State v. Circuit Court for Dane County / Ismael R. Ozanne v. Jeff Fitzgerald, 2012 WI 82, declining to grant motion to reopen 2011 WI 43; case activity; companion case: Adams v. State, 2012 WI 81
The court splits 3-3 on, and therefore does not grant, District Attorney Ozanne’s motion to reopen the decision in 2011 WI 43 (the Act 10, Open Meetings Law case), and to recuse Justice Gableman from further participation. The background should be briefly recited, to better understand the dispute.
Ozanne’s Motion alleged that, because of free representation provided to Justice Gableman in a separate matter (a judicial ethics complaint) by the same firm representing the respondent in 2011 WI 43, the justice shouldn’t have participated in that case; and, his wrongful participation therefore rendered that decision void. The essence of the Motion is captured by this passage:
In the instant matter, Justice Gableman has not disclosed the existence of any subjective determination made by him whether he either can be impartial or whether it appears he can be impartial in a case involving a firm that provided him a gift of free legal services. At a minimum, Justice Gableman must set forth his reasoning regarding how a jurist can be impartial and appear impartial when he hears a case in which one party is represented by a lawyer and law firm that provided that jurist free legal services. This Court must then review that determination to verify that it was done.
Ozanne Memorandum of Law, p. 9. (And, id., p. 11: “any litigant in any case deserves to have his case heard by a judge who has not secretly received a valuable gift from the other side’s lawyers.”) Characterizing the Motion as “based on the fact the the Michael Best & Friedrich firm was involved in the cases and had previously represented me,” Justice Gableman, by order entered January 12, 2012, “determined that recusal is neither justified nor warranted.”
As indicated above, the court was evenly divided on the issue of Justice Gableman’s recusal, the effect of which ratified his participation in 2011 WI 43 (and which implicitly left that decision undisturbed; Justice Gableman didn’t himself participate in this ruling, leaving a panel of six). Three justices in an unsigned opinion (¶¶1-3) “determine that Justice Gableman made the required subjective determination that he could be impartial in the case and that it would appear that he could act in an impartial manner. … The supreme court does not go beyond review of a justice’s subjective determination that he or she may participate in a case under Wis. Stat. § 757.19(2)(g). … Furthermore, the supreme court does not remove justices involuntarily from pending cases. State v. Henley, 2011 WI 67, ¶¶2, 7- 8, 338 Wis. 2d 610, 802 N.W.2d 175 ….” The remaining three justices, in an opinion authored by Chief Justice Abrahamson (¶¶4-44) “reluctantly conclude that Justice Gableman’s Order does not demonstrate that Justice Gableman made the subjective determination required by Wis. Stat. § 757.19(2)(g),” ¶43. In the Chief’s view, Justice Gableman’s recusal order simply didn’t address the nature of the alleged fee arrangement at the heart of the Motion:
¶15 … The sole issue is whether Justice Gableman subjectively determined whether he cannot, or it appears he cannot, act in an impartial manner because of the alleged fee arrangement.
¶17 … (B)ecause Justice Gableman’s Order, whether deliberately or accidentally, misconstrues the allegations against him, no one can conclude from the only material before us, namely Justice Gableman’s Order, that the Justice has made the required subjective determination under Wis. Stat. § 757.19(2)(g). I therefore reluctantly conclude that Justice Gableman’s Order does not demonstrate that Justice Gableman made the subjective determination required by Wis. Stat. § 757.19(2)(g).
¶33 Yet, nowhere in Justice Gableman’s Order is there any reference to payment (or absence of payment) for legal services, the fee arrangement with Michael Best, free legal services, a gift of legal services, or valuable consideration for the fee arrangement. None of these words, or any synonyms, appears in the Order.
¶34 Because Justice Gableman’s Order erroneously states the grounds on which his recusal was sought, the Order does not demonstrate that the Justice subjectively determined whether he can, and whether it appears he can, act in an impartial manner because of the alleged fee arrangement.
Given the split, the status quo isn’t disrupted – 2011 WI 43 remains undisturbed, as does recusal / disqualification procedure at the supreme court level. Note that the larger principle has never been in dispute: “Where a justice who participated in a case was disqualified by law, the court’s judgment in that case is void,” State v. American TV and Appliance of Madison, Inc., 151 Wis. 2d 175, 179, 443 N.W.2d 662 (1989). The sticking point is disqualification methodology, which now appears to leave the decision to the virtually unfettered and unreviewable discretion of the justice at issue. The Chief Justice’s opinion efficiently explains why this procedure may well be in doubt:
¶39 Moreover, the separate writing of my three colleagues relies on State v. Henley, 2011 WI 67, 338 Wis. 2d 610, 802 N.W.2d 175, a 4-3 decision in which a challenged justice participated, to conclude that recusal is the sole responsibility of the individual justice for whom disqualification from participation had been sought.
¶40 This position is contrary to Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868 (2009), in which the United States Supreme Court concluded that a court must make a due process determination whether the litigants had a fair hearing when a justice’s participation in a case is challenged. A court cannot rely exclusively on the personal inquiry by the challenged justice or on appellate review of a justice’s determination. Caperton, 556 U.S. at 883-84. Due process requires recusal when “‘the probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable.’ . . . The Court asks not whether the judge is actually, subjectively biased, but 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 872, 881 (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)). A court should ask whether, “‘under a realistic appraisal of psychological tendencies and human weakness,’” the challenged justice’s interest in question “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.” Caperton, 556 U.S. at 883-84 (quoting Withrow, 421 U.S. at 47).
It must be noted that the Ozanne Motion did not raise this problem; indeed, failed to so much as cite Caperton or assert a challenge to recusal methodology, an omission that would seem to impede further review in this case. As the Chief Justice indicates, the court is not reaching “the validity of the due process challenge,” which is an issue that “may come before the court, but [is] not before the court today,” ¶41. Granted, Henley rejected the position articulated by the Chief immediately above, 2011 WI 67, ¶¶32-39. But Henley‘s analysis is less than convincing – and if it is indeed, as the Chief indicates, “contrary to Caperton,” then the diligent litigant is well-advised to raise and thus carefully preserve the issue for higher review, even if Henley is a presently insuperable obstacle.
Nomenclature note: “Disqualification” and “recusal” have distinct meanings, which ought to be kept in mind in the appropriate context, but the terms are used interchangeably here, as the Chief Justice explains, ¶6 n.3:
Some note a distinction between the words “recusal” and “disqualification,” but I essentially use them interchangeably for purposes of this opinion. See Richard E. Flamm,Judicial Disqualification: Recusal and Disqualification of Judges § 1.1 at 3 (2d ed. 2007) (“Whereas ‘recusal’ normally refers to a judge’s decision to stand down voluntarily, ‘disqualification’ has typically been reserved for situations involving the statutorily or constitutionally mandated removal of a judge upon the request of a moving party or its counsel.”).