JUDGE

Updated 2/11/10

Recusal – Individual Supreme Court Justice – Reviewability by Full Court
State v. Aaron Antonio Allen, 2010 WI 10
For Allen: Robert R. Henak
Issue:  Whether a claim of bias against one Justice (Gableman) is reviewable by the full court.
Holding: None; there is no majority opinion. The court splits 3-3 (Justice Gableman not participating), in a total of 5 separate opinions (3 would assume jurisdiction to review claim and would order full briefing on merits of claim; 3 reject idea that claim is reviewable and would leave resolution to individual Justice at issue, though they nonetheless somewhat inconsistently proceed to review the merits). Because there is no majority, the net effect is to reject jurisdiction to review, non-precedentially. If you want a quick overview, look at ¶¶1-9.
Fall-out from the most recent election continues to flummox the court. In 5 separate opinions, the court manages to resolve exactly … nothing. Allen seeks recusal of Justice Gableman, based on asserted bias against criminal defense attorneys. Justice Gableman denied any "subjective" bias, and Allen now seeks a ruling by the full court that Justice Gableman is biased in an "objective" sense. The court, however, splits 3-3 on whether a claim of disqualification against a single Justice is reviewable by the full court. Because Allen is the movant, his failure to command a majority means that as a practical matter his motion is denied. At the same time, absence of a majority means of course, that the matter hasn't been precedentially resolved.
Odd, isn’t it, that a court whose sole purpose is to review questions of constitutional and otherwise precedential import would reject its own authority to review whether one of its own members is biased? After all, review of a court of appeals or circuit court judge’s authority to sit in judgment is utterly non-controversial. What makes a supreme court Justice so special? The Chief, as so often, has it exactly right (slip op. ¶28): “We are reminded of George Orwell's Animal Farm: ‘All animals are equal. But some animals are more equal than others.’” That the court’s “conservative” wing would organize the court along Marxist-Leninist lines is probably best chalked up to one of
Sparks fly throughout the various "writings" (as styled by some Justices; "opinions" might be rhetorically preferable). Much of the animus is probably attributable to the very real sense that the court now suffers from a genuine crisis in legitimacy. Each side rightly sees the court’s very integrity under assault. But the sides differ violently on both the nature of the difficulty and how to fend it off. One side is troubled by the allegations of bias and would opt for full airing (sunlight-as-disinfectant, and all that); the other side, thinking it a crisis manufactured by nettlesome defense attorneys, doesn’t much care about toadstools growing in the dark. But the press of events will permit the court to avert its gaze only intermittently. Among other things, oral argument in Wis. Jud. Com’n. v. Gableman, 2008AP2458-J, has been set for 4/16/10. No, this crisis isn't going to fade any time soon. On to the various opinions:
Chief Justice Abrahamson, Justices Bradley and Crooks (¶¶10-185)
Sure, we’re biased and not ashamed to admit it, but the Chief’s opinion is a real tour de force. She divides her concerns into several parts, which we’ll track.
I. Participation by target. The first split is on whether the target of recusal should participate in its resolution. In this instance, Justice Gableman withdrew from participation, but Justice Roggensack would have allowed him plenary review while the Chief wouldn’t¸ ¶31 (“It certainly appears that any challenged justice has a personal interest in the disposition of a recusal motion directed to him or her.”). It’s settled that when a judge and alleged contemnor have become embroiled in a personal exchange, the judge can’t decide the issue of contempt, another judge must; risk of investment in the outcome is too high for detachment. Wouldn’t that be more or less the same in this context?
II. Plenary jurisdiction. The parties assumed plenary jurisdiction over the recusal issue, until challenged sua sponte by Justice Roggensack, ¶33 (who rejects such jurisdiction). This is the heart of the dispute. The Chief seems inclined to assume such jurisdiction, but first would order briefs:
¶49      Because this court has express, implied, incidental, and inherent powers; because the court has supervisory and administrative authority over all courts in Wisconsin, including the supreme court; [27] because this court is obligated to support the United States Constitution as the supreme law of the land; [28] because each justice is required to and does take an oath to support the federal and state constitutions; [29] because this court has inherent competency to adjudicate federal constitutional claims; because both the federal and state constitutions guarantee due process; [30] and because this court decides motions to disqualify justices and other decision makers on objective and subjective statutory grounds and due process grounds, doesn't this court have not only the power (jurisdiction) to hear a due process recusal motion but also a constitutional obligation to hear Allen's motions and to decide whether a justice of this court is disqualified on due process grounds from sitting on a case? It appears to us that the court does have such authority. Briefs would help.
The Chief goes on to survey the practice among other courts, including the Supreme Court, on reviewing recusal of a fellow justice. It is a comprehensive, scholarly effort; in the end the following probably embodies the complaint on a doctrinal level: “Without briefs, Justices Prosser, Roggensack, and Ziegler have reached the extraordinary conclusion that this court never has power to guarantee that all members are impartial,” ¶64.
III. Policy implications. “Allen and the State have assumed that the rights of litigants to an impartial tribunal trump the court's discomfort or anxiety about the consequences of judging one of its own,” ¶72.
We detect dry humor. The Chief notes that transparency and accountability are thwarted by the blocking Threesome, ¶78.
¶80      Do Justices Prosser, Roggensack, and Ziegler truly believe that any public perception of this court will be improved if this court places any challenged justice's individual decision of impartiality beyond any form of meaningful review?

¶82      Would it not command greater public respect and confidence if the court read briefs and heard arguments on Allen's recusal motions, analyzed the facts and applied the law in a full opinion, as we would in review of allegations asserted against any judge of any another court in the state?

We would employ slightly different rhetoric, to make the same point: Does the Threesome truly believe that their obdurate failure to subject the claim of bias to any review will minimize, or exacerbate, the crisis in the court’s legitimacy?
IV. Merits. The Chief doesn’t reach the merits of recusal; fuller briefing is advocated.
¶89      Our three colleagues give Caperton short shrift——two brief paragraphs.  They announce at ¶222 that "Caperton has no relevance here."  They devote a single brief paragraph to Caperton at ¶238.  Our colleagues just don't seem to get it. [56] All state courts are bound by the teachings of Caperton, and Caperton is generally viewed as a major case involving more than campaign contributions and affecting court practice across the country. [57] Without significant analysis, our colleagues seem to treat Caperton as merely an outlier rather than an important statement about the constitutional requirement of fair tribunals.  How should the principles articulated in Caperton be applied in different factual settings?  Answering this question is no easy task, but briefs, argument, and serious deliberation would greatly assist us in interpreting and applying Caperton.
At the risk of oversimplification: Caperton recognizes an objective, appearance-of-fairness test for judicial partiality. That recognition worked a change in the Wisconsin approach, which had been heavily invested in a purely subjective test (the individual judge or justice’s disavowal of personal bias functionally ended the inquiry). Nonetheless, the blocking 3 essentially retain our pre- Caperton approach. Justice Gableman said he isn’t biased against Allen, and that ends the inquiry. The Chief, while not purporting to reach the merits, notes “the highly unusual allegations and circumstances in the instant case,” ¶115.
Much, much more to it than that, but this should suffice as an overview, to give a sense of the fault lines running through the court.
Justice Crooks (¶¶186-93)
Perhaps the most interesting opinion, if for no reason other than that Justice Gableman’s learned counsel, James Bopp, snatched stalemate from the jaws of victory with his polemics:
¶187    The circumstances surrounding this matter have changed in significant ways. After reviewing the allegations and the relevant case law, I was initially ready, in the early stages of the matter, to deny the motion directed to the court to require Justice Gableman's recusal. …

¶189    Second, without briefing and without discussion of the supplemental filings, which have not been taken up by the court, this motion has been disposed of without a thorough airing of most of the issues. [144] The supporting material in the supplemental filing of September 21, 2009, is particularly troubling. It details public statements made by Justice Gableman's attorney before a three-judge panel of the court of appeals, and at a press conference thereafter. [145] These statements, made on Justice Gableman's behalf to explain his campaign strategy against an opponent, startled and appalled many in the legal community. …

¶191    The record now before the court contains serious allegations, some of which go well beyond campaign speech.  Given the allegations that have been presented to the court, especially the evidence detailed in the supplemental motion, I believe this court has no choice but to exercise its power to address these motions on the merits. …

