State v. Jesse L. Herrmann , 364 Wis. 2d 336 ( 2015 )

2015 WI 84SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP197-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Jesse L. Herrmann,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 353 Wis. 2d 304, 844 N.W. 2d 665)
(Ct. App. 2014 – Unpublished)
OPINION FILED: July 15, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 3, 2015
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: La Crosse
JUDGE: Ramona Gonzalez
JUSTICES:
CONCURRED: PROSSER, J., ROGGENSACK, C.J., concur. (Opinion
Filed.)
ZIEGLER,J., ROGGENSACK, C.J., GABLEMAN, J.,
concur. (Opinion Filed.)
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
by Pamela Moorshead, assistant state public defender, and oral
argument by Pamela Moorshead.
For the plaintiff-respondent, the cause was argued by
Robert G. Probst, assistant attorney general, with whom on the
brief was J.B. Van Hollen, attorney general.
2015 WI 84NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP197-CR
(L.C. No. 2011CF349)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v.
JUL 15, 2015
Jesse L. Herrmann,
Diane M. Fremgen
Defendant-Appellant-Petitioner. Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANN WALSH BRADLEY, J. Petitioner, Jesse Herrmann,
seeks review of an unpublished decision of the court of appeals
affirming his judgment of conviction and a circuit court order
denying postconviction relief.1 The court of appeals determined
that statements made by the circuit court judge at sentencing
were insufficient to support a conclusion that she was biased.
1
State v. Herrmann, No. 2013AP197-CR, unpublished slip op.
(Wis. Ct. App. Feb. 13, 2014) (affirming order of the circuit
court for La Crosse County, Ramona A. Gonzalez, Judge).
No. 2013AP197-CR
¶2 On review, Herrmann asserts that the circuit court's
statements at sentencing revealed that she lacked impartiality,
in violation of his due process rights. Specifically, he
contends that the judge's references to her sister's death in a
car accident similar to the one involved in Herrmann's case
created the appearance of bias.
¶3 There is a presumption that a judge acted fairly,
impartially, and without prejudice. State v. Goodson, 2009 WI
App 107, ¶8, 320 Wis. 2d 166, 771 N.W.2d 385. A defendant may
rebut the presumption by showing that the appearance of bias
reveals a great risk of actual bias. Caperton v. A.T. Massey
Coal Co., 556 U.S. 868, 885 (2009); Goodson, 320 Wis. 2d 166,
¶14; State v. Gudgeon, 2006 WI App 143, ¶23, 295 Wis. 2d 189,
720 N.W.2d 114; see also Williams-Yulee v. Florida Bar, 135
S. Ct. 1656 (2015). Such a showing constitutes a due process
violation. Gudgeon, 295 Wis. 2d 189, ¶23.
¶4 We conclude that Herrmann has failed to rebut the
presumption of impartiality. When the sentencing court's
statements are viewed in context, they do not reveal a great
risk of actual bias. Because we determine that no due process
violation has been established, we affirm the court of appeals.
I
¶5 The facts in this case are undisputed. In June 2011
police were called to the scene of an automobile accident where
a pickup truck had rear-ended a car stopped in the left-hand
lane of a road, waiting to make a left turn. The truck hit the
car with such force that it pushed the car into oncoming
2
No. 2013AP197-CR
traffic. The grill of the truck ended up in the back seat of
the car. There were five passengers in the car, three in the
back seat and two in the front. One died at the scene, the
other four sustained serious injuries.
¶6 The driver of the truck ran from the scene into the
woods toward a nearby bar. Bystanders pursued the driver and
kept him there until police arrived. After their arrival,
officers identified the driver as Jesse Herrmann and smelled the
strong odor of alcohol emanating from him. Upon questioning,
Herrmann indicated that he did not know where he was or what was
happening. He further stated that he had consumed too much
alcohol to be driving. Officers also observed an unopened can
of beer lying on the highway and another unopened can lying on
the floor of Herrmann's truck. A subsequent blood test showed
that his blood alcohol concentration was 0.215.
¶7 Herrmann was arrested and charged with two counts of
operating a motor vehicle while intoxicated causing injury as a
second and subsequent offense, along with several repeater
offenses: homicide by intoxicated use of a vehicle, two counts
of injury by intoxicated use of a vehicle, hit and run resulting
in death, hit and run resulting in injury, and first degree
reckless endangerment. As a result of a plea agreement, the
State dropped the hit and run resulting in injury charge and the
reckless endangerment charge and Herrmann pled guilty to the
charges that remained. The plea reduced Herrmann's maximum
possible sentence from 181.5 years of imprisonment to 134 years
of imprisonment.
3
No. 2013AP197-CR
¶8 Prior to sentencing, the circuit court ordered a pre-
sentence investigation. The resulting report detailed
Herrmann's prior record, including a prior offense of operating
while intoxicated and possession of an open intoxicant in a
vehicle. He also had a conviction for disorderly conduct which
resulted from his being intoxicated, multiple convictions for
bail jumping, and a conviction for conspiracy to possess with
intent to distribute methamphetamine. He was one month into a
five-year period of probation from his drug offense when the
accident occurred. The report notes that Herrmann told his
parole agent that although he was participating in substance
abuse programs, he thought "it was a waste of time and money."
Ultimately, the report recommended that Herrmann be sentenced to
a 40 year period of confinement followed by 20 years of extended
supervision.
¶9 Herrmann requested and obtained an alternative pre-
sentence investigation. Focusing primarily on statements from
Herrmann's family members, it recommended a sentence of 12-15
years confinement followed by 20 years of extended supervision.
¶10 At the beginning of the sentencing hearing, the judge
disclosed that she lost her sister to a drunk driver in 1976.
She told Herrmann "I don't believe that this will have any
impact on my ability to set that aside and sentence you based
upon the information presented on your case." She then asked
Herrmann if he had any question about that or problems with it.
He indicated that he did not and the sentencing hearing
proceeded.
4
No. 2013AP197-CR
¶11 Several individuals spoke at the hearing. The
victims, their family members, a pastor, and witnesses who were
at the scene testified about the long-lasting effects the
accident has had upon them and the community. Several asked for
the court to impose the maximum sentence, citing the fact that
Herrmann had not learned his lesson from his prior
incarceration. Members of Herrmann's family and his friends
spoke as well, trying to convey that he was not "a monster" and
that he needed treatment.
¶12 Prior to issuing the sentence, the judge acknowledged
that "there have been a lot of communications today, this
morning and afternoon, about whether or not Mr. Herrmann is a
monster." She then indicated that she felt "compelled to answer
that" in her statement.
¶13 First, she made a statement about the problem of
alcohol in our society, emphasizing that it is not limited to
Mr. Herrmann:
It is so easy to be in this community, and like [the]
Pastor indicated, I, too, have been shocked by the
seeming blasé faire attitude that this community has
about alcohol use, because it is easy when these
tragedies occur to paint the person who's behind the
wheel while intoxicated to be a monster, and so we
have a lot of grief and a lot of energy and a lot of
community outrage, and that community outrage is aimed
and directed at the person behind the wheel, and I
believe that when we do that, we lose an opportunity,
we lose an opportunity for raising the consciousness
of the community because we are not just here because
of Mr. Herrmann . . . .
5
No. 2013AP197-CR
¶14 The judge explained that although people complain
about drunk driving, individuals do little to actively change
behavior:
People that get behind the wheel of a car while they
have been drinking in my opinion any amount are
putting themselves and this community at risk, and yet
day after day, month after month our community just
says, oh, well. We complain and we talk about how we
should challenge the students at the university not to
continually drink to excess, how kids disappear, and
how much harm alcohol is, but how many of us actively,
actively seek to change the behaviors of those in our
lives? How many of us go out for that Friday fish fry
and then not make any arrangements for who's going to
drive the car home?
¶15 Next, she recognized factors in Mr. Herrmann's
background mitigating his culpability:
Mr. Herrmann, if you look at his history [he] was the
son of an alcoholic, alcoholism was in his family, the
product of a broken home, involved in our juvenile
justice system as a — as a juvenile, involved in our
criminal justice system as an adult. He is a failure
of what we do with children, with adolescents, and
with adults who suffer and who continue to self-
medicate, if we want to say as [his attorney] says, or
just simply continue to use alcohol irresponsibly to
the detriment of our society. How many other young
children are on the streets of our community who also
like Mr. Herrmann come from situations where alcohol
and the use of alcohol is a readily acceptable thing,
that the overindulgence in alcohol is in many places
cheered, where their 21st birthday is looked forward
to not as a celebration of coming to adulthood but how
many shots they can drink at the local taverns?
¶16 The judge then discussed how drunk driving affected
her own life as her sister had been killed by a drunk driver:
In 1976 five young women got into a vehicle, and only
one of them survived. The two gentlemen in the other
vehicle were 17, drunk out of their minds, and they
6
No. 2013AP197-CR
did not survive. That was my personal story, and I
will tell you that a day does not go by that I do not
think of that personal tragedy, and I wish that I
could tell these victims that that pain will one day
disappear, but it doesn't. Time makes it less. We
redirect ourselves to other things, and a day does go
by when we don't think of our loved ones and then we
feel guilty at night because that happened, but life
does go on, and I am very grateful today that I'm
looking at four lovely young ladies and that only one
family has to go through the pain that my family and
the other three young ladies' families had to endure
in 1976.
¶17 She further explained that although she understood the
pain the families and victims were suffering, she knew from
experience that no matter what sentence she gave Mr. Herrmann,
it would not alleviate that pain:
And so perhaps it is again destiny or a higher power
or, Pastor, probably the prayers of many others that
bring me to be the judge on this particular case
because I probably more than anyone else who would be
able to sit on this bench in this county understand
the pain that these victims are feeling, but I have
had the benefit of all those years since 1976 to
understand that I have to make Mr. Herrmann pay, but
that nothing I do to him will lessen that pain, and
that if I don't do more than just incarcerate Mr.
Herrmann, if I don't speak out on behalf of my
community today, then this tragedy will continue to
happen on our streets, and more families will suffer
the way these families suffer today.
¶18 She again emphasized that the accident should not be
viewed as Mr. Herrmann simply being a monster, rather it is
indicative of a greater problem that our society has with
drinking and driving:
So, Mr. Herrmann, you're going to prison today, but
that's just part of the story. I want to make sure
that the story is not about what a monster Jesse
Herrmann was and is so that we can then wrap up this
7
No. 2013AP197-CR
little episode in a nice neat little box and all go
about our business as usual, that Mr. Herrmann the
monster is off the streets, and we don't have to worry
about this again, because no matter what I do to Mr.
Herrmann, unless this community begins to take a
different attitude about drinking and driving, and I'm
talking about a different attitude, not paying lip
service, but actually doing, we will see this tragedy
happen again and again.
¶19 The judge next reviewed Herrmann's character and his
poor choices leading up to the accident. In particular, she
discussed Herrmann's recent release from federal prison,
reliance on alcohol, resistance to treatment, and Herrmann's
reported attitude with authority. Additionally, the judge
looked at the gravity of the offense and gave consideration to
the number of witnesses who testified to the effects that
Herrmann's crime had and continue to have on them. As
mitigating factors, the judge considered Herrmann's guilty plea,
age, and the fact that he has a family.
¶20 Weighing all these factors, the court imposed
consecutive sentences on the various counts totaling 31 years
initial confinement followed by 40 years of extended
supervision. In addition, the court imposed and stayed a
consecutive sentence of 20 years of confinement for the charge
of hit and run resulting in death, and ordered 15 years of
probation.
¶21 Herrmann filed a postconviction motion seeking
resentencing by a different judge. He asserted that the circuit
court described a personal experience that reflected an
objective bias in sentencing and that the court's emotional
8
No. 2013AP197-CR
involvement in the crime amounted to an improper factor on which
the sentence was based. The circuit court denied the motion,
explaining that Herrmann took her remarks out of context.
¶22 On appeal, Herrmann again argued that the circuit
court's statements at sentencing supported a conclusion that the
judge was biased. The court of appeals disagreed. State v.
Herrmann, No. 2013AP197-CR, unpublished slip op. (Wis. Ct. App.
Feb. 13, 2014). The court observed that it is not uncommon for
circuit court judges to have been personally victimized by the
types of crimes that are before them. Id., ¶9. In this case,
the judge's statements merely reflected that she understood the
crime's effect on the victims. Id., ¶10. Viewing the
sentencing as a whole, the court of appeals determined that a
reasonable person would not conclude that the judge was biased.
Id.
II
¶23 We are asked to determine whether the circuit court
judge's statements at sentencing establish that she was
objectively biased in violation of Herrmann's due process
rights. "Whether a judge was objectively not impartial is a
question of law that we review independently." State v. Pirtle,
2011 WI App 89, ¶34, 334 Wis. 2d 211, 799 N.W.2d 492; see also
Goodson, 320 Wis. 2d 166, ¶7 ("Whether a circuit court's
partiality can be questioned is a matter of law that we review
independently.").
