*1 Plaintiff-Respondent, Wisconsin, State
v. Crystal Crystal Parker, Defendant- a/k/a Harrell Appellant. Court Supreme 11, 1996. January Oral argument 94-1655-CR. No. —Decided 28, 1996. March 115.) (Also N.W.2d reported *2 there briefs and For the were defendant-appellant *3 Cook, D. argument by Argyle. oral David the cause was argued For the plaintiff-respondent Freimuth, M. by attorney general, James assistant E. with whom on the brief was James Doyle, attorney general. STEINMETZ, W. issue
DONALD J. The before whether, is in a tried the district attorney's us case is an office, a circuit court whose assis- judge, spouse to attorney required tant district in the same is county, himself or herself either Wis. Stat. disqualify under 757.19(2)(a) from judge a (1993-94),1 prohibiting § — a thereto" case when a close relative "counsel hearing 757.19(2)(a) (1993-94) as follows: provides Wis. Stat. § disqualify any Any judge from shall himself or herself proceeding following or criminal action when one of the civil or situations occurs: (a) judge any party When a is related or counsel thereto or spouses degree kinship. within their the 3rd for either Wis. Stat. party 757.19(2)(g),2 § —or a from a case when the —prohibiting hearing judge determines he or she cannot his or her retain impartiality. We hold neither Wis. Stat. 757.19(2)(a) nor Wis. Stat. § 757.19(2)(g) requires § disqualify himself or herself in such a situation as as his or her long in, did not or spouse pаrticipate help prepare, case. (a/k/a Harrell) Parker
Crystal Crystal was charged with two counts of retail theft in violation of Wis. Stat. 943.50(lm) (4)(a).3 § Since Parker was on parole for a 1991 felony retail theft conviction in Dane County, she was as a charged offender repeat under Wis. Stat. 939.62(l)(a).4 She entered a of no contest plea
All future reference to Wisconsin Statutes will be to the 1993-94 version.
2Wis. Stat. 757.19(2)(g) provides as follows: (2) Any judge disqualify shall any himself or herself from civil or proceeding criminal action following or when one of the situations ocсurs: (g) that, reason, When a determines he she or cannot, appears cannot, or it impartial he or she act in an manner. 943.50(lm) (4)(a) Wis. Stat. § provide as follows: (lm) intentionally price Whoever alters indicia or value of transfers, away, merchandise or who takes and carries conceals or possession retains merchandise held for resale merchant property of the merchant without his or her consent and with deprive permanently possession, intent to the merchant or the *4 purchase price, penalized full may pro- оf the merchandise be as vided in sub. (4) Whoever guilty violates this section is of: (a) misdemeanor, A A Class if the value of the merchandise $1,000. does not exceed 939.62(l)(a) 4Wis. Stat. § provides as follows: complaint Dane guilty 2 of the to count count 1 and Judge County DeChambeau. Court, Robert A. Circuit conviction the to vacate Parker then moved Judge disqualify DeChambeau's based on Hayward, marriage District an Assistant to Gretchen Attorney's County Attorney office. District in the Dane Judge for relief motion denied Parker's DeChambeau hearing appealed. and Parker without a pursuant аppeals appeal to this court certified Wis. Stat. 809.61. 757.19(2) provides sit
Wisconsin Statutes seven judges disqualify mandatory is uations where it that TV & themselves from a case. State v. American Appliance, 175, 182, 151 Wis. 2d 443 N.W.2d (1989), six fact- we found this subsection contains specific situations, be deter the existence which can objectively, general subjective mined one situation solely judge's upon which is based state of mind. As objective [such very situations, "the existence a] relationship creates law." Id. general subjective situation exists and Whether upon disqualification, requires hоwever, is based may judge's own determination of whether he or she challenges Judge impartial. remain See id. Parker grounds: DeChambeau's decision on both she asserts spouse's position that his violated one of the possible and that it should not have been for situations criminality. penalty Increased for habitual 939.62 (2), repeater, If actor as term is defined sub. present imprisonment and the is for crime which conviction for may (except imposed escape for an under s. 946.42 a failure to or 946.425) report imprisonment pre- s. under the maximum term of may scribed law that crime be increased as follows: (a) year may A maximum term of one less be increased years. not more than 3 *5 subjectively him he could to have determined impartial. remain claims,
In order to determine the merit of Parker's 757.19(2)(a) interpret this court must both Wis. Stat. (2)(g). Statutory interpretation question is a of law which we review de novo. See Rolo v. Wis. 2d Goers, 174 (1993). 709, 715, 497 N.W.2d 726 The ultimate goal statutory interpretation of is to ascertain legislature. step intent of the See id. of this The first process language is to look at the of the statute itself. See In L., Interest Jamie Wis. 218, 225, 2d оf ambiguous, N.W.2d If the statute is beyond language court must look the statute's scope, history, subject examine purpose context, matter and Rolo, of the statute. See 715. Wis. 2d at argument upon first Parker's is based one of the specifically, disqualification situations, based 757.19(2)(a). upon consanguinity. See Wis. Stat. Sub- (2)(a) requires disqualification section when "a party any related to or counsel . thereto . . within the degree kinship." 3rd Id. Parker asserts that lan- guage any "counsel thereto" must include member of representing party the law firm to the suit. government prosecutor, intеrpre- context of a Parker's government tation would include all members of the trying office which was the case. reading however,