“Startled and appalled many in the legal community.” Yes, indeed. Justice Gableman’s retained counsel, acting in effect as his spokesman, defended the ethics charge by launching a frontal assault on our very system of adversary representation. Justice Crooks does not add, though he well might, that many in the legal community will be equally startled and appalled to learn that 3 Justices have blocked review of Justice Gableman’s ability to be fair in any given case. Worse: no Justice’s fairness will be subject to review. (Justice Roggensack: “Our decision on this issue does not depend on the factual context in which it arises, i.e., the issue would be the same if the motion to disqualify were directed at any justice,” ¶196).
Justices Roggensack, Prosser and Ziegler (¶194-246)
Justice Roggensack’s position is crystal-clear: “We conclude that a majority of the justices on this court do not have the power to disqualify a fellow justice from participation in a proceeding before this court,” ¶207. Period. (If there’s any doubt: “In summary, as is the practice of the United States Supreme Court and has been the practice of this court for more than 150 years, we, who join in this opinion, conclude that a majority of the justices on the Wisconsin Supreme Court do not have the power to disqualify a fellow justice from participation in a proceeding before this court,” ¶228.)
The supreme court has, and occasionally exercises, original jurisdiction over given matters, but its overwhelming function is that of review. How can it be that the one thing it absolutely refuses to review is the alleged intellectual corruption of one of its members? Justice Roggensack argues that that is the past practice, as exemplified by the few cases which raised recusal. (Read ¶¶208-16, and decide for yourself.) But to a large extent, the position is policy-driven, and seems to reduce to the idea that a supreme court Justice is, indeed, first among equals, ¶¶217, et seq. Justice Roggensack finds “shocking” the idea that 4 Justices can order disqualification of another Justice on the basis of campaign statements, ¶224, but she doesn’t quite say why. Her suggestion that such disqualification “accords no substantive standards and no procedural due process,” id., merely befuddles, because it is her side that wants the issue decided without substantive standards or procedural due process. It is the other side that is asking for a full airing of the issue—something that is, we might have thought, the very essence of procedural due process.
More policy, worth quoting in full, because it hints at the real driver of the dispute:
¶225    Finally, Chief Justice Abrahamson, Justice Bradley and Justice Crooks assume that if they have the power to force another justice off a pending case, both an impartial court and the appearance of an impartial court will result. Abrahamson, C.J.'s writing, passim. Their unspoken assumption is based on the faulty premise that giving four members of the court the power to disqualify a fellow justice will increase the appearance of impartiality of the court.

¶226    This is a deeply divided court, at a very philosophical level concerning how a state supreme court should function. The public perception of this court is also deeply divided. Therefore, four justices forcing another justice off the court is just as apt to be perceived as a biased act resulting in a biased tribunal, as is the justice remaining on the case and participating in it after he or she has considered the disqualification motion. What Chief Justice Abrahamson, Justice Bradley and Justice Crooks propose is the opening of Pandora's Box to ever-increasing attempts to manipulate the outcomes in pending matters by changing the composition of the court that will decide the issues presented.

¶227    Actual fairness and the appearance of an unbiased tribunal are very important to us, but impartiality will not be furthered by granting four justices the power to prevent another justice from fulfilling his judicial office.

Shorter, snarkier version: we’re not so much concerned with “actual fairness” that we want it actually litigated. But that’s really the unfortunate thing about this absolute disdain of plenary authority: by the very logic of Justice Roggensack’s opinion, it simply wasn’t necessary to stake out territory this far-flung. The opinion, that is, very clearly embraces the idea that disqualifying bias must be personal, directed at the immediate litigant, and exclusive of “group” bias, ¶233-37. Allen’s claim falls short of that test. We might vigorously disagree, but the fact of the matter is that the opinion purports to scrutinize (and reject) the merits of the claim. Simply wasn’t necessary to, indeed was antithetical to the very idea of, disavowing authority to review the merits.
Lest you think that the problem is limited to complaints against Justice Gableman, see ¶121 n. 85, which mentions several entirely separate disqualification matters. One is a criminal case that raises the interesting, purely legal question of what it means for a court of appeals judge to have “handled” a case such that she is statutorily barred form hearing it during a subsequent tenure on the supreme court. Justice Roggensack rejected her own disqualification, State v. Dimitri Henley, Memorandum Decision (Roggensack, J.), No. 2008AP697, 11/25/09, but that matter is now before the full court. Except that if you take literally the idea espoused by 3 Justices that “that a majority of the justices on this court do not have the power to disqualify a fellow justice from participation,” then this issue simply isn’t reviewable. Talk about shirking the court’s bedrock responsibilities: administration of justice and construction of statutes. And yet, if plenary review is to be had (as it plainly ought to), then how will these Justices rationalize climbing off the limb they wandered out on? Henley is distinguishable: it deals with a question of law (either Justice Roggensack “handled” the case, within the meaning of the statute, or she didn’t; if the former, then she’s automatically disqualified, if not then she necessarily remains on the deciding panel). Allen et al, by contrast, deal with the fact-contingent question of judicial bias. Whether the distinction is deemed meaningful, though, might be something else.
Justice Prosser (¶¶247-58) This passage will probably attract the most attention:
¶255    At least with respect to Wisconsin, Justice Kennedy has been proven wrong. To date, the Caperton decision has had disastrous consequences for the Wisconsin Supreme Court. The Allen motion was filed in anticipation of Caperton, but it has been followed by nine additional recusal motions against members of this court. The Wisconsin State Public Defender's office has invited the entire defense bar to file recusal motions against one of the justices in criminal cases. The number and savagery of these motions is unprecedented and amounts to a frontal assault on the court.
“Savagery”? Really? Cruel, pitiless, untamed, uncivilized barbarism? Exactly what about the recusal motions has given Justice Prosser such a case of the vapors? Was it their insistence on a fair hearing that “amounts to a frontal assault on the court”? The court itself is doing an awfully good job of undermining its own legitimacy, and Justice Prosser rightfully is concerned, even if he manages to confuse cause and effect.
Justices Ziegler and Roggensack (¶¶259-72)
Justice Ziegler reviews the merits and perceives no due process violation: "the due process standard for judicial recusal as set forth by the United States Supreme Court in Caperton v. A.T. Massey Coal Co., 556 U.S. __, 129 S. Ct. 2252 (2009), is not implicated by Allen's motion," ¶259. To be sure, she does not believe that the full court has the authority to remove a Justice from a case -- she thus decries what she sees as “judge-shopping” by Allen, and would “roll up the welcome mat to” him and others of his ilk, ¶261. But she makes it clear that in her view Caperton is limited to the sort of "extreme facts" underlying that case. A contrary view, she argues, would be "destructive to the credibility of the court, as justices are always presumed to be fair and impartial" ¶269.
¶271 In contrast to the "extreme facts" in Caperton where the probability of actual bias of a justice of a lower court rose to an unconstitutional level, 129 S. Ct. at 2265, the allegations in Allen involve a judicial peer and fail to state a due process claim because no "person with a personal stake" in Allen "had a significant and disproportionate influence" in placing Justice Gableman on the case "by raising funds or directing [his] election campaign when the case was pending or imminent." See id. at 2263-64. Neither Allen nor the State had any influence in placing Justice Gableman on the court, and no amount of briefing can alter that fact. Allen's allegation that Justice Gableman's campaign speech evidences his bias against all criminal defendants and therefore requires his recusal in Allen simply does not implicate the due process standard for judicial recusal set forth in Caperton.
A bit oddly, Justice Ziegler fails to cite the recently decided People v. Marilyn Kaye Freeman, Cal SCT No. S150984, 1/21/10, which unanimously agreed that, following Caperton:
while a showing of actual bias is not required for judicial disqualification under the due process clause, neither is the mere appearance of bias sufficient. Instead, based on an objective assessment of the circumstances in the particular case, there must exist “'the probability of actual bias on the part of the judge or decisionmaker [that] is too high to be constitutionally tolerable.” (Id. at p.__ [129 S.Ct. at p. 2259].) Where only the appearance of bias is at issue, a litigant?s recourse is to seek disqualification under state disqualification statutes: “Because the codes of judicial conduct provide more protection than due process requires, most disputes over disqualification will be resolved without resort to the Constitution.” (Id. at p.__ [129 S.Ct. at p. 2267].) Finally, the court emphasized that only the most “extreme facts” would justify judicial disqualification based on the due process clause. (Id. at p.__ [129 S.Ct. at pp. 2265, 2266].)
Or maybe the failure to cite this seemingly supportive holding isn't so mysterious: it doesn't make much sense to set a high bar for objective bias because of the availability of state review process, only to eliminate that very process. One but not the other. Insisting on both gives an appearance, at the minimum, of a tainted process.
Disqualification, § 757.19(2)(e) – Meaning of “Previously Handled the Action or Proceeding while Judge of an Inferior Court”
State v. Dimitri Henley, Memorandum Decision (Roggensack, J.), No. 2008AP697, 11/25/09
For Henley: Keith A. Findley
Issue:  Whether § 757.19(2)(e), which prohibits an appellate judge from subsequent participation if he/she “handled the action or proceeding" while a judge of an “inferior court,” disqualifies Justice Roggensack from participating in Henley's pending appeal, given that as a court of appeals judge she decided the separate appeal of Henley's jointly tried codefendant.
Holding: 
¶17  In Wis. Stat. § 757.19(2)(e), raised by Henley, the relevant phrase is “previously handled the action or proceeding.” The plain meaning of the relevant term encompasses only the case of State v. Henley because a judge could not have previously handled State v. Henley unless he had participated in it during an earlier stage of the litigation.…

¶18  My conclusion that “action or proceeding” refers only to the case before the court as that case proceeded through the judicial system is also consistent with the use of the term “action or proceeding” in other statutes.…

¶23  … Accordingly, I conclude that disqualification/recusal is directed under Wis. Stat. § 757.19(2)(e) only when the same defendant in the action or proceeding on which an appellate judge has already participated as a judge is once again before a court on which the same judge is serving.