¶24 There is a presumption that a judge has acted fairly,
impartially, and without prejudice. Goodson, 320 Wis. 2d 166,
9
No. 2013AP197-CR
¶8; State v. McBride, 187 Wis. 2d 409, 414, 523 N.W.2d 106 (Ct.
App. 1994). The presumption is rebuttable, placing the burden
on the party asserting the bias to show that bias by a
preponderance of the evidence. State v. Gudgeon, 295 Wis. 2d
189, ¶20; McBride, 187 Wis. 2d at 415.
III
¶25 "It is axiomatic that '[a] fair trial in a fair
tribunal is a basic requirement of due process.'" Caperton, 556
U.S. at 876 (quoting In re Murchison, 349 U.S. 133, 136
(1955)); see also Guthrie v. WERC, 111 Wis. 2d 447, 454, 331
N.W.2d 331 (1983) ("It is, of course, undisputable that a
minimal rudiment of due process is a fair and impartial
decisionmaker."). Thus, a biased decisionmaker is
"constitutionally unacceptable." Withrow v. Larkin, 421 U.S.
35, 47 (1975). As the court of appeals has acknowledged, "[t]he
right to an impartial judge is fundamental to our notion of due
process." Goodson, 320 Wis. 2d 166, ¶8.
¶26 In determining whether a defendant's due process right
to trial by an impartial and unbiased judge has been violated,
Wisconsin courts have taken both subjective and objective
approaches; "[t]he court applie[s] a subjective test based on
the judge's own determination of his or her impartiality and an
objective test based on whether impartiality can reasonably be
questioned." State v. Rochelt, 165 Wis. 2d 373, 378, 477 N.W.2d
659 (Ct. App. 1991). It is the application of the objective
test which is at issue in this case.
10
No. 2013AP197-CR
¶27 Under the objective approach, courts have
traditionally considered whether "there are objective facts
demonstrating . . . the trial judge in fact treated [the
defendant] unfairly." Goodson, 320 Wis. 2d 166, ¶9 (quoting
McBride, 187 Wis. 2d at 416). In other words, they inquire into
whether a reasonable person could conclude that the trial judge
failed to give the defendant a fair trial.
¶28 This approach is illustrated by State v. Rochelt, 165
Wis. 2d 373. In that case, the defense discovered a letter from
the circuit court judge in the prosecutor's file which had been
sent to instructors at Police Training Services, requesting that
certain officers be released from classes to testify at trial.
Id. at 377-78. The letter described the officers as "'two
individuals, with clean, impeccable records, and with nothing to
gain or lose by their testimony,' suggesting possible
prejudgment of their credibility." Id. at 379.
¶29 The circuit court denied the defendant's recusal
motion and the court of appeals affirmed. It agreed that the
judge's letter raised questions about his impartiality.
However, in assessing whether there was actual bias, the court
determined that nothing in the record tended to show that the
judge had failed to give the defendant a fair trial. Id. at
381. It referenced the fact that the defendant had given no
examples of unfairness. Id. Accordingly, it "conclude[d] that
even though the trial judge's letter raise[d] a reasonable
question regarding the judge's impartiality, the fact is that
[the defendant] received a fair trial." Id.11
No. 2013AP197-CR
¶30 Courts have since recognized that the right to an
impartial decisionmaker stretches beyond the absence of actual
bias to encompass the appearance of bias as well. In Gudgeon,
295 Wis. 2d 189, the court of appeals considered the situation
where a judge had declined a probation agent's request to
convert the defendant's restitution obligations into a civil
judgment in a short note stating "No—I want his probation
extended." Id., ¶3. At a subsequent extension hearing, the
judge extended the defendant's probation. The defendant alleged
that the note showed the judge was biased in favor of a
particular result before listening to the evidence. Id., ¶1.
¶31 In setting forth the test for objective bias, the
Gudgeon court acknowledged that it was difficult to discern from
prior cases whether actual bias was necessary to show a due
process violation, or merely one method that was sufficient to
make the showing. Id., ¶22. It observed that federal precedent
suggested that even the appearance of partiality can violate due
process:
"[E]very procedure which would offer a possible
temptation to the average man as a judge . . . not to
hold the balance nice, clear and true between the
State and the accused, denies the latter due process
of law." Tumey v. Ohio, 273 U.S. 510, 532 (1927).
Such a stringent rule may sometimes bar trial by
judges who have no actual bias and who would do their
very best to weigh the scales of justice equally
between contending parties. But to perform its high
function in the best way "justice must satisfy the
appearance of justice." Offutt v. United States, 348
U.S. 11, 14 (1954).
12
No. 2013AP197-CR
Id., ¶21 (quoting In re Murchison, 349 U.S. at 136). The
Gudgeon court recognized that the seemingly divergent cases
shared a common theme: the appearance of partiality violated due
process "only where the apparent bias revealed a great risk of
actual bias." Id., ¶23.
¶32 Ultimately, the Gudgeon court found the federal
jurisprudence persuasive. Incorporating Murchinson's language,
it concluded that "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."
Id., ¶24.
¶33 The court of appeals later repeated this test in
Goodson, 320 Wis. 2d 166, ¶9. In that case, a judge told a
defendant during sentencing that if he violated the rules of
extended supervision "you will come back here, and you will be
given the maximum, period." Id., ¶2. Later, at a reconfinement
hearing after the defendant's supervision was revoked, the judge
ordered the defendant reconfined for the maximum period. Id.,
¶5. Applying its test for objective bias, the court of appeals
determined the defendant's due process rights were violated
because a reasonable person would conclude "that the judge had
made up his mind about [the defendant's] sentence before the
reconfinement hearing." Id., ¶13.
¶34 Similarly, in Caperton, 556 U.S. 868, the United
States Supreme Court reaffirmed its position that actual bias
13
No. 2013AP197-CR
need not be shown to establish a violation of a party's right to
a fair tribunal. In that case, the Court considered whether the
petitioner's due process rights were violated when one of the
West Virginia Supreme Court justices refused to recuse himself
after receiving large campaign contributions from the respondent
corporation's chief executive officer.
¶35 After observing the difficulties in discerning the
real motives at work in deciding a case, the Court announced
that "the Due Process Clause has been implemented by objective
standards that do not require proof of actual bias." Id. at
883. "Due process 'may sometimes bar trial by judges who have
no actual bias and who would do their very best to weigh the
scales of justice equally between contending parties.'" Id. at
886 (quoting Murchinson, 349 U.S. at 136). Like the court of
appeals in Gudgeon, the Court focused on whether there was a
serious risk of actual bias.2
¶36 Its inquiry into whether there was a serious risk of
actual bias centered on the circumstances of the case, which the
Court referred to as exceptional. Id. at 884. The Court
acknowledged the large size of the contributions in comparison
to the total amount of money contributed to the campaign, the
2
The court of appeals refers to a "great" risk of actual
bias, State v. Gudgeon, 2006 WI App 143, ¶23, 295 Wis. 2d 189,
720 N.W.2d 114, and the United States Supreme Court refers to a
"serious" risk of actual bias, Caperton v. A.T. Massey Coal Co.,
556 U.S. 868, 884 (2009). Although stated differently, the
tests appear to be essentially the same.
14
No. 2013AP197-CR
total amount spent in the election, and the apparent effect such
contributions had on the outcome of the election. It further
observed the close temporal relationship between the campaign
contributions, the justice's election, and the pendency of the
case. Id. at 886. Under these circumstances, the Court
concluded that "there is a serious risk of actual bias——based on
objective and reasonable perceptions——when a person with a
personal stake in a particular case had a significant and
disproportionate influence in placing the judge on the
case . . . ." Id. at 884.
¶37 Admittedly, the Supreme Court was careful to limit its
analysis. Although it ultimately concluded that the appearance
of bias that it was reviewing violated due process, the Court
described this as "an extraordinary situation where the
Constitution requires recusal." Id. at 887. Like the Gudgeon
court, it observed that its prior cases requiring recusal "dealt
with extreme facts that created an unconstitutional probability
of bias." Id.¶38 However, in determining that there was a serious risk
of actual bias the Court provided a test that can apply to a
multitude of scenarios: "Due process requires an objective
inquiry into whether the contributor's influence on the election
under all the circumstances 'would offer a possible temptation
to the average . . . judge to . . . lead him not to hold the
balance nice, clear and true." Id. at 885. It embraced that
framework in its conclusion: "We find that Blakenship's
significant and disproportionate influence——coupled with the
15
No. 2013AP197-CR
temporal relationship between the election and the pending case—
—'offer a possible temptation to the average judge to . . . lead
him not to hold the balance nice, clear and true.'" Id. at 886.
¶39 More recently, the Supreme Court reaffirmed that there
is a "'vital state interest' in safeguarding 'public confidence
in the fairness and integrity in the nation's elected judges.'"
Williams-Yulee, 135 S. Ct. at 1666 (quoting Caperton, 556 U.S.
at 889). It acknowledged that "[t]he concept of public
confidence in judicial integrity does not easily reduce to
precise definition, nor does it lend itself to proof by
documentary record." Id. at 1667. Nevertheless, "justice must
satisfy the appearance of justice." Id. at 1666 (quoting
Offutt, 348 U.S. at 14). There is a compelling interest in
avoiding "possible temptation[s] . . . 'which might lead [a
judge] not to hold the balance, nice, clear and true.'" Id.(quoting Tumey, 273 U.S. at 532).
¶40 We acknowledge the concerns raised by Caperton and
Williams-Yulee. A fundamental principle of our democracy is
that judges must be perceived as beyond price. Likewise, we
recognize that the precedent established by the United States
Supreme Court and our court of appeals provides that in limited
situations the appearance of bias can offend due process.
Specifically, the appearance of bias violates due process when
there is "a great risk of actual bias." Gudgeon, 295 Wis. 2d
189, ¶23; see also Caperton, 556 U.S. at 884 (considering
whether there is "a serious risk of actual bias").
16
No. 2013AP197-CR
¶41 Lest there be any confusion engendered by the separate
writings below, Caperton addressed recusal in the context of the
appearance of bias. Relying on a case that originated in
Wisconsin, Caperton specifically announced that it was not
addressing whether there was actual bias.:
We do not question his subjective findings of
impartiality and propriety. Nor do we determine
whether there was actual bias . . .
[T]he Due Process Clause has been implemented by
objective standards that do not require proof of
actual bias. In defining these standards the Court
has asked whether, "under a realistic appraisal of
psychological tendencies and human weakness," the
interest "poses such a risk of actual bias or
prejudgment that the practice must be forbidden if the
guarantee of due process is to be adequately
implemented."
Id. at 883-84 (quoting Withrow v. Larkin, 421 U.S. at 47). It
explained that due process may require recusal even when actual
bias is not present:
Due process "may sometimes bar trial by judges who
have no actual bias and who would do their very best
to weigh the scales of justice equally between
contending parties."
Id. at 886 (quoting Murchison, 349 U.S. at 136).
¶42 As evidenced by the separate writings, this court has
a difficult relationship with the issue of recusal and its
controlling precedent in the context of the appearance of bias.3
3
This difficult relationship with the issue of judicial
recusal appears not only in our opinions but also in our
administrative function of rule making.
(continued)
17
No. 2013AP197-CR
In 2009 a majority of this court adopted verbatim the
petition of Wisconsin Manufacturers & Commerce and the Wisconsin
Relators that amended Wisconsin's rules of judicial conduct with
regard to judicial recusal as it relates to judicial campaigns.
In the matter of amendment of the Code of Judicial Conduct's
rules on recusal; in the matter of amendment of Wis. Stat.
§ 757.19. S. Ct. Order 08-16, 08-25, 09-10 & 09-11, 2010 WI 73(issued July 7, 2010, eff. July 7, 2010) (Bradley, J.,
dissenting, joined by Abrahamson, C.J., and Crooks, J.). In
response, the Brennan Center for Justice, a non-partisan public
policy and law institute at the New York University School of
Law, observed that the majority's newly amended recusal rule
"violated the spirit——if not the very letter" of Caperton.
Jonathan Blitzer, Vanishing Recusal Prospects in Wisconsin,
Brennan Center for Justice (Jan. 26, 2010). It expressed
additional concern that the recusal rules were "a serious blow
to the integrity of the Court." Id.A similar concern that the majority's newly amended recusal
rules subverted the integrity of the court was widely
disseminated in editorials across the state:
• Milwaukee Journal Sentinel: "A breach in reality. In
a 4-3 vote, justices thumb their noses at the
perception of connections between large campaign
contributions and the court's integrity, objectivity
and credibility." (Oct. 29, 2009)
• Appleton Post-Crescent: "Supreme Court rule robs
public trust." (Nov. 1, 2009)
• Green Bay Press Gazette: "Big Money always finds a
loophole." (Nov. 5, 2009)
• Eau Claire Leader Telegram: "High Court in session;
bring your wallet." (Nov. 1, 2009)
• Racine Journal Times: "Supreme Court recusal rule is
disgrace to state." (Nov. 2, 2009)
• Sheboygan Press: "Is justice for sale in Wisconsin?"
