of immediate and law cially Supreme as a result of the United States Court's Caperton Massey decision in Co., v. A.T. Inc., Coal Supreme S. Ct. 2252 United States Court Chief forty Justice Roberts identified in dissent at least "fun questions" damental that "courts will now have to determ recently re-adopted ine."89 This court's rescinded and judicial disqualification amendment to the rules for solely campaign based high on contributions further lights guidance the need for our sound deliberation and challenging emotionally fraught on the and issues sur judicial rounding disqualification. any 124. Unwarranted recusal motions, like un- proceeding,
warranted court should not be condoned. "A public's right judge tension exists between the ato who impartial appearance impartiality is and has the the one hand and the need to ensure that the law disqualification by litigants attorneys is not abused and purposes delay judge shopping. for The law of disqualification attempts to ensure that a balance be- policy tween these considerations is achieved."90 88Appendix A. Unresolved Recusal Issues: The National Union Fire Insurance Crosetto Cases. and 128 to ¶¶
Appendix B. The United States Court Retains Jurisdiction Disqualify One Its Own Members. 137 to ¶¶
Appendix C. The Recusal
Practice
Our Sister State
Supreme Courts Is Instructive.
167 to 185
¶¶
89 Caperton,
(Roberts, C.J.,
strike public court that the should assure cases and future impartial providing fair, Wisconsin committed help argument Briefing assure will supreme court. goals. these meet that we only- garners proposed order, which
¶ 126. Our as follows: read votes, would three *43 days after the date that within IT IS ORDERED court in this must file a brief Allen this decision motions; and in his herein addressing the issues raised must file either days filing the State that within filed; that will be that no brief or a statement brief State, days of the within 10 by filed the if a is brief or a reply brief must file either filing Allen State's filed. reply brief will be that no statement order forth, we would ¶ reasons set For the argument motions Allen's recusal and oral briefs against to the court. addressed Justice Gableman The Recusal Issues: A. Unresolved
APPENDIX and Crosetto Cases Fire Insurance Union National writings relate to 1990 and 1991 128. Two and which been resolved have not recusal issues which the court. still trouble Co. v. Fire Insurance Union In National County, No. Croix St. Circuit 90-0935-W for (Wis. 1990), May
unpublished Ct. S. order party's opposing judge granted motion circuit court company moved The insurance trial. for a new 757.19(2)(g), arguing § Wis. Stat. recusal under against prejudice judge the insur- bias and had shown judge company's When and its counsel. insured ance declined to himself, recuse the insurance company petitioned for a supervisory writ from this court as a remedy. The court denied the petition, no offering rationale. Then-Justice Abrahamson dissented. The reasons stated in the dissent are hauntingly relevant now. 130. The full text of Justice Abrahamson's dis-
sent follows: petition goes in this case judicial to the heart system right ato trial impartial an —the fair before
judge. The National Union Fire Company Insurance alleges, rightly wrongly, judge's the circuit court impartiality supported is not by the self-declaration of record and that the judge's required recusal law. I believe that this court petitioner, owes the legal community public and the cryptic more than a order denying petition any explanation. without I .believe that the court ought to decide the merits the Insurance Company's petition in this case and provide should guidance to the judges circuit disquali- on the issue of I would response. order a fication. therefore
I. *44 The giving petition rise to undisputed. this are facts jury a verdict in National Union Fire After favor of (here Company Insurance Company), Insurance circuit granted court the opposing party's motion a for new trial. Company The Insurance requested, then pursuant 1987-88, to sec. 757.19(2)(g), Stats. that the circuit judge recuse any proceed- himself from further ings in the case because he had evinced bias and prejudice against the Company's Insurance insured and its counsel. The judge circuit reviewed the record and determined that impartial he was able to be at the new trial. 17, 1990, April
On Company petitioned Insurance the court appeals supervisory a writ prohibiting of for
425 trial. On the new presiding over judge the circuit from 18, 1990, the order appeals denied the court April of supervi- a petition that a ground apparently on for rather, the procedure; proper sory writ was not challenge the circuit Company would have to Insurance appeal motion on the recusal judge's denial from of to sec. trial. Pursuant the new judgment entered after 809.71, petitions this court Company now the Insurance judge the circuit prohibiting writ supervisory a for at the new trial. presiding II. may Company the Insurance is whether The issue first by supervi a motion a denial recusal review seek of of who have consid and courts sory writ. Commentators judge's denial procedure review ered the of of for petition that a have concluded recusal motion mandamus, rather prohibition writ supervisory of procedure.N1 appeal, than is the recommended m recom appeals have courts Several federal technical, more procedure. "The less mended this modem, widely held view is probably more Rehnquist, Stempel, available...." mandamus is Reform, 589, Recusal, L. 637 Bklyn. Rev. Appellate Moore, Judi Review See also Disqualification in the Federal Decisions cial (1984); Courts, Hjemfelt, L.J. 829 Hastings Judges, Disqualification Statutory Federal (1982); Leubsdorf, L. Rev. 262-63 Kansas Judge Disqualification, Judging and Theories of (19787) [sic]; Fall, L. 275-76 N.Y.U. Rev. Corp.: Acquisition Liljeberg v. Health Services Disqualification Encourages Fed Court 455(a), Judges Wis.L. Rev. Section eral Under Impartiality Questioning Comment, 1033,1041; Judges: Disqualifying Federal District 455(a), Judges Q.L. Temple § 28 U.S.C. Under Disqualification Note, (1987); Judicial 730-35 *45 Proposal in the A Federal Courts: to Conform Underlying Policies, Provisions to 67 Iowa L. Rev. 525, 543-44 event, any In an procedure as alternative the Insur- Company sought appeal ance also a leave to non- procedure order as an alternative in the court final appeals. of The United States Court has declared review Berger by appeal inadequate. trial In v. United after States, (1921), 255 U.S. the Court stated: remedy by appeal inadequate. "The is It comes after trial, exists, prejudice it has worked its if evil, ajudgement reviewing it in a tribunal is of precarious. goes It by presumptions, there fortified and nothing can be more elusive estimate or a of disposition than a decision mind in which there of personal judgment." is a judge judicial Because the deciding disqualification in veryjudge charged instance is the who is with first beingpartial, prompt by appellate review an court before possible trial especially important when is preserve trial, integrity public in the of foster confidence subtle, judicial system, and to avoid the subconscious pressure appellate on an uphold judgment court to rendered trial. after I Company's petition conclude that the Insurance prohibition writ proper procedure is the to seek review appeals in the court and in this court a circuit court
judge's denial motion to recuse.
III.
judicial
The law
recusal
single
cannot be
in a
found
statute,
places.
court rule or case. It is
in several
found
judge
reviewing
and the
court must consider
judicial disqualification
required
whether
statute.
*46
is, however,
751.19,
1987-88,
begin-
only the
Stats.
Sec.
§
omitted]
757.19
to text Wis. Stat.
ning. [footnote
of
play.
into
Furthermore our
may come
Other statutes
reviewing
must
judges
that
and
courts
case law dictates
Ethics, the Four-
the Code
Judicial
also consider
of
clause,
process
and the com-
Amendment's due
teenth
might
And
court
also
trial.
this
mon law doctrine of fair
under its
judge's
a
denial
a recusal motion
review
of
law
power. Each
these sources
superintending
of
of
listing
probably
is
not
disqualification
of
—and
significant impact
a
on resolution
complete may have
—
at bar.
the case
of
judge
to a
who
public's right
A
betweenthe
tension exists
impartiality on
impartial
appearance
and has the
of
to ensure that the law
hand and the need
one
of
attorneys
by litigants
abused
disqualification is not
shopping. The law
purposes
delay
judge
or
of
for
of
that a balance be-
disqualification attempts to ensure
policy
these
considerations is achieved.
tween
Disqualification.
Statutory
Judicial
When
Grounds for
made,
judge
both the
and the
a motion
recusal is
for
look to the statutes to determine
reviewing court should
751.19,
granted.
be
Sec.
whether the motion should
alia,
1987-88,
"any judge
inter
provides,
Stats.
judge
or
when a
disqualify
shall
himself
herself...
cannot,
that,
reason,
it
any
he or she
or
determines
for
cannot,
impartial
in an
manner."
appears he or she
act
Appliance,
751.19(2)(g).In State v.American TV &
Sec.
(1989) (Abraha-
175, 183,
2d
The court's test American of TV significantly has reduced the sec. effectiveness of (under The 751.19(2)(g). legislature or the court its rule-making power) § to Wis. Stat. 751.12 [footnote (1987-88) omitted] should amend 751.19(2)(g) sec. establish, test, subjective in addition objective to the an judge test: A disqualify or should also or himself any proceeding impartial- in which her his or herself ity appearance impartiality or might reasonably be of questioned. hope With the that a will change pro- be posed, I call this matter to the attention the Revisor of of Committee, Statutes and the Law Revision secs. 13.83(l)(c), 13.93(2)(d), 1987-88, Stats. the Judicial Council, the Bar State Wisconsin and other interested of persons. Code Judicial Ethics. The Code Judicial Ethics of of subjective objective sets and an test to determine forth Ethics, a judge's impartiality. Code Judicial of 252, 256, subjective Wis. 2d Standard 3 test judge's is based on the own determination his or her of impartiality. objective judge Under the test the or re- viewing court must determine whether a reasonable person judge these would conclude that the facts partial appearance or that an partiality. there is of 105-06, 325 N.W.2d Walberg, 109 Wis.2d
In State v. Asfoor, 411, 436, 249 (1982), 75 Wis.2d and State v. (1977), and applied the Code the court N.W.2d 529 are to be subjective objective tests that the concluded judge be a circuit should to determine whether used sitting. disqualified from may on the cast doubt
The American TV decision applicability the two tests applicability of of of where Ethics in cases 3 the Code Judicial Standard of judge's denial the recusal litigant challenges court wrote in Ameri- appellate in an court. The motion governs Ethics that "the Code Judicial can TV it on their judges; has no ethical conduct effect judge may disqualification to act and qualification or required that would not have disciplined conduct be 757.19, 2d Stats." 151 Wis. disqualification under sec. at 185. might be
Any
in our cases
or
clarified
conflict
confusion
by
amendment to the statutes
legislative
in this case or
Supreme Court Rules.
amendment to the
court
Judicial Ethics.
SCR ch. 60 sets
Code
forth
*48
that
A third
law
must be consid-
Due Process.
source of
judicial partiality is the
any challenge
ered on
federal
of
process
guaran-
The due
clause
and state constitutions.
judge. SeeAetna
right
to a neutral and detached
tees
LaVoie,
(1986);
U.S. 813
Co. v.
475
Insurance
Life
Liljeberg
Acquisition Corp.,
[486 U.S.
Services
v.Health
Walberg, supra,
(1988);
847],
State v.
Superintending may Power. The basis this court fifth judge "superintending its disqualifying use for Const, 3(1). VII, authority all courts." Wis. art. sec. over superintending over grant The constitutional control of independent in this court an judges all courts and vests necessary separate jurisdiction adopt measures state, includ- administration in the due of for Wickhem, trial. See The ing assuring litigants fair Superintending Control the Wisconsin Power of of Supreme Court, (1941); L. State v. 1941 Wis. Rev. 153 Holmes, (1982); 31, 44, 703 106 Wis. 2d 315 N.W.2d Kading, 508, 520, In re E. 70 Wis.2d 235 Hon. Charles 238 N.W.2d N.W.2d N.W.2d all applicable disqualification laws is not This list of may able to cite other sources Litigants inclusive. be of judge reviewing law which the and a court should consider.N4
N4 judicial disqualification For discussion of herein, elsewhere see also J. addition to those cited Lubet, Shaman, Alfini, S. and J. Judicial Conduct (1990); Abramson, ch. L. Judicial and Ethics Disqualification under Canon 3C Code (American Society Judicature Judicial Conduct 1986); Bloom, Bias and Financial Interest Judicial Judges, Disqualification Federal as Grounds 662, (1985); Rieger, W. L. Rev. 35 Case Res. Councils and Judicial Conduct Judicial Reform Disability Judges Judge Judges ?, Act: Will Weinstein, (1988); The Limited Emory L. J. 45 Appeals Courts to Order Power the Federal Judge, Reassigned District Case to Another (1988); Symposium, Judicial Fed. Rules Dec. 267 Ethics, (1970); Kilgarlin Contemp. 35 L. & Prob. *49 Disqualification Bruch, and Recusal of Judges, Mary's (1986); 17 St. L.J. 599 Sparks, a, Judicial Recusal: Rule 18 12 St. Mary's L.J. 723 Systematic (1981); Lewis, [sic] Due Process: Proce- Concepts Recusal, dural and the Problem 38 U. of (1990); Burbank, Kansas L. Rev. 381 Procedural Rulemaking under the Judicial Councils Reform Disability and Judicial Conduct and Act of (1982); Frank, Disqualifica- 131 U.Pa. L. Rev. 283 Judges, tion (1947); Note, 56 Yale L. J. 605 of Disqualification Judges Bias in the Federal of for Courts, 79 (1966);Note, Harv. L. Rev. 1435 State v. Determining Proper Fie: Standard Recusal for Judges Carolina, in North 65 N.C. L. Rev. 1138 of (1987); Judge Note, Request A District Must Visiting Judge any Disqualify to Hear Motion to Him, Disqualifi- (1980); Note, 20 S. Tex. L. J. 395 Judges Prejudice, cation Federal Bias or 46 U. for Chi. L. Rev. 236 Carviou, See also State v. [154 Wis. 2d (Ct. 1990). 562] N.W.2d App.