Justice Roggensack goes on to reject disqualification or recusal on the basis of appearance of partiality, given her participation in Adams’ prior appeal, ¶¶24-36.

Relevant background, briefly stated: Henley was not only tried jointly with Jarret Adams for sexual assault, but the defense was identical (they acknowledged having sex but argued that it was consensual). Both defendants were convicted and although separate appeals ensued, each raised an identical issue: diligent investigation by counsel would have turned up a disinterested witness who would have crucially corroborated the defense of consent. Then-judge Roggensack was on the panel that affirmed Adams' conviction but she did not sit on the panel that affirmed Henley’s conviction. Adams subsequently obtained habeas relief on the ineffective assistance of counsel ground rejected by Judge Roggensack, Jarret M. Adams v. Bertrand, 453 F.3d 428 (7th Cir. 2006).  Henley, in contrast, failed to pursue his federal remedies to the 7th Circuit. His current state appeal attempts to resurrect the same claim that carried the day for Adams, under an interest-of-justice rubric. Which brings us to the crux of the matter: is now-Justice Roggensack disqualified from hearing Henley’s appeal because she “previously handled the action or proceeding”? As the excerpt above suggests, she says no.

Her analysis ignores, in the first instance, prior caselaw definitions of “case or proceeding,” e.g., In re Estate of Thompson, 2003 WI App 70, ¶26, 261 Wis. 2d 723, 661 N.W.2d 869 (“An ‘action,’ however, as used in the Wisconsin statutes, means “‘a lawsuit brought in a court’” and ‘denotes the entire controversy at issue.’”) That is, the two having been jointly tried, the “action” against Adams was the very “action” against Henley; the lawsuit brought against the one was brought against the other. And, in Wisconsin law, the “lawsuit” brought against Adams (and reviewed by Justice Roggensack) denotes the “entire” controversy.  At a minimum, then, the plain text of the disqualification statute does not clearly support the Justice’s conclusion that the “same defendant” must have been a party to the litigation “previously handled.”

As for ancillary construction, the Memorandum Decision’s reliance on  Sturdevant v. State, 49 Wis.  2d 142, 181 N.W.2d 523 (1970) (whether a trial judge who had previously represented the defendant in some wholly separate matter should be disqualified), ¶16, is misplaced. The issue in that case is entirely distinct from Henley’s claim, and the court’s discussion therefore can’t be ported to this much different context. Same for the Memorandum Decision’s discussion of statutory history, ¶¶22-23, which if anything shows intent to broaden rather than narrow the basis for disqualification (simply because the drafters ended up rejected a very narrow basis for disqualification in preference to the current language).

The Decision also is notable for what it neglects to say, with respect to the concrete setting. In ruling against Adams, the court of appeals panel (including, of course, then-Judge Roggensack) noted that, “At the postconviction hearing, Adams’s trial counsel testified that he and counsel for co-defendant Henley had agreed not to call witnesses in order to highlight the weaknesses of the State’s case,” State v. Jarret M. Adams, ¶4, 2002AP39-CR, 11/7/02. The court went on to conclude that this joint strategy was entirely “reasonable,” ¶8. It is that very conclusion—the one Justice Roggensack previously ruled on—that is back in front of her, albeit now under the rubric of interest of justice rather than (as in the prior go-round) ineffective assistance of counsel. To say that, under this concrete set of facts, Henley doesn’t present the “same action or proceeding” as Adams is arbitrary. Worse, refusal to disqualify will only instill lack of confidence in the outcome. Put it baldly: “But ‘when a judge has prejudged … the outcome,’ the decision maker cannot render a decision that comports with due process.” State v. Brian K. Goodson, 2009 WI App 107, ¶17, quoting, Harrison Franklin v. McCaughtry, 398 F.3d 955, 962 (7th Cir. 2005). Justice Roggensack’s previous rejection of relief under the identical set of facts in the jointly-tried codefendant’s appeal raises more than a suspicion that she has prejudged Henley’s outcome. And that, at long last gets us to the election fallout, which the Decision obliquely casts in terms of “Policy Concerns”:

¶31  Motions to disqualify a justice of this court from participation in pending cases have become motions de jour. Currently, nine such motions are pending before the court, directed at various justices. While the attorneys practicing before the court assist us in the development of the law when they bring interesting legal issues to us for review, care must be taken by attorneys to thoroughly research the law that underlies any motion. This is no less true when it is a motion for disqualification/recusal of a justice. Such motions raise serious concerns for the justice and institutional concerns for the court. 
Well, yes. But Henley’s disqualification issue has nothing to do with those other recusal motions, and throwing them into the mix does nothing but raise questions about why they’re being invoked at all. Any “serious concerns for justice” would deal forthrightly with the problem of a justice sitting in judgment on a case where she has previously reached the merits of the issue in a case that is “separate” only in the most artificial sense.

Now for the really fun part. Can this Decision be cited? If so, to what effect? It’s not an “opinion” by the court, hence there’s no public domain cite. Chapter 809 doesn’t address the problem. Supreme court Internal Operating Procedures clearly indicate (§ 27.31), “The decision of a justice to recuse himself or herself is that of the justice alone,” but says nothing about the precedential or persuasive effect of such a decision. Still, the decision perhaps might be likened to an in-chambers opinion by a United States Supreme Court Justice, an event that, albeit a bit obscure, does carry at least some weight (“It was written by Justice Ginsburg in April as an ‘in-chambers’ opinion, a sort of one-justice ruling that is rare and hard to categorize -- so much so that until 40 years ago, they were not included in the U.S. Reports. Ginsburg's in-chamber opinion in April was the first written by any justice in two years. … but occasionally justices feel compelled to lay out their reasoning for the guidance of the parties and future litigants.”). One scholarly study counted 412 in-chambers opinions in the U.S. Reports through 2005, noting that “they are not a decision on the merits, but rather have to do with such matters as extensions of time, injunctions, and stays.” So, too, of course Justice Roggensack's Memorandum Decision (that is, not a decision on the merits but disposition of a purely procedural problem). So, yes, the Decision may well be citable, though that is an open question. But where will you find it? Again, there’s no PDC. Will it work its way into Wis. or N.W. Reports? If not, there’s always that handy resource, your SPD Case Summaries web site. Nor is the Decision necessarily the final word: “Where a justice who participated in a case was disqualified by law, the court’s judgment in that case is void,” State v. American TV and Appliance of Madison, Inc., 151 Wis. 2d 175, 179, 443 N.W.2d 662 (1989). It's in the interest of the full court, then, to resolve the issue and in that instance, a precedential “opinion” would be released.

Disqualification, § 757.19(2) – Receipt of Campaign Contributions, etc.
James R. Donohoo v. Action Wisconsin, Inc., 2008 WI 110, on motion to vacate decision
Issue/Holding: Neither acceptance of campaign contributions by a judge from counsel for a party nor the judge’s appearance at a political action committee’s fund raiser, nor election endorsement by a party’s attorney constitutes ground for disqualification under § 757.19(2). Of note: the court cites, with apparent approval, a Judicial Commission observation that “recusal of a judge or justice based solely on a contribution to a judicial campaign” isn’t required, ¶19. The court also discusses, if glancingly, public pronouncements by judges:
¶21      As to Donohoo's claim that Justice Butler acted improperly in attending the fund raiser, the Judicial Commission noted that "[j]udges and candidates for judicial office can announce their views on political and legal issues as long as they are not pledges or promises to decide cases in a certain way."  In addition, we note that the Comment to SCR 60.05(3)(c)2.d provides:
A judge may be a speaker or guest of honor at an organization's fund-raising event provided there is no advertising of the judge as speaker or guest of honor in order to encourage people to attend and make contributions and provided that any contributions at the event are made prior to the judge's speech or presentation as guest of honor.  A judge's attendance at such event is permissible if otherwise consistent with this chapter.
The court also reiterates that disqualification under § 757.19(2)(g) is satisfied purely by a judge’s “subjective determination regarding … ability to proceed in the case. … Justice Butler clearly determined that he could be impartial. This all that is required by § 757.19(2)(g),” ¶25.
¶27      Donohoo appears to be asking this court to overturn the decision in Harrell and impose an objective standard of review for a judge's initial subjective decision not to disqualify himself or herself. We decline to do so.  As we said in Harrell:
Wisconsin Statute § 757.19(2)(g) is clearly drafted so as to place the determination of partiality solely upon the judge. …
§ 757.19(2)(g) reads:  “Any judge shall disqualify himself or herself from any civil or criminal action or proceeding when one of the following situations occurs: . . . [w]hen a judge determines that, for any reason, he or she cannot, or it appears he or she cannot, act in an impartial manner.” Keep in mind that we’re talking about statutory disqualification. The question of recusal on account of judicial bias is something else and there, an objective test (the appearance of partiality) applies, see, e.g., State v. Justin D. Gudgeon, 2006 WI App 143, ¶26.