(Nov. 2, 2009)
• Oshkosh Northwestern: "Supreme Court fails to clean
blemished image." (Oct. 30, 2009).
(continued)
18
No. 2013AP197-CR
¶43 The concurrence of Justice Ziegler discusses Caperton
at length, so severely cabining its reach that it appears to
apply only during a "perfect storm" in West Virginia. Justice
Ziegler's concurrence, ¶138. Taking a different approach, the
concurrence of Justice Prosser acknowledges that it is
uncomfortable with controlling precedent stating "[c]learly,
this writer is uncomfortable with the decisions in Gudgeon and
Goodson." Justice Prosser's concurrence, ¶102. It takes to
task both District Two and District Three of the court of
appeals by asserting several inadequacies in the Gudgeon and
Goodson opinions, including that they are not forthright in
disclosing all the facts of the cases. Id.¶44 This court has previously and extensively analyzed and
re-analyzed the issue of judicial recusal in the context of the
appearance of bias. See, for example, State v. Allen, 2010 WI
10, 322 Wis. 2d 372, 778 N.W.2d 863, where our writings covered
128 pages of the Wisconsin Reports. See also Ozanne v.
Fitzgerald, 2012 WI 82, 342 Wis. 2d 396, 822 N.W.2d 67; State v.
Henley, 2011 WI 67, 338 Wis. 2d 610, 802 N.W.2d 175.
In sidestepping the directive of Caperton, some on the
court announced a heretofore unknown premise——never previously
enunciated and not since embraced in the annals of this
country's jurisprudence on judicial recusal. They advanced that
the public's right to vote (which the justices found in the
First Amendment of the United States Constitution) justified
their lack of adherence to Caperton and its due process
considerations. In the matter of amendment of the Code of
Judicial Conduct's rules on recusal; in the matter of amendment
of Wis. Stat. § 757.19, S. Ct. Order 08-16, 08-25, 09-10 & 09-
11, 2010 WI 73 (Roggensack, J., separate writing).
19
No. 2013AP197-CR
¶45 The separate writings today appear to continue that
discussion, but add little additional insight or argument.
Rather than re-engage in the debate at length here and skew the
focus of this opinion, the reader is instead referred to our
prior lengthy discussion of the issue in the cases cited above.
¶46 In sum, when determining whether a defendant's right
to an objectively impartial decisionmaker has been violated we
consider the appearance of bias in addition to actual bias.
When the appearance of bias reveals a great risk of actual bias,
the presumption of impartiality is rebutted, and a due process
violation occurs. Caperton, 556 U.S. at 885; Goodson, 320 Wis.
2d 166, ¶9; Gudgeon, 295 Wis. 2d 189, ¶¶21, 24.
¶47 We turn next to apply this test to the facts of this
case.
IV
¶48 Herrmann contends that the circuit court judge's
statements about her sister could cause a reasonable person to
question her impartiality. Specifically, he points to the
judge's statement about her sister's car accident during the
sentencing hearing:
In 1976 five young women got into a vehicle, and only
one of them survived. The two gentlemen in the other
vehicle were 17, drunk out of their minds, and they
did not survive. That was my personal story, and I
will tell you that a day does not go by that I do not
think of that personal tragedy, and I wish that I
could tell these victims that that pain will one day
disappear, but it doesn't. Time makes it less. We
redirect ourselves to other things, and a day does go
by when we don't think of our loved ones and then we
feel guilty at night because that happened, but life
20
No. 2013AP197-CR
does go on, and I am very grateful today that I'm
looking at four lovely young ladies and that only one
family has to go through the pain that my family and
the other three young ladies' families had to endure
in 1976.
¶49 He also points to the judge's statement about
understanding the pain the families and the victims were
suffering:
And so perhaps it is again destiny or a higher power
or, Pastor, probably the prayers of many others that
bring me to be the judge on this particular case
because I probably more than anyone else who would be
able to sit on this bench in this county understand
the pain that these victims are feeling, but I have
had the benefit of all those years since 1976 to
understand that I have to make Mr. Herrmann pay, but
that nothing I do to him will lessen that pain, and
that if I don't do more than just incarcerate Mr.
Herrmann, if I don't speak out on behalf of my
community today, then this tragedy will continue to
happen on our streets, and more families will suffer
the way these families suffer today.
Like the circuit court and the court of appeals, we conclude
that, when viewed in context, a reasonable person would not
question the court's partiality based on these statements.
¶50 In this case there was a lengthy sentencing hearing.
Twenty individuals testified before the judge issued the
sentence, including each of the four surviving victims. The
first victim to testify spoke about the loss of her friend in
the accident and the trouble she was having coping with that
loss, in addition to her own injuries. The next victim
testified about how Herrmann chose to drink and how selfish it
was for him to run away after the crash. She requested that the
court hold him accountable. These sentiments were repeated by
21
No. 2013AP197-CR
the third victim, who likewise criticized Herrmann for running
away. The last victim to testify focused on how long it was
taking for them to recover, and how much their friend will be
missed.
¶51 The victims' testimony was followed by testimony from
their families. Several individuals spoke about how beloved the
deceased victim had been and how devastating the injuries were
to the surviving victims. They requested that the court not
allow Herrmann the opportunity to ever drive drunk again or to
make similar poor decisions in the future. They stressed that
he had chosen to drink and chosen to drive. They requested that
justice be done and stated that in this case, there was no
reason to impose anything but the maximum sentence.
¶52 A pastor from the community also spoke. He asked the
court "to make a clear statement that we will not tolerate the
abuse of alcohol, that we will not look with leniency upon the
devastating consequences of the willful abuse of alcohol." He
likewise stressed that Herrmann's actions were willful and had a
devastating impact on the community. He requested that the
court impose the maximum penalty.
¶53 The pastor's testimony was followed by the statement
of an individual who was present at the scene. He saw
Herrmann's truck smash into the car and stopped to help. He
spoke about the gruesome nature of the scene and that Herrmann
just ran away. Another witness's statement was read into the
record. The crash occurred near his house and he ran out to
help. He indicated that while he was trying to help the victims
22
No. 2013AP197-CR
and waiting for emergency responders to arrive, Herrmann
appeared not to care how the victims were doing.
¶54 There were also witnesses who spoke on behalf of
Herrmann. His mother expressed her sympathy for the victims and
stated that this was an accident, not something Herrmann had
planned. Although he was being portrayed as a monster, she
explained that Herrmann was a caring son, grandson, father,
brother, uncle, and friend. No amount of prison time was going
to bring back the deceased or take away any of the victims' pain
and suffering.
¶55 Similarly, the mother of Herrmann's son testified that
he was a good father. She stressed that this was not an
intentional act. One of his friends spoke about how Herrmann
had assisted her when she needed help. His sister explained
that he had been a good brother. His father testified that
Herrmann would never intentionally harm anyone and reiterated
that he was not a monster. Lastly, Herrmann's grandmother
spoke. She expressed her sympathies for the victims and stated
that Herrmann had been a good grandson.
¶56 It was after hearing all of these statements that the
judge apparently felt compelled to answer the assertions about
Herrmann being a monster. She began by acknowledging that there
is a problem of drinking and driving in our society, which is
not limited to Herrmann. Then, she recognized multiple factors
in Herrmann's background mitigating his culpability, including
the fact that there was alcoholism in his family, he came from a
23
No. 2013AP197-CR
broken home, and had been involved in the juvenile justice
system.
¶57 She suggested that Herrmann's story illustrates
society's failure to help children and to help adults who suffer
with alcoholism. She asked "How many other young children are
on the streets of our community who also like Mr. Herrmann come
from situations where alcohol and the use of alcohol is a
readily acceptable thing[?]"
¶58 It was at this point that the judge brought up her
sister's accident, assuring the victims and their family members
that she understood that such an accident is a painful tragedy.
Her remarks, however, also conveyed that although she understood
the pain the families and victims were suffering, no matter what
sentence she gave Mr. Herrmann, it would not alleviate that
pain:
I have had the benefit of all those years since 1976
to understand that I have to make Mr. Herrmann pay,
but that nothing I do to him will lessen that pain,
and that if I don't do more than just incarcerate Mr.
Herrmann, if I don't speak out on behalf of my
community today, then this tragedy will continue to
happen on our streets, and more families will suffer
the way these families suffer today.
¶59 The judge then emphasized that the accident should not
be viewed as Mr. Herrmann simply being a monster, rather it is
indicative of a greater problem that our society has with
drinking and driving:
So, Mr. Herrmann, you're going to prison today, but
that's just part of the story. I want to make sure
that the story is not about what a monster Jesse
Herrmann was and is so that we can then wrap up this
little episode in a nice neat little box and all go
24
No. 2013AP197-CR
about our business as usual, that Mr. Herrmann the
monster is off the streets, and we don't have to worry
about this again, because no matter what I do to Mr.
Herrmann, unless this community begins to take a
different attitude about drinking and driving, and I'm
talking about a different attitude, not paying lip
service, but actually doing, we will see this tragedy
happen again and again.
¶60 In this context, it is apparent that although the
judge's statements about her sister were personal, they were
used in an attempt to illustrate the seriousness of the crime
and the need to deter drunk driving in our society. They do not
appear as an expression of bias against Herrmann.
¶61 As the judge's statements addressed the seriousness of
the crime and the need to deter drunk driving, they were
consistent with the requirements placed on judges to discuss the
objectives of the sentence. This court explained in State v.
Gallion, 2004 WI 42, ¶40, 270 Wis. 2d 535, 678 N.W.2d 197, that
"[c]ircuit courts are required to specify the objectives of the
sentence on the record. These objectives include, but are not
limited to, the protection of the community, punishment of the
defendant, rehabilitation of the defendant, and deterrence to
others." The court also identified several mitigating and
aggravating factors for sentencing courts to consider.4 Id., ¶43
n.11.
4
These include:
(1) Past record of criminal offenses; (2) history of
undesirable behavior pattern; (3) the defendant's
personality, character and social traits; (4) result
of presentence investigation; (5) vicious or
aggravated nature of the crime; (6) degree of the
(continued)
25
No. 2013AP197-CR
¶62 Similar requirements have been incorporated into
Wisconsin's statutes. Wisconsin Stat. § 973.017(2) provides:
When a court makes a sentencing decision concerning a
person convicted of a criminal offense committed on or
after February 1, 2003, the court shall consider all
of the following:
(ad) The protection of the public.
(ag) The gravity of the offense.
(ak) The rehabilitative needs of the defendant.
(b) Any applicable mitigating factors and any
applicable aggravating factors, including the
aggravating factors specified in subs. (3) to (8).
Wis. Stat. § 973.017(2) (2009-10).5
¶63 Here, the circuit court judge fulfilled her
obligations under the statute and Gallion. After her statements
about her sister and the serious problem society has with
drinking and driving, the judge reviewed elements of Herrmann's
character. She observed that he had a habit of running away
when things got difficult. She discussed Herrmann's poor
defendant's culpability; (7) defendant's demeanor at
trial; (8) defendant's age, educational background and
employment record; (9) defendant's remorse, repentance
and cooperativeness; (10) defendant's need for close
rehabilitative control; (11) the rights of the public;
and (12) the length of pretrial detention
State v. Gallion, 2004 WI 42, ¶43 n.11, 270 Wis. 2d 535, 678
N.W.2d 197 (quoting Harris v. State, 75 Wis. 2d 513, 519-20, 250
N.W.2d 7 (1977)).
5
All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.
26
No. 2013AP197-CR
choices leading up to the accident, including his choice to
drink and his choice to drive.
¶64 The judge considered that Herrmann had already been
given opportunities to adjust his behavior. He previously had
been fined and had the benefit of alcohol and drug assessments
and treatment in the community and in an institutional setting.
Additionally, he previously had the benefit of supervision.
Throughout it all, Herrmann resisted treatment.
¶65 Stressing the gravity of the offense, the judge noted
how many witnesses testified to the effects that Herrmann's
crime had and continue to have on them. Lastly, as mitigating
factors, the judge considered Herrmann's guilty plea, his age,
and the fact that he has a family. It was after weighing all
these factors that the court imposed Herrmann's sentence of 31
years initial confinement followed by 40 years of extended
supervision, a sentence less than the 40 years confinement
recommended in the PSI.
¶66 The circuit court's statements were made in compliance
with the requirements of Wis. Stat. § 973.017(2) and Gallion.