I conclude that the ought court to order a response to petition in this case. The court should then decide petition, providing guidance on proper proce- dure invoking appellate review a judge's circuit denial a recusal motion and on the applicable laws disqualification under the circumstances this case.
‡ ‡ H? 131. The recusal motion in Matter Disciplin ary Proceedings Crosetto, Against Wis. 2d (1991) N.W.2d 879 rested on statutory grounds of Wis. 757.19(2) (f) § Stat. and (2)(g) and on "federal and state constitutional provisions," which was a secondary and not well very developed argument. The essence of the motion was that Crosetto had sued the justices in federal *50 although dismissed, had the federal case been court and justice alleged Attorney that each was biased.1 Crosetto Crosetto, ¶ motion asked each In the recusal 132. individually per justice himself or herself. The to recuse did decision, then-Justice Abrahamson curiam which individually justice join, reports re- that each not sought sponded. indi- court review of these No motion question Accordingly, the was decisions. because vidual per raised, neither the curiam nor Justice not the issue of what a dissent addressed Abrahamson's the court to should do when a motion asks entire court justice's Justice recusal decision. review an individual proposed court actions the Abrahamson's dissent what handling motions. should take for recusal Attorney The court sanctioned Crosetto. 133. The Crosetto dissent Justice Abrahamson dissented. outlining key questions beyond case, the the some went relating questions recusal, address court should and are still and unanswered were then troublesome significant issue and unanswered. One troublesome requires process is that due raised in the dissent objective application in con- standard, fairness of an using subjective was standard court trast 757.19(2)(g). § under Stat. Wis. recused themselves In some have other states See, e.g., Grievance have not. challenged. so Others when 2006) (Mich. Fieger, v. 123, 149-150
Administrator 179 N.W.2d alia, inter (statement rejecting, challenged justices, of four attorney against justices of by filed an argument lawsuits attorney presiding over his disqualified the court them Council, case); Bradbury v. Idaho Judicial No. disciplinary (Idaho Sept. *3-4 2009 WL 36175, _ P.3d _, 2009) (chief filed recusing on basis of lawsuit federal justices continued judge against justices; other district court matter). to hear "subjective This standard" interpretation §
of Wis. Stat. underlies 757.19(2)(g) Justice Roggensack's writing and it is today, problematic. urged Abrahamson also the court to accept the offer of the Judicial Council to assist the court a rule of adopting procedure relating justice's recusal. court did not accept Judicial *51 Council's offer assistance subject of on this or before after Crosetto. 136. Here is the full the text of of Justice part Crosetto
Abrahamson's dissent in addressing generally justices recusal of of this court: Attorney justices Crosetto moved that the seven recuse papers themselves. The motion assert the risk of "impermissibly high" Attorney bias is because Crosetto and plaintiffs against justices other in a suit federal direct, relating integrated personal, to the bar "levelled against justices substantial criticism plead ings and in a in the lawsuit."N15 brief filed federal Motion, Support p. Memorandum in of Attorney
N15. justices Crosetto that the reasons personal have a disciplinary pro- interest in this (1) ceeding allegations as in the lawsuit— follows: e.g., accusing justices violating Attorney of rights decade, Crosetto's civil more than a for promise oath, a reneging given under and of possibly giving inconsistent answers under oath to interrogatories may seriously damage justices' — (2) reputations; justice's an repu- elected interest in greater any tation is than almost interest financial (3) have; may he or she proceeding gives this justices opportunity an and diminish the diffuse allegations against by reprimanding them Attorney tarnishing Attorney Crosetto and thus Crosetto's reputation. lawyers Some apparently believe that complaint voicing against judge jeopardizes a a re- lawyers' comments the clients. See attorney or Force, Task Equal in the Wisconsin ported p. 244 Report, Final show a matter. Court statistics serious
Recusal in more than themselves judges recused circuit court 4,000 has justice recusal The issue cases in the last 18 in this court three times arisen at least months. Attorney Crosetto's suggests that majority opinion how should untimely. recusal was When
motion for ? Does the court's recusal litigant movefor argument or on matter on oral hearing the briefs affect do not know Ordinarily parties ? timing procedure opin- until the have recused themselves whether is released. ion in American TV and subjective set standard Is the forth Madison, Inc., 175, 182-83,
Appliance 151 Wis.2d (1989) (Abrahamson, J., participat- not 443 N.W.2d rel. Na- Compare State ex standard? ing), the correct St. Croix Ins. Co. v. Cir. Court tional Union Fire 90-0935-W, *52 County, May Order Case No. filed Liljeberg (Abrahamson, J., Health dissenting); and v. Corp., Acquisition 108 S.Ct. 486 U.S. Services (1988), objective adopting the L.Ed.2d 855 standard. justices prohibit to the court appropriate
Is it from for or in a docu opinion in a explaining, published either themselves, while file, why they recuse ment in the case they are not opinion why may explain in an recusing themselves?N16 6, 1990, adopted the this court September On
N16. L.l. the Procedure following interpretation of of justice Operating Procedures: Internal Court's C'JA may with the recuses or who herself file himself the opinion only published a part or as court of B. The justice part. no that: A. The took statement justice justice did not C. participate. The withdrew participation, Compare Bar f'] American Asso- (1990), Code ciation Judicial Conduct Canon E3 of (1) F which A judge disqualify and state: "E. shall a proceeding or in which the himself herself judge's impartiality might reasonably ques- be disqualified .... F. A judge by tioned the terms of may 3E Section disclose on the the record basis of judge's disqualification. the following the disclo- If any disqualification sure basis other than of for personal prejudice bias or concerning party, the parties lawyers, without participation by the agree all judge, judge that the not should be dis- qualified, judge willing partici- and the is then to pate, judge may participate proceeding. in the agreement incorporated shall be record of proceeding." What should majority action the court take when all aor justices have to recuse responded themselves? BAPR Attorney Crosetto's part recusal motion in pointing out that Supreme Court must hear matter only entity jurisdiction because it is the with to decide attorney disciplinary proceedings. The Judicial Council similar has raised concerning disciplinary issues action against Court. See Judicial Report Council dated April 1990. The Judicial Council problems, reviewed the asked the court to con- adoption procedure sider the relating rule to the matters, handling such assist court offered drafting with a rule. The has responded court not to the report. Council's This case need demonstrates the this court to address
promptly relating issues recusal. Matter Disciplinary Crosetto, Proceedings Against *53 (1991) 160 601-604, Wis. 2d 466 N.W.2d (Abrahamson, J., dissenting).
436 % íj: ijs % Supreme Court B. The United States APPENDIX Disqualify Retains Jurisdiction One of Its Own Members Multiple are learned from a lessons review disqualification practices of of the United States Supreme powers the court of its and Court inform jurisdiction justice's recuse him- to review a refusal to self herself.2 challenges years, Over numerous have Supreme justices.
been made to United States Court power it has never held that lacks the The Court judicial peer participation in a case. exclude a purposes, importantly, of seven Most our Supreme adopt refused to an order United States stating "without the author- 1945 the Court was ity" participation of a in a case. A to rule on recounting appears this incident in William H. Supreme Rehnquist, Was, It How It How Is The Court: 2 the United judicial disqualification and For discussions Flamm, Court, see, e.g., Richard E. Judicial Supreme States (2d 2007); Bassett, Lyn § Disqualification 29.4 ed. Debra Re Court, (2005); Hastings L. J. 657 cusal and the 56 Frost, Keeping Up Appearances: A Process-Oriented Amanda Recusal, (2005); Kan. L. John Approach to Judicial Rev. 531 Leubsdorf, Disqualification, Judging Theories and Judicial Lewis, (1987); Systemic B. L. Rev. 237 Paul Due N.Y.U. Recusal, 38 Concepts and the Problem U. Procedural Process: (1990); Rehnquist, H. Sense and Kan. L. Rev. 381 William Ethics, The the Ass'n of Record of Nonsense About Judicial Roberts, (1973); City Caprice L. the Bar of the N.Y. Procedural Void Guarding Fox the Henhouse ?: Recusal Resort, (2004); Rutgers L. Rev. 107 Last the Court of Jeffrey Stempel, Rehnquist, Recusal, Reform, 53 Brook. W. L. Rev. 589 *54 (1987). Court 65-67 The has not such an order adopted Indeed, since 1945. as we explain, shall the Court has retained its to rule on motions power justice's for a and has exercised its disqualification over the authority justice.3 of a disqualification 139. The general practice United States been
Supreme has to review the recusal not. decision of an In justice.4 contrast, individual the Wis-
3 Supreme The United explicitly States Court has not litigant aby arguing confronted motion that the Court should disqualify one of participating its matter as a process. All constitutional due the recusal have motions been Co., Inc., v. Caperton Massey A.T. Coal decided before 129 S. Ct. (2009). 2252 4 practice of federal district courts and federal courts of appeal regarding vary. recusal seems to judicial
For discussions disqualification in the federal see, e.g., courts, Specifying Abramson, district Leslie W Courts, Disqualification Grounds Judicial in Federal 72 for (1993); Meeting the Chal- Burg, Neb. L. Rev. 1046 Edward G. lenge: Rethinking Disqualification, Judicial 69 L. Cal. Rev. 1445 a brief
For discussion of the procedure disqualifying for Flamm, Disqualifica- Judicial appellate judges, see Richard E. (2d 2007). tion ch. 29 ed. For further judicial disqualification discussions of in the e.g., see, appeal, Lyn Bassett, federal courts of Judicial Debra Disqualification Courts, Federal Appellate L. 87 Iowa Rev. (2002); Hutt, Note, Wrong A Remedy: Without A Jason Proposing Recusal Procedure Circuit Court Judges, Vt. (1998) (noting L. procedure Rev. of a absence to recuse judges federal circuit objectivity reasonably court whose can be questioned). Brown, (Fed. Aronson v.
In 1994), 14 F.3d Cir. practice court described recusal appellate in federal courts as follows: to review the Court's has been practice
consin individual
participate.5
decision of an
in the United
In discussing disqualification
by examining
start
Jewell
Court we
States Supreme
(1945),
U.S. 897
v. Local No.
Ridge
Corp.
Coal
seeking disqualification
cases
early
one of the
notorious
*55
because the case demon-
justice.
begin
of a
We
here
not
a
the Court does
have
consistent
strates
that
that
challenges,
with disqualification
practice
coping
subject
have been
the Court's disqualification practices
charges
[A]ppellate
member of the
courts have reviewed
that a
disqualified
appellate court
have recused
in a
same
should
or be
variety
particular
in a
Such
have been conducted
of
case.
reviews
ways,
procedure
In Maier v.
adapting the
to the circumstances.
(Fed.
1985)
Orr,
1578,
panel
1583
Cir.
a
of the Federal
758 F.2d
challenged judge decided
did not include the
whether
Circuit that
455,
§
U.S.C.]
judge
[28
have
in terms of
that
should
recused
party
response
parly's
after
received an
a
motion made
challenged judge. Hepperle
by
In
authored
v.
adverse decision
1979)
(5th
Johnston,
F.2d 609
court considered the
590
Cir.
judges
prior appeals
appellant's request
eight
who
be
that
sat on
three-judge panel
disqualified
personal
prejudice;
of
for
bias or
a
eight challenged
circuit,
member
was one of the
one
of which
Savings
judges,
issue.
v.
Federal
decided the
In Scarrella Midwest
(8th
denied,
Cir.),
885,
Loan,
1207,
429 U.S.
F.2d
1209
cert.
&
536
(1976),
237,
judges
a
that all
97 S.
¶ 141. In a motion for a in Jewell participation challenged Justice Black's in the case was ground litigants represented on the that one of the was lawyer personal who had been Justice Black's attorney partner.6 and former law Court, entire participating, entry with Justice Black issued a docket rehearing statement as follows: "Petition denied."7 joined only by ¶ 142. Jackson, Justice four-paragraph Frankfurter, filed a concurrence with- any legal authority, objecting out a citation to to the issuing deciding Court's an order the motion. Justice *56 Jackson concluded that Justice Black alone should respond disqualification. to the motion for "[prac-
¶ 143. Justice Jackson observed that the
years [about
tice
of
Justices over the
motions to
disqualify]
diversity
has
uniform,
not been
and the
of
question
to
attitudes
doubtless leads to some con-
may expect
fusion
toas what the bar
and as to whether
any
in
action
case is a matter of individual or
responsibility."8
opined
collective
Justice Jackson also
complaint
properly
that the
was "one that cannot
be
6See, e.g.,
Hutchinson,
Feud,
Dennis J.
The Black-Jackson
Sup.
203,
1988
Ct. Rev.
7
Ridge
Corp.
6167,
Jewell
Coal
v.
No.
Local
addressed denying it."9 in concur disagreed Court 144. Seven members Frankfurter; the seven Jackson and
with Justices disqualification as motion one addressed treated the they it for the Court. Indeed a Court, and answered the majority adopt proposed Chief an order refused stating that the was "without Justice Stone participation.10 authority" Black's to rule on Justice one Frank, The late E remains John what judicial disqualification, dissertations on the seminal subject although "Jackson's views on the concluded that points an clear, at all his statement shows are not Supreme opinion in the Court on difference of enormous subject disqualification its of members."11 Ridge participation in Jewell 146. Justice Black's generated have sub- and Justice Jackson's concurrence commentary, case is understood and the best stantial Ridge was its context. The Jewell concurrence historical rivalry sharp among amidst a members authored judicial question principles and the Court over both might appointed As a be the next Chief Justice.12 who generalization, "the era featured Court of 1941-54 judg- than dimensions of human rather institutional (Jackson, J., concurring). Ridge, 325 U.S. Jewell H. How It Rehnquist, The Court: See William (1987). Was, It Is 65-67 How Frank, L.J. Judges, 56 Yale Disqualification John P. Frank was a law clerk Professor first 605-06 sympathetic biographer of Justice Black and later a Feud, Hutchinson, Dennis J. The Black-Jackson Black. See 203, 223. Sup. Ct. Rev.