Interesting concurrence from Justice Prosser which observes (among other things):

¶48      There are ethical rules that prohibit judges from personally soliciting campaign contributions, see SCR 60.06(4), but there are no clear guidelines or bright-line rules on when a justice's campaign committee may receive contributions from a party, a party's attorney, or members of the attorney's law firm. Consequently, the receipt of contributions——which is expected and probably necessary in a system of judicial elections——is bound to raise questions and generate differing reactions.
Just so. In fact, "correlating campaign finance for state court judges and their later decisional voting patterns" is rapdily becoming a nation-wide preoccupation. Clarification may come in Caperton v. A.T. Massey Coal Co., USSC No. 08-22. Brennan Center amicus brief, here ("The last decade has seen an explosion in campaign expenditures in judicial elections. Lawyers and litigants, unsurprisingly, are the principal sources of funds. Increasingly, as retired Supreme Court Justice Sandra Day O’Connor has observed, such contributions 'threaten the integrity of judicial selection and compromise the public perception of judicial decisions.' Sandra Day O’Connor, Op-Ed, Justice for Sale, Wall St. J., Nov. 15, 2007, at A25.")
Ex Parte Contact with Prosecutor
State ex rel. Adrian T. Hipp v. Murray, 2007 WI App 202, affirmed, 2008 WI 67, ¶48 n. 7 (reconsideration denied, 2008 WI 118)
Pro se
Issue/Holding: ¶13 n. 4:
We are disturbed by Reddin’s presumption to give, and Judge Murray’s acquiescence to receive, Reddin’s ex parte advice about the scope of Hipp’s ability to have issued subpoenas for the production of his witnesses at the John Doe hearing, and we remind the bench and the bar of SCR 60.04(1)(g) (“A judge may not initiate, permit, engage in or consider ex parte communications concerning a pending or impending action or proceeding” other than in carefully delineated circumstances.), and SCR 20:3.5 (“A lawyer shall not: … (b) communicate ex parte with [a judge] except as permitted by law or for scheduling purposes if permitted by the court.”). See also State v. Washington, 83 Wis. 2d 808, 824–825, 266 N.W.2d 597, 605 (1978). The Rules of Professional Conduct were amended, effective July 1, 2007, by S. Ct. Order 04-07, 2007 WI 4. Supreme Court Rule 20:3.5(b) is unchanged. The new Rules of Professional Conduct may be accessed at: http://www.legis.state.wi.us/rsb/scr/5200.pdf.
Disturbed, but not quite enough to do anything about it, even though the judge also apparently obstructed Hipp’s attempts to order transcripts, ¶15 n. 5:
¶15 Hipp also seeks an order removing Judge Murray as his John Doe judge, and Reddin from further participation. We have no doubt but that Judge Murray will on remand fulfill his responsibilities as an impartial magistrate. See State v. Washington, 83 Wis. 2d 808, 824, 266 N.W.2d 597, 605 (1978). [5] We express no opinion whether Hipp may, on remand, seek relief under either Wis. Stat. §§ 801.58(7) or 971.20(7), the substitution-of-judge statutes in civil and criminal cases, as that issue has not been presented or briefed. We also decline to interfere with the authority of the Milwaukee County district attorney to assign his deputies and assistants as he sees fit. See Wis. Stat. § 978.03(1) & (3).
Also see State ex rel. Gibson v. H & SS Dept., 86 Wis.2d 345, 355, 272 N.W.2d 395 (Ct. App. 1978) (“In attempting to maintain the appearance, as well as the actuality of neutrality, there has long existed a distaste for ex parte communications while a case or hearing is pending. This concept has been codified in standard ten of Wisconsin's Code of Judicial Ethics … .”).)

UPDATE: Above remarks ratified, 2008 WI 67, ¶48 n. 7:

We also note that Reddin's actions in preventing Hipp's witnesses from appearing are problematic. Before the January hearing, Reddin took it upon himself to advise the subpoenaed witnesses that they did not have to appear. Judge Murray concedes in his brief that Reddin's actions were inappropriate. He states that Reddin should have instead filed a motion requesting Judge Murray to quash the subpoenas. We agree.

The court of appeals expressed concern regarding Reddin giving, and Judge Murray's willingness to receive, ex parte advice regarding Hipp's ability to have subpoenas issued. It reminded "the bench and the bar" of the obligations presented by SCR 60.04(1)(g) and SCR 20:3.5(b) and the requirement that the behavior of the John Doe judge "should be such as not to impair his or her ability to make an independent determination of probable cause." State v. Washington, 83 Wis. 2d 808, 824, 266 N.W.2d 597 (1978). We join with the court of appeals in its expression of concern.

As the court is well aware, a Doe proceeding isn’t adversarial. A Doe judge is, well, a judge; thus: “To the extent that circumstances arising in the John Doe investigation require the adjudication of adversarial motions or orders … the John Doe statute contemplates, and caselaw has consistently required, that the John Doe judge convene and act as a court,” In Matter of John Doe Proceeding, 2003 WI 30, ¶81, 260 Wis.2d 653, 660 N.W.2d 260. Why mention the obvious? Precisely because the court didn’t – which means that the court simply took as given that of course the Codes of Conduct apply, even if the proceeding is investigatory rather than adversarial; that is, the bar on proscribed contact will be given broad effect.
Recusal - Judicial Bias: Objective Bias, Generally
State v. Brian K. Goodson, 2009 WI App 107
For Goodson: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶9        Objective bias can exist in two situations. The first is where there is the appearance of bias, Gudgeon, 295 Wis. 2d 189, ¶¶23-24. “[T]he appearance of bias offends constitutional due process principles whenever a reasonable person—taking into consideration human psychological tendencies and weaknesses—concludes that the average judge could not be trusted to ‘hold the balance nice, clear and true’ under all the circumstances.” Id. , ¶24 (citation omitted). Thus, the appearance of partiality constitutes objective bias when a reasonable person could question the court’s impartiality based on the court’s statements. Id.,¶26; Rochelt, 165 Wis.  2d at 378. The second form of objective bias occurs where “there are objective facts demonstrating … the trial judge in fact treated [the defendant] unfairly.” State v. McBride, 187 Wis.  2d 409, 416, 523 N.W.2d 106 (Ct. App. 1994) (citation and internal quotation omitted). Goodson argues both forms of objective bias are present here.
Recusal - Judicial Bias – Prejudgment of Issue: Effectuated Threat to Impose Maximum upon Revocation
State v. Brian K. Goodson, 2009 WI App 107
For Goodson: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding: The reconfinement judge should have recused himself, given that at original disposition he threatened to impose the maximum if the defendant was returned to court on revocation; State v. Gudgeon, 2006 WI App 143, deemed controlling:
¶12      The same analysis applies here. At the initial sentencing, the court assured Goodson it was “not kidding” about its commitment to impose the maximum sentence if Goodson violated his supervision rules. Later in the hearing, the court repeated the warning: “[A]s I have told you, you do one deviation from these rules, and you are going to come back here, and you are going to get the maximum.” The court then reminded Goodson yet again at the first reconfinement hearing what would happen if he violated the rules.

¶13      Here, the court unequivocally promised to sentence Goodson to the maximum period of time if he violated his supervision rules. A reasonable person would conclude that a judge would intend to keep such a promise—that the judge had made up his mind about Goodson’s sentence before the reconfinement hearing. This appearance constitutes objective bias.

¶17      A court may certainly tell a defendant what could happen if his or her extended supervision is revoked. But telling a defendant what will happen imperils the defendant’s due process right to an impartial judge at a reconfinement hearing. Our jurisprudence eschews the notion that a court may determine a sentence without scrutinizing individual circumstances. See McCleary v. State, 49 Wis. 2d 263, 271, 182 N.W.2d 512 (1971). This prohibition is not implicated when a judge “merely express[es] a general opinion regarding a law at issue in a case before him or her.” McCaughtry, 398 F.3d at 962. But “when a judge has prejudged … the outcome,” the decision maker cannot render a decision that comports with due process. Id.

The court goes on to attempt to reconcile a seeming split in caselaw, ¶¶14-16, namely “that while some cases hold apparent bias is sufficient to show objective bias, other authority holds actual bias is required.” The court derives a synthesis by holding that either actual bias or “great risk” thereof is required. In this case, the court concludes with respect to the trial court’s statement re “the agreement you and I had back at the time you were sentenced”: “There could not be a more explicit statement confirming that the sentence was predecided. This is definitive evidence of actual bias.” Remains to seen how far the “great risk” envelope can be pushed.

Point of interest: No contemporaneous request for recusal was made; in other words, the issue was first raised by appellate counsel on postconviction motion. Apparently, then, the court of appeals must have seen the need for recusal either as so compelling to require sua sponte action or as so fundamental as to not be waivable. Nonetheless, keep in mind that the court did not discuss the issue in these terms, indeed did not discuss the impact of failure to object at all. You will have to make of that what you will.