Parker's statute, is too only practical interpretation broad. The the lan- guage applies government "counsel thereto" as it attorneys scope only attorney is to restrict its attorneys appear partici- record and other who pate certainly every in the case.5 It does not include
5We reach do not question this case of whether similar interpretation would be if appropriate Judge employed in attorney happens
government who *6 department. governmental county office or the same clearly Although language is thereto" "counsel the particu- history legislative ambiguous,6 not and the authority significant persuasive larly helpful,7 is there commentary position.8 to supports First, the this which firm that in a law partner private was a spouse DeChambeau's parties. one of the represented is language the It either undisputed by party is necessary to is and that reference external sources ambiguous interpretation. determine the statute's proper to to speak directly 7Although legislative history the does not the certainly any it not evidence intention question, this does as broadly to define the term "counsel thereto" as legislature 1951, Wis. Stat. precursor Parker. In the suggested 757.19(2)(a) codified, language with the emphasized was Rule, as: being by Supreme added Court (Rule) Judge Inter- 256.21. to have Partner or be Sec. not any is within ested in Costs... Whenever the of court related any spouse attorney agent degree kinship of his the third of appearing litigants any matter, disqualify in he shall for one of any matter, acting qualified judge in shall himself from such and a called, filing provided by upon in such manner as statute of prejudice. of an affidavit added). (1950-51) (italics omitted, emphasis 256.21 Wis. Stat. § 1977, it legislature provision this and recreated repealed 757.19(2)(a) 1977, in its form. See Laws of present at Wis. Stat. § 8, 9; of ch. ch. Laws sec. 96. §§ redraft, the 1977 one During phrase "appearing However, in there is no litigants matter" was removed. legislature through indication that the this deletion sought "attorney" to include attor- meaning broaden the or "counsel" than in the matter. neys actually participating other those 8 It split is true that there is a the authorities. Parker at sets forth in her brief a number of ethics least opinions However, legal one decision which her support position. certainly is by opinions foreign not bound courts and is 3E(1)(d)(ii) (1990)9 Code of of the ABA Model Canon Conduct, not similar, though Judicial which contains identical, states, fact that a language lawyer "[t]he law firm which a is affiliated with a with proceeding relative of the does not of itself dis affiliated ABA Model Code Judicial qualify judge." 3E(1)(d)(ii) Conduct Canon State Bar cmt. ABA of Wisconsin has endorsed this of the reading Code of Conduct a rela concluding Judicial that "when may tive's appears associate as counsel disqualify have to him I State Bar of Wisconsin herself" Comm, on Standing Ethics, Professional Memorandum added). 12/76-A Opinion (emphasis Second, at least one state court has come to the *7 same The conclusion. Michigan Court of inter Appeals statute, a similar preted which required if there was a between the relationship of judge the or "any counselors attorneys any to party," include "the only prosecuting attorney [who] Dycus, People v. . . .." appears personally 246 N.W.2d (Mich. 1976). 326, 327 App. The court found specifically not bound the advisory ethics of other states. After opinions all of carefully considering the arguments presented the authorities, persuaded we are those cited and discussed in body the of this opinion reach the sounder practical and more result. 3E(l)(d)(ii) (1990) ABA Canon Model Code: Disqualification. E. judge disqualify a proceeding shall or himself herself in a judge’s
in impartiality might reasonably which the questioned, including but not limited to instances where: (d) judge judge's spouse, the or person the or a within the degree them, relationship third of to spouse either of or the of such person; a
(ii) acting lawyer is as a proceeding. in the an attorney was related fact that a the raised no way in office in prosecutor's who worked in taint, prejudice" bias or "taint, suspected Id. in question. government characteristics special Finally, relationship it judge's that a attorneys unlikely make exam For his or her impartiality. with one would affect office does member of a prosecutor's a ple, government of a the same of interest the outcome type have law firm. See Advi trial as does a member of a private Committee on Judicial Activities for the Judicial sory 38, II- States, Conference the United Advisory Op. The has no financial interest prosecutor outcome of case and interest any reputational interest, "without not enough the financial is to create an [even] [in the State appearance partiality judge]." (Kan. 1984). v. 689 P.2d Logan, thought that a would propensity have increased convict criminals because of such a is relationship equally "preposterous." Mоffat, v. 560 N.E.2d People (Ill. 1990). Furthermore, App. government goal sole is not to convict criminals. prosecutor's simply office, Discussing the United States Attorney's Supreme United States Court stated that: The United Attorney representative States not of an of a ordinary controversy, but party *8 sovereignty govern impartially whose to obligation all; is as as its at obligation govern compelling therefore, interest, prosecu- and whose in criminal case, tion is that justice it shall win but that shall be done. States, 78, 88 v.