When viewed in that context, they do not reveal a great risk of
actual bias. Accordingly, we determine that Herrmann has failed
to rebut the presumption of impartiality.
V
¶67 In sum, there is a presumption that a judge acted
fairly, impartially, and without prejudice. Goodson, 320 Wis.
2d 166, ¶8. A defendant may rebut the presumption by showing
that the appearance of bias reveals a great risk of actual bias.
27
No. 2013AP197-CR
Caperton, 556 U.S. at 885; Goodson, 320 Wis. 2d 166, ¶¶9, 14;
Gudgeon, 295 Wis. 2d 189, ¶24, see also Williams-Yulee, 135
S. Ct. 1660. Such a showing constitutes a due process
violation. Gudgeon, 295 Wis. 2d 189, ¶23.
¶68 We conclude that Herrmann has failed to rebut the
presumption of impartiality. When the sentencing court's
statements are viewed in context, they do not reveal a great
risk of actual bias. Because we determine that no due process
violation has been established, we affirm the court of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
28
2013AP197-CR.dtp
¶69 DAVID T. PROSSER, J. (concurring). I agree with the
bottom line of the lead opinion. On the basis of the facts set
out in the lead opinion, I have no difficulty in concluding that
the sentencing judge in this case was not biased against the
defendant and that a reasonable person, fully apprised of the
facts in the record, would not reach a different determination.
¶70 I do not join the lead opinion because it relies on
three cases, State v. Gudgeon, 2006 WI App 143, 295 Wis. 2d 189,
720 N.W.2d 114; State v. Goodson, 2009 WI App 107, 320
Wis. 2d 166, 771 N.W.2d 385; and Caperton v. A.T. Massey Coal
Co., 556 U.S. 868 (2009), that tend to confuse and undermine the
administration of justice.
¶71 These cases create "objective" tests of bias that are
so loose and vague that they are almost impossible for courts to
apply in a fair and consistent manner. Consequently, these
tests can be manipulated by parties, manipulated by non-parties,
and manipulated by judges, to achieve some desired result. This
manipulation is not law; it is gamesmanship.
¶72 Because the lead has pointed to Gudgeon, Goodson, and
Caperton as prime examples of controlling authority, these cases
require a closer look than they have received.
I. STATE V. GUDGEON
¶73 State v. Gudgeon was decided by the court of appeals
in 2006. The defendant was charged on July 24, 2000, with three
offenses: (1) operating a motor vehicle without owner's consent,
(2) fleeing or eluding an officer, and (3) resisting or
obstructing an officer. These charges "arose from an incident
1
2013AP197-CR.dtp
in which Gudgeon took off with another individual's motorcycle
and attempted to flee from police." Gudgeon, 295 Wis. 2d 189,
¶2. "After Gudgeon abandoned the motorcycle in a ditch, one of
the officers in pursuit accidentally ran into it. The bike was
destroyed." Id.¶74 When Gudgeon entered a plea to the first of the three
offenses on August 24, 2000, as part of a plea bargain, he was
given two years of probation, with six months of jail time
subject to work release privileges. The six months were then
stayed. This withheld sentence was designed to assist Gudgeon
in paying $8,425 in restitution for the destroyed motorcycle.1
Id.¶75 Unfortunately, Gudgeon did not take advantage of the
court's leniency. He violated the rules of probation, then
stipulated to serving six months of jail time.
¶76 On May 15, 2002, Gudgeon's probation agent notified
the court that Gudgeon's probation was about to expire. She
advised that Gudgeon was unable to use his work release
privileges because of pending charges in Kenosha County and
McHenry County, Illinois. She recommended that Gudgeon's unpaid
restitution be converted to a civil judgment. Id., ¶3. She
gave reasons for this recommendation, namely, that a civil
judgment would earn interest for the victim, while extending
Gudgeon's supervision would not; and Gudgeon's supervision might
be difficult if Gudgeon were convicted in Illinois. Id.
1
Some of the facts outlined in this concurrence are taken
from Gudgeon's 2005 brief to the court of appeals.
2
2013AP197-CR.dtp
¶77 In reply, Judge Michael Gibbs——who replaced the judge
who had sentenced Gudgeon because of judicial rotation——
handwrote at the bottom of the letter, "No——I want his probation
extended," and he sent copies of the agent's letter "to the
probation agent, the district attorney, and Gudgeon's last
attorney of record." Id.
¶78 On May 30, 2002, Gudgeon's probation agent sent
another letter to the court, acknowledging that the court wanted
Gudgeon's probation extended but asserting that Gudgeon would
not agree to a probation extension without first discussing the
matter with a lawyer. Gudgeon's refusal to permit his extension
by waiver meant that an extension hearing was required.
¶79 Gudgeon's refusal to waive the probation extension was
noted at the August 21 extension hearing. An assistant district
attorney pointed out that Gudgeon had outstanding restitution
and Gudgeon admitted that he had paid only a small portion out
of the required $8,425, so that he still owed $7,834.53. He
also had other court costs to pay. Gudgeon explained that he
had not paid more because he had spent a lot of time in custody
and had not been able to work. Judge Gibbs extended Gudgeon's
probation at the hearing, explaining, "The only way I can see
where we can make sure you are going to pay is to keep the
hammer over your head, give you an incentive to pay it. . . .
Your probation is going to be extended for two years. If you
pay that off, you get off supervision. The sooner you pay it
off, the sooner you get off probation." Gudgeon did not appeal
the extension.
3
2013AP197-CR.dtp
¶80 The following year Gudgeon's probation was revoked
because of new violations, and he was sentenced to prison. He
did not appeal this sentence either.
¶81 Gudgeon's next step was to file a postconviction
motion under Wis. Stat. § 974.06. "He alleged [in the motion]
that his due process rights had been violated during the
extension proceedings because the presiding judge was not a
neutral magistrate. Gudgeon read the court's handwritten
notation on the letter from his probation agent as prejudging
the case with respect to whether to extend probation." Id., ¶5.
¶82 The court of appeals bought Gudgeon's argument. It
assumed a sufficient reason for a collateral attack under Wis.
Stat. § 974.06 because of newly discovered evidence, even though
the court had sent a copy of the letter with notation to
Gudgeon's last attorney and Gudgeon had obviously discussed the
judge's thinking with his probation agent. The court of appeals
then suggested that the circuit court had deprived Gudgeon of an
impartial and unbiased tribunal and deemed this denial
equivalent to deprivation of counsel——a "structural error" not
subject to harmless error analysis.
¶83 In sum, although the court of appeals was unwilling to
conclude that Judge Gibbs was actually biased ("We cannot
conclude that the court's notation on the letter persuasively
establishes actual bias in and of itself given our experience
and the reputation of this particular trial judge as a fair and
just administrator of the law"), it nonetheless detected the
"appearance of partiality." Gudgeon, 295 Wis. 2d 189, ¶25. The
court said:
4
2013AP197-CR.dtp
[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.
¶84 The court of appeals quoted various opinions to define
the role of appellate judges. Appellate judges "determine
whether 'the potential for bias is sufficiently great' to sway
the average person serving as judge away from neutrality" and
"due process is violated . . . [when] the risk of bias is
impermissibly high." Id. The court added:
We must resolve this case based on what a
reasonable person would conclude from reading the
court's notation, not what a reasonable trial judge, a
reasonable appellate judge, or even a reasonable legal
practitioner would conclude.
Id., ¶26.
¶85 In my view, the Gudgeon case does not provide clear
guidance to Wisconsin judges. Appellate judges are supposed to
determine, not as fact but as a matter of law, whether a
reasonable person——taking into consideration human psychological
tendencies and weaknesses——would "conclude" ("conclude" implies
a legal determination) that the average judge (not the judge who
is the subject of inquiry) could be trusted to make a fair
decision, given certain facts. These appellate judges
apparently may not consider such legal realities as the fact
that judges in Walworth County frequently extended probation
when a probationer failed to pay off or make good progress in
paying off restitution, and the law that criminal court judges
lose control of restitution when probation ends and a
5
2013AP197-CR.dtp
probationer's unpaid restitution is converted to a civil
judgment. See Huml v. Vlazny, 2006 WI 87, 293 Wis. 2d 169, 716
N.W.2d 807. Reasonable trial judges, reasonable appellate
judges, and reasonable legal practitioners would know that
circuit judges, "for cause or by order," may extend probation
for a stated period, Wis. Stat. § 973.09(3)(a), especially when
"The probationer has not made a good faith effort to discharge
court-ordered obligations or pay fees owed under s. 304.074."
Wis. Stat. § 973.09(3)(c)1.
¶86 Apparently, a "reasonable person" who is not a judge
or legal practitioner may not consider this information. It is
not at all clear what "the reasonable person" is supposed to
consider beyond his or her psychological hunches.
¶87 The Gudgeon court said, "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 . . . is the test." Id., ¶30.
That "risk" "is simply too great to comport with constitutional
due process." Id.
¶88 The court of appeals remanded the case to the circuit
court for a new probation extension hearing, saying "when a
tribunal predetermines how it will rule, the error is structural
and poisons the entire proceeding." Id., ¶31. This court
denied the State's petition for review. When the Gudgeon case
was remanded, however, Gudgeon himself waived rights to a new
hearing——likely knowing that he could not establish "newly
discovered evidence" or escape from another extension of his
probation.
6
2013AP197-CR.dtp
II. STATE V. GOODSON
¶89 State v. Goodson was decided in 2009, three years
after Gudgeon. The court forthrightly acknowledged that "Our
decision in Gudgeon guides our conclusion." Goodson, 320
Wis. 2d 166, ¶10.
¶90 In Goodson, the defendant was convicted of five
criminal offenses, including two felony counts of possession of
a short-barreled firearm and fourth-degree sexual assault
(reduced from second-degree sexual assault).2 He was given a 45-
month prison sentence by Outagamie County Circuit Judge Harold
Froehlich. Goodson's sentence was reversed by the court of
appeals on grounds that his counsel provided ineffective
assistance at the sentencing hearing.
¶91 The case was remanded and assigned to Circuit Judge
Mark McGinnis. At a new sentencing hearing on October 11, 2005,
Judge McGinnis described Goodson's abuse of his ex-wife and
daughter, noting that he had "physically, psychologically,
emotionally, sexually, you raped her, verbally abused and just
abused her for many years. Do I think you are dangerous?
Absolutely."
¶92 Judge McGinnis added, "I am tempted to just give you
the maximum today. I don't have to go along with joint
recommendations . . . . I sit here and read this file over, and
2
Some of the facts in this discussion are taken from
Goodson's brief in the court of appeals as well as a prior
unpublished court of appeals decision, State v. Goodson, No.
2004AP2913-CR, unpublished slip op. (Jul. 6, 2005).
7
2013AP197-CR.dtp
I say why. What did your ex-wife ever do to deserve that? And
the answer is: She didn't do anything to deserve it, period."
¶93 Judge McGinnis then imposed sentence:
On one of the firearm counts, the court sentenced
Goodson to six years' imprisonment, with three years'
initial confinement and three years' extended
supervision. On the other firearm count and the
sexual assault, it withheld sentence and placed
Goodson on probation consecutive to the prison
sentence. On the remaining two misdemeanors, it
sentenced Goodson to ninety-day jail terms, concurrent
with each other but consecutive to the prison
sentence. The court announced it was structuring the
sentence like this to "[hang the] maximum penalty over
[Goodson] . . . ." The court warned Goodson "[I]f you
deviate one inch from these rules, and you may think
I'm kidding, but I'm not, you will come back here, and
you will be given the maximum, period. Do you
understand that?" Goodson replied that he did.
Id., ¶2 (footnote omitted).
¶94 Like Judge Froehlich's sentence, Judge McGinnis's
sentence resulted in 45 months of confinement, but Goodson was
given 857 days of credit on the sentence because of his time in
custody. This resulted in 338 days of remaining confinement——
less than a year.
¶95 When Goodson completed his confinement time, he was
inadvertently reincarcerated at the Outagamie County Jail, where
he was soon charged with battery by a prisoner. Due to its
mistake of taking Goodson into custody, the Department of
Corrections recommended limiting reconfinement to the 113 days
of time served in jail. Judge McGinnis accepted this
recommendation, giving Goodson the benefit of the doubt. Id.,
¶¶3-4. In other words, Judge McGinnis did not give Goodson "the
maximum."
8
2013AP197-CR.dtp
¶96 Five months later, however, after Goodson's extended
supervision was revoked for numerous violations, Judge McGinnis
reconfined Goodson for the maximum period of time available——two
years, eight months, and 17 days. Goodson had been arrested
after he threatened a new girlfriend, and attempted to commit
suicide by driving the girlfriend's truck head-on into a
concrete pole, causing himself serious injury.