12 Hutchinson, Black-Jackson generally Dennis J. The See Feud, Like of President Sup. 1988 Ct. Rev. 204-07. several to the Su appointees D. United States Franklin Roosevelt's Court, to the preme appointed Justices and Jackson were Black
441 to ing ... contrast the Court of More today."13 par- ticularly, Black Justices Jackson and had a and personal rivalry that one jurisprudential contemporary journal- ist characterized as a "blood feud."14 Justice Jackson's was concurrence widely (and now) then understood have been authored as primarily criticism of Justice public Black's partici- in the rather pation case, than as finely reasoned legal Jewell Furthermore, Ridge argument.15 was decided no disqualification when federal statute applied high offices, political prior judicial Court from without experi- ence, Justice, both becoming and had ambitions of Chief if not President. See Hutchinson 207; Domnarski, The at William Justices, Black, Douglas, Great 1941-54: & Frankfurter (2006). 2-4, 22-23, Jackson Chambers 101 13 Justices, Black, Domnarski, The Great 1941-54: William (2006). Douglas, & Jackson in Chambers 166 Frankfurter Feud, The Black-Jackson Hutchinson, Dennis J. alia, Sup. 203,216 (citing, Rev. inter Fleeson, Ct. Doris Story Court Feud: Inside Jackson-Black Laid Battle Before President, Washington Evening Star, May 16,1946, Harassed at 15). Douglas, Justice William another ambitious rival of Jackson's, very later recounted that "it was evident... that Bob thoroughly Hugo Jackson Black destroy disliked out to was destroy him. I mean him in him." See discrediting the sense of Justices, Black, The Great Domnarski, William 1941-54: Dou (2006). glas, & Jackson in Chambers 40-41 Frankfurter Frank, Disqualification See John E Judges, 56 Yale L. (1947) 605, 605-06, J. 607 n.5 (summarizing contemporaneous editorials); Feud, The Black-Jackson Hutchinson, Dennis J. Ct. Sup. Rev. year after Jewell Ridge, when President Truman then-Treasury Secretary named Vinson as the next Chief Jus- tice, with public rumors that Justice Black had threatened (and if resign got Justice versa), Jackson the center seat vice public Jackson sent a Congress then-scandalous cable to serving prosecutor while still in the Nuremburg as lead trial of openly Nazi war criminals. Justice Jackson criticized the han- *58 455, § 28 as Today, Court Justices.16 U.S.C. Supreme in out standards and 1974, objective sets amended to Justices they apply and disqualification, grounds Court.17 of the Ridge he in and perceived the conflict of interest Jewell
dling of repeated "if I am on the I will it is ever while bench warned letter my opinion look like a of recommen- Ridge make Jewell Hutchinson, comparison." Dennis The Black- J. dation Feud, 203, Sup. Ct. Rev. 220-21. Jackson 1988 scrutiny an Ridge has received intense as While Jewell in incident, is not in reference to recusal the case cited historical (9th 2007), al., ed. Supreme Court Practice Eugene Gressman et leading practice. treatise on Court (1972) Tatum, 824, (Rehnquist, Laird 409 U.S. See v. J.). 455(a) § or required "any justice Before 28 U.S.C. in any in case which he has
judge... disqualify himself counsel, material interest, been of is or has been a substantial has any attorney to render witness, party is so or his as or related trial, appeal, on the or opinion, in for him to sit improper, it his in amended 1974 to omit therein." This section was proceeding subjective in "in order to eliminate the phrase opinion," his Rep. objective an See H.R. No. adopt standard. standard (S. 93-419), 2d Rep. Cong., 93d Sess. 5 93-1453 No. 455(a) provides § of 28 The current version U.S.C. any proceeding himself in in which his judge disqualify "shall might reasonably be impartiality questioned." explained 1974 amendment was purpose (6th Bailar, 1980), setting Cir. as v. 625 F.2d Roberts subjective decision objective judge's so that a forth an standard longer regarding impartiality his or her no determinative was States, Liteky § v. disqualification under 455. See also United ("The (1994) massive 1974 revision made U.S. 546-48 (a)... entirely new 'catchall' changes .... was an Subsection relationship' covering both 'interest or provision, recusal objective all prejudice' grounds ... to be evaluated on an 'bias or basis, reality prejudice not so that matters is bias what (emphasis original).). appearance" its but In sum, Justice Jackson's concurrence is just that —a concurrence, not an opinion of the Court. Justice Jackson's concurrence was not adopted by in Jewell Ridge and has not been expressly adopted thereafter. *59 Despite
¶ Jackson's Jewell con- Ridge currence, the rules of the United States Supreme Court treat motions for recusal the same as any other motion. recusal, Motions for like all motions, are addressed to the entire Court.18
Another effect the 1974 § to amendments 28 U.S.C. 455 challenge was to "duty the traditional to sit" rationale for resolv- ing questions close disqualification in favor of sitting on a case. Flamm, See Richard E. Disqualification Judicial § 20.8 at 605 (2007) (the duty to sit displaced); rule was Jeffrey Stempel, W Williams' Ghost: The Problematic Persistence Duty to Chief Sit, (2009) (the 813, Buff. L. Rev. legislative intent was to rule). duty abolish the to sit 18See S. Ct. Rule 21. These motions are in contrast to the more limited and specific category of Applications Specific to Justices, governed by S. Ct. Rule 22. Eugene al., See Gressman et Supreme Court (9th 2007). 16.1, § Practice 833-35 ed.
Sometimes party may use a less formal method than a motion, such as a letter to office, the clerk's suggest recusal to See, an justice. individual e.g., Lyn Bassett, Debra Judicial Disqualification in Appellate Courts, the Federal 87 Iowa L. Rev. (describing 1215-16 the recusal of three considering the request stay for a Napoleon execution of 2001). Beazley in
In justice, some circumstances a motion, without a recusal voluntarily See, recuses himself or Pfizer, herself. e.g., Inc. v. Abdullahi, 09-34, (Nov. No. 130 S.Ct. WL 3517904 2009) ("The Chief Justice Sotomayor and Justice part took no in the consideration or petition."). decision of this
Other justice, times a motion, without a recusal may explain his decision not to recuse. See Corp. v. United Microsoft Court has not been consistent han- Court for of a motions addressed recusal dling the Court has a docket state- entry Sometimes justice. of a seeking motion recusal simply denying ment challenged apparently participat- with the justice, in the denial.19 ing has a docket entry 151. Other times a denial of the motion merely stating by
statement
an
or
justice,
explanation
with
without
challenged
challenged justice.20
statement
entry
152. A
docket
statement was
different
United
District Court
v.
States
Cheney
used
Columbia, District
The first
U.S. 913
motion
entry
referred the
addressed
docket
statement
(Justice
States,
Rehnquist's
explain
Because the Court's
reasoning of the
in
not show the
explanation and does
motion,
the indi-
deciding
assumption
recusal
subject
not
to court review.
justice's decision has
been
vidual
justice's
review an individual
decision
of the Court to
failure
legal
in
literature.
recusal motions has been criticized
20
(1980) (J.
See,
v.
445 requesting to the Court Justice Scalia's recusal Justice Scalia.21This seems to make clear that the court jurisdiction as a whole took over the in motion the first individually instance. Justice Scalia then denied the publishing opinion.22 motion, a memorandum No court denying order was issued the Court the motion. Rehnquist ¶ 153. Justice wrote 1972 that "un- existing practice disqualification der the of the Court has been a matter of individual decision Later, ... ."23 Rehnquist generally Hanrahan, Justice wrote: "Since [of the Court an as institution leaves such motions though they recusal], even be it, addressed to to the they decision individual Justices to whom re- ., fer, individually."24 I shall . treat the motion as addressed to me Cheney
¶ 154. In case, the Court's docket entry referring statement the recusal motion to Justice simply Scalia "In stated: accordance with its historic practice, the Court refers the motion to recuse in this case to Justice Scalia."25 21 Cheney v. Columbia, U.S. Dist. the Dist. 540 for U.S. 1217 22Cheney Columbia, v. U.S. Dist. Court the Dist. 541 for (2004) J.). (Scalia,
U.S. 913 Tatum, (1972) Laird v. 409 U.S. (emphasis added). (1980) (em Hanrahan Hampton, v. 446 U.S. added). phasis 25Cheney v. U.S. Columbia, Dist. Court the Dist. (2004) added). U.S. (emphasis Indeed the movant in Cheney case asked the Court as a whole to address the *61 Frost, motion. See Amanda Keeping Up Appearances: A Process- Approach Recusal, Oriented to Judicial 531, 53 U. Kan. L. Rev. (2005) 575 (documenting public statements of the Sierra Club filed). at the time the motion was "gener- operative "practice," ¶ are words 155. Stating ally," practice." that the "historic and "historic "practice" disqualifica- practice" of the Court leave thing same is not the as tion to the individual power stating not have the the Court does jurisdiction an individual to determine or review disqualification. justice's alleged To those who write carefully, "generally" opinions the word leaves and read open practice possibility at a of a different or result circumstance. As one com- later date or a different describing practice United States at the mentator "[Although Supreme phrased it, the standard for Court judicial significant attention, recusal has received truly procedure by is made is which the decision actual a creature of tradition."26 Finally, the docket records of Court practice" the Court do not tell
the "historic story complete Court treats recusal of about how the justices as a collective decision. deliberate con- The Justices benefit from colleagues disqualification. their about
sultation with "[i]n Ginsburg Bader has stated that Justice Ruth [recusal] makes, individual Justice end is a decision the among always the rest of us."27 but with consultation judgment about recusal is not 158. Common only ad basis but is also used to used on an hoc recurring policies anticipation memorialize recusal sitting justices publicly issued situations. In seven relating Policy" of Recusal to relatives who a "Statement Pearson, Note, Foreign Recuse? R. Matthew Duck Duck Improving Law & Recusal Common Guidance Justices, L. 1813-14 62 Wash. & Lee Rev. Ginsburg, Open An with Ruth Bader Discussion added)). (2004) (emphasis Conn. L. Rev. *62 practice may appear law whose law firms before the Roberts, Court.28 Chief Justice who took his seat on September adopted policy 29, 2005, this on written September 30, 2005.29 comparable recognition A of the Court's responsibility
collective Thurgood was also invoked when Justice 4,1984,
Marshall sent his October memoran- "describing policy Justices, dum to the other a new proposed adopt involving he in recusals to cases "crisp blessings" NAACE"30Justice Marshall received 31 writing eight from all other Justices ¶ 160. These actions evidence a clear and sensible willingness part on the of the Justices to exercise their supervisory power possibility collective over both the appearance actual bias and the of fairness at the Court. ¶ 161. An even clearer exercise of the Court's responsibility provide quali- inherent institutional group fied was evidenced on October eight 1975, when of the court's nine members met and (7 opposition), voted to with Justice White in effectively strip voting writing power of Asso- Flamm, See Richard E. Disqualification, Judicial Appen (2007) dix D at (reproducing policy by press as issued release). See Ginsburg, also 36 Conn. L. Rev. (describing at 1039 it"). policy the shared agreement anyone as a "written can read — Davies, See Ross E. The Reluctant Recusants: Two Supreme Disqualification, Parables Judicial Bag 10 Green 2d (2006). 79, 91-92 agreed Justice Alito has also existing this policy. Davies, See Ross E. The Reluctant Recusants: Two Supreme
Parables Disqualification, Judicial Bag 10 Green 2d (2006). 79, 81-82 Davies, See Ross E. The Reluctant Recusants: Two Parables Disqualification, Bag Judicial 10 Green 2d 79, 81-82 Douglas.32 Specifically, ciate Justice William O. justices agreed Douglas other that Justice would not be assigned any opinions to write and that the court would any Douglas mandate 5-4 not decisions which Justice majority.33 Douglas inwas had suffered a *63 disturbingly "[h]is serious stroke and uneven behavior public in inside Court and showed that he was not enough a'judge."34 well to serve as Douglas words, In other "when failed to recuse himself.. . the rest of the Court over and took made the for him."35 decision The method and reasons present case, for such action are different than the but power the invocation of the Court's institutional over its individual members is clear. The conclusion to be drawn from the dis- practice
qualification Supreme of the United States 32 Davies, See Ross E. The Reluctant Recusants: Two Supreme Disqualification, Bag Parables Judicial 10 2d Green (2006) 79, Byron White, 20, (citing 88-89 Justice Letter of Oct. 1975, Hutchinson, reprinted in Dennis J. The Man Who Once (1998)). Whizzer White 463-65 Was Davies, See Ross E. The Reluctant Two Recusants: Supreme Disqualification, Bag Parables Judicial 10 Green 2d (2006) 79, White, 20, (citing Byron 88-89 Justice Letter of Oct. 1975, Hutchinson, reprinted in Dennis J. The Man Who Once (1998)). Was Whizzer White 463-65 Davies, Ross E. The Reluctant Two Parables Recusants: Supreme Disqualification, Bag 79, Judicial 10 Green 2d (2006) Garrow, (citing Decrepitude David J. Mental on the U.S. (2000)). Court, Supreme 67 U. Chi. L. Rev. 1052-56 Davies, E. Ross Reluctant Recusants: Two Parables Supreme Disqualification, Bag Judicial 10 Green 2d (2006). example justices joining For another of the to force the 1924-25, incapacitated namely removal of an Justice McKenna, Garrow, Joseph Decrepitude see David J. Mental on Court, Supreme the U.S. 67 U. Chi. L. Rev. 1015-16 public practice Court is that the has not been consis- apparently informally agree tent. Justices confer and disqualification practices. importantly, Most power disquali- Court has never denied its to decide the obligation fication of one of its members its provide legally qualified litigants. forum to all Indeed power disqualify the Court has exercised its one of its Douglas, members, own Justice William O. and forced Joseph another, the retirement of McKenna. examining disquali- 164. What is clear from practice Supreme fication of the United States Court is generally that it has not reviewed individual deci- response sion motion, of a Justice to a recusal but has power disqualify not ceded its one of mem- its own bers.36 practice
¶ 165. Thus the of the United States Supreme very practice Court is different Supreme Wisconsin Court. The Wisconsin *64 repeatedly justice's Court has reviewed an individual participate ¶¶ decision to in a case. See 39-45. The practice in this state has been exercise, to rather than jurisdiction reserve, our to decide the merits of a justice's response disqualification to a motion, "in the [the court's] legitimacy integ- defense of own and of its ,"37 rity . . . proposals
¶ 166. Numerous
have been floated to
change
disqualification practice
at
the United
Supreme
suggested
States
Court. No one has
that power
change
disqualification
Court lacks the
its
36The
Supreme
has, however,
United States
re
viewed the
judges
decisions of state court
participate
in cases
and
may
has held that a failure to recuse
constitute a violation
process.
of due
Caperton
See
and cases cited therein.
