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Judge – Bias – Ex Parte Contact with Prosecutor

State ex rel. Adrian T. Hipp v. Murray, 2007 WI App 202, affirmed2008 WI 67, ¶48 n. 7 (reconsideration denied2008 WI 118)
Pro se

Issue/Holding: ¶13 n. 4:

We are disturbed by Reddin’s presumption to give, and Judge Murray’s acquiescence to receive, Reddin’s ex parte advice about the scope of Hipp’s ability to have issued subpoenas for the production of his witnesses at the John Doe hearing, and we remind the bench and the bar of SCR 60.04(1)(g) (“A judge may not initiate, permit, engage in or consider ex parte communications concerning a pending or impending action or proceeding” other than in carefully delineated circumstances.), and SCR 20:3.5 (“A lawyer shall not: … (b) communicate ex parte with [a judge] except as permitted by law or for scheduling purposes if permitted by the court.”). See also State v. Washington, 83 Wis. 2d 808, 824–825, 266 N.W.2d 597, 605 (1978). The Rules of Professional Conduct were amended, effective July 1, 2007, by S. Ct. Order 04-07, 2007 WI 4. Supreme Court Rule 20:3.5(b) is unchanged. The new Rules of Professional Conduct may be accessed at: http://www.legis.state.wi.us/rsb/scr/5200.pdf.

Disturbed, but not quite enough to do anything about it, even though the judge also apparently obstructed Hipp’s attempts to order transcripts, ¶15 n. 5:

¶15 Hipp also seeks an order removing Judge Murray as his John Doe judge, and Reddin from further participation. We have no doubt but that Judge Murray will on remand fulfill his responsibilities as an impartial magistrate. See State v. Washington, 83 Wis. 2d 808, 824, 266 N.W.2d 597, 605 (1978). [5] We express no opinion whether Hipp may, on remand, seek relief under either Wis. Stat. §§ 801.58(7) or 971.20(7), the substitution-of-judge statutes in civil and criminal cases, as that issue has not been presented or briefed. We also decline to interfere with the authority of the Milwaukee County district attorney to assign his deputies and assistants as he sees fit. See Wis. Stat. § 978.03(1) & (3).

Also see State ex rel. Gibson v. H & SS Dept., 86 Wis.2d 345, 355, 272 N.W.2d 395 (Ct. App. 1978) (“In attempting to maintain the appearance, as well as the actuality of neutrality, there has long existed a distaste for ex parte communications while a case or hearing is pending. This concept has been codified in standard ten of Wisconsin’s Code of Judicial Ethics … .”).)

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

We also note that Reddin’s actions in preventing Hipp’s witnesses from appearing are problematic. Before the January hearing, Reddin took it upon himself to advise the subpoenaed witnesses that they did not have to appear. Judge Murray concedes in his brief that Reddin’s actions were inappropriate. He states that Reddin should have instead filed a motion requesting Judge Murray to quash the subpoenas. We agree.The court of appeals expressed concern regarding Reddin giving, and Judge Murray’s willingness to receive, ex parte advice regarding Hipp’s ability to have subpoenas issued. It reminded “the bench and the bar” of the obligations presented by SCR 60.04(1)(g) and SCR 20:3.5(b) and the requirement that the behavior of the John Doe judge “should be such as not to impair his or her ability to make an independent determination of probable cause.” State v. Washington, 83 Wis. 2d 808, 824, 266 N.W.2d 597 (1978). We join with the court of appeals in its expression of concern.

As the court is well aware, a Doe proceeding isn’t adversarial. A Doe judge is, well, a judge; thus: “To the extent that circumstances arising in the John Doe investigation require the adjudication of adversarial motions or orders … the John Doe statute contemplates, and caselaw has consistently required, that the John Doe judge convene and act as a court,” In Matter of John Doe Proceeding, 2003 WI 30, ¶81, 260 Wis.2d 653, 660 N.W.2d 260. Why mention the obvious? Precisely because the court didn’t – which means that the court simply took as given that of course the Codes of Conduct apply, even if the proceeding is investigatory rather than adversarial; that is, the bar on proscribed contact will be given broad effect.

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