¶97 The circuit court's sentence seemed to shock the court
of appeals: "By prejudging Goodson's reconfinement sentence, the
court was objectively biased. Therefore, Goodson is entitled to
a new reconfinement sentence hearing." Id., ¶1.
¶98 The court stated that Goodson's appeal "requires us to
determine whether Goodson was sentenced by an impartial judge.
Whether a circuit court's partiality can be questioned is a
matter of law that we review independently." Id., ¶7.
¶99 The court of appeals then concluded that the circuit
court was objectively biased——that is, the court gave "the
appearance of bias" and the court was actually biased as well,
although "Goodson concedes he cannot show the court was
subjectively biased." Id., ¶8. As to the appearance of bias,
the court quoted the Gudgeon passage about the reasonable person
concluding that "the average judge could not be trusted." Id.,
¶9 (quoting Gudgeon, 295 Wis. 2d 189, ¶24). The court added:
"[T]he appearance of partiality constitutes objective bias when
a reasonable person could question the court's impartiality
based on the court's statements." Id., ¶9 (citing Gudgeon, 295
Wis. 2d 189, ¶26).
¶100 The court continued:
9
2013AP197-CR.dtp
We agree with Goodson that a reasonable person
would interpret the court's statements to mean it made
up its mind before the reconfinement hearing. . . .
. . . .
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.
Id., ¶¶10, 13
¶101 The court went on to conclude that "There could not be
a more explicit statement confirming that the sentence was
predecided. This is definitive evidence of actual bias." Id.,
¶16.
¶102 Clearly, this writer is uncomfortable with the
decisions in Gudgeon and Goodson. Both courts failed to
disclose all the facts. Both courts did not contend that the
defendants had actually suffered unfair treatment. Both courts
left open the question whether there would have been any "bias"
at all if the judges had kept their thinking to themselves. The
Goodson court, following Gudgeon, did not explain why the
imposition of a heavy penalty in a sentence that is stayed, see,
Wis. Stat. § 973.09(1)(a), would not be "prejudging" the
defendant's sentence if his or her probation were revoked. The
court's ruling is certainly inconsistent with the practice in
drug courts.
¶103 More important, the two cases applied their ambiguous
tests for bias in situations——probation extension and
reconfinement sentencing——in which the stakes were not very
high. One wonders whether the court of appeals would have
10
2013AP197-CR.dtp
developed and applied the same tests if confronted with a
situation where the stakes were critical, such as wiping out a
homicide conviction after a four-week jury trial, even though a
judge's candid statement may never have been heard by a jury
trying the facts. After all, in the Gudgeon court's view, bias—
—and even more, the appearance of bias——may be wholly unrelated
to any actual unfairness to the defendant.
III. CAPERTON V. A.T. MASSEY COAL CO.
¶104 The Caperton case is a different animal. The facts in
Caperton created the widespread impression that a single
individual spent more than $3 million to elect a new supreme
court justice who would overturn a $50 million jury verdict in a
specific case involving the individual that was soon to come
before the West Virginia Supreme Court. The United States
Supreme Court's decision is completely understandable. The
problem in Caperton, like the problem in Gudgeon and Goodson, is
that its broad language is difficult to cabin and thus invites
application in materially different fact situations.
¶105 The Caperton majority said that an appellate court's
objective inquiry is "whether the average judge in his position
is 'likely' to be neutral, or whether there is an
unconstitutional 'potential for bias,'" Caperton, 556 U.S. at
881; whether an interest "poses such a risk of actual bias or
prejudgment that the practice must be forbidden," id. at 884,
whether there is "a serious risk of actual bias." Id. The
Court added: "[O]bjective standards may . . . require recusal
whether or not actual bias exists or can be proved." Id. at
886.
11
2013AP197-CR.dtp
¶106 The Caperton Court noted that "Massey and its amici
predict that various adverse consequences will follow from
recognizing a constitutional violation here——ranging from a
flood of recusal motions" to interference with judicial
elections. Id. at 887. "We disagree." Id. The Supreme Court
may have been correct in Caperton but it was not correct with
respect to this latter comment, at least in Wisconsin.
¶107 The reality of contemporary life is that the
appearance of bias can be created for a judge by someone other
than the judge. What are judges to do in this situation? How
are they supposed to assess the reasonable person's conclusions
if the reasonable person is basing his conclusions on misleading
information?
¶108 My concern with the lead opinion is its veneration of
the "appearance of bias" standard without providing any
additional guidance as to when or how to apply this imprecise
standard. The lead opinion's discussion of the "appearance of
bias" sharply contrasts with its detailed analysis of the facts
that properly determine the outcome of this case.
¶109 Chief Justice Roberts stated in his dissent in
Caperton:
The Court's new "rule" provides no guidance to judges
and litigants about when recusal will be
constitutionally required. This will inevitably lead
to an increase in allegations that judges are biased,
however groundless those charges may be. The end
result will do far more to erode public confidence in
judicial impartiality than an isolated failure to
recuse in a particular case.
Id. at 890-91 (Roberts, C.J., dissenting). I share Chief
Justice Roberts' concerns about the state of the law as it
12
2013AP197-CR.dtp
relates to bias and constitutionally required recusal. Without
clarification and guidance, these developments in the law may
"do far more to erode public confidence in judicial
impartiality" than the occasional misstep by a judge.
¶110 For the foregoing reasons, I respectfully concur.
¶111 I am authorized to state that Chief Justice PATIENCE
DRAKE ROGGENSACK joins this opinion.
13
No. 2013AP197-CR.akz
¶112 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I agree
with the lead opinion's conclusion that Jesse Herrmann has not
shown that the sentencing judge, Judge Ramona A. Gonzalez, was
objectively biased in violation of due process. I write to
clarify the due process recusal test. Citing cases including
Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009), the lead
opinion states that "[a] defendant may rebut the presumption
[that a judge acted fairly, impartially, and without prejudice]
by showing that the appearance of bias reveals a great risk of
actual bias." Lead op., ¶3. However, due process requires
recusal only if a judge is actually biased or if a "rare" or an
"exceptional case" with "extreme facts" creates a "serious risk
of actual bias." Caperton v. A.T. Massey Coal Co., 556 U.S.
868, 883-84, 886-88, 890.
¶113 Caperton concludes that objective proof of actual bias
or the probability of a serious risk of actual bias must exist
before recusal is required. Caperton, 556 U.S. at 883-84.
Stated otherwise, it is not reasonable to question a judge's
impartiality unless one can prove by objective evidence that
actual bias or the probability of a serious risk of actual bias
exists. See id. at 884.
¶114 The recusal test to be applied is the test explained
by the Supreme Court in Caperton, which requires a "rare" or an
"exceptional case" with "extreme facts" that create a "serious
risk of actual bias." Caperton, 556 U.S. at 883-84, 886-88,
890. If the test were only whether an appearance of bias
1
No. 2013AP197-CR.akz
existed, and nothing more extreme or exceptional were required,
then this record would support the defendant's contention that
Judge Gonzalez should have recused herself. To succeed on a due
process claim, much more is required.
¶115 Accordingly, I write to discuss the due process test
of Caperton. I note that the Judicial Code1 and the
disqualification statute provide for specific factual
circumstances under which a judge must recuse, even when that
judge could be completely fair. See, e.g., Supreme Court Rule
("SCR") 60.04(4)(a) to (f); Wis. Stat. § 757.19(2)(a) to (f).2
1
"The Code of Judicial Conduct is contained in ch. 60 of
the Supreme Court Rules. It was formerly referred to as the
Code of Judicial Ethics." State v. Henley, 2011 WI 67, ¶21
n.12, 338 Wis. 2d 610, 802 N.W.2d 175.
2
The provisions of the disqualification statute and Supreme
Court Rule ("SCR") Ch. 60, which identify specific factual
circumstances where recusal is required, do not employ an
analysis about reasonableness. However, "[t]he Judicial Code
provides no authority to the supreme court to disqualify a
justice from participating in a particular case when that
justice has considered and decided a motion to disqualify him or
her." Henley, 338 Wis. 2d 610, ¶23. "[T]his court does not have
the power to remove a justice from participating in an
individual proceeding, on a case-by-case basis." Id., ¶25.
When presented with a disqualification motion, a "justice must
decide for himself or herself whether his or her
disqualification [is] required." Id., ¶11; see also id., ¶¶13,
26. In addition, the disqualification statute requires recusal
"[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." Wis. Stat. § 757.19(2)(g).
Section 757.19(2)(g), [Wis.] Stats., 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. It does not
require disqualification in a situation where one
other than the judge objectively believes there is an
(continued)
2
No. 2013AP197-CR.akz
Caperton makes clear that a judge need not recuse simply because
someone claims that the judge is partial. In other words,
Caperton concludes that a reasonable, well-informed person,
knowledgeable about judicial ethical standards and the justice
system and aware of the facts and circumstances the judge knows
or reasonably should know, would reasonably question the judge's
ability to be impartial because of actual bias or the
probability of a serious risk of actual bias. Such
circumstances are exceedingly rare.3
¶116 Because we are bound by the Supreme Court precedent in
Caperton when applying the due process clause of the United
States Constitution, it is important to clearly set out the
Caperton test so that those who consider seeking judicial
recusal will be well-informed, as will the judges who decide
recusal motions. Further, because "motions to disqualify a
justice from participating in a particular case have increased
appearance that the judge is unable to act in an
impartial manner; neither does it require
disqualification . . . in a situation in which the
judge's impartiality 'can reasonably be questioned' by
someone other than the judge.
Donohoo v. Action Wisconsin Inc., 2008 WI 110, ¶24, 314
Wis. 2d 510, 754 N.W.2d 480 (quoted source omitted) (ellipsis
added in Donohoo). Because Donohoo and Henley are controlling
precedent, I rely on them in this opinion.
3
For example, the Judicial Code requires recusal "when
reasonable, well-informed persons knowledgeable about judicial
ethics standards and the justice system and aware of the facts
and circumstances the judge knows or reasonably should know
would reasonably question the judge's ability to be
impartial[.]" SCR 60.04(4) (intro.).
3
No. 2013AP197-CR.akz
dramatically since the United States Supreme Court decided
Caperton," State v. Henley, 2011 WI 67, ¶10, 338 Wis. 2d 610,
802 N.W.2d 175, it is important to recognize that Caperton's
holding is very limited. Caperton will be discussed in more
detail.
I. DISCUSSION
¶117 "A fair trial in a fair tribunal is a basic
requirement of due process." In re Murchison, 349 U.S. 133, 136
(1955). "'Due process requires a neutral and detached judge. If
the judge evidences a lack of impartiality, whatever its origin
or justification, the judge cannot sit in judgment.'" State v.
Rochelt, 165 Wis. 2d 373, 378, 477 N.W.2d 659 (Ct. App. 4 1991)
(quoting State v. Washington, 83 Wis. 2d 808, 833, 266
N.W.2d 597 (1978)). "The operation of the due process clause in
the realm of judicial impartiality, then, is primarily to
protect the individual's right to a fair trial." People v.
Freeman, 222 P.3d 177, 181 (Cal. 2010). "We presume that judges
are impartial," and someone who challenges a judge's
impartiality bears a heavy burden to "rebut that presumption."
State v. Pinno, 2014 WI 74, ¶103, 356 Wis. 2d 106, 850
N.W.2d 207.
¶118 "[W]hile a showing of actual bias is not required for
judicial disqualification under the due process clause, neither
is the mere appearance of bias sufficient." Freeman, 222 P.3d
at 178. In a due process recusal challenge, "[i]t is not
sufficient to show that there is an appearance of bias or that
the circumstance might lead one to speculate that the judge is
4
No. 2013AP197-CR.akz
biased." State v. O'Neill, 2003 WI App 73, ¶12, 261
Wis. 2d 534, 663 N.W.2d 292 (citing State v. McBride, 187
Wis. 2d 409, 416, 523 N.W.2d 106 (Ct. App. 1994)).
¶119 "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.'" Freeman, 222 P.3d at 178 (quoting Caperton, 556
U.S. at 877) (quotation marks omitted). In other words, this
objective assessment "asks whether objective facts show actual
bias." O'Neill, 261 Wis. 2d 534, ¶11 (citing McBride, 187
Wis. 2d at 415-16). "Thus, actual bias——either its presence, or
the great risk of it——is the underlying concern of objective
bias [due process] analysis." State v. Goodson, 2009 WI App
107, ¶14, 320 Wis. 2d 166, 771 N.W.2d 385. The Supreme Court in
Caperton "emphasized that only the most 'extreme facts' would
justify judicial disqualification based on the due process
clause." Freeman, 222 P.3d at 178 (quoting Caperton, 556 U.S.
at 886-89). Accordingly, when a litigant asserts actual bias,
he or she must show extreme facts such as those in Caperton.