Recusal – Judicial Bias: Prejudgment of Issue
State v. Roberto Vargas Rodriguez, 2006 WI App 163, PFR filed 8/28/06
For Rodriguez: Donna L. Hintze, SPD, Madison Appellate
Issue: Whether, given the trial judge’s statement at sentencing that defendant’s counsel had in fact provided competent representation, established prejudgment of the issue such that recusal was required for the subsequent postconviction assertion of ineffective assistance of counsel.
Holding:
¶35      … (A)bsent a pervasive and perverse animus, which Rodriguez does not allege, a judge may assess a case and potential arguments based on what he or she knows from the case in the course of the judge’s judicial responsibilities. See Liteky v. United States, 510 U.S. 540, 555 (1994) (“[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.”). The trial court did not err in declining to recuse itself from consideration of Rodriguez’s postconviction motion.
You wouldn’t quite know it from this passage, but the standard for recusal is in a bit of flux. Some of the more important recent cases are Harrison Franklin v. McCaughtry, 398 F.3d 955 (7th Cir. 2005), and State v. Justin D. Gudgeon, 2006 WI App 143, both of which may be read for the idea that prejudgment of an issue establishes a disqualifying appearance of bias. Yet, the court of appeals is also correct that an opinion derived through a judicial proceeding can’t ordinarily support disqualification. Does this mean that there’s simply an irreconcilable tension between these competing principles? Maybe. But you don’t have to go that far in this instance, either: you can argue that the trial judge had no business making a pronouncement on Rodriguez’s representation; there’s a very long history now in this state of saying that ineffective-assistance can’t be determined on the record; that’s why there must be a Machner hearing. The trial judge, in other words, simply wasn’t entitled to draw an opinion on the basis of the proceedings and a Litecky-type principle therefore shouldn’t be invoked.
Bias -- Generally, Structural Error
State v. Justin D. Gudgeon, 2006 WI App 143, PFR filed 7/14/06
For Gudgeon: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶10      A biased tribunal, like the lack of counsel, constitutes a “structural error.” See id. at 8; Franklin v. McCaughtry, 398 F.3d 955, 961 (7th Cir. 2005); State v. Carprue, 2004 WI 111, ¶59, 274 Wis. 2d 656, 683 N.W.2d 31. …

¶11      Our supreme court has also on occasion iterated the importance of an impartial tribunal. Guthrie v. WERC, 111 Wis. 2d 447, 331 N.W.2d 331 (1983) … stated, “It is, of course, undisputable that a minimal rudiment of due process is a fair and impartial decisionmaker.” Id. at 454 (emphasis added). “A ‘fair trial in a fair tribunal is a basic requirement of due process.’” Id. at 454 (citation omitted). 

¶12      The court echoed these thoughts in Marris v. City of Cedarburg, 176 Wis. 2d 14, 498 N.W.2d 842 (1993). … It explained that, “Since biases may distort judgment, impartial decision-makers are needed to ensure both sound fact-finding and rational decision-making as well as to ensure public confidence in the decision-making process.” Id. at 25-26. …

Bias -- Test -- Objective Bias
State v. Justin D. Gudgeon, 2006 WI App 143, PFR filed 7/14/06
For Gudgeon: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶21      The second component, the objective test, asks whether a reasonable person could question the judge’s impartiality. Franklin, 398 F.3d at 960; Walberg, 109 Wis. 2d at 106-07 (looks to whether partiality can “reasonably be questioned”). Actual bias on the part of the decision maker certainly meets this objective test. In re Murchison, 349 U.S. 133, 136 (1955); Franklin, 398 F.3d at 960-61. Sometimes, however, the appearance of partiality can also offend due process ….

¶22      We have reviewed numerous cases, both state and federal, that discuss these two aspects of objective bias. Initially, we had a difficult time discerning from them whether actual bias was necessary or merely sufficient. …

¶23      Further examination, however, reveals that this divergent case law can be harmonized. …

¶24      … In short, the appearance of bias offends constitutional due process principles whenever a reasonable person—taking into consideration human psychological tendencies and weaknesses—concludes that the average judge could not be trusted to “hold the balance nice, clear and true” under all the circumstances.

Compare this, not necessarily inconsistent synthesis from People v. Freeman, Cal App No. D046394, 2/5/07: "These federal and California decisions reflect that there may be situations where the appearance of judicial bias is sufficiently elevated so as to invoke constitutional due process rights. Thus, judicial bias may implicate constitutional due process not only when it is based on actual bias, but also when it involves an appearance of bias that could undermine the public's confidence in a fair judiciary."
Bias -- Prejudgment of Issue in Controversy
State v. Justin D. Gudgeon, 2006 WI App 143, PFR filed 7/14/06
For Gudgeon: Jefren E. Olsen, SPD, Madison Appellate
Issue: Whether a judge’s instruction to a probation agent, who asked that probation not be extended, “No—I want his probation extended,” evinced judicial bias so as to taint the judge’s subsequent extension order.
Holding: While the judge’s comment did not establish “actual bias” (“given our experience and the reputation of this particular trial judge as a fair and just administrator of the law”), ¶25, it nonetheless created an appearance of partiality:
¶26      The appearance of partiality, however, remains problematic. We must resolve this case based on what a reasonable person would conclude from reading the court’s notation, id. at 960, not what a reasonable trial judge, a reasonable appellate judge, or even a reasonable legal practitioner would conclude. The court here used strong language. “ I want his probation extended.” (Emphasis added.) “Want” signifies a personal desire on the court’s part. Of additional significance, this expressed desire refers not to an extension hearing—at which to decide the merits of extension versus a civil judgment—but to the extension itself, an ultimate outcome. Neutral and disinterested tribunals do not “want” any particular outcome. Moreover, a reasonable person familiar with human nature knows that average individuals sitting as judges would probably follow their inclination to rule consistent with rather than against their personal desires. The ordinary reasonable person would discern a great risk that the trial court in this case had already made up its mind to extend probation long before the extension hearing took place. Further, nothing in the transcript of the extension hearing would dispel these concerns. We therefore agree with Gudgeon that the extension hearing violated his due process right to an impartial tribunal.
(See also ¶30: “Although we may be convinced that the circuit court was not prejudging the extension issue,  that is not the test. The risk of bias that the ordinary reasonable person would discern—which is the test—is simply too great to comport with constitutional due process.”)
No comment on the court’s actual bias analysis. Application of “ordinary reasonable person” to appearance of bias is notable; see, for example, this iteration of the test, State v. Pablo Cruz Santana, 220 Wis. 2d 674, 584 N.W.2d 151 (Ct. App. 1998):
Judicial disqualification under § 757.19(2)(g), Stats., concerns not an outsider's objective determination, but rather the judge's subjective determination. See State v. American TV & Appliance, 151 Wis.2d 175, 182, 443 N.W.2d 662, 665 (1989). It mandates a judge's disqualification " only when that judge makes a determination that, in fact or in appearance, he or she cannot act in an impartial manner." Id. at 183, 443 N.W.2d at 665 (emphasis added). Disqualification is not required in a situation where " one other than the judge objectively believes there is an appearance that the judge is unable to act in an impartial manner ...." Id. (emphasis added). This holding was reaffirmed more recently in State v. Harrell, 199 Wis.2d 654, 658, 546 N.W.2d 115, 117 (1996), when the supreme court stated: "Whether the general subjective situation exists and requires disqualification, however, is based upon the judge's own determination of whether he or she may remain impartial." Appellate review of such a determination is "limited to establishing whether the judge made a determination requiring disqualification." Id. at 663-64, 546 N.W.2d at 119 (quoted source omitted).
Santana, to be sure,was discussing the disqualification statute, § 757.19(2)(g): why in light of Gudgeon would anyone now want to invoke the statute when it is narrower (as to appearance of bias) than the constitutional argument? For that matter, is it possible to say that the statute is unconstitutional precisely because it is narrower than the constitutional test? On the other hand, State v. Rochelt, 165 Wis. 2d 373, 378-81, 477 N.W.2d 659 (Ct. App. 1991) makes a couple of pertinent points: the statutory test is different from the constitutional test, fn. 1—though the court doesn’t say precisely how, it is now clear that for the latter the metric is how a reasonable person would view the situation and for the former it is a reasonable judge; and, “the appearance of possible prejudgment of the defendant’s guilt” establishes judicial partiality—a principle ratified in the more general sense of prejudgment of an issue in controversy by Gudgeon and  Franklin v. McCaughtry, 398 F.3d 955 (7th Cir. 2005). So, perhaps Gudgeon represents clarification rather than a change in caselaw. (Note, too, that Rochelt goes on to apply a harmless error test despite the existence of judicial bias, something that is now precluded by Franklin.
Disqualification – Exposure to Relevant Information
State v. Somkith Neuaone, 2005 WI App 124
For Neuaone: Ralph Sczygelski
Issue/Holding: Where the sole basis for recusal is a claim that the judge was exposed to relevant sentencing information that he was entitled to hear, the very premise for the claim is flawed, ¶17.
Bias/Disqualification -- Judge as Subject of Recall Drive
State v. Pablo Cruz Santana, 220 Wis. 2d 674, 584 N.W.2d 151 (Ct. App. 1998)
For Santana: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding:
Judicial disqualification under § 757.19(2)(g), Stats., concerns not an outsider's objective determination, but rather the judge's subjective determination. See State v. American TV & Appliance, 151 Wis.2d 175, 182, 443 N.W.2d 662, 665 (1989). It mandates a judge's disqualification "only when that judge makes a determination that, in fact or in appearance, he or she cannot act in an impartial manner." Id. at 183, 443 N.W.2d at 665 (emphasis added). Disqualification is not required in a situation where "one other than the judge objectively believes there is an appearance that the judge is unable to act in an impartial manner ...." Id. (emphasis added). ...