37City
Wis.,
of Edgerton
v. Gen. Cas. Co.
190 Wis. 2d
513,
ij: % % APPENDIX C. The Recusal Practice of Our Sister
State Courts Is Instructive 167. This year's decision in Caperton has spurred increasing and a commentary certain amount of hand-wringing and among lawyers judges. With good reason. One need not understand the furthest implica- tions of the decision to know that these implications will be significant. 168. Dissenting decision, from the Chief
Roberts observed that
and
"Judges
will
litigants
surely
encounter other[] [uncertainties] when
are
they
forced
to ...
apply
majority's decision in different circum-
stances." 129 S.
(Roberts,
Ct. at 2272
C.J., dissenting).
Justice Scalia proclaimed: "[T]he principal consequence
today's
decision is to create vast uncertainty with
to a
respect
point of law that can
be raised
all
(at least)
litigated cases
those 39 States that elect
their judges."
(Scalia,
38See, e.g., Caperton Massey Comments: v. A.T. Coal Co.: Bias, Due Process Limitations the Appearance Judicial (2009); 123 Harv. seq. Karlan, L. Rev. 73 et Electing Pamela S. *65 Elections, Judges, Judging and Caperton, the Lessons 123 (2009); Harv L. Rev Lessig, 80 Lawrence Everybody What Accept, (1990); Knows and Too Few Penny 123 Harv L. Rev. 104 White, J. Relinquished Responsibilities, 123 Harv L. Rev 120 (2009); Day, Terri Buying R. Caperton Massey: Justice: v. A.T. here," In "where we addressing go 170. the current recusal of state
understanding practices and "how we here" will be assessing got courts supreme the coun- We have therefore looked around invaluable. decisions, of recusal try history practice at in the other states' courts of last resort. particularly observations: 171. Three core Caperton high problems raises that most state yet begun courts have not to address. One recent exception Michigan Supreme is the Court. high courts have reviewed deci- Some state recusal members;
sions of their individual others have not. practice altered their at different Courts have history. points in their Dollars, Process,
Campaign Mandatory Recusal Due Gibeaut, Caperton (2008-09); Miss. C. L. Rev. John capers: ruling sparks judicial recusal states to mull court's laws, contribution J., 21; Aug. A.B.A. at L. James Gibson Interest, Campaign Support, Caldeira, Gregory & A. Conflicts of Legitimacy Impartiality: and Judicial Can the Courts Be ?, by Rescued Recusals CELS 2009 4th Annual Conference on Empirical Legal Paper, Studies available at SSRN: 1428723; http://ssrn.com/abstract= Stephen Hoersting M. & Smith, Speech Caperton Caper and Elections: The Bradley A. Conundrum, Kennedy and the 319; Sup. 2008-09 Cato Ct. Rev. A brave new world of Ayers, Kevin C. & Newsom Marc James judicial Supreme recusal? The United States Court enters fray, Disqualifica- Judicial (2009); Lawyer The Alabama Caperton, tion at Statement Judicature, July-Aug. 2009, 4; After Jr., President, American Bar Thomas Wells Association Re: ofH. Ruling Caperton Court The United States in Co., Inc., Al., 8, 2009, Massey Et Al. v. A.T. Et Coal June http://www.abanet.org/abanet/media/statement/ available at (last 2010) ("[T]he statement. cfm?releaseid=671 visited Jan. standards laid out the court must not be viewed as the final issue."). word on this *66 supreme practice, 3. State courts' recusal at least Caperton, before has been of a matter tradition or considerations, prudential espousal not an of a lack power of jurisdiction.39 172. Several states' have supreme courts explic- exercised or the of
itly authority reserved the state's court disqualify one or more of its highest own members.40
39See, e.g., & Fidelity Catastrophic Ins. Guar. Co. v. Mich. (2009) J.) Ass'n, 243, (Young, Claims 773 254 (noting N.W.2d year-old disqualification practice"); In re "170— Canon modification of 3A(7) Conduct, the Minnesota Code Judicial 438 of of (Minn. 1989) ("It 95, 95 long practice N.W.2d has the been of this to honor of court decisions its individual members as to whether participate pending in a proceeding."); Casey, Goodheart v. (Pa. 1989) ("[U]nder 757, A.2d law, 565 762 our strong tradition has been recognizes established which that each judge primary the responsibility determining has the validity of a challenge participation .."); to his or her Noriega Rodriguez . . Colon, v. Hernandez 120 D.P.R. 20 P.R. Offic. Trans. Rafael 296 (P.R.1988) 285, 289, (noting past one of "collegially instance tenability on passing] of the of disqualification one of the "; factors, justices... discussing traditions, legal "[different judicial circumstances principles organization," compar of ing jurisdictions, other and ultimately adopting "practice" banc). Court not decide recusal motions en 40See, e.g., Superior Angeles County, Mosk v. Los of (Cal. 1979) (court P.2d composed 1030 lawfully pro tempore justices disqualified participation after justices themselves); other all recused Sage had Mitchell v. 1943) Stores, (Kan. (court 143 P. 2d denied motion to justice; challenged justice participate recuse not did deciding motion); Niewoehner, ex State rel. Hall v. 155 P.2d (Mont. 1944) (court reviewed and denied motion to recuse merits); Dep't four five its of Transp. State ex rel. (Nev. (court 1997) Barsy, v. 941 P.2d denied motion to (overruled GES, disqualify justice) grounds on other Inc. v. Burlington v. Justices Board (N.J. 1793), WL 1 N.J.L. Fennimore, sitting judgment early example of a court as an cited Chief Justice In Fennimore of its own.41 one Supreme *67 Jersey had an of New of Judicature Court published a declaration case. The court in the interest judges by interest was too that "the the other two appro- that it was therefore indefinite," and and remote preside. priate and for him to sit early case, 1863, in the Su- In another question preme the Florida, faced with Court relationships of two and trustee stock-holder whether disqualify under them were sufficient of its members any is there statute, that when concluded the state judge qualification question "the safest of a the about by determining legal way the same is a decision and Court____"42 recognized Supreme in Court The Florida requests procedural for treatment of its 1979 that always justice disqualification been consis- had not of a (Nev. Casey, Corbitt, v. A.2d Goodheart 2001)); 565 11 21 P.3d 1989) ("Where (Pa. raised before the 757, disqualification is obvious, remaining merit of the motion and the Court accede to the duty that Justice to request Justices have 758, Concerning Judge, a Inquiry 81 P.3d request."); In re recusal 2003) curiam) (court (Utah disqualify motion to denied (per the facts proceedings because judicial disciplinary justice from impartial questioning [his] for reasonable basis "do not create a reviewing the participate in ;" challenged justice did not ity ... motion). Judges, Yale See, Disqualification Frank, e.g., P. John (1947). 605,
L.J. Bailey, 10 Fla. Improvement Fund v. Internal Trustees 1012, *5 1863 WL Carlton, In In Estate 2d tent.43 re 378 So. (Fla. 1979), 1216-17 the Court "receded" from earlier adopted it called the "modern" cases and what view legal each sufficiency must determine for himself both the request seeking disqualification
of a his propriety withdrawing any particular in circum- practices stances. selection of different at different times makes clear that it is a choice made the court jurisdiction. prudential reasons, not for for lack of 176. In Court of Oklahoma justices disqualified participating two of its own contempt proceeding lawyer argued which against were biased him. The Oklahoma Su- preme flatly rejected argument of the two challenged justices they only should be "the sole and judges qualifications, they that, of their own if abuse only remedy by proceeding this discretion ... the impeachment. "44 *68 Supreme ¶ 177. The Oklahoma Court concluded (which the state constitution and are under laws Wisconsin), substantially similar in the to those court power authority, question had the when the was properly presented, disqualify any one or more of its provided members. When "it was what constitutes dis- qualification justices Supreme Court, for but no provision was made under the law as to how or what question disqualification manner the was to be deter- by question mined ... should be determined way any question properly the same as other court ,"45 it. . . before 43 (Fla. 1979) Carlton, 1212, In 378 So. 2d 1216 re Estate of 44 (Okla. 1927). Martin, State rel. Short v. 256 P. 685 ex (Okla. 1927) Martin, P. State ex rel. Short v. cases; (reviewing challenged justices partici numerous two dissented). pated and supreme promul- ¶ 178. Some state courts have gated procedure supreme rules of for court review of the justice by disqualification of a the court. recently 179. Most in November
Michigan Supreme
past practice
Court discarded its
respond
recuse,46
individual
alone
to motions to
Michigan Supreme
without review. The
Court has now
adopted
justice's
stating
participation
a rule
that if a
challenged,
challenged justice
a case is
shall decide
publish
reasoning
the issue and
his or her
for the
justice
challenged
decision. If the
denies the motion for
disqualification,
upon party's
then
motion
court
disqualifi-
the entire court shall decide the motion for
explain
grant
cation and
the reasons for its
or denial of
disqualification.47
the motion for
Appellate
¶ 180.
16.3,
Texas Rule of
Procedure
promulgated by
Supreme
requires
Texas,
Court of
appellate judge
that an
faced with a motion to
individually grant
recuse must either
the motion or
Fidelity
See
Ins. & Guar. Co. v.
Catastrophic
Mich.
(Mich.
Ass'n,
2009);
Claims
773 N.W.2d
Dep't
Adair v. State
(Mich. 2006).
Ed.,
Rules of Procedure modeled disqualification provide that a faced with disqualify or herself or motion must either himself certify the matter to the other members of the Court for challenged justice may not sit to consider decision. The 31(e)(2). App. the motion. Rules of Proc. Rule This Vt. supersedes prior practice that an individual rule justice rules on a motion to recuse.48 promulgated rule 182. The Vermont court its emergency an basis 1987 without resort to the cus- tomary procedures for notice and comment because of large pending disqualify number of motions to [did] "existing appellate the fact that the rules and Code ruling provide adequate procedures not suitable and upon disqualify." Reporter's motions Notes to Vt. 31(e)(2) Emergency App. Rules of Proc. Rule —1987 Amendment. proce- states, In other statutes set forth a justice's supreme disquali-
dure for the court to review a example, provides For a Nevada statute that the fication. participa- Court of Nevada sits—without the challenged justice determine whether tion of —to alleged grounds require disqualification bias or other 1.225(4) § its members. Nev. Rev. Stat. Ann. of one of (Vt. 1987) ("For Hunt, State v. 527 A.2d See years judge individual decide our law has dictated that each according to the dictates of conscience the issue of his or her ability impartially judgment."). sit *70 states, In several the historic practice ap-
pears to be for an individual
justice of the supreme
court to decide a motion for his
her
recusal without
decision or formal review
the other
by
members of the
court.49
(Ark. 2001)
See,
James,
e.g., Stilley v.
(motion
disqualify
justices;
to
justice individually
all
"each
disqualify");
Carlton,
declines to
1212,
In re Estate
378 So. 2d
of
(Fla. 1979) (each justice
1216-1217
must determine for himself
legal sufficiency
request
both the
of
seeking
disqualifica
his
tion and the propriety withdrawing
any particular
of
circum
(Ill. 1986)
stances);
Wilson,
People
302,
v.
497 N.E.2d
303-04
J.) (Justice
(Simon,
individually
Simon
recusing himself "to
avoid
appearance
impropriety";
reject
of
suggestion
"I
Attorney
my
advanced
the State's
...
colleagues
have
authority
disqualify
reject
me. ... I
suggestion
also
my colleagues
authority
have the
to order me
partici
(Ind. 2003)
Borst,
J.)
pate.");
(Boehm,
Peterson v.
For
may
sitting
Supreme
remove
Mississippi
Court
whether the
case,
Tighe v.
considering a
see
objection from
justice over his
(Miss. 1995).
