All seven justices agree Herrmann’s due process right to an impartial judge wasn’t violated in this case, as the sentencing judge’s remarks didn’t establish the judge was was objectively biased against Herrmann. Two separate concurrences consisting of four justices, however, express displeasure with (or attempt to limit, at least with respect to recusal) the objective bias test as established in previous Wisconsin and U.S. Supreme Court cases.
Herrmann was convicted of one count of homicide by intoxicated use of a vehicle, two counts of injury by intoxicated use of a vehicle, two counts of OWI causing injury, and one count of hit and run involving a death. At the start of the sentencing hearing the judge—apparently repeating information she’d disclosed before—said “[i]t’s not a secret that I lost a sister to a drunk driver in the summer of 1976.” (¶10). Herrmann said he had no problem or issue with this fact. But then, during her sentencing remarks, the judge explicitly referred to the death of her sister, saying, among other things, that the pain doesn’t disappear, though it lessens with time (¶16); that perhaps due to “destiny or a higher power or … the prayers of others” she was the judge on this case “because I probably more than anyone else who could be able to sit on this bench in this county understand the pain that these victims are feeling,..” (¶17); and then continued:
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. (¶17).
The lead opinion (Bradley, joined by Abrahamson and Crooks) canvasses the sources of the objective “appearance of bias” test in Wisconsin and the U.S. Supreme Court and reaffirms the test is the proper one to apply—in particular emphasizing that it is not necessary for a litigant to show actual bias by the judge. (¶¶25-46). The Wisconsin cases are State v. Gudgeon, 2006 WI App 143, 295 Wis. 2d 189, 720 N.W.2d 114, and State v. Goodson, 2009 WI App 107, 320 Wis. 2d 166, 771 N.W.2d 385; the most recent U.S. Supreme Court case is Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009). Under the objective bias test, determining whether a defendant’s right to an impartial decisionmaker has been violated requires a court to consider, in addition to actual bias, the appearance of bias from the standpoint of a reasonable person; and “[w]hen the appearance of bias reveals a great risk of actual bias, the presumption of impartiality is rebutted, and a due process violation occurs.” (¶46, citing Caperton, 556 U.S. at 885; Goodson, 320 Wis. 2d 166, ¶¶9, 14; Gudgeon, 295 Wis. 2d 189, ¶¶21, 24).
Applying this test, the lead opinion concludes Herrmann has failed to rebut the presumption of impartiality because when the sentencing court’s statements are viewed in light of the entire sentencing proceeding, “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.” (¶60). Thus, the court’s remarks about her personal loss were a part of addressing the sentencing factors that must be considered, and the sentencing objectives that must be articulated, under State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197, and § 973.017(2). (¶¶50-65). “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.” (¶66).
A concurrence by Prosser (joined by Roggensack) agrees the sentencing judges remarks do not establish bias, and complains about what he perceives to be the breadth of, and lack of adequate guidance in, the objective bias rule. (¶¶69-111). A second concurrence by Ziegler (joined by Roggensack and Gableman) likewise agrees the judge’s remarks in this case don’t satisfy the objective bias test, and then launches into a lengthy discussion about Caperton in the context of recusal motions only, with special emphasis on recusal based on the fact a party was a contributor to a judge’s (or justice’s) campaign for office, but no apparent application to the due process claim made in this case. (¶¶112-162).
The lead opinion is right in saying the two concurrences amount to little more than some skirmishing in an otherwise mostly moribund conflict over the rules governing the recusal of justices. (¶¶42-45 & n. 3). For practitioners, the important take-away is that the test for objective bias—as articulated in Gudgeon and followed in Goodson and confirmed in Caperton—remains intact.
True, the concurrence of Prosser and Roggensack reveals they are “uncomfortable” with Gudgeon and Goodson (¶102) and find the standard is “imprecise” and that they share the concerns of the dissent in Caperton. (¶¶108-09). Of course, it is the majority decision in Caperton that controls; moreover, this concurrence does not (and can not) dispute the lead opinion’s conclusion that Caperton‘s standard is “essentially the same” as (and therefore validates) the standard in Gudgeon (and by extension Goodson). (¶¶34-40 & n.2). And, while this concurrence snipes at Gudgeon and Goodson, its discussion of those decisions is highly misleading because it implies the court of appeals just came up with the objective bias approach on its own; in fact, as made clear by the lead opinion, Gudgeon came up with its standard based on a careful synthesis of U.S. Supreme Court decisions. (¶¶30-32). (This concurrence also errs in saying Goodson didn’t find the defendant “actually suffered unfair treatment” (¶102), ignoring the fact that decision held the trial judge was actually biased, 320 Wis. 2d 166, ¶16, which certainly counts as unfair treatment.)
As for the second concurrence’s claim that Caperton “undermines the validity of Goodson and Gudgeon” (¶148), this statement is in no way controlling. It is joined by only three justices, to begin with; moreover, it comes as an offhand remark in an entirely extraneous discussion of the recusal rules and is not accompanied with any supporting analysis.
Of course, the survival of the test doesn’t automatically translate into a finding of bias. Gudgeon and Goodson presented clear instances of objective bias based on strong statements showing an actual or apparent prejudgment of the results of certain proceedings. (¶¶30, 33). While the statements of the judge in this case were perhaps not quite so prominent nor as indicative of prejudgment of the result, neither the lead opinion (nor, of course, the concurrences) grapples with the most problematic parts of the judge’s remarks: Her claim to be in a unique position to understand the pain of the victims and how that pain will endure; that destiny or a higher power may have put her in this position to judge; and that she had a mission to speak for the community and make Herrmann “pay.” Instead, the lead opinion dilutes the problematic import of these statements by emphasizing how they fit with the standard sentencing factors. Thus, as a practical matter, this case may have the effect of limiting objective bias findings to clear statements of prejudgment of the results; at the least, it makes it more difficult to establish objective bias when the remarks can be shoehorned into some part of a judge’s sentencing explanation.