Berger United 295 U.S. Govern ment in this state hold true to similar prosecutors State, ideals. See O'Neil v. Wis. (1926) ("A prosecutor as a not act
N.W.2d partisan eager should court, of the convict, but as an officer every duty arriving it in in whose aid in the truth case_"). Judge
It is clear from the record that spouse actually appeared in DeChambeau's neither preparation. fact, case nor involved herself in its In according Attorney Hay- records, to court Gretchen appeared Judge ward has never in court before relationship such, DeChambeau. As their fall does not 757.19(2)(a). scope within the of Wis. Stat. argument upon
Parker's sеcond
is based
the sub-
jective portion
judicial disqualification
of the
statute.
757.19(2)(g) requires disqualifi-
Wisconsin Statutes
judge
cation when a
determines
cannot,
that he or she
appears
impartially
or that it
cannot,
that he or she
act
in a
case. American
we
TV
stated that subsection
(2)(g) concerns "not what exists in the external world
judge's
... but what exists in the
TV,
mind." American
explained:
Id. at 183. review of this determi- establishing nation is "limited to whether the *9 Id. disqualification." made determination requiring a City Edgerton Co., Cas. v. General also at 186. See of In re (1995); 521-22, 2d 527 N.W.2d 190 Wis. Against Disciplinary Crosetto, Proc. 2d 160 Wis. must 584, 466 reviewing court N.W.2d 879 through decide if the went objectively а subjective exercise required making determination. find made a clearly
We DeChambeau Judge to ability pro- determination his regarding ceed in the case. He stated on the record:
Gretchen made no on behalf Hayward appearance Indeed, of the State in the case. she has present never on behalf of the State before this appeared court. finds no Accordingly, that there is believe, to nor reason is there an of a appearance act, believe, reason that this court could not or did aсt, in an impartial manner. he he felt that could be Obviously, impartial light his is wife's in the case. This all that nonparticipation is by Wis. Stat. required 757.19(2)(g).
Although encourages provide Parker us objective standard review for the initial subjective herself, not to himself or by judge decision disqualify we to do decline so. Wisconsin Statute § drafted so as to the determination clearly place parti- TV, See American 151 Wis. ality solely upon judge. fact, 2d 182-83. legislature specifically at included six objectively other determinable situations in subsection which withdrawal. These are require the six situations on which it chose to focus. It is not this role expand court's under subsection (2)(g) list recuse himself or by requiring judge to herself *10 all situations objective impropriety an basis where read were (2)(g) prohibition If the general exist. may enumerated the six situations broadly, specific so become superfluous. statute would sum, respon- leaves Stat. 757.19(2)(g) Wis. § the individual to the of withdrawal sibility integrity or justices or To justice. imply judges judge a determination state are not able to make such to the and is a disservice honestly, openly fairly great in a judi- men and women who serve this state quаlity cial capacity.