Crosthwait,
Because
have not voted to or to motions, these nor has agree Bradley. Chief Justice Abrahamson or Justice I clearly inappropriate
with them that a denial is briefing now. These motions deserve full and oral arguments.1 Applying briefing facts, law to after argument, job is the that Wisconsin do, were elected to and this court should do it. surrounding 187. The circumstances this mat- changed significant ways. ter reviewing have After allegations the ready, initially and the law, relevant case I was early stages deny
in the of the matter, to require motion directed to the court *72 My position Gableman's recusal. initial was based on my understanding reasoning at that time that the of the majority petitioner's of the court would address the arguments concerning Caperton, and that the reason- ing expected would be set forth in a denial order. I that position jurisdic- the court would take the that we had power fully. tion My or to consider the matter initial position allegations was also based on the in the initial having campaign motion to do with I statements. ex- pected voting majority I would be with the of the justices denying in my the motion. As it out, turns expectation could not be realized. separately express my I write consterna-
tion, first, that
three
refuse to address ad-
equately
very
by
the
serious issues raised
these mo-
they
position
tions. Because
take that the court has
1 Chief Justice
writing,
Abrahamson's
¶¶
125-127.
asks,
writings dodge
Allen
their
to do what
no power
undertaken
to distinguish
that could be
analysis
litigant
claim from that of
Allen's due process
to the disposition
is essential
Caperton2
analysis
—
by
Roggensack
Justices
writings
of this matter.3
thus,
treat
the due
Prosser,
essentially
process
That was the
nonjusticiable.
approach
claim as
due
claim
process
dissent4
regarding
Justice Scalia's
On matters of United States
presented
Caperton.
law,
holding
this court is bound
constitutional
Court.
Supreme
of the United States
majority
mean, it at
Further,
may may
or
not
Caperton
whatever
subjective
that a
determination
justice's
least
is clear
enough:
is no
impartial
longer
that he or she can be
bias,
inquiring
into actual
and the
The difficulties
one,
private
simply
inquiry
is often
fact
objective
the need for
rules. Otherwise
underscore
judge
may
adequate protection against
no
there
be
mo-
simply
misapprehends
the real
who
misreads
Co.,
2252, 2265
Caperton
Massey
v. A.T.
Coal
129 S. Ct.
(2009)
Appeals
(reversing judgment
of the
Virginia
grounds that the Due Process Clause
of West
on the
Amendment to the United States Constitution
the Fourteenth
in the
majority participated
in the
was violated when a
recusal).
objective
required
when
standards
case
interpret
I
court
Ziegler,
Like Justice
would have this
decision, though I
Caperton
applicability
examine the
argument before
briefing
have this court order
and oral
would
Ziegler's
so,
Ziegler
not. See Justice
doing
and Justice
would
writing,
*73
("The
(Scalia, J., dissenting)
Caperton,
Caperton Massey Co., v.A.T. Ct. 2252, Coal 129 S. "[i]n Thus, lieu of exclusive reliance on that personal inquiry," analysis an of a Due claimed Process "objective Clause violation considers standards that do proof require highly signifi- not of actual bias." Id. It is reaching cant that the decision that recusal was required Caperton case, in the the United States Su- preme directly, question [Jus- Court stated "Wedo not Benjamin's] subjective findings impartiality tice propriety Nor do we determine whether there was abundantly actual Id. bias." It is therefore clear that a subjective finding by determination was made justice Roggen- Prosser, determination that Justices —a Ziegler simply sack, and make in Part cannot be II.B.— dispositive. briefing Second, without and without dis- supplemental filings, cussion of the which have not up by court, been taken this motion has been disposed thorough airing of without a most supporting supplemental issues.5 The material in the filing A supplemental providing additional authorities was August filed A supplemental September filed motion 21, 2009, whole, directed to the court as a review seeks Justice Gableman's individual denial of the motion recusal on statutory grounds, alleges and ethical that he did not § make the determination required 757.19(2)(g), Wis. Stat. justice's disqualification which mandates when fact or in appearance, act in impartial cannot an manner. A supplement second to the motion was filed December and it filing summarizes the for the new reasons thus: (1) supplement necessary
This is because has not ruled joint parties' position necessary briefing that full *74 particularly troubling. filing September It 21, 2009, is of by public Gableman's statements made Justice details three-judge panel attorney of the court of before a appeals, press at conference thereafter.6 These and a behalf to ex- statements, made on Justice Gableman's against opponent, campaign strategy plain an his many legal community. appalled in the startled and changed drastically case for sev- statements have this recently While Justice Gableman has eral reasons. fairly, including persons publicly pledged treat all repudiated any not cases, in criminal he has defendants attorney, by public his even statements made press statements those at the conference. The made attacking press made conference included one at the being "willing public opponent for the represent" as a defender against person accused of a sex crime motion, presented important in Mr. Allen's the issues resolve (2) filing developments following the inclusion of other recent necessary original supplemental are to com- and motions Allen's record, go plete especially to federal should this matter have to the (3) court, certain members of Court recent statements misunderstanding possible relevance reflect a serious motion. Amendment the issues recusal raised in Allen's First panel part hearing of a The statements made before the as brought by Judicial on an the Wisconsin complaint ethics deliberately conflated included statements that Commission public They included state roles of a defender. "willing to find a opponent ments was Gableman's manifests," for a defendant loophole, whatever result that even was, ad "evil," message campaign of a who and that was person, an evil willing loophole to find a such guy "[T]his if on the that's his really do we want him State Proceedings Disciplinary mindset?" In matter Judicial Gableman, Michael Judicial Against Honorable J. Wisconsin Gableman, 2008AP2458-J, v. Hon. Michael J. No. Commission (2009) op. (Deininger, J, concurring) (quoting Tr. of slip at 18 Argument). Oral characterizing representation "willing-
child and as system bringing ness to our of.. . subvert criminals *75 dramatically misrepre- into account." Those statements justice attorneys system sent in the the role criminal filing by and, as the most Allen, recent dated December 11, 2009, indicates, the statements have drawn a re- sponse from the Wisconsin State Bar Board of Gover- unanimously adopted, by nors. The Board a vote of public policy position originally proposed by 43-0, a the composed Bar, Criminal the Law Section of State prosecutors judges, both counsel, and defense well as as necessity "vigorousrepresentation that reiterates the defendants," for all criminal in order to maintain the integrity justice system.7 of the
¶ 190. Justice Gableman informed the members February of the court, on 2010, that he was with- drawing participation in the consideration court's recognizes issue; the recusal his decision to do so the principle predates bedrock of law the American justice system by century more than a "no man is —that judge principle allowed to be in his own cause"—a recently repeated by Anthony Kennedy, writing majority Supreme for a of the United States Court in Caperton the case.8 I commend him for his withdrawal decision.
7 The full of the position text can be at the found web site of the Bar Wisconsin Association (http://www.wisbar.org/AM/ Template.cfm?Section=News&Template=/CM/ContentDisplay. cfm&ContentID=88343). Co., Caperton v. A.T. Massey Coal Ct. 129 S. (2009) (reversing a judgment of the Appeals Court of Virginia grounds West on the that the Due Process Clause of the Fourteenth Amendment United States Constitution was violated the majority when participated in the recusal). case objective required when standards now contains The record before court go beyond allegations, of which well serious campaign speech. some allegations that have been Given especially presented court, evidence detailed supplemental motion, this court has no in the I believe power its to address these mo- choice but to exercise on the merits. tions expected initially Though, I above, as noted join any opinion deny motion, Allen's I cannot
to vote to simply premise has that the court that is based join power Further, I cannot no to entertain motion. recognize any disposition of Allen's motions fails Caperton requires, fact that at and deal with the interpretation at minimum, a new look our join I Chief Justice Abrahamson and recusal statute. Bradley, separately *76 the and I write for reasons Justice my given for the institution and because of concern system exists, court institution Wisconsin —an protecting purpose for sake, for but not its own rights liberties of Wisconsin the constitutional and citizens. foregoing
¶ reasons, I For concur. ROGGENSACK, PATIENCE DRAKE (Allen) court for an Antonio Allen moves the J. Aaron disqualifying from Justice Michael Gableman order proceedings participation in after the these further including acted ac- court, Gableman, to entire cept petition Allen his motion review. bases Allen's process the Fourteenth Amend- on the clauses of due I, Article ment of the United States Constitution Constitution. 1 and 8 of the Wisconsin Sections majority motion that a 195. Allen's assumes justice power disqualify to fellow has a this court assump- participation pending in a matter. This from presents question tion for the entire court because justice equally by each affected whether we conclude majority power disqualify that a court has the to justice. a fellow depend 196. Our decision on this issue not does
on the factual in arises, i.e., context which it the issue disqualify would be same if the motion were any justice. at directed This is so because the vote of justice scope power regard each the court's in preventing judicial peer fully performing from his every justice or her court, elected office affects on the in this case and in future Therefore, cases as well. if one justice disqualified participating were from in the deci- justices may disqualify sion on whether four a fellow justice fully performing from his or her office, elected disqualified participating all would be from equally all because are affected our decision on this issue.
¶ 197. For the reasons set H.A., forth Section majority Supreme we conclude that a of the Wisconsin power disqualify not does have the a fellow justice fully performing from her his or elected as office of the Wisconsin Court. Justices Roggensack David Prosser, T. Patience Drake and An- Kingsland Ziegler join nette the conclusions above opinion. Section II.A. of this Justice Michael J. Gable- participation man chose to withdraw Section *77 though Supreme II.A., even United States Court Jus- tices do not recuse from themselves similar motions. United States Court Justices at whom dis- qualification participate motions are directed in the on decisions such motions.1 See notes 11-12. ¶ infra pursu- court, ¶ addition, Allen moves the In 198. (2007-08),2 § 757.19(2)(g) an order ant to Wis. Stat. participating disqualifying in from Justice Gableman alleging matter, that he is this the consideration participation. disqualified law from in that Allen's Section II.B. We conclude 199. cognizable legally a claim insufficient to state motion is process and state due clauses of federal under the fully per- and Justice Gableman constitutions responsibilities under Wis. Stat. his formed deny Accordingly, § 757.19(2)(g). Allen's vote to we disqualify Justices David motion to Justice Gableman. Roggensack Drake and Annette Prosser, T. Patience Kingsland Ziegler join in Justice Michael this decision. participated set has in the decision J. Gableman never in out Section II.B. Bradley Abrahamson, Justice Chief Justice they power to
and disqualify Crooks decide that have participa- duly elected from another they pending if or she matter think he should tion Abrahamson, Justice See Chief Justice be removed. writing [hereinafter Bradley Abra- Crooks's and Justice they passim. writing], However, do not hamson, C.J.'s preferring briefing motion, decide Allen's have they argument Id. oral before do so.
I. BACKGROUND filed one motion to Justice Gable- Allen has individually as a two to the court man motions seeking disqualify whole, Justice Gableman proceeding. participation first Allen's further this April claims that filed 2009. Allen motion was Statutes are subsequent All references to the Wisconsin indicated. the 2007-08 version unless otherwise *78 participation Justice Gableman's continued violates his rights process under the due clauses Fourteenth Amendment of the United States Constitution and I, Article 1 and Sections 8 of the Wisconsin Constitution by disqualified pur- and that Justice Gableman is law, § 757.19(2)(g), partici- suant to Wis. Stat. from further pation. disqualification
¶ 202. Allen his motions, bases the court as whole and to Justice Gableman individu- ally, campaign speech by campaign Gableman, Justice by speech campaign spokesman his committee and its campaign speech by independent parties third dur- ing campaign. the course of Justice Gableman's 2008 objects Allen also comments Justice Gableman's de- alleges campaign fense counsel made. Allen that the speech speech and defense counsel's evidence bias and appearance by against of bias Justice Gableman all proceedings. defendants criminal September ¶ 203. On 10, 2009, Justice Gableman addressed Allen's motion that was directed to him individually. denying He issued a written order Allen's disqualification motion for his based on Allen's asser- disqualified by tion that Justice Gableman was law, pursuant § 757.19(2)(g), participat- to Wis. Stat. ing proceeding, in this and that Justice Gableman's participation process continued denied him due of law.3 September 10, 2009, Gableman's order was Supplemental followed Motion for Recusal in requested which Allen the entire court to "determine [Justice Gableman] actually whether made the deter- required by § 757.19(2)(g)." mination Wis. Stat. 3Justice explained deny Gableman further his reasons for ing supplemental January 15, Allen's motions in a order issued
II. DISCUSSION *79 Dis- Have the Power to A. Whether Four Justices qualify a Justice Fellow proceeding part ¶ of this involves a 204. One justice justices disqualify a from that fellow motion four sweeping participation. is on That motion based further including multiple campaign speech, allegations that justice's by cam- radio and television commercials parties, independent paign third as well committee by counsel,4 are all attributable as statements defense "speech" justice and the to a and that this evidences bias against appearance defendants in criminal of bias all alleges proceedings. he be denied due Allen would process to the under the Fourteenth Amendment of law I, Sections 1 and Constitution and Article United States justice partici- if Constitution that the Wisconsin proceeding. pates in this allegation that Justice Allen makes no 205. against personally, he him has
Gableman is biased knowledge any past Allen's in or had involvement position any he stated toward case, or that has presented short, In in this case. that Allen has issues effectively disqualification of a seeks Allen's motion alleged justice grounds in cases bias all criminal on against all criminal defendants. power to four have Whether fully justice performing
disqualify his or a fellow from question court is that the entire her elected office silence Justice Crooks finds fault with Gableman's attorney alleged to have made. regard to his statements dissent, However, as Justice Crooks Justice Crooks's litiga knows, pending is involved in surely Justice Gableman party from for a to refrain tion and it is not uncommon comment at such a time.
ought deciding in advance address Allen's motions directed at A Justice Gableman. decision on this issue is necessarily for the entire court because we have never question justice this decided equally and each on the court is majority affected whether we conclude power disqualify justice. of the court has the a fellow depend Our on decision this issue does not on the arises, i.e., factual context in it which the issue would be disqualify the same if the motion to were directed at any justice. justice This is so because the vote of each power scope regard preventing of the court's judicial fully peer performing his or her elected every justice office affects court, on the in this case and in all required Therefore, future cases well. if as one were disqualify *80 to himself or herself from consider- important question, every justice ation a of so would be required disqualify to himself or herself. majority justices
¶ 207. We conclude that a power disqualify court this do not have the a justice participation proceeding fellow from a before supported by past this court.5 Our decision is the practices by past, of this court and the current, practices Supreme of the United States Court. past practices
¶ 208. While our do not establish precedent, past we note that in all decisions of this justice against disqualification court, when the whom a capable deciding motion was made was of motion, our has review been limited to whether that individual justice made the determination that the motion re- quired. reviewing "[t]he objec- [] cases, such In court 5 The Wisconsin Constitution establishes a Wisconsin Const, consisting co-equal of justices. seven Wis. 4(1). VII, any § art. grant particular Constitution does not group justices power or of judicial peer over a with respect may to whether he she particular hear a case.