See id.¶120 "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. (quoting Caperton, 556 U.S. at 890).
5
No. 2013AP197-CR.akz
Wisconsin's Judicial Code and disqualification statute aim to
prevent the appearance of bias by requiring recusal in
specifically described factual situations even though the judge
is actually unbiased.4 See, e.g., SCR 60.04(4)(a) to (f); Wis.
Stat. § 757.19(2)(a) to (f); see also Pinno, 356 Wis. 2d 106,
¶97 (holding that the Judicial Code did not require recusal and
noting that the judge had an "appearance of impartiality"); In
re Disciplinary Proceedings Against Crosetto, 160 Wis. 2d 581,
583-84, 466 N.W.2d 879 (1991) (holding that the disqualification
statute did not require recusal because there was no "appearance
of a lack of impartiality"). For example, recusal is required
when "[t]he judge of an appellate court previously handled the
action or proceeding as judge of another court."
SCR 60.04(4)(b); see also Wis. Stat. § 757.19(2)(e) (requiring
recusal of "a judge of an appellate court [who] previously
handled the action or proceeding while judge of an inferior
court"). Specifically defined requirements of recusal in
SCR Ch. 60 and the disqualification statute are not at issue in
this case because Herrmann's challenge is under the more general
notion of reasonableness as it intersects with due process
protection.
¶121 Thus, I analyze the circumstances when recusal is
sought based on what is sometimes referred to as the "reasonable
4
These enumerated situations might require recusal although
due process does not. See State v. Pinno, 2014 WI 74, ¶94, 356
Wis. 2d 106, 850 N.W.2d 207 ("'[T]he codes of judicial conduct
provide more protection than due process requires . . . .'"
(quoting Caperton, 556 U.S. at 890)).
6
No. 2013AP197-CR.akz
person" standard. When such a challenge is made, the burden is
to show a "rare" or an "extraordinary situation" with "extreme"
facts that create a "serious, objective risk of actual bias,"
such that it is the limited situation where recusal is required,
as was demonstrated under the unique facts of Caperton. See
Caperton, 556 U.S. at 886-87, 890. The Supreme Court made clear
that it is a "rare instance[]" indeed where a judicial officer
is required to recuse when no rule specifies factual
circumstances that call for recusal. Id. at 890.
¶122 If due process required a judge to recuse because of
an appearance of bias, then what is unreasonable about Herrmann
thinking that Judge Gonzalez appeared biased based on her
statements such that she must recuse? In 1976 a drunk driver
struck a car holding five young women, killing four of them.
One of the women who died was Judge Gonzalez's sister. Herrmann
drove his truck while intoxicated and rear-ended a car carrying
five young women. Herrmann's accident killed one of the young
women and seriously injured the other four. During Herrmann's
sentencing hearing, Judge Gonzalez stated:
In 1976 five young women got into a vehicle, and only
one of them survived. The two gentlemen in the other
vehicle were 17, drunk out of their minds, and they
did not survive. That was my personal story, and I
will tell you that a day does not go by that I do not
think of that personal tragedy, and I wish that I
could tell these victims that that pain will one day
disappear, but it doesn't.
Judge Gonzalez further stated:
Perhaps it is again destiny or a higher
power . . . that bring[s] me to be the judge on this
particular case because I probably more than anyone
else who would be able to sit on this bench in this
7
No. 2013AP197-CR.akz
county understand the pain that these victims are
feeling, but I have had the benefit of all those years
since 1976 to understand that I have to make Mr.
Herrmann pay . . . .
¶123 Because a complete understanding of Caperton is so
important to understanding a judge's obligations upon being
moved to recuse, I now turn to Caperton.
¶124 As the following discussion shows, Caperton's very
limited holding does not allow "an attack on virtually any
ju[dge] for nearly any reason and [does not] allow litigants to
'pick their court' by filing recusal motions against certain
ju[dges] and not others." State v. Allen, 2010 WI 10, ¶260, 322
Wis. 2d 372, 778 N.W.2d 863 (Ziegler, J., concurring). "Such an
expansion of Caperton could cause gridlock in the court and
delay justice being dispensed. The Supreme Court made clear
that it did not intend such consequences." Id. In fact, the
Supreme Court noted that "[n]ot every campaign contribution by a
litigant or [an] attorney creates a probability of bias that
requires a judge's recusal, but this is an exceptional case."5
5
Although the Supreme Court in Caperton was discussing due
process when it stated that not every campaign contribution
requires a judge's recusal, the same principle applies under the
Judicial Code. Wisconsin's Judicial Code states that "[a] judge
shall not be required to recuse himself or herself in a
proceeding based solely on any endorsement or the judge's
campaign committee's receipt of a lawful campaign contribution,
including a campaign contribution from an individual or entity
involved in the proceeding." SCR 60.04(7). As the comment to
this rule explains:
Campaign contributions to judicial candidates are
a fundamental component of judicial elections. . . .
The purpose of [SCR 60.04(7)] is to make clear
that the receipt of a lawful campaign contribution by
(continued)
8
No. 2013AP197-CR.akz
Caperton, 556 U.S. at 884. The exceptional circumstances of
Caperton demonstrated the probability of a serious risk of
actual bias that the Court determined that there was a due
process violation. The Supreme Court noted that such a
violation would indeed be "rare." Id. at 890. A campaign
contribution or expenditure alone does not result in a due
process violation. Even the large expenditure in Caperton was
but one of many factors that, collectively, were fundamental to
the Court's decision. In Caperton the Court did not conclude
that, standing alone, a lawful contribution, large expenditure,
or other significant support in a campaign would require a judge
to recuse.
a judicial candidate's campaign committee does not, by
itself, require the candidate to recuse himself or
herself as a judge from a proceeding involving a
contributor. An endorsement of the judge by a lawyer,
other individual, or entity also does not, by itself,
require a judge's recusal from a proceeding involving
the endorser. Not every campaign contribution by a
litigant or [an] attorney creates a probability of
bias that requires a judge's recusal.
Campaign contributions must be publicly reported.
Disqualifying a judge from participating in a
proceeding solely because the judge's campaign
committee received a lawful contribution would create
the impression that receipt of a contribution
automatically impairs the judge's integrity. It would
have the effect of discouraging "the broadest possible
participation in financing campaigns by all citizens
of the state" through voluntary contributions, see
Wis. Stat. § 11.001, because it would deprive citizens
who lawfully contribute to judicial campaigns, whether
individually or through an organization, of access to
the judges they help elect.
SCR 60.04(7) cmt.
9
No. 2013AP197-CR.akz
¶125 For purposes of clarification, in Wisconsin, a
judicial candidate may not even solicit or accept campaign
contributions. In other words, it is fundamental that a judicial
candidate cannot ask anyone for any campaign money.
SCR 60.06(4) ("A judge, candidate for judicial office, or judge-
elect shall not personally solicit or accept campaign
contributions.").
¶126 In addition, a judicial candidate certainly cannot
control whether a third party expends resources in an attempt to
affect the outcome of a contested seat. Caperton was decided
before Citizens United v. Federal Election Commission, in which
the United States Supreme Court struck down as unconstitutional,
under the First Amendment, a federal law that prohibited
corporations from making independent expenditures for speech
that expressly advocates the election or defeat of a candidate.
Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 365-66
(2010).
¶127 Thus, even if a judicial candidate were to publicly
request that third parties not spend money to support his or her
campaign or to discredit an opponent's campaign, the First
Amendment entitles third parties to do so anyway. See id. If a
campaign contribution or an independent expenditure in a
campaign were enough to require recusal, no sensible stopping
point would exist. Sometimes people support a judicial
candidate by directly contributing to his or her campaign.
Sometimes people do not support a judicial candidate and
directly contribute to an opponent's campaign. Sometimes third
10
No. 2013AP197-CR.akz
parties exercise their First Amendment rights to either support
or discredit a judicial candidate. Should all of these
circumstances require recusal? Does one scenario require
recusal more than the others, if a "reasonable person" says so?
¶128 The Court in Caperton recognized that the answer to
those questions is "no" and that it is a rare and exceptional
circumstance wherein much more must be proved before a judge
must recuse. Extreme circumstances must converge so as to
create the probability of a serious risk of actual bias.
Caperton, 556 U.S. at 884. If Caperton were to have required
any less, there would be no sensible stopping point for a
judge's duty to recuse. "Caperton involved extreme and
extraordinary facts which the Supreme Court recognized in its
majority opinion no less than a dozen times." Allen, 322
Wis. 2d 372, ¶261 (Ziegler, J., concurring); see also id., ¶263
n.4 (identifying a dozen times where Caperton highlighted that
case's extreme and extraordinary facts); State v. Henley, 2011
WI 67, ¶33, 338 Wis. 2d 610, 802 N.W.2d 175 ("[A]s the United
States Supreme Court repeatedly said in its decision in
Caperton, that decision is based on extraordinary and extreme
facts.").
¶129 The "extreme facts" that amounted to a due process
violation in Caperton began with a $50 million jury verdict that
was entered in favor of Caperton and against A.T. Massey.
Caperton, 556 U.S. at 872. "After the verdict but before the
appeal, West Virginia held its 2004 judicial elections." Id. at
873. Five justices sit on the West Virginia Supreme Court of
11
No. 2013AP197-CR.akz
Appeals. Id. at 874-75. Whoever won the West Virginia Supreme
Court of Appeals' 2004 election would most certainly be on the
court when it decided whether to sustain or overturn this $50
million verdict against A.T. Massey. Id. at 873.
¶130 Donald Blankenship, who was A.T. Massey's chairman,
chief executive officer, and president, "[knew] that the Supreme
Court of Appeals of West Virginia would consider the appeal in
the case." Id. Blankenship spent $3 million to support the
election of Brent Benjamin, an attorney who was running against
Justice Warren McGraw for a seat on the West Virginia Supreme
Court of Appeals. Id. Specifically, Blankenship "contribut[ed]
the $1,000 statutory maximum to Benjamin's campaign committee";
Blankenship donated almost $2.5 million to a political
organization that supported Benjamin's campaign and opposed
Justice McGraw's campaign6; and Blankenship additionally spent
"just over $500,000 on independent expenditures——for direct
mailings and letters soliciting donations as well as television
and newspaper advertisements——to support . . . Brent Benjamin."
Id. (ellipsis in original) (quotation marks omitted).
¶131 Blankenship's $3 million of expenditures supporting
the election of Benjamin, who if elected would be on the West
6
Blankenship's $2.5 million donation to this political
organization accounted for more than two-thirds of the funds
raised by this organization during this election. Caperton v.
A.T. Massey Coal Co., 679 S.E.2d 223, 304 (W. Va. 2008)
(Benjamin, Acting C.J., concurring), rev'd and remanded, 556
U.S. 868 (2009) ("Mr. Blankenship personally contributed
$2,460,500 [to this organization]. The remaining contributions,
totaling $1,163,000, were given by other individuals and
organizations.").
12
No. 2013AP197-CR.akz
Virginia Supreme Court of Appeals when it decided the pending
case involving Blankenship's company, dwarfed all other spending
in the election. In particular, Blankenship's $3 million of
expenditures supporting Benjamin were "more than the total
amount spent by all other Benjamin supporters and three times
the amount spent by Benjamin's own committee." Id. "Caperton
contend[ed] that Blankenship spent $1 million more than the
total amount spent by the campaign committees of both candidates
combined." Id. In short, Blankenship spent $3 million in
support of Benjamin, all of Benjamin's other supporters
collectively spent less than $3 million on independent
expenditures in support of Benjamin, Benjamin's campaign
committee spent $828,663,7 and Justice McGraw's campaign
committee spent $1,313,861.8 See id.¶132 In addition, the United States Supreme Court noted
that the election results were not a landslide victory. Id. A
total of 716,337 people voted in the West Virginia Supreme Court
of Appeals race. See id. Benjamin was elected with a narrow
margin of 53.3% of the votes. Id. Benjamin defeated his
opponent by fewer than 50,000 votes (Benjamin received 382,036
votes and Justice McGraw received 334,301). Id.7
Justice Benjamin's relevant campaign finance filing is
available at http://apps.sos.wv.gov/elections/candidate-
search/readpdf.aspx?DocId=5595.
8
Justice McGraw's relevant campaign finance filing is
available at http://apps.sos.wv.gov/elections/candidate-
search/readpdf.aspx?DocId=5627.
13
No. 2013AP197-CR.akz
¶133 Approximately 11 months after Justice Benjamin won the
election, and shortly before A.T. Massey filed its petition for
appeal, Caperton moved to disqualify Justice Benjamin in the
particular case that was pending the entire election between
A.T. Massey and Caperton. Id. at 873-74. Caperton argued that
the due process clause required Justice Benjamin's recusal
"based on the conflict caused by Blankenship's campaign
involvement." Id. at 874. Justice Benjamin denied the recusal
motion. Id. The West Virginia Supreme Court of Appeals, by a
3-to-2 vote, reversed the $50 million verdict against A.T.