By the of the Court. —The and order judgment County Dane Circuit Court are affirmed. {.concurring). I ABRAHAMSON,
SHIRLEY S. J. with the conclusion that agree majority opinion's circuit court in this was not case judge required 757.19(2)(a) under Stat. disqualify himself Wis. § (1993-94). I with con opinion's also agree majority made the requisite clusion the circuit his regarding ability pro determination Stat. ceed with case to Wis. pursuant 757.19(2)(g).1 § 757.19(2) provides: Wis. Stat. § any
Anyjudge disqualify shall himself or herself from civil or crimi- following proceeding nal action when one of the situations occurs:
(a) any party aWhen is related to or counsel thereto or their spouses degree kinship. within the 3rd reason, that, (g) any When a he or can- determines she not, cannot, appears impartial itor he or she in an manner. act stop analysis there, court's should But the judicial more than does Wisconsin's 757.19(2)(g) also it, I Wis. Stat. As read statute. objective it requires or not of whether assessment impartial challenged judge appears in an can act that a prescribed test manner. reviewing
requires a reasona- whether court to assess judicial with ble, well-informed observer familiar judicial system, the faсts standards, ethical circumstances of the case would harbor reasonable judge's ability impartial doubts about a under the circumstances. judge appears
While an assessment of whether a *11 partial might initially open-ended, seem to be objective properly applied, test, does understood and give litigants anything license to ferret out which might appear suspicious and use it as a basis for demanding judge's disqualification. Instead the objective reviewing test commands that a court make a judge, despite reasonable assessment of the risk that a very capаble might intentions, the best of not be holding nice, "the balance clear and true" under the LaVoie, v. facts and circumstances. Aetna Ins. 475 Life (1986) (quoting Tumey 813, Ohio, U.S. v. 273 U.S. (1927)). 510, 532
My § conclusion that Wis. Stat. incor- porates objective grounds. First, an test rests on four notwithstanding majority opinion's conclusory "clearly assertion that the statute is drafted so as to solely place partiality upon the determination of judge," Majority op. plain language at legislature statute demonstrates that the intended to promulgate objective By plain language an test. its
All future referenсes to the 1993-94 volume of statutory are the Wisconsin Statutes. a judge's structure, the statute requires
grammatical determines either when a impar- act in an that he or she cannot it appears when tial manner. an requires own
Second,
the court's
precedent
first had occasion
test. When the court
objective
made clear
Wis. Stat.
it
757.19(2)(g),
interpret
a subjective
as well as
objective
the statute required
test. State v.
N.W.2d 687
Wis. 2d
Walberg,
grounds,
on other
rev'd
(1982),
In the subsequent Appliance, 175, 182, 151 Wis. 2d 443 N.W.2d (1989), the court to follow the mistakenly prece failed Walberg failed to dent it had established in and thereby stare decisis. The doctrine abide doctrine of " 'stand by things stare decisis courts requires *12 and 'a society governed by decided'" is "fundamentаl 60.01(3) "[a] part, 2SCR that provides, pertinent the appearance should administer the law free of and partiality partiality." 3The court drew for its from its deci support position prior 411, 436, 529 Asfoor, sion State v. 75 Wis. 2d 249 N.W.2d (1977), in which the court that the Code of had determined required Judicial Ethics to recuse himself or herself whenever there any appearance partiality. was from depart A court's decision rule of law'.... must be It casually. is not to be made
precedent
the court is
that
and
to insure
fully
carefully
explained
manner."
and
arbitrary
capricious
in аn
acting
not
State v.
511 N.W.2d
441-42,
Stevens,
181 Wis. 2d
(Abra
(1995)
(1994), cert.
denied,
Without
explanation,
"[t]he
stated that
Code of Judicial Ethics governs
ethical
legal
conduct of
it has no effect on their
judges;
to act and a
qualification
disqualification
judge may
for conduct that would not have
disciplined
required
Stats." American
757.19,
under
sec.
TV,
4The American TV the Walberg tried to circumvent explicit court's conclusion that Wis. Stat. both that
required
objective
by claiming
an
test
Walberg
was
on the Code of Judicial Ethics rather
than
relying
TV,
the statute. American
Congress amended statute in 1974 so that it would conform to revisions in Cоde of Judicial Conduct enacted in revisions, 1972. One of those Canon incorporating 3C of the Code, revised requires judge's disqualification in any proceed ing which a judge's "impartiality might reasonably be Compare with questioned." U.S.C. U.S.C. *14 in promotes objective confidence test Fourth, an system. judicial Committee integrity theAs of Repre- of Judiciary House United States of the on the explaining revisions the 1974 in stated sentatives of an disqualification addition statute, the federal public promote "designed objective standard was process judicial impartiality оf the in the confidence saying, basis factual if is a reasonable effect, in there judge's impartiality, dis- doubting he should preside over the qualify let another himself and case."6
Promoting government men," of of law and not "a 60.01(1), Ethics Code of Judicial SCR Wisconsin's judges duty impartial requires place the to be 60.01(3). Because the "above all" other duties. SCR (1993). Sess., 1453, 2d Cong., See also H.R. No. 93d. Rep. § (1974) 93-512, 28 U.S.C. (discussing P.L. which revised pt. 455); Moore, Judicial Dis Appellate Karen Nelson Review § Courts, Hastings L.J. Decisions in the Federal qualification 829, U.S.C. history of 28 (discussing legislative 832-35 Note, at 238- 455); Disqualification Judges, suprа, Federal § 455). history 246-59 of 28 U.S.C. (discussing legislative § Sess., at 6355 Cong., pt.3, 6H.R. No. 93d 2d Rep. Council Members of the subcommittee of the Judicial proce charged disqualification with the revision of Wisconsin's were mailed a copy which resulted in Wis. Stat. 757.19 § dures The text of 28 U.S.C. 455 in 1975. amending July of the law § Judi was at the 757.19(2)(g) approved what is now Wis. Stat. § 19, 1975. of the See Minutes meeting cial Council on December 4; from Judicial of 12/19/75 at Letter meeting Judicial Council to members Malmgren Richard R. secretary Council executive of 7/18/75. Hence the drafters of the New Civil Rules Committee test had objective were aware that an 757.19(2)(g) of Wis. Stat. stat recently incorporated been federal ute, also bolstering the inference that Wis. Stat. § objective an test. requires
duty impartiality paramount, Code measures "the judicial objective ... conduct an standard provision the law free of that a should administer appearance partiality,'" TV, 151 Wis. 'the American 2d at 185.