470 through required judge tively decide[s] if the went making subjective This determination.... exercise of required." Inc., Wis., v.Action 2008 is all that is Donohoo ¶¶ 510, 2d 480 24-25, 314 N.W.2d 110,WI Wis. (concluding Butler, himself, decided that he that Justice impartial);6 Benson, 2002 see Jackson v. could be also (conclud ¶ 2, 2d 639 N.W.2d545 14,WI Wis. ing opinion in which an that motion to vacate participated due Wilcox was frivolous Justice delay); City Edgerton Co. v. Gen. Cas. inordinate (1995) Wis., 510, 521-22, N.W.2d 305 190 Wis. 2d open (concluding Geske's disclosure Justice despite impartial the nature of court that she would be employer she, herself, made the her required showed husband's determination); subjective v. TV State Am. & Appliance Madison, Inc., 2d Wis. (1989) (concluding that once N.W.2d impartial, he that he could be Bablitch, himself, decided disqualified participating in from was not law proceeding). consistent, rationale in cases 209. The those Edgerton City Donohoo, Jackson, and American
but each TV not address the broader issue affects do justice equally, are concerned in Section with which we majority is, on this court II.A. That does sitting justice fully power prevent have participating in the work of his or her elected office.
6 Abrahamson, writing implies that in Donohoo v. C.J.'s Wis., Inc., 510, 480, 2d 754 N.W.2d 2008 WI 314 Wis. Action justice ought to the merits of whether a have court reviewed Abrahamson, writing, 42. That disqualified C.J.'s himself. Butler court did not decide whether Justice incorrect because the he The court decided correctly impartial. concluded that could be could only clearly determined that he be that "Justice Butler added). Donohoo, (emphasis impartial." Wis. 2d City of Edgerton Donohoo, Jackson, In seeking disqualification TV, American the motions of a justice came after the court had issued its decision in a pending However, motion, case. as with Allen's In re Disciplinary Proceedings Against Crosetto, 160 Wis. 2d (1991), disqualification sought 581, 466 N.W.2d879 was before Crosetto, the court issued its decision. In Supreme justices Wisconsin Court addressed whether all ought disqualified participation. be Crosetto's disqualification alleged justice motion that each had a personal disciplinary proceeding in the interest because personal justices of Crosetto's criticisms of the in an ancillary proceeding. Id. at 584. Crosetto based his disqualification appearance motion for impartiality. on the of a lack of 757.19(2), § cited
Id. He
Wis. Stat.
and he
process
also
cited
due
of the
clauses
federal and state
legal
constitutions as
bases for his motion. Id. at 583.
¶ 211. Six
on this court did not convene to
justice
participate
decide whether a seventh
could
justice
Instead,
decision in Crosetto.
each
process
court decided Crosetto's due
motion for himself
explained:
or herself.7 As the court
individually,
court,
members
this
have
significant
determined that
has
personal
none
inter-
est in the outcome of this disciplinary proceeding such
require
disqualification.
as would
our
Each is satisfied
his her
impartiality
in this proceeding is unim-
and,
paired
further,
acting
that our
in this
does
matter
not create
appearance
of impartiality.
a lack
added).
(emphasis
Id. at 584
only
Chief Justice
Abrahamson is the
serving
now
on Supreme
Wisconsin
Court
was
who
also a member of Disciplinary
In re
Wisconsin
when
Proceedings
Crosetto,
Against
2d
(1991),
160 Wis.
¶ who a 212. Chief Justice motion, did that decided Crosetto's member of court justices request disqualify or that the other herself not challenge process Instead, for her. Crosetto's due decide individually that she was not decided she herself for pro- participation disqualified the due from further byor of the federal and state constitutions cess clauses 757.19(2).8 separate § a Id. She also wrote Wis. Stat. discipline imposed opinion from the that dissented justice apply subjective should addressed whether disquali- objective motion an standard Crosetto's (Abrahamson, dissenting). J., Id. at 602-03 fication. someone other than then-Justice The issue of whether she should be dis- Abrahamson should decide whether separate opinion. qualified in mentioned her was never disqualification However, mo now writing Abrahamson, her, is not directed at C.J.'s tion power argues have four of this court participation. justice disqualify Abraham- another writing, position in direct son, 34. This is C.J.'s on her behalf the action that she took own conflict with Case v. Wis. Hoffman, in She cites Crosetto. (1898), support in of her contention. Abraha
N.W. writing, ¶¶ However, Case does not mson, 39-41. C.J.'s position support she takes. attempts Abrahamson, writing above to divert at C.J.'s comparison of then-Justice Abrahamson's acts
tention from by asserting "did not position her that she with current Crosetto Abrahamson, writing, C.J.'s join" opinion. curiam per Chief forthright to the reader. is not a statement n.2. This Abrahamson, only Abrahamson, was then-Justice Therefore, decided. the state woman when Crosetto was proceeding impartiality that "her this per ment in the curiam decision of then-Justice Abra unimpaired" must refer to the hamson. *83 very interesting
¶ 214. in Case arose a context disqualification Newman, because Justice for whom was sought, up was dead when the court took the motion. previously Case, 100 atWis. 354. Justice Newman had participated decision, in the he had but never ruled disqualification remaining Therefore, motion. Id. justices obviously it, had to decide as Justice Newman Accordingly, support could not. Case not is for this court determine, majority justices to power that a have the justice disqualify participating
to a from in a proceeding before the court. imperative pub-
¶ 215. It is to note that Case was long lished before then-Justice in Abrahamson's decision truly Therefore, Crosetto. if Chief Justice Abrahamson holding require understood Case's to court to act urges, the manner that she now she would have acted differently in Crosetto. The reader should note that despite pages more than 50 of a narration and volumi- appendix, writing nous Abrahamson, C.J.'s fails to men- any change tion reason for Chief Justice Abrahamson's position, she, now that it is not rather, but a different justice, subject disqualification who is the of a motion. writing
¶ Abrahamson, C.J.'s also cites State Carprue, 111, v. 2004 WI Wis. 2d 683 N.W.2d support power disqualify as for the of four justice. writing, ¶ another Carprue Abrahamson, C.J.'s 86 n.54. support position. Carprue
does not their in judge a volved claim that a circuit court should have disqualified Carprue judge's herself. confirmed a disqualification "up judge's decision about is to own provision responsibility determination. This 'leaves the integrity judge.'" of withdrawal to the of the individual Carprue, (quoting Harrell, 274 Wis. 2d State v. (1996)). 654, 665, Wis. 2d 546 N.W.2d115 vastly Furthermore, it ais different matter judge for this court review whether a circuit court participated proceeding in a at circuit should have majority this court than it is to conclude that the court disqualify justice partici- power a from has the fellow judge pation pending in a matter. When a circuit court is proceeding, disqualified participating in a another judge place. However, her takes his or when circuit court person supreme disqualified, no court other place.9 his or can take her justice's decision on 218. The critical nature disqualification explained was United motion Ginsburg Bader Court Justice Ruth
States question disqualification of a the preme Su- context no *84 said, She "Because there's sub- Court Justice. important Supreme Justice, it is that stitute for a Court lightly [disqualify] Ruth Bader Gins- ourselves." we not burg, Visiting Day, Berry & An The Howard Scholar: Ginsburg, Open Bader 36 Conn. L. Discussion with Ruth (2004). 1033, Rev. 1039 history Supreme 219. The Wisconsin Court's justice
requiring
disqualifica-
of a
the
who is the focus
motion is consistent with the
tion motion
decide the
Supreme
precedent of United
Court.10When
the
States
justice
disqualify a
of the United
a
is made to
motion
9
judicial
Abrahamson,
writing extensively
C.J.'s
relies
judges,
disqualification
regarding circuit court
without
opinions
judge
was the focus of the
informing the
the
who
reader
out
pointing
the
judge
motion was a circuit court
without
judge
circuit court
as
disqualifying
our
a
difference between
judicial peer. See discussions
compared
disqualifying
with
a
E.
Kading,
In re Hon. Charles
70 Wis. 2d
10
interview,
Supreme
States
Court Justice
In a 2004
United
the decision about
Ginsburg clearly explained that
Ruth Bader
either
Supreme Court,
justice
States
the
for whom
is
motion
disqualification
sought addresses
indi-
e.g.,
vidually,
Cheney v. United States District Court for
(Justice
(2004)11
Columbia,
District
U.S. 913
in
sitting
Scalia
individually
response to
Sierra
him), or,
Club's motion to
frequently,
less
disqualify
entire
Court,
including
justice
for
Supreme
whom
a
sought,
recusal
is
issues
one
denial
sentence
motion for disqualification, e.g., Ernest v. United States
Alabama,
Attorney
Southern District
474 U.S.
for
(1985).12
220. The United States
Court
Supreme
has
never
that a
held
that Court has the
majority
power
judicial
i.e.,
disqualify
peer,
duly appointed
confirmed United
Supreme
Justice,
States
Court
from
to come
participating
any case
before the Court
an allegation
because of
at
whom the
whether a
disqualified
partici-
Justice is
pation
proceeding
always
justice.
made
the individual
Ginsburg,
Day,
Ruth Bader
Berry
&
Visiting
Howard
Open
Scholar: An
with
Ginsburg,
Discussion
Ruth Bader
L.
Conn. Rev.
States,
Corp.
See also
v. United
¶ 222. Allen cites
v. A.T.
Coal
(2009),
support
Co.,Inc.,
Ct. 2252
as
129 S.
and Justice Crooks contend that four of this court the power justice have to remove another under our superintending powers. Abrahamson, C.J.'s writing, 48. There is a process which a justice may be court, removed from the but only with due process Abrahamson, Abrahamson, Chief then-Justice only was the woman the Wisconsin when Therefore, decide, Crosetto was decided. did she herself, disqualify Crosetto's motion her on basis of the state and process federal due clauses. *87 All the justice. judges justices accept to the
accorded and the rem- for their removal provisions constitutional the code election to judicial upon edies available under However, those judicial government.15 the branch Abrahamson, are a far from what cry bases for removal that four justices is She asserts writing proposing. C.J.'s a fellow based on the justice allegation can disqualify rights that a defendant's due were violated process She accords no substantive standards speech. campaign due a is suggestion and no Such procedural process. shocking.16 Abrahamson, Chief Justice Justice Finally, assume that if have they and Justice Crooks
Bradley case, a justice pending to force another off power an court and the impartial appearance both an Abrahamson, C.J.'s writing, court will result. impartial Their is based on passim. unspoken assumption removed justice A of the Wisconsin Court can be (Wis. 1), VII, § only through impeachment Const. art. defeat (Wis. 4(1) VII, 9; § §& Const. art. an election Const. art. Wis. XIII, 12), proceeding by supreme part disciplinary § as of a (Wis. VII, 11), by disability § art. court for cause or Const. (Wis. VII, 13), legislature § or if the were to address Const. art. (Wis. VII, impose mandatory age retirement Const. art. 24(2)). § Abrahamson, lengthy narration of writing's note C.J.'s We pre proposed decisions that she contends were
her version Abrahamson, C.J.'s private meetings justices. sented in the of the writing, past, publicly In have not discussed 14—19. we ¶¶ transpired private meetings in our while a case what we believed proposed being was considered. We also have not discussed decisions, considering preliminary opinions the confidential work why product of the court. We are at a loss to determine Abraha mson, writing nothing adds to the C.J.'s has taken this tack as it justify opinion. Perhaps attempt in her it is an legal reasoning delay in extraordinary permitting Chief Justice Abrahamson's on Allen's recusal motion. public release of our decision faulty premise giving four members court power justice disqualify the appearance a fellow will increase the impartiality of the court. deeply very court, 226. This is a divided at a philosophical concerning supreme level how state court public perception should function. The of this is court deeply justices forcing also Therefore, divided. four an- just apt perceived other off the is court as be as resulting tribunal, biased act in a biased as is the justice remaining participating on the case and in it after disqualification he or she has considered motion. Bradley Abrahamson, What Chief Justice propose opening Justice Crooks of Pandora's Box *88 ever-increasing attempts manipulate to to the outcomes pending by changing composition matters presented. court that will decide the issues ¶ appearance 227. Actual fairness and the of an very important impar- unbiased us, tribunal are to but tiality justices granting not prevent will be furthered four power justice fulfilling another from his judicial office. summary, practice
¶ In as is the of the United Supreme practice States Court and has been the of this years, join court for more we, than 150 who in this opinion, majority conclude that a of on the power Wisconsin do not have disqualify justice participation pro- a fellow in a ceeding before this court.