... It is apparent that Judge Kennedy considered whether there was any bias or prejudice in his sentencing decision that would require him to recuse himself from considering the postconviction motions relating to the sentencing.4 He concluded that he could be impartial. As outlined above, this is all that § 757.19(2)(g), Stats., requires.


4 A former California supreme court justice used the following metaphor to describe the dilemma of deciding controversial cases while facing reelection. He said it was like "finding a crocodile in your bathtub when you go in to shave in the morning. You know it's there, and you try not to think about it, but it's hard to think about much else while you're shaving." Gerald F. Uelmen, Crocodiles in the Bathtub: Maintaining the Independence of State Supreme Courts in an Era of Judicial Politicization, 72 Notre Dame L. Rev. 1133, 1133 (1977).
The article also notes that while a judge will never admit that his or her vote was influenced by public pressure, "It takes a truly sensitive judge to even engage in the soul searching inquiry into the impact of the crocodiles in the bathtub upon his or her decisionmaking process." Id. at 1142. We are convinced that the record reveals that Judge Kennedy engaged in this kind of personal inquiry when his sentencing decision was questioned.
Bias/Disqualification -- Judge Close Relative of "Counsel Thereto" A Party
State v. Crystal Harrell a/k/a Parker, 199 Wis. 2d 654, 546 N.W.2d 115 (1996)
Issue/Holding:
The issue before us is whether, in a case tried by the district attorney's office, a circuit court judge, whose spouse is an assistant district attorney in the same county, is required to disqualify himself or herself under either Wis. Stat. § 757.19(2)(a) (1993-94),1--prohibiting a judge from hearing a case when a close relative is "counsel thereto" for either party--or Wis. Stat. § 757.19(2)(g),2--prohibiting a judge from hearing a case when the judge determines he or she cannot retain his or her impartiality. We hold that neither Wis. Stat. § 757.19(2)(a) nor Wis. Stat. § 757.19(2)(g) requires a judge to disqualify himself or herself in such a situation as long as his or her spouse did not participate in, or help prepare, the case.
Particular Issues -- Judicial Bias
Harrison Franklin v. McCaughtry, No. 03-1031, 2/24/05, granting habeas relief in unpublished opinion of Wis COA
Issue/Holding: The tripartite test for judicial bias (subjective inquiry answered by trial judge’s determination of own impartiality; objective examination as to whether reasonable person could question judge’s impartiality; and if partiality is established, whether it was harmless, see State v. Rochelt, 165 Wis. 2d 373, 477 N.W.2d 659 (Ct. App. 1991)) is inconsistent with controlling Supreme Court precedent:
… First, … the Supreme Court has decided that both actual bias and the appearance of bias violate due process principles. … Second, where there is a structural error, such as judicial bias, harmless error analysis is irrelevant.
There’s more to this case, of course, but the abiding lesson is that Wisconsin may no longer be able to shrug off plausible claims of judicial bias simply on the judge’s say-so (which seems to be the unifying theme of our judicial-bias cases). Rather than dwell on the particular facts of this case – which, after all, are probably somewhat idiosyncratic and unlikely to recur – it’s probably more productive to extract the animating idea of this case: prejudgment is tantamount to bias. The court doesn’t put it quite in those terms, but that seems to be the thrust given the court’s comments:
~ This is powerful circumstantial evidence that Judge Schroeder had pre-judged Franklin’s case.

~ The memorandum demonstrates that Judge Schroeder decided the issue of Franklin’s guilt long before trial. Therefore, the state appellate court unreasonably applied the Supreme Court’s bias rules to the facts of Franklin’s claim.

~ The problem arises when the judge has prejudged the facts or the outcome of the dispute before her. In those circumstances, the decisionmaker “cannot render a decision that comports with due process.”

Bias/Disqualification -- Determination of Impartiality
State v. Crystal Harrell a/k/a Parker, 199 Wis. 2d 654, 546 N.W.2d 115 (1996)
Issue/Holding:
Although Parker encourages us to provide an objective standard of review for the initial subjective decision by a judge not to disqualify himself or herself, we decline to do so. Wisconsin Statute § 757.19(2)(g) is clearly drafted so as to place the determination of partiality solely upon the judge. See American TV, 151 Wis. 2d at 182-83. In fact, the legislature specifically included six other objectively determinable situations in subsection (2) which require withdrawal. These are the six situations on which it chose to focus. It is not this court's role under subsection (2)(g) to expand this list by requiring a judge to recuse himself or herself in all situations where an objective basis of impropriety may exist. If the general prohbition in (2)(g) were read so broadly, the six specific situations enumerated in the statute would become superfluous.

In sum, Wis. Stat. § 757.19(2)(g) leaves the responsibility of withdrawal to the integrity of the individual judge or justice. To imply that the judges or justices of this state are not able to make such a determination honestly, openly and fairly is a great disservice to the quality men and women who serve this state in a judicial capacity.

Bias -- (Non-Pecuniary) Stake in Outcome
State v. Terrance J. O'Neill, 2003 WI App 73
For O'Neill: Roger D. Sturdevant, SPD, Monroe
Issue: Whether a judge's persistent and partisan efforts to require litigation on a recurrent issue on which the court of appeals had already reversed him, in an unpublished case in which the judge actively appeared as a party on the appeal, establishes disqualifying bias.
Holding: Bias not established: The judge intends to require litigation on the disputed issue in every case, unless and until a published, precedential decision binds him otherwise; therefore he isn't singling out O'Neill for special treatment. ¶16. Nor was it improper for the judge to intervene in the prior case, in that the circuit court was a named respondent in that writ petition. ¶17. Nor does the judge's position, even though adversarial to O'Neill's position, create a personal (and therefore disqualifying) stake in the outcome. ¶18.
¶19. We agree with the State that a judge's non-pecuniary interest, as well as a pecuniary interest, may require recusal on due process grounds, see Aetna Life Insurance Co. v. LaVoie, 475 U.S. 813, 829 (1986) (Brennan, J. concurring); and the type of interest that requires recusal cannot be defined with precision. In re Murchison, 349 U.S. 133, 136 (1955). However, in the context of applying federal rules requiring recusal for bias, federal courts have made clear that a judge's prior adverse rulings or expressions of the judge's views of the law are not sufficient to demonstrate a "personal" bias that requires recusal. See, e.g., Oliver v. Michigan State Bd. of Educ., 508 F.2d 178, 180 (6th Cir 1974); City of Cleveland v. Cleveland Elec. Illuminating Co., 503 F. Supp 368, 373-74 (N.D. Ohio 1980); Person v. General Motors Corp., 730 F. Supp. 516, 518-19 (S.D.N.Y. 1990). Our reasoning is similarly grounded: Judge Johnston's legal position on the permissibility of the challenged procedure and his conviction of the wisdom of the procedure, however firmly held, are not a bias that indicates he is unable to be a neutral and detached judge in this case. Moreover, we do not see how Judge Johnston's "stake" in the outcome of the issue affects his ability to be neutral in this case. The outcome will be determined by this court or the supreme court, and Judge Johnston has made it clear he will follow any order or decision of this court or the supreme court as the law requires him to do.
(On a pragmatic level, the appellate court is simply encouraging the trial court's wasteful requirement of repetitive litigation on an issue already rejected -- in precedential form or not. See State v. Skibinski, 2001 WI App 109, ¶ 4 n. 4. Separately, why was the trial judge allowed to intervene in the prior litigation, anyway? The circuit court may have been named as an institutional party, but the specific judge was not (or at least should not have been) named; besides, the state was the real party in interest. In any event, the net effect was for this particular judge to make himself a party to the litigation, which certainly seems counter to the spirit if not precise letter of § 757.22(1) (“No judge, while holding office, may be in any manner engaged or act as attorney or counsel”), § 757.19(2)(b) (judge disqualified from sitting in same case s/he is party), and/or § 757.19(2)(c) (judge disqualified when previously acted as counsel to party in same action). Establishing that Judge Johnston was party or counsel in O’Neill’s case would be a stretch, of course. But what about where, as in the prior case, the judge inserted himself in the lineup? When the judge makes himself a party to the litigation by intervening, then why wouldn’t the cited provisions apply?)
Comment on Defendant-Witness
State v. Bernell Ross, 2003 WI App 27, PFR filed 2/21/03
For Ross: Andrew Mishlove
Issue/Holding: The trial court's "brief admonitory remarks" to defendant, during his testimony on direct, regarding his "sarcasm" and "flippancy," "were well within the proper range of the court's power to take all necessary steps to aid in the discovery of the truth," and not comments on his credibility. hence, mistrial wasn't necessary. ¶¶46-51.
Calling and Interrogation of Witness, § 757.19(2)
State v. Johnnie Carprue, 2004 WI 111, reversing 2003 WI App 148, 266 Wis. 2d 168, 667 N.W.2d 800
For Carprue: Stephanie G. Rapkin
Issue/Holding:
¶60 If Judge Schellinger were actually biased, the question would be whether she should have presided at all. In this case, Carprue can do no more than allege that Judge Schellinger harbored general bias in favor of the State in criminal prosecutions based upon her actions. He presents no basis to conclude that Judge Schellinger had any direct stake in the outcome of the proceeding. "[O]nly in the most extreme cases would disqualification based on general allegations of prejudice or bias be constitutionally required." Kywanda F., 200 Wis. 2d at 36 (emphasis added) …. 