Massey. Id. Justice Benjamin joined the majority opinion. Id.¶134 "Caperton sought rehearing, and the parties moved for
disqualification of three of the five justices who decided the
appeal." Id. In particular, Caperton again moved to disqualify
Justice Benjamin. Id. at 875. Justice Benjamin denied the
motion. Id. Justice Elliot Maynard, who joined the three-
justice majority opinion, granted Caperton's recusal motion
because "[p]hotos had surfaced of Justice Maynard vacationing
with Blankenship in the French Riviera while the case was
pending." Id. at 874. Justice Larry Starcher, one of the two
dissenting justices, "granted [A.T.] Massey's recusal motion,
apparently based on his public criticism of Blankenship's role
in the 2004 elections." Id. at 874-75. The West Virginia
Supreme Court of Appeals subsequently granted rehearing. Id. at
875. Justice Benjamin, then serving as acting chief justice,
selected two West Virginia circuit judges to replace the two
recused justices on the case between Caperton and A.T. Massey.
14
No. 2013AP197-CR.akz
Id. Accordingly, unlike a justice in Wisconsin, Justice
Benjamin could have been replaced had he recused himself. See
id. at 874-75. The West Virginia Supreme Court of Appeals again
voted 3-to-2 to reverse the $50 million verdict against A.T.
Massey. Id. at 875. Justice Benjamin again joined the
majority. Id. Caperton petitioned the United States Supreme
Court to review Justice Benjamin's denial of its recusal
motions.
¶135 The United States Supreme Court granted certiorari to
determine "whether the Due Process Clause of the Fourteenth
Amendment was violated when [Justice Benjamin] denied a recusal
motion." Id. at 872. The Supreme Court determined "that, in
all the circumstances of [that] case, due process require[d]
recusal." Id.¶136 The United States Supreme Court concluded that there
was a serious risk of Justice Benjamin's actual bias in sitting
on Caperton because: (1) the case had been pending since before
Justice Benjamin was elected; (2) the jury verdict in that case
was $50 million; (3) if elected, Justice Benjamin would be
sitting on the court that would review this $50 million verdict;
(4) Blankenship's extraordinary $3 million expenditures
supporting Benjamin dwarfed the amount spent by both campaign
committees combined; (5) Blankenship's $3 million expenditures
exceeded the expenditures of all other Benjamin supporters
combined; and (6) Blankenship's $3 million expenditures had a
"significant and disproportionate influence" in helping Benjamin
win a close election. See Caperton, 556 U.S. at 883-86. The
15
No. 2013AP197-CR.akz
Supreme Court emphasized that "[t]he temporal relationship
between the campaign contributions, the justice's election, and
the pendency of the case [was] also critical." Id. at 886.
¶137 The Supreme Court made clear that no one factor
alone——or anything short of this combination of factors——would
have constituted a due process violation so to require recusal.
In that regard, the Supreme Court noted that its holding was
based on "all the circumstances of [that] case . . . ." Id. at
872. The Court further noted that "[a]pplication of the
constitutional standard implicated in [Caperton] will [] be
confined to rare instances." Id. at 890.
¶138 "[N]owhere in the Caperton decision does the Supreme
Court state that any lesser fact situation would have required
Justice Benjamin's recusal in that case, and nowhere does the
Supreme Court conclude that he would be required to recuse
himself from an unrelated civil case that involved different
parties." Allen, 322 Wis. 2d 372, ¶269 (Ziegler, J.,
concurring). "To suggest that Caperton says otherwise is to
invent new law and to invite recusal motions based upon 'spin'
instead of whether a justice can be fair and impartial. Such
practice is destructive to the credibility of the court, as
justices are always presumed to be fair and impartial." Id."To be clear, nowhere in Caperton does the majority state that
anything less than this 'perfect storm,' created by those
extreme and extraordinary facts coupled with the timing of the
election and the parties' pending case, would be sufficient to
constitute a due process violation." Id.16
No. 2013AP197-CR.akz
¶139 In short, the Supreme Court in Caperton expressly
recognized that its holding was limited by the rare nucleus of
facts presented in that case. The Court, when considering the
objective test, which Wisconsin adopted in State v. Asfoor, 75
Wis. 2d 411, 436, 249 N.W.2d 529 (1977),9 stated:
We conclude that there is a serious risk of actual
bias——based on objective and reasonable perceptions——
when a person with a personal stake in a particular
case had a significant and disproportionate influence
in placing the judge on the case by raising funds or
directing the judge's election campaign when the case
was pending or imminent.
Caperton, 556 U.S. at 884. In other words, it was not the $3
million dollar expenditure alone that required recusal. Id. at
883-86. Accordingly, the due process test for judicial recusal
set forth in Caperton was met because those extraordinary and
extreme facts converged in a pending case where one person's
contributions had a "significant and disproportionate
influence" on a close election. See id.; see also Allen, 322
Wis. 2d 372, ¶¶261-262, 269, 271 (Ziegler, J., concurring)
(recognizing the limits of Caperton); Henley, 338 Wis. 2d 610,
¶¶32-33 (same).
¶140 In accord with Caperton, the "reasonable person"
recusal standard is controlled by the objective due process
recusal test explained in Caperton. Indeed, more than 30 years
ago this court defined the Judicial Code's reasonable person
recusal standard as synonymous with the objective due process
9
See State v. Walberg, 109 Wis. 2d 96, 105-06, 325
N.W.2d 687 (1982) (recognizing that Asfoor adopted this due
process recusal test).
17
No. 2013AP197-CR.akz
recusal test. See State v. Walberg, 109 Wis. 2d 96, 105-06, 325
N.W.2d 687 (1982) (applying the reasonable person standard from
the Judicial Code to determine whether a judge's failure to
recuse himself violated the objective due process recusal test).
That test has been further explained by Caperton wherein the
Supreme Court cautioned that the objective due process test
requires recusal only in an "exceptional case" with "extreme
facts" that create a "serious risk" of actual bias. See
Caperton, 556 U.S. at 884, 886-88; see also Freeman, 222 P.3d at184 (citing Caperton, 556 U.S. at 889-90).
¶141 If a judge were required to recuse whenever a person
could conjure a reason to question a judge's impartiality, a
judge could be attacked without a standard on which to evaluate
the attack. We have rejected a loose and standardless test, as
the Supreme Court in Caperton did, in no small part because it
would invite mischief and judge shopping.10 See Henley, 338
Wis. 2d 610, ¶35; Allen, 322 Wis. 2d 372, ¶¶260-262 (Ziegler,
J., concurring); Donohoo v. Action Wisconsin Inc., 2008 WI 110,
¶¶29-30, 314 Wis. 2d 510, 754 N.W.2d 480. As demonstrated by our
conclusion that recusal was not required in Donohoo, Henley,
Pinno, and similar cases,11 the recusal standard is the one set
10
A circuit court or court of appeals judge who recuses
himself or herself may get replaced by a substitution judge.
See Wis. Stat. §§ 757.19(5), 751.03. A circuit court or court
of appeals judge may be replaced by a reserve judge.
§ 751.03(1). However, a supreme court justice who recuses
himself or herself from a case cannot be replaced. See id.
11
See Henley, 338 Wis. 2d 610, ¶¶11-17 (collecting cases).
18
No. 2013AP197-CR.akz
forth in Caperton, which requires the challenger to demonstrate
by objective proof that actual bias or the probability of a
serious risk of actual bias exists. See Caperton, 556 U.S. at
883-84, 886-87.
¶142 When a recusal motion is brought, the movant bears a
burden "to overcome the presumption of impartiality." Pinno,
356 Wis. 2d 106, ¶97. Interpreting the reasonable person
standard more broadly than Caperton's due process recusal test
would turn the movant's burden of proof on its head. The
objective due process recusal test asks whether there are
"extreme facts" in an "exceptional case" where, "based on
objective and reasonable perceptions," "there is a serious risk
of actual bias." Caperton, 556 U.S. at 884, 886-88.
¶143 In Pinno, a consolidated opinion, one of the
defendants, Travis Seaton, was convicted of first-degree
reckless homicide as a repeater. Id., ¶11. He filed a post-
conviction motion in which he argued "that his sentence was too
harsh, reasserted his argument that one of the jurors was
biased, and argued that 'other acts evidence' was used
improperly." Id., ¶18. The circuit court, Judge Richard J.
Nuss presiding, who also presided over the trial, denied the
motion. Id., ¶¶2, 18. The court of appeals affirmed. Id.,
¶18. Seaton then filed another post-conviction motion, in which
he "argued for the first time that his Sixth Amendment right to
a public trial was violated. In the alternative, Seaton argued
that his counsel was ineffective for failing to object to the
closure of the courtroom." Id., ¶19. Seaton also filed a
19
No. 2013AP197-CR.akz
motion requesting that Judge Nuss recuse himself from ruling on
the post-conviction motion. Id., ¶22. Judge Nuss denied the
recusal motion and post-conviction motion. Id., ¶24.
¶144 On appeal, we held that "Judge Nuss properly denied
Seaton's recusal motion." Id., ¶97. First, Seaton argued that
the judicial disqualification statute, Wis. Stat. § 757.19(2),
required Judge Nuss's recusal. See id., ¶93. Because no
specifically described factual circumstance set out in Wis.
Stat. § 757.19(2)(a) to (f) was applicable, we concluded that
"[t]he relevant recusal standard in the Wisconsin Statutes is a
subjective one," namely § 757.19(2)(g). See id. We had to
determine "objectively whether [Judge Nuss] actually made the
subjective determination" that he could remain on the case. Id.
We concluded that "Judge Nuss determined that he was not biased;
therefore, he complied with § 757.19(2)(g)."12 Id.
¶145 Next, we examined Ch. 60 of the Supreme Court Rules
("SCR")——Wisconsin's Judicial Code——to analyze Seaton's recusal
claim. Id., ¶¶95-96. We concluded that SCR Ch. 60 did not
12
In addition to satisfying Wis. Stat. § 757.19(2)(g), a
judge also satisfies the subjective due process recusal test by
determining that he or she is impartial. State v. McBride, 187
Wis. 2d 409, 415-16, 523 N.W.2d 106 (Ct. App. 1994) (citing
State v. Rochelt, 165 Wis. 2d 373, 378-79, 477 N.W.2d 659 (Ct.
App. 1991)); see also Caperton, 556 U.S. at 882 ("We do not
question [Justice Benjamin's] subjective findings of
impartiality and propriety. Nor do we determine whether there
was actual bias."). In other words, if a judge determines that
he or she is impartial, that determination is difficult to
overcome.
20
No. 2013AP197-CR.akz
require recusal because "[n]one of SCR 60.04(4)'s enumerated
circumstances fits the facts" presented. Id., ¶96.
¶146 We also concluded that the due process test from
Caperton did not require Judge Nuss's recusal. Id., ¶94. We
reasoned that "Judge Nuss's conduct does not approach the
extreme circumstances that violate due process." Id. In other
words, the defendant-movant did not demonstrate a Caperton-type
extraordinary circumstance with extreme facts that created a
strong risk of actual bias. In short, we held that Judge Nuss
properly denied the recusal motion because (1) he determined
that he was not biased; (2) his situation did not match any of
the specific situations enumerated in Wis. Stat. § 757.19(2) or
SCR 60.04(4); and (3) there were no "extreme circumstances that
violate[d] due process" as there were in Caperton.13 See id.,
¶¶93-97.
¶147 In the present case, Judge Gonzalez expressly
determined that she could be impartial, and it is undisputed
that none of the specific situations enumerated in SCR Ch. 60 or
Wis. Stat. § 757.19(2)(a) to (f) are applicable. Accordingly,
in order for Judge Gonzalez to have been required to recuse,
Herrmann would have had to prove actual bias or the probability
of a serious risk of actual bias, as explained in Caperton. See
13
In Pinno we noted the reasonable person recusal standard
in SCR 60.04(4)(intro.). State v. Pinno, 2014 WI 74, ¶96, 356
Wis. 2d 106, 850 N.W.2d 207. We did not separately analyze
whether that standard required Judge Nuss's recusal, apparently
because we recognized that it is coextensive with the objective
due process test from Caperton. See id., ¶¶94-97.
21
No. 2013AP197-CR.akz
also id., ¶¶92-97; Henley, 338 Wis. 2d 610, ¶¶10-17, 32-35;
Allen, 322 Wis. 2d 372, ¶¶260-264 (Ziegler, J., concurring);
Donohoo, 314 Wis. 2d 510, ¶¶19-28.