¶ 229. Justices T. Prosser, David Patience Drake Roggensack Kingsland Ziegler join and Annette in this opinion.17
17 Abrahamson, writing name-calling C.J.'s is filled with directed joined at the members of the court who have in this opinion. Name-calling legal reasoning. Name-calling is not
B. Whether Justice Gableman Made Required Determination18 ¶ as Allen's have institutional 230. Motions such impacts on the court as a whole. Such motions with appearance allegations and the of bias their of bias significant attention in the mass media and receive public's tend to undermine the trust and confidence impartiality the integrity of this court's decisions and in the justices, only
of all not at whom Accordingly, disqualify motion is directed. motions to justice are never routine matters for the court. heart, 231. At its Allen's motion is based on the
allegation judicial that a candidate's announced con- bearing cerns for issues on law enforcement is sufficient right process to violate Allen's constitutional to due extensively quotes campaign speech law. His motion attorney's and Justice Gableman's defense of that speech. allegations begin However, Allen's do not even approach process a due violation. every pleading that labels itself as a 232. Not process challenge actually challenge.19 due states such a independently Therefore, matter, as a foundational we complaint upon review whether a states a claim which may granted. relief be John Doe 1 v. Archdiocese of Milwaukee, 2007 WI 303 Wis. 2d *89 doing, accept in N.W.2d827. In so we the facts set forth pleadings purposes determining as true for of poorly reflects on the who resort to its use and reflects adversely dignity on the court have this as an institution. We responded not in kind.
18 participated has never in the decision Justice Gableman set out in Section II.B.
19Abrahamson, writing ignored premise this C.J.'s has basic of law. pleading.
sufficiency However, not we do Id. legal accept pleadings' Id. conclusions. Supreme Court has ex
¶ States 233. The United only practice process plained awhen is violated that due principle in the tradi so rooted "offends some people ranked as our as to be conscience of tions and LaVoie, v. 475 U.S. Ins. Co. Aetna fundamental." Life (1986). impartial judge right is so rooted The to an therefore, it is fundamental, and as to be our traditions Hollingsworth, by process. guaranteed State v. due 1991). (Ct. App. 883, 893, 467 N.W.2d555 2dWis. guar- preclusion that is ¶ However,the of bias 234. every against by party process is bias anteed due party specific due to the court or bias who is then before judge's having interest in the outcome a financial Bracy Gramley, pending. particular v. case then 899, 904-05 U.S. a
¶
nature is not
This bias of a constitutional
particular group,
displeasure
generalized
a
when
with
constitutionally protected
group
class.
not also a
that
is
allegations
(concluding
Aetna,
that
Justice Gableman any alleged had financial inter- that Justice Gableman *90 alleged in the outcome of his case. Allen has not that est any past any type has Justice Gableman had contacts of alleged him that with or his case. Allen has not potential even knows who he is. No constitu- Gableman process alleged due violation has been here based tional participation in on Justice Gableman's Allen's case. comparable ¶ 238. Allen's claim is not to the claim Caperton. Caperton made in particularized was based on claims of against party pending
bias a case party. Caperton, because of actions taken the other alleged 129 S. Ct. at Those 2263-64. actions were to have directly at benefitted who that time was about Caperton's decide Here, case. Id. at 2265. there has allegation against any been no of bias Allen because of connection between Justice Gableman and Allen. Ac- cordingly, cognizable
Allen has failed to state a claim process under the due clauses of either the federal or state constitution. sought disqualification
¶ 239. Allen also has statutory grounds.20 alleged based on He that Wis. Stat. § 757.19(2)(g) requires disqualifica- Justice Gableman's 757.19(2)(g) provides: tion. Section system expanded The federal court an has established process rule satisfies various due and other non- (2006). concerns. See § constitutional U.S.C. Wisconsin statutory employs guide judges also scheme to fulfilling obligation disqualify their participate either or to themselves.- See However, § Stat. as we have Wis. 757.19. recognized judicial disqualification, in the context of "not all judicial questions qualification ... involve constitutional F., Kywanda v. validity." 26, 35, State 2d 546 N.W.2d 200 Wis. adoption [disqualification] "The statutes permit disqualification prejudice not a for bias or sufficient imposing requirement basis for a constitutional under the Due LaVoie, Process Clause." Id. at 36 Aetna Ins. Co. v. (citing Life (1986)). 475 U.S. *91 (2) disqualify himself or herself Any judge shall proceeding when any or criminal action or from civil following occurs: one of the situations that, reason, any judge determines (g) When a cannot, in cannot, he or she act appears he or or it she impartial manner. an of an al- most recent consideration 240. Our in occurred 757.19(2)(g) § of Wis. Stat. violation
leged Butler There, that Justice alleged Donohoo. Donohoo he financial accepted § when 757.19(2)(g) contravened had a case attorney pending from an who contributions Donohoo, As we 314 Wis. 2d before the court. reiterated allegations, Donohoo's we considered justice's this court to a by standards are applied to an viola- regard alleged decision disqualification Id., § 24. We said: 757.19(2)(g). tion of subjective determina- justice's] [the review of Appellate judge made establishing "limited to whether the tion is requiring disqualification,."American a determination omitted). (further TV, 2d at 186 citations Wis. judge reviewing objectively must decide if the court making subjec- through required exercise of went determination. tive 663-64). Harrell, addition, In
Id.
199 Wis. 2d at
(citing
past
a motion is made to
disqualify
when
or future
we do not address whether
proceedings,
decided the issues
justice correctly
incorrectly
pre-
TV,
explained,
sented. Am.
Id. at 183-84. apply
¶ 241. We now these standards to the deci- sion made Justice Gableman. The motion to dis- qualify pending Justice Gableman has been before the April addressing court since 2009.21Prior to Allen's motion, Justice Gableman had all of Allen's submis- response sions before him. He also had the State, April which was filed 28, 2009. When he denied Allen's *92 requesting disqualify motion him himself, he said:
Having considered the motion of defendant- appellant-petitioner, Allen, individually Aaron Antonio directed to Justice Michael J. Gableman for his recusal from participation 2007AP795, in Case No. and after recusal; careful consideration of the motion for IT IS ORDERED that the motion to Justice individually Michael J. Gableman hereby is denied. denying
¶ 242. The order Allen's motion was re- September leased on 10, 2009, after "careful consider- ation of the motion." Justice Gableman authored the alleged grounds disqualification order all with plenty that are now before court. He had of time to carefully arguments research and consider the made in support opposition of and in to the motion. He made a subjective grounds specified determination that the disqualification. Allen's motion did not warrant his The objective proof order that was issued is of Justice subjective Gableman's decision. Justice Gableman's or- 21 August 13, 2009, On Allen filed a letter supplementing the authority previously he April cited for his 2009 motion. out in Donohoo. Accord- the test we set
der satisfied ingly, made the that Justice Gableman we conclude just required make, as Chief Justice he decisions was did Crosetto. Abrahamson Although probably pointing out the are we justices required vote of four obvious, the affirmative justices grant pending There are not four motion. grant Therefore, his Allen's motions. have voted to who motions, April presented to the court on first that were 17, 2009, are denied. writing Abrahamson, C.J.'s laments briefing to dis- on Allen's motions did order
we not writing qualify The concludes with Gableman.22 "ordering" proposed Allen's of briefs on motions. proposed reasons. for at least two "order" is unfortunate legal authority. This is so First, the "order" is without procedures require operating our internal because briefing before on an vote of four affirmative petition in the for review not set forth issue may was not list the IOP II.B.l. Allen did be ordered. peti- disqualification either in his of Justice Gableman supplemental petition for review or in his tion for justices who have voted review, and there are not four briefing motions on the issues his to have additional may proposed unneces- Second, "order" cause raise. *93 expense, participat- sary perhaps for the confusion, attorneys ing are "ordered" to file briefs on motions who garnered affirmative votes of four have not that justices. finally, And we cannot leave this decision noting, degree in sadness, a with
without satisfying perceived need to attack Justice his investigate fairness, Allen did not bother to Gableman's 22 21-22, Abrahamson, writing, passim. C.J.'s ¶¶
486 in Justice manner which Gableman has treated appeared proceedings defendants who have in criminal presided. over which Justice courts Gableman has cursory investigation Had Allen made even into the person Gableman, is Justice Michael who he would Judge that in have found while the Circuit Court County, Bur- Burnett Justice Gableman founded the County Program, nett Restorative Justice an alterna- adversary tive model to the traditional criminal court's proceeding.23Justice Gableman remained the chairman County Program of the Burnett Restorative years. During proposed six that time he and oversaw development special of numerous crimi- services to Community nal defendants: the Inmate Service Pro- gram, program under which inmates could reduce jail by working municipal their time for charitable and organizations,24 and the Victim-Offender Mediation Program, program permits willing victims opportunity part to take an active in the rehabilitation Judge County, the offender.25In 2006 as Burnett Drug County Justice Gableman founded Burnett $42,000 Grant, Restorative Justice Receives Bremer (available Inter-County Leader, Sept. 21, http:// at www.the-leader.net) (enter in the as the issue date 9/21/05 box; "search archives" then follow "Restorative Justice Re hyperlink). ceives .. ." Fallon, Judge O. Grantsburg Joan Asks to Consider Leader, Program, Inter-County July
Inmate Work (iavailable (enter http://www.the-leader.net) at as the 7/20/05 box; issue in the "Judge date "search archives" then follow Asks Grantsburg..." hyperlink). 25Nancy Jappe, Staff, Has New Inter- Restorative Justice (available Leader, County http://www.the Feb. at
leader.net) (enter as the date in "search issue 2/15/07 box; hyper archives" then follow "Restorative Justice Has ..." link). *94 way presented alternate an that Alcohol Court and drug longstanding approaching alcohol addiction and struggle many problems defendants that criminal overcome.26 Accordingly, above, our discussion
¶ based on deny Ziegler Roggensack vote Prosser, Justices seeking the filed Allen has that of the motions all disqualification of Justice Gableman. {concur- PROSSER, J. DAVID T. justices
ring). to address forced the court have Several respond power to recusal limits the court's motions. options we us are stark: either before 248. The majority
approve proposition have that a participating colleague plenary power to exclude a nullifying thereby results and pending election cases, key changing potentially court, or we decisions of authority. simply this do not have conclude we may power Although posit that the court a limited one truly egregious situation, employ in a extreme could recognized power It not be contained. —could —once gravely damage grow insti- cancer, and like a would tution. preservation an the court as 249. Because the any any important case or than is more
institution reject the notion court, I we must believe member and Alcohol Drug First Nancy Jappe, County Celebrates Leader, Graduation, Inter-County July {avail Court (enter as the issue http://www.the-leader.net) at able 7/11/07 box; "County Cel then follow "search archives" date Hears Nancy Jappe, County Board hyperlink); ebrates .. ." Association, and Rivers Drug and Lakes Reports on Leader, 24,2007 http://www.the at Inter-County {available Jan. leader.net) (enter in the "search the issue date as 1/24/07 hyperlink). ..." "County Board Hears box; follow archives" then *95 possess power prevent that we to each other from participating in individual cases. truly
¶ Justices 250. confronted with a extreme justice ought situation in which a to withdraw from unwilling may personal case but is so, to do resort to persuasion. and collective These will outnum- colleague ber a lone who refuses to If withdraw. neces- sary, they may delay they may case, seek the steps involvement of the Judicial Commission. These clearly preferable overturning are the will of the cutting procedural safeguards electorate and off the by barring built into review the Judicial Commission colleague participating from in a case. power ¶ If I justice 251. am mistaken about this court's to remove a an from individual case before it is Supreme
decided, the United States Court can tell me Supreme certainly so. The Caperton did not do that in Massey Co., v. A.T. Coal 129 S. U.S. _, Ct. 2252 Caperton, Supreme ¶ 252. In Court reversed a Virginia justice decision and removed a West from a radically in a case fact situation that was different from Supreme the facts here. The Court did not order the Virginia Supreme Appeals West Court of to remove a justice. fellow Supreme deeply 253. The Court was divided in
Caperton, especially about the ramifications of its deci- upon sion lower courts. Chief Justice John Roberts provided wrote in his dissent that the Court had "no guidance judges litigants about when recusal will constitutionally required. inevitably be This will lead to allegations judges an biased, increase are how- groundless charges may ever those be." Id. at 2267 (Roberts, dissenting). C.J., Anthony majority, Writing declared
Kennedy He conclusion. to a different came predict "Massey that various adverse and its amici recognizing a constitu- consequences follow from will ranging recusal a flood of tional violation here — judicial unnecessary elec- with interference motions to disagree." Id. at tions. We respect Wisconsin, Justice least with 255. At Caperton wrong. proven
Kennedy date, the To has been consequences for the Wis- had disastrous decision has motion was filed The Allen Court. consin *96 by Caperton, anticipation has been followed but it of against of motions members recusal nine additional Defender's office State Public The Wisconsin this court. file motions bar to recusal the entire defense has invited justices against cases. The in criminal one of the unprec- savagery these motions number and on the court. to a frontal assault and amounts edented Allen's mo- ¶ have denied The court should 256. quickly, have comment. This would without tion controversy exposing the court. Several within avoided rejected preferring justices the course, to take this controversy public. reject my to
¶ view, the failure of the court In decisively quickly has exacerbated Allen's motion better. The court must do our dilemma. join opinion I stated, 258. For the reasons DRAKE ROGGENSACK. PATIENCE ZIEGLER, J. KINGSLAND 259. ANNETTE join opinion
(concurring). Justice Patience I emphasize separately Roggensack to write Drake judicial process recusal as set for the due standard Caperton Supreme by in v. Court the United States forth Massey Co., S. Ct. 2252 556 U.S. Coal _, A.T. (2009), By arguing implicated Allen's is not motion. writings Caperton's application, the of Chief Justice for "painting are a mule Abrahamson and Justice Crooks going hunting. zebra, a and then zebra But resemble paint change into zebra." ex does not the mule State rel. County County, Court Rock 51 Wis. 2d Arnold v. (1971) (Hansen, dissenting). J., 448, 187 N.W.2d354 Caperton, Supreme in Moreover, majority power of the court has the did not hold that disqualify judicial presented peer, question are we Supreme Rather, case. Court reviewed a with this holding justice's motion, state court denial of a recusal Caperton, instance," 129 S. Ct. at that "rare justice's required an recusal was because there was objective an risk of actual bias that rose to unconstitu- writings level, at 2265. The of Chief Justice tional id. expand Caperton to an Abrahamson and Justice Crooks virtually any extent that it could include an attack on nearly any litigants "pick reason and allow by filing against their court" recusal motions certain expansion Caperton Such an and not others. delay justice being gridlock could cause dispensed. in the court and Supreme Court made clear that it did not consequences. Su- intend such Unlike Wisconsin preme Court, the United States Court is the *97 highest higher land, court in the and no court can Supreme a Justice's recusal further review U.S. Court justices Supreme that decision. Had the Court intended authority guess to second a now be endowed with judicial post-Caperton, peer's it would recusal decision by changing operating charge its have led the own judicial procedures providing for review of a or otherwise peer.1 my knowledge, To it has not.