¶61 Our legislature, in keeping with this principle, has established seven statutory situations that require judicial disqualification. Wis. Stat. § 757.19(2). The only statutory ground requiring disqualification that might apply under these facts is one that requires disqualification if a judge determines that he or she cannot, or it appears he or she cannot, act impartially in a case. Wis. Stat. § 757.19(2)(g). …

¶62 "The reviewing court must objectively decide if the judge went through the required exercise of making a subjective determination." Id. at 664. By instructing the jury that it was to disregard any impression that it might have regarding whether she believed the defendant was guilty or not guilty, we can infer that Judge Schellinger did consider the matter of bias. See supra note 5. In any event, because Carprue's claim rests upon an allegation of general bias, the record would not have contained a more thorough record of Judge Schellinger's subjective thought process unless the defendant had objected. In the absence of any objection, we assume that, by presiding, Judge Schellinger believed that she could act in an impartial manner.

See U.S. v. McCray, 7th Cir No. 05-1412, 2/9/06:
Although we conclude that this defendant was not prejudiced by the district court’s inquiry, we express some concern over the judge’s decision to proceed with extensive questioning. When coupled with the trial court’s practice of not permitting sidebars, the judge’s questions in this case arguably placed the defendant’s lawyer in an awkward position. Defense counsel was faced with either passively accepting what he perceived to be an unwarranted examination or potentially exacerbating the situation by challenging the judge’s impartiality in front of the jury. To avoid the risk of unforeseen prejudice, we encourage district judges to remain vigilant to the potential impact of their questions during a jury trial.
Also: State v. Thompson, WVA SCt No. 33097, 5/15/07 (judicial questioning amounted to plain error).
Substitution -- Delinquency, § 938.29(1)(m) -- Review by Chief Judge
State of Wisconsin ex rel. Mateo D.O. v. Circuit Court, 2005 WI App 85
For Mateo D.O.: Colleen Bradley, SPD, Oshkosh Trial
Issue/Holding1: The chief judge has authority to review denial of a substitution request in a delinquency proceeding, under §§ 938.29(1)(m) and 801.58(2). (Because § 801.58(2) is the more specific provision, it “applies when the juvenile’s request for substitution is denied,” ¶9; it plainly provides for “review[] by the chief judge of the judicial administrative district.”)
¶10. Our conclusion that the chief judge has authority to review the denial of the juvenile's request for substitution is consistent with our holding in Barbara R.K. v. James G., 2002 WI App 47, 250 Wis. 2d 667, 641 N.W.2d 175. There we held that "Wis. Stat. § 801.58(2) provides an avenue to facilitate review of denials of requests for substitution of judge." Id., ¶15. We recognized that review by the chief judge promotes judicial economy and efficiency. Id., ¶11. The failure to obtain review by the chief judge is akin to the failure to exhaust administrative remedies and constitutes waiver of the right for appellate review. Id., ¶¶14-15. The goal of judicial efficiency in a juvenile proceeding requires that the chief judge review the denial of a substitution request before the issue is brought to this court.
The implication is clear: though the review provision is couched in the permissive “may,” it is mandatory in effect (“requires that the chief judge review”). If you don’t seek review by the chief judge you’ve almost certainly waived the issue.
Issue/Holding2: Judicial substitution request may be signed by counsel on behalf of the juvenile, who need not sign the request him or herself. ¶¶11-14.
Substitution – Civil, § 801.58(3)
State of Wisconsin ex rel. The Cincinnati Insurance Company v. Circuit Court, 2003 WI 57, on original writ
Issue/Holding: Parties are not “united in interest” within the meaning of § 801.58(3) (which limits such parties to one substitution request) when they “have directly adverse interests.”
Relevance of this civil case to SPD practice is undoubtedly limited. Couple of obvious observations. This outcome has no impact on criminal substitution procedure (§ 971.20(6)); see State ex rel. Ernie Garibay v. Kenosha County, 2002 WI App 164 ¶12 re: need for strict compliance with this provision. By explicit legislation, civil substitution challenges are made to the local chief judge, § 801.58(2); review of the chief judge’s decision is by supervisory writ. No such language appears in § 971.20, but the court of appeals has nonetheless indicated, “it is the defendant's obligation to promptly seek review (of a denied substitution request), either by the chief judge of the administrative district or via a writ of prohibition.” State ex rel. Nowak v. Circuit Court, 169 Wis.2d 395, 397, 485 N.W.2d 419 (Ct. App. 1992). Review by the chief judge, then review by writ if necessary would be the cautious way to go.) Moving a bit afield, re the phrase “united in interest”: that phrase doesn't appear in SPD-related procedure, but it's nteresting to see that the court apparently hinges its meaning on SCR 20:1.7 (conflict of interest ethical rule), ¶18.
Substitution -- TPR, § 48.29
Brown County DHS v. Terrance M., 2005 WI App 57
For Terrance M.: Theresa J. Schmieder
Issue/Holding:
¶11. The trial court ruled and the County now argues that Terrance's substitution request was untimely because it was not filed before "hearing of any preliminary contested matters" under Wis. Stat. § 801.58. Terrance argues the applicable statute is Wis. Stat. § 48.29, which allows a request "either before or during the plea hearing ...." We agree with Terrance.
Substitution/Recusal -- TPR -- Multiple Requests
State ex rel. Julie A.B. v. Circuit Court, 2002 WI App 220
For Julie A.B.: Roberta A. Heckes
Issue/Holding: § 48.29(1) permits more than one party to file a request for a substitution of judge in a TPR proceeding. ¶2. (The mother filed a substitution request. After a new judge was assigned, the GAL filed a request, one that the mother unsuccessfully challenges as unauthorized.)
Substitution, § 971.20(5) – Request Must Be Made before Determination of Guilt
State v. William Allen Wisth, 2009 WI App 53, PFR filed 4/29/09
For Wisth: Jeremy Perri, SPD, MilwaukeeAppellate
Issue/Holding: Defendant not entitled to request substitution of judge assigned to sentencing following revocation; § 971.20(5) is limited to pre-guilt phases:
¶14   We conclude that the plain meaning of Wis. Stat. § 971.20(5) is that substitution is permitted only prior to trial. When the issue of guilt or lack of guilt is resolved, a criminal “trial” is complete for purposes of this statute. Section 971.20(5) did not provide authority for Wisth to seek a substitution prior to his sentencing after revocation. Therefore, we affirm the judgment.
Relatively detailed discussion of statutory history, ¶¶10-13, supporting “legislative intent to limit substitutions of newly assigned judges to requests prior to trial.”
Substitution/Recusal -- § 971.20(5) – Timeliness of Request, Newly Assigned Judge
State v. Van G. Norwood, 2005 WI App 218
For Norwood: Terry Evans Williams
Issue: Whether defendant’s withdrawal of his NGI plea prevented him from later invoking the right of judicial substitution provided by § 971.20(5), where a new judge is subsequently assigned and no prior right to substitution has been invoked. Holding: Yep.
The court’s analysis doesn’t track the actual language of the statute – “Because Norwood’s plea withdrawal constitutes a ‘proceeding’ within the meaning of § 971.20(5), his argument fails,” ¶12. The statute prescribes that the substitution request be made “prior to the commencement of the proceedings.” The natural reading – “commencement” would be filing of a criminal complaint – is obviously nonsensical. The court apparently reads it to mean that when the defendant takes some sort of action s/he has commenced a proceeding hence thrown him or herself outside the statute.
Substitution/Recusal -- Joint Defendants
State ex rel. Ernie Garibay v. Kenosha County, 2002 WI App 164
For Garibay: Denise Hertz-McGrath
Issue/Holding:
¶2. The dispositive issue is whether a defendant who is charged jointly with another defendant may obtain substitution of a judge pursuant to Wis. Stat. § 971.20(6) when the codefendant is not yet before the court. We conclude that the language of § 971.20(6) is plain and unambiguous and applies in a multiple defendant action even when a codefendant is unavailable to either join or refuse to join a substitution request. Accordingly, we deny Garibay's petition for supervisory writ.
(Note: Court reiterates "the need for strict compliance with the provisions of Wis. Stat. § 971.20 as a means of preventing problems that may result from deviations." ¶12.)
Substitution/Recusal -- Mootness
State ex rel. James A. Mentek, Jr., v. Schwarz, 2000 WI App 96, 235 Wis. 2d 143, 612 N.W.2d 746, reversed on other grds., State v. Mentek, 2001 WI 32
Issue: Whether the trial court lost jurisdiction to hear Mentek's petition for writ of certiorari by failing to honor his substitution request.
Holding: ¶23:
(We) conclude that his substitution claim is moot because he does not have a viable ineffective assistance of counsel claim as a matter of law. A matter is moot if a determination is sought that cannot have a practical effect on an existing controversy. ... Mentek failed to exhaust his administrative remedies before seeking certiorari relief and there is no right to statutory or constitutional assistance of counsel on an appeal of a final probation revocation decision. Substituting another branch of the Kenosha County Circuit Court would not have made a difference to Mentek's claim for relief or to the result he obtained.
Substitution/Recusal -- Remand Following Appeal -- Civil Cases
State ex rel. Findorff v. Circuit Court, 2000 WI 30, 233 Wis. 2d 428, 608 N.W.2d 679
Issue: When does the right to judicial substitution attach on remand following civil appeal, § 801.58(7)?
Holding: A litigant has the right to request judicial substitution if the appellate court directs "further proceedings," which are defined as requiring exercise of discretion, as opposed to purely ministerial tasks.
Analysis: If a civil appeal results in either a new trial, or remand "such that further proceedings are necessary," any party can request judicial substitution on remand. § 801.58(7). The issue raises the meaning of "further proceedings." (The criminal-appeal provision, § 971.20(7) is worded differently, and requires "a new trial or sentencing proceeding." Findorff's discussion of "further proceedings" has no impact on § 971.20(7). But it is immediately pertinent to SPD-eligible civil appeals, such as TPRs and Ch. 980's.) The long and short of it: if the appellate court orders performance of "a purely ministerial duty," then no right of substitution attaches on remand; but if the trial court may exercise discretion, then the right applies. ¶¶19-20. The court explicitly defines "further proceedings" broadly, so "that the right of substitution may attach to the greatest number of cases." ¶23. This approach, the court says, is consistent with Wisconsin's "long heritage of upholding the right to substitution," the purpose of which is to ensure the appearance as well as actuality of fairness. ¶¶23-24.
Substitution -- Review of Denial, by Writ
State of Wisconsin ex rel. Mateo D.O. v. Circuit Court, 2005 WI App 85
For Mateo D.O.: Colleen Bradley, SPD, Oshkosh Trial
Issue/Holding:
¶15. A petition for a writ of mandamus or prohibition is an appropriate remedy to redress the denial of judicial substitution. See State ex rel. James L.J. v. Circuit Court for Walworth County, 200 Wis. 2d 496, 498, 546 N.W.2d 460 (1996). The circuit court violated a plain duty in refusing to honor Mateo's request. See State ex rel. Ondrasek v. Circuit Court for Calumet County, 133 Wis. 2d 177, 185, 394 N.W.2d 912 (Ct. App. 1986). We therefore grant the petition for a supervisory writ of mandamus and direct the chief judge and circuit court to honor the request for judicial substitution.
Substitution/Recusal -- Review After Substitution Request Granted
State ex rel. Findorff v. Circuit Court, 2000 WI 30, 233 Wis. 2d 428, 608 N.W.2d 679
Issue: Whether the chief judge has authority to review a circuit court's grant of judicial substitution.
Holding: ¶¶33, 37:
According to the plain meaning of the statute, the only time that a chief judge may become involved in the substitution process under Wis. Stat. § 801.58(2) is if a circuit judge denies a substitution request for not being timely or properly filed. ...