¶148 In light of Caperton, the Wisconsin Court of Appeals'
application of the due process test in Goodson and Gudgeon is
called into question. Caperton undermines the validity of
Goodson and Gudgeon and at the very least it tailors those cases
to the conflict therein which may be otherwise prohibited even
if not a due process violation.14 The United States Supreme
Court in Caperton has further refined the Goodson and Gudgeon
analysis such that we now must review whether recusal is
required due to extreme and exceptional circumstances as were
present in Caperton, and we now know that such circumstances
will rarely be demonstrable. See Caperton, 556 U.S. at 887,
890.
¶149 In line with our reasoning today, the California
Supreme Court recently explained in a unanimous opinion how
14
In Gudgeon the court of appeals held that due process was
violated because the circuit court prejudged the issue of
whether to extend the defendant's probation. State v. Gudgeon,
2006 WI App 143, ¶¶25-26, 295 Wis. 2d 189, 720 N.W.2d 114.
Likewise, in Goodson the court of appeals held that due process
was violated because the circuit court prejudged the
reconfinement sentence that it would give to the defendant if
his probation or extended supervision were revoked. State v.
Goodson, 2009 WI App 107, ¶1, 320 Wis. 2d 166, 771 N.W.2d 385.
Even if Caperton abrogated Gudgeon and Goodson, prejudgment can
require recusal. See SCR 60.04(4)(f) (requiring recusal if a
"judge, while a judge or a candidate for judicial office, has
made a public statement that commits, or appears to commit, the
judge with respect to any of the following: 1. An issue in the
proceeding. 2. The controversy in the proceeding").
22
No. 2013AP197-CR.akz
Caperton's "application is limited" to its probability of actual
bias and that due process does not require recusal for a "mere
appearance" of impropriety. Freeman, 222 P.3d at 178, 184. I
agree. Mere appearance of bias cannot meet the high standard
set forth in Caperton. The California Supreme Court reasoned
that the United States Supreme Court in Caperton "made it
abundantly clear that the due process clause should not be
routinely invoked as a ground for judicial disqualification.
Rather, it is the exceptional case presenting extreme facts
where a due process violation will be found." Id. at 184
(citing Caperton, 556 U.S. at 889-90).
¶150 In Freeman the defendant appeared before Judge Robert
O'Neill for a pre-trial hearing in which she sought new counsel.
Id. at 179. At the hearing, the defendant informed Judge
O'Neill of "rumors" that the defendant was stalking Judge Elias,
a colleague and long-time friend of Judge O'Neill. Id. Judge
O'Neill stated that Judge Elias "is a friend of mine" and
therefore recused himself from the defendant's case. Id. After
the stalking rumors proved unfounded, the defendant's case was
reassigned to Judge O'Neill. Id. at 180. Judge O'Neill then
presided over the defendant's trial, the defendant was
convicted, and Judge O'Neill sentenced her.15 Id. The defendant
15
We recently held that a circuit court judge, who had been
properly substituted out of a case pursuant to Wis. Stat.
§ 971.20, "erred" in returning to the defendant's case to
"presid[e] over the defendant's trial, sentencing, and
postconviction motions." State v. Harrison, 2015 WI 5, ¶8, 360
Wis. 2d 246, 858 N.W.2d 372.
23
No. 2013AP197-CR.akz
appealed, and "[t]he Court of Appeal reversed defendant's
conviction on the ground that defendant's due process rights
were violated by Judge O'Neill's failure to disqualify himself
when the case was reassigned to him." Id.¶151 On review, the California Supreme Court reversed the
court of appeal's decision, holding that "this case does not
present the 'extreme facts' that require judicial
disqualification on due process grounds." Id. at 179. The
California Supreme Court noted that it granted review "to
determine whether the appearance of bias by a judge requires
recusal under the due process clause of the federal
Constitution." Id. at 178. It held that "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." Id. "Where only the appearance of bias is at
issue, a litigant's recourse is to seek disqualification under
state disqualification statutes[.]" Id. "Less extreme cases——
including those that involve the mere appearance, but not the
probability, of bias——should be resolved under more expansive
disqualification statutes and codes of judicial conduct." Id.at 185 (citing Caperton, 556 U.S. at 889-90).16
16
In Caperton the Supreme Court noted that "the codes of
judicial conduct provide more protection than due process
requires . . . ." Caperton, 556 U.S. at 890. The Court
reasoned that "States have implemented [judicial reforms] to
eliminate even the appearance of partiality." Id. at 888. As
noted elsewhere in this opinion, SCR Ch. 60 aims to prohibit the
appearance of impartiality and articulates specific, defined
standards for recusal by listing specific instances where
recusal is required even if a judge actually would be impartial.
See, e.g., SCR 60.04(4)(a) to (f); Pinno, 356 Wis. 2d 106, ¶¶95-
(continued)
24
No. 2013AP197-CR.akz
¶152 The California Supreme Court explained that the
defendant could have sought recusal under California's
disqualification statute because "an explicit ground for
judicial disqualification in California's statutory scheme is a
public perception of partiality, that is, the appearance of
bias." Id. at 181 (citations omitted). "By contrast, the
United State Supreme Court's due process case law focuses on
actual bias. This does not mean that actual bias must be proven
to establish a due process violation." Id. "Rather, consistent
with its concern that due process guarantees an impartial
adjudicator, the [United States Supreme Court] has focused on
those circumstances where, even if actual bias is not
demonstrated, the probability of bias on the part of a judge is
so great as to become 'constitutionally intolerable.'" Id. at
181-82 (quoting Caperton, 556 U.S. at 882) (quotation marks
omitted). Although Judge O'Neill was a friend of an alleged
victim of the defendant's stalking, "[t]his case does not
implicate any of the concerns——pecuniary interest, enmeshment in
contempt proceedings, or the amount and timing of campaign
contributions——which were the factual bases for the United
States Supreme Court's decisions in which it found that due
process required judicial disqualification." Id. at 185.
97. However, under Wisconsin's Judicial Code, "[a] judge shall
not be required to recuse himself or herself in a proceeding
based solely on . . . the judge's campaign committee's receipt
of a lawful campaign contribution, including a campaign
contribution from an individual or entity involved in the
proceeding." SCR 60.04(7).
25
No. 2013AP197-CR.akz
While it is true that dicta in these decisions may
foreshadow other, as yet unknown, circumstances that
might amount to a due process violation, that dicta is
bounded by repeated admonitions that finding such a
violation in this sphere is extraordinary; the [due
process] clause operates only as a 'fail-safe' and
only in the context of extreme facts.
Id.
¶153 A judge should recuse when required to do so and
should not recuse when recusal is not required. Wisconsin
Supreme Court justices need to be particularly mindful of when
they must recuse and when recusal is not required. Unlike
Justice Benjamin in Caperton, Judge O'Neill in Freeman, a
Wisconsin Circuit Court judge, or a Wisconsin Court of Appeals
judge, a Wisconsin Supreme Court justice who recuses cannot be
replaced. Thus, recusal has far-reaching consequences and
leaves the citizens of the state without full supreme court
consideration in a case of statewide significance.
¶154 Complications that may occur when a full supreme court
does not consider a case are self-evident. Citizens of the
state deserve to have the entire supreme court decide all cases
unless extreme circumstances require otherwise. Unlike a
circuit court or the court of appeals, the supreme court serves
a law development purpose; therefore, cases before the supreme
court impact more than parties then before the court. The Rule
of Necessity, which requires that justices sit on a case if
"necessary," further demonstrates the heightened need for
justices to remain on a case even when the path of least
26
No. 2013AP197-CR.akz
resistance may be to recuse.17 The decision to recuse cannot be
made lightly or out of fear of reprisal.
¶155 Thus, Wisconsin Supreme Court justices may weigh and
balance the need for recusal somewhat differently than a trial
court or intermediate appellate court judge. As a comment in
Wisconsin's Judicial Code aptly explains:
Involuntary recusal of judges has greater policy
implications in the supreme court than in the circuit
court and court of appeals. Litigants have a broad
right to substitution of a judge in circuit court.
When a judge withdraws following the filing of a
substitution request, a new judge will be assigned.
When a judge on the court of appeals withdraws from a
case, a new judge also is assigned. When a justice of
the supreme court withdraws from a case, however, the
justice is not replaced. Thus, the recusal of a
supreme court justice alters the number of justices
reviewing a case as well as the composition of the
court. These recusals affect the interests of non-
litigants as well as non-contributors, inasmuch as
supreme court decisions almost invariably have
repercussions beyond the parties.
SCR 60.04(7) cmt.
¶156 Similarly, Chief Justice John G. Roberts has explained
that justices on the United States Supreme Court should be more
17
"By decisional law, the rule of necessity may override
the rule of recusal." SCR 60.04(4) cmt; see also State ex rel.
Wickham v. Nygaard, 159 Wis. 396, 150 N.W. 513 (1915); State ex
rel. Cook v. Houser, 122 Wis. 534, 100 N.W. 964 (1904). The rule
of necessity is not without limitation. For example,
"application of the common law Rule of Necessity should not
result in the defendant, potential defendant, and the witnesses
also sitting in final judgment of the case." In re Judicial
Disciplinary Proceedings Against Prosser, 2012 WI 103, ¶5, 343
Wis. 2d 548, 817 N.W.2d 875 (opinion of Ziegler, J.).
27
No. 2013AP197-CR.akz
hesitant to grant recusal motions than federal district and
federal circuit court judges:
Although a Justice's process for considering
recusal is similar to that of the lower court judges,
the Justice must consider an important factor that is
not present in the lower courts. Lower court judges
can freely substitute for one another. If an appeals
court or [a federal] district court judge withdraws
from a case, there is another federal judge who can
serve in that recused judge's place. But the Supreme
Court consists of nine Members who always sit
together, and if a Justice withdraws from a case, the
Court must sit without its full membership. A Justice
accordingly cannot withdraw from a case as a matter of
convenience or simply to avoid controversy. Rather,
each Justice has an obligation to the Court to be sure
of the need to recuse before deciding to withdraw from
a case.
John G. Roberts, Chief Justice, U.S. Supreme Court, 2011 Year-
End Report on the Federal Judiciary, at 9 (Dec. 31, 2011)
(emphasis added), available at http://www.supremecourt.gov/
publicinfo/year-end/2011year-endreport.pdf.
II. CONCLUSION
¶157 I agree with the lead opinion's conclusion that Jesse
Herrmann has not shown that the sentencing judge, Judge Ramona
A. Gonzalez, was objectively biased in violation of due process.
I write to clarify the due process recusal test. Citing cases
including Caperton, 556 U.S. 868, the lead opinion states that
"[a] defendant may rebut the presumption [that a judge acted
fairly, impartially, and without prejudice] by showing that the
appearance of bias reveals a great risk of actual bias." Lead
op., ¶3. However, due process requires recusal only if a judge
is actually biased or if a "rare" or an "exceptional case" with
28
No. 2013AP197-CR.akz
"extreme facts" creates a "serious risk of actual bias."
Caperton, 556 U.S. at 883-84, 886-88, 890.
¶158 Caperton concludes that objective proof of actual bias
or the probability of a serious risk of actual bias must exist
before recusal is required. Caperton, 556 U.S. at 883-84.
Stated otherwise, it is not reasonable to question a judge's
impartiality unless one can prove by objective evidence that
actual bias or the probability of a serious risk of actual bias
exists. See id. at 884.
¶159 The recusal test to be applied is the test explained
by the Supreme Court in Caperton, which requires a "rare" or an
"exceptional case" with "extreme facts" that create a "serious
risk of actual bias." Caperton, 556 U.S. at 883-84, 886-88,
890. If the test were only whether an appearance of bias
existed, and nothing more extreme or exceptional were required,
then this record would support the defendant's contention that
Judge Gonzalez should have recused herself. To succeed on a due
process claim, much more is required.
¶160 Accordingly, I write to discuss the due process test
of Caperton. I note that the Judicial Code and the
disqualification statute provide for specific factual
circumstances under which a judge must recuse, even when that
judge could be completely fair. See, e.g., SCR 60.04(4)(a) to
(f); Wis. Stat. § 757.19(2)(a) to (f). Caperton makes clear
that a judge need not recuse simply because someone claims that
the judge is partial. In other words, Caperton concludes that a
reasonable, well-informed person, knowledgeable about judicial
29
No. 2013AP197-CR.akz
ethical standards and the justice system and aware of the facts
and circumstances the judge knows or reasonably should know,
would reasonably question the judge's ability to be impartial
because of actual bias or the probability of a serious risk of
actual bias. Such circumstances are exceedingly rare.
¶161 For the foregoing reasons, I respectfully concur.
¶162 I am authorized to state that Chief Justice PATIENCE
DRAKE ROGGENSACK and Justice MICHAEL J. GABLEMAN join this
concurrence.
30
No. 2013AP197-CR.akz
1