1 5, 1974, in of December Pub. Originally appearing the Act (codified 93-512, amended at 28 U.S.C. L. No. 88 Stat. 1609 as
491 Simply stated, unlike the motion for dis- disqualify Caperton, qualification Jus- in the motion appropriately resolved without resort tice Gableman is Caperton Clause of the Constitution. to the Due Process extraordinary facts which the extreme and involved majority opinion recognized in no its only pending are the than a dozen times. Not less in Allen devoid of facts which rise to recusal motions analysis, Caperton, Caperton a unlike in the level of "person personal stake" in Allen here there is no with a significant disproportionate influence" who "had a "by raising placing in on the case Justice Gableman campaign directing [his] funds or election when pending imminent." See id. at 2263-64. case was or any placing in the State had influence Neither Allen nor court, and no amount of Justice Gableman on the briefing join clear, fact. To be I do not in can alter that writings expressed by of Chief Justice view analy- Caperton and Justice Crooks that Abrahamson implicated the view that the on this sis is or disqualify power a fellow court have the writings participation.2 Nevertheless, even if those as- (2006)), "Disqualification § § 28 U.S.C. 455 is entitled "(a) justice, judge, magistrate" provides Any justice, or judge, magistrate [magistrate judge] or of the United States any impar- disqualify proceeding shall himself in which his tiality might reasonably questioned." be "He shall also dis- (1) following he qualify himself circumstances: Where has concerning party, personal or personal prejudice bias evidentiary knowledge disputed concerning proceed- facts 455(b)(1). Id., § ing... ." certain, agree expressed by To I do not with the view be writings of Chief Justice Abrahamson and Justice Crooks Co., Massey Caperton v. A.T. Coal 129 S. Ct. U.S. _, (2009), apply should in this case. See Justice Crooks's Rather,
writing, interpret Caperton purpose n.3. I for the *98 sume that such an should analysis undertaken, be Allen's fail to implicate Caperton. Accord- allegations ingly, this court should deny Allen's motion and roll up the welcome mat to those who wish to "judge shop" Wisconsin. 262. This court should not promote the use of
Caperton "judge shop." has "Judge shopping" always been In Caperton, taboo.3 Supreme Court reaf- firmed that basic tenet when it concluded that a id. at efforts to litigant's "choose[] the judge," a through justice's election directing campaign and thus justice on that placing contributing party's pending case did not pass constitutional muster. "Just as no man cause, is allowed to be a in his judge own similar fears of bias can arise when —without the consent own cause." Id. parties man chooses the in his judge —a I In agree. case, this by seeking justice to remove a sitting on a case even though allegations fail to state why explaining Caperton implicated, just explaining is not i.e. process how different a Caperton due claim under is from Allen's claim. course, litigant may Of judge substitute a circuit court (2007-08).
pursuant § However, to Wis. Stat. 971.20 in that scenario, Caperton, as well as in in which required recusal was justice of a Supreme Appeals Court Virginia, of West judge replaced fully be can and the case heard. See W. Va. ("When VIII, any justice § Const. art. temporarily disquali serve, justice may fied or unable to the chief assign judge of a circuit court or of an appellate intermediate court to serve from stead."). contrast, time to time in In his when a Wisconsin case, participation is absent from parties and the deprived citizens the state are of a full court to decide the issues. The issues we decide have statewide significance consequently only do litigants not affect Hence, justices before the duty stay court. have a on cases 60.04(l)(a). and decide they the issues if can. SCR *99 Caperton, process in Allen's a claim as set forth due shopping." effectively "judge As an amount to efforts manipu- should not condone such institution, this court place justice regardless to a of whether it is done lation particu- particular from a case or remove a on a damages Permitting "judge shopping" this such lar case. politicizes inappropriately institution, as an court court, nullifies the votes of the electorate. Accord- and why ingly, clarify reason the due I at least one write judicial process in recusal as set forth standard implicated Caperton is not in this case. in It is true that the Court stated 263. objective require
Caperton that "there are standards part probability of actual bias on the recusal when 'the judge high is too to be constitution- the ally or decisionmaker (quoting Larkin, v.
tolerable.'" Id. at 2257 Withrow (1975)). Caperton The "extreme facts"4 U.S. amounted to one of the "rare instances" which the rarity of in which the Constitution Emphasizing the a case recusal, writing majority, requires Kennedy, Justice for the "extraordinary" "extreme" or facts no less Caperton's referenced than a dozen times:
(cid:127)
Benjamin
campaign
in an extraor-
Justice
"received
contributions
from,
of,
dinary
through
[Don
Blanken-
amount
efforts
chairman,
officer,
ship,
Massey
chief executive
A.T.
Coal Co.'s
president]." Caperton,
Several commentators have See, Caperton. e.g., that warranted recusal or "extreme" facts Massey: Campaign Buying Caperton v.A.T. Day, Terri R. Justice: Process, Dollars, L. Mandatory and Due 28 Miss. C. Rev. Recusal (2009) Kennedy 359, 373-76, (noting repeatedly that Justice finding facts case and and rare emphasized the extreme on extreme vague a standard based that Court "articulated Elections, facts”); Karlan, Electing Judging Judges, Pamela S. (2009) 80, 81, Caperton, 123 Harv. L. Rev. and the Lessons of ("[T]he way that explicitly only on opinion Court's focused may money judicial into election extraordinary fusions a judicial divide between the Justices impartiality"; "[T]he threaten majority in the dissent was over Caperton in the and those availability manageable and standard' 'judicially of a discernible that campaign support 'extreme' distinguishing between the law of constitutional requires recusal as matter judiciary judges in which rou- ordinary of an elected operation who involving supported individuals tinely participate in cases election."). (or opposed) their disqualification [can]
over be resolved without resort to Id.; the Constitution." see also Fed. Trade Comm'n v. (1948); Inst., Cement 333 U.S. S. Pamela Judges, Electing Judging Karlan, Elections, and the (2009) Caperton, Lessons L. Rev. Harv. ("[T]he Caperton divide between the Justices majority and in the those dissent was over the avail- ability 'judicially manageable of a discernible stan- distinguishing campaign dard' for between the 'extreme' support requires recusal matter as a of constitu- ordinary operation tional and the law of an elected judiciary judges routinely participate in which in cases (or involving supported opposed) individuals who their election."). governing disqualification
¶ 264. Far from dis- putes implicate litigant's process that do not due rights, Caperton "addresse[d] extraordinary an situa- require[d] tion where the Constitution recusal" because party directly judge's influenced a election at a time party's pending, when that ably case was and it was "reason- pending . foreseeable.. case would be newly justice." before the elected 129 S. Ct. at 2264-65. Caperton, person personal In "a with a stake in a particular significant *101 disproportionate had a case and placing judge by raising influence in the the on case directing judge's campaign funds or election when pending the case was or imminent." Id. at 2263-64. In exceptional Supreme such "an case," Court con- objective percep- cluded that "based and reasonable judge's tions," there was a serious risk of the actual bias sitting particular particu- in on that case between those parties. lar Id. at 2263. Caperton Massey
¶ 265. v. A.T. Coal Co. was pending campaign case when efforts of Don Blan- kenship, Massey's A.T. chairman, officer, chief executive significant "had a president, disproportionate in Brent electing Benjamin influence" Justice of and therefore Virginia Court of West Appeals Supreme case. Id. at 2264. Before the Massey's him on A.T. placing filed, the party, Caperton, appeal actually opposing was in Benjamin particular Justice disqualify moved to Id. at 2257. those particular parties. Cap- case between on the conflict caused by erton claimed that based Justice cam- Benjamin's involvement with Blankenship's under the Benjamin's required recusal was Justice paign, of the Fourteenth Amendment Due Process Clause of Id. Justice denied Benjamin United Constitution. States Id. petition filed its Massey appeal, the motion. A.T. Virginia and the Court West Supreme Appeals Id. A court, joined by granted majority review. reversed the million Benjamin, ultimately $50 Id. at 2258. Massey. verdict A.T. jury against granted Supreme 266. The United States due was violated process certiorari to determine whether recusal mo- Caperton's denied Benjamin when Justice tion. Id. at 2256. Court concluded that Supreme case, due process [that] based "in all the circumstances of recusal." Id. at 2257. require[d] to a due The "extreme facts" amounted A as id. violation, at are follows. $50 process been entered favor Caper- million verdict had jury for the A.T. the election against Massey ton before it and was Virginia, Court of of West Appeals case would pending ... that the "reasonably foreseeable Id. at 2264—65. newly justice." be before the elected contribution support made a million Blankenship $3 "at time incumbent Benjamin replace had a vested stake in the outcome" when [Blankenship] before the court. Id. of a case that was come pending $1,000 comprised at 2265. The million was $3 *102 statutory Benjamin's campaign maximum to committee, million to the "And For The Sake Of The Kids" $2.5 Benjamin, organization supported and over mailings support $500,000 and advertisements to Benjamin.5 "eclipsed Id. at 2257. The million the $3 spent by Benjamin supporters total amount all other by spent by Benjamin's and exceeded the 300% amount campaign According Caper- committee." Id. at 2264. Blankenship spent ton, million more than the total $1 spent by Benjamin campaign amount the committees of and the incumbent combined. Id. election Benjamin 50,000 was decided fewer than votes. Id. percent won the election 53.3 of with the votes. Id. at Blankenship's ¶ 268. Based on the size relative comparison money contribution in to the total amount of campaign; spent contributed to the total the amount apparent election; the such effect contribution had temporal on the outcome election; rela- tionship contribution, election, between the and the pendency Supreme case, Court concluded that objective Benjamin's was a serious, there risk of Justice sitting particular actual bias in on that case between Caperton Massey. and A.T. Id. at 2263-64.
5 In its recent decision in Citizens United v. Federal Commission, (U.S. Election 08-205, slip op. 2010), No. Jan. recognized Supreme United States Court the fundamental id. at right political constitutional speech, struck down as prohibits corpora unconstitutional federal law that making independent expenditures tions for speech that candidate, id. at expressly advocates the election or defeat 50. The independent expen "conclude[d] ditures, including by corporations, give those made do not rise corruption appearance Id. at corruption." or the *103 Caperton in
¶ However, the decision nowhere 269. any Supreme lesser fact Court state that does the Benjamin's required re- would have Justice situation Supreme and does the case, cusal in that nowhere required to himself that he would be recuse conclude civil case that involved different from an unrelated says parties. suggest Caperton is to To that otherwise new and invite recusal motions based invent law to upon "spin" a can be fair and instead whether credibility impartial. practice Such is destructive always presumed court, to be fair of the as are impartial.6 Caperton clear, in To be nowhere does anything "perfect majority that than this state less extraordinary those extreme and storm," created timing coupled and the the election facts with parties' pending case, be sufficient to constitute a would (recognizing process 2264, 2265 due violation. See id. at "temporal relationship as "critical" the between justice's campaign contributions, election, and the stating objective pendency of likewise that the case" and "signifi- Blankenship's required standards recusal when "coupled disproportionate influence" was with cant and temporal relationship and the the pending between the election
case"). Supreme fact, Court cautioned In impli- "[application of constitutional standard that [Caperton] [] confined to rare instances." cated in will be Id. 2267. at honesty integrity in those "presumption There is a Larkin, adjudicators." v. 421 U.S.
serving as
Withrow
(1941)
(1975);
Bridges
California,
also
v.
314 U.S.
see
("[T]o
firmness, wisdom,
honor"
a
is
impute
judges
lack
State,
premise
accept.");
Milburn v.
"which we cannot
(1971)
53, 62,
is
(recognizing
Wis. 2d
Caperton probability where the of actual bias of a aof lower court rose to an level, unconstitutional allegations at S. Ct. in Allen involve a judicial peer process fail to state a due claim "person personal no because with a stake" in Allen "had significant disproportionate placing influence" "by raising Justice Gableman on the case funds or directing campaign [his] election when the case was pending or imminent." id. See at 2263-64. Allen Neither any placing nor the State had influence in Justice briefing court, Gableman on the and no amount of can allegation alter fact. Allen's campaign speech against Gableman's evidences his bias requires all criminal defendants and therefore his re- simply implicate process cusal in Allen not does the due judicial Caperton. standard recusal set forth join opinion reasons, 272. For these I Justice PATIENCE DRAKE ROGGENSACK.