Finally,
apart
I
Stat.
conclude that
from Wis.
Ethics,
757.19 and
the Wisconsin Code of Judicial
objective
required by
process guarantees
test is
the due
of the federal and state
The United
constitutions.
Supreme
repeatedly
States
Court has
made clear that
process guarantees
the due
inscribed in the federal
require application
Constitution
of an
test to
*15
disquali
determine whether a
should have been
hearing
fied from
a case. The Court has stated that
"[t]he
may
by
Due Process Clause
sometimes bar trial
judges who have no actual bias and who would do their
very
weigh
justice equally
best to
the scales of
between
contending parties.
perform high
But to
its
fimction in
way, justice
satisfy
appearance
the best
must
the
(1986)
justice."
(quoting
LaVoie,
7As
the LaVoie Court
оbserved,
not all
might
matters
that
require judicial disqualification under federal or
statutory
state
standards would necessarily
rise to
give
ques
constitutional
tions warranting
disqualification
process
under the due
clause.
LaVoie,
820;
see also Walberg, 109 Wis. 2d
Because the that conclude would system the judicial observer of that not partial in this case was circuit court in the I concur of partiality, no appearance there was I also But because majority. reached decision statute, Wisconsin's believe that court, of this Ethics, decisions prior of Judicial Code judi- of the integrity law constitutional federal test, of an require application system cial I differеntly. that have arrived at decision I would as Cle- "just that with Chief Justice Rehnquist agree that war was too important menceau counseled so generals, judicial disqualifi- matter to be left to the a matter be left important entirely cation too judges."8 BRADLEY, I agree
ANN WALSH J. (concurring). opinion's with conclusion majority subjective involves a test and that 757.19(2)(g) circuit court in this case made the requisite could impartial. determination he remain nature of was decided Appliance, State v.American TV & 2d 151 Wis. 175, 182, 443 This court should not N.W.2d 662 *16 precedent strong justification, abandon such without tо "a precedent because adherence to is fundamental City Akron v. society the rule of law." governed by of Reproductive Health, Inc., Akron Center for 462 U.S. (1983). 416, 420 Court has certain factors Supreme recognized may
which
provide significant
justification
depar-
(1)
ture from
including:
the rule has
precedent,
proven
8William H.
Sense
Nonsense
Judi
Rehnquist,
About
(1973).
Bar,
Ethics,
N.Y.C., 694,
cial
28 Rec. Ass'n
695-96
of
672
workabil
practical
intolerable
simply
defying
(2)
that
kind of reliance
rule is
to a
subject
ity;
consequences
to the
hardship
would lend a special
(3)
changed
have
of law
relаted
overruling;
principles
the old law
behind
or
such that
the rationale
developed
(4)
or come
undermined;
changed,
has been
facts have
rule
the old
so
as to have robbed
differently,
to be seen
Planned
significant
application
justification.
Pennsylvania
Southeastern
v.
Parenthood of
Casey,
O'Connor,
U.S.
854-55
(joint opinion
JJ.) (citations omitted).
haveWe
Souter,
Kennedy,
not been
with
of these
presented
justifications
since American TV was
decided.
intervening years
Therefore,
I
that
review under
acknowledge
757.19(2)
is "limited to
whether
establishing
judge made а determination
requiring
disqualifica
TV,
tion." American
I
However,
I am authorized to state that Justice JANINE GESKE joins opinion.