[T]he chief judge was without authority to review and reverse the circuit judge's decision to honor the substitution request.

Analysis: Following remand the trial court granted a substitution request, which the chief judge vacated. The court now holds that a chief judge may only review denial of a substitution request. Findorff doesn't discuss review of a denied request, but a prior court of appeals' holding should be kept in mind: "once a defendant is informed that a request for substitution has been denied as being untimely and the defendant desires review of that decision, it is the defendant's obligation to promptly seek review, either by the chief judge of the administrative district or via a writ of prohibition." State ex rel. Nowak v. Waukesha County Circuit Court, 169 Wis.2d 395, 397, 485 N.W.2d 419 (Ct. App. 1992). Though this suggests a waiver-tinged requirement of raising the issue before trial, a subsequent case indicates that the challenge may indeed be raised after trial: "Moreover, he could have gone to trial before Judge Sykes and, if convicted, challenged on appeal Judge Sykes's denial of the substitution request. See Clark, 92 Wis.2d at 631, 286 N.W.2d at 349 (trial judge's ruling on whether a request for substitution is timely can be reviewed on appeal from judgment of conviction following trial)." State v. Damaske, 212 Wis.2d 169, 186-87, 567 N.W.2d 905 (Ct. App. 1997).
Substitution -- Delinquency, § 938.29(1)(m)
State of Wisconsin ex rel. Mateo D.O. v. Circuit Court, 2005 WI App 85
For Mateo D.O.: Colleen Bradley, SPD, Oshkosh Trial
Issue/Holding1: The chief judge has authority to review denial of a substitution request in a delinquency proceeding, under §§ 938.29(1)(m) and 801.58(2). (Because § 801.58(2) is the more specific provision, it “applies when the juvenile’s request for substitution is denied,” ¶9; it plainly provides for “review[] by the chief judge of the judicial administrative district.”)
¶10. Our conclusion that the chief judge has authority to review the denial of the juvenile's request for substitution is consistent with our holding in Barbara R.K. v. James G., 2002 WI App 47, 250 Wis. 2d 667, 641 N.W.2d 175. There we held that "Wis. Stat. § 801.58(2) provides an avenue to facilitate review of denials of requests for substitution of judge." Id., ¶15. We recognized that review by the chief judge promotes judicial economy and efficiency. Id., ¶11. The failure to obtain review by the chief judge is akin to the failure to exhaust administrative remedies and constitutes waiver of the right for appellate review. Id., ¶¶14-15. The goal of judicial efficiency in a juvenile proceeding requires that the chief judge review the denial of a substitution request before the issue is brought to this court.
The implication is clear: though the review provision is couched in the permissive “may,” it is mandatory in effect (“requires that the chief judge review”). If you don’t seek review by the chief judge you’ve almost certainly waived the issue.
Issue/Holding2: Judicial substitution request may be signed by counsel on behalf of the juvenile, who need not sign the request him or herself. ¶¶11-14.
Substitution/Recusal -- Waiver: Failure to Seek Chief Judge's Review
Barbara R.K. v. James G., 2002 WI App 47
Issue: Whether review of a denied request for substitution of judge is waived by failure to seek review of the denial by the local chief judge.
Holding:
¶9.... The statute then provides: "If the judge named in the substitution request finds that the request was not timely and in proper form, that determination may be reviewed by the chief judge of the judicial administrative district ... if the party who made the substitution request files a written request for review with the clerk no later than 10 days after the determination by the judge named in the request." Wis. Stat. § 801.58(2). Barbara did not avail herself of review by the chief judge....

¶14 We view the chief judge review procedure as analogous to exhaustion of administrative remedies. It is well settled that where a method of review is prescribed by statute and adequate relief may be obtained through the review procedure, the pursuit of administrative relief is a prerequisite to judicial review. Jackson County Iron Co. v. Musolf, 134 Wis. 2d 95, 102, 396 N.W.2d 323 (1986). The exhaustion doctrine promotes judicial efficiency by allowing conflicts to be resolved at the administrative level without resort to litigation.

¶15 Here, Wis. Stat. § 801.58(2) provides an avenue to facilitate review of denials of requests for substitution of judge. That avenue must be pursued in order to preserve the issue on appeal. If Barbara wanted to appeal the denial of her request for substitution, she was required to seek review by the chief judge. Since she did not, she has waived her right to appeal.

(Note: This is a civil case. The criminal statute, § 971.20 is worded differently, but at least arguably “it is the defendant's obligation to promptly seek review (of a denied substitution request), either by the chief judge of the administrative district or via a writ of prohibition.” State ex rel. Nowak v. Circuit Court, 169 Wis.2d 395, 397, 485 N.W.2d 419 (Ct. App. 1992). A subsequent case suggests that a substitution issue may be preserved merely by going to trial, i.e., without seeking pretrial review. State v. Damaske, 212 Wis.2d 169, 186-87, 567 N.W.2d 905 (Ct. App. 1997).)