order denying motion for reconsideration of in: State v. Dimitri Henley, 2011 WI 67; for Henley: Keith A. Findley; case activity; additional history: 2010 WI 12 (memorandum decision, Roggensack, J.); court order (5/24/10)
Henley’s motion to reconsider, though directed formally to the decision reversing grant of new trial, as a practical matter is directed to reconsideration of Justice Roggensack’s prior refusal to disqualify herself (on the ground she had previously “handled” the appeal while a court of appeals judge). By a 4-3 vote, the court denies the motion:
¶2 We conclude as follows: (1) Henley’s motion for reconsideration meets none of the criteria for granting a motion for reconsideration and is therefore denied; (2) determining whether to recuse is the sole responsibility of the individual justice for whom disqualification from participation is sought; (3) a majority of this court does not have the power to disqualify a judicial peer from performing the constitutional functions of a Wisconsin Supreme Court justice on a case-by-case basis; and (4) Henley has received due process.
The first question, relating to reconsideration procedure, may be of passing interest to appellate attorneys, but even then there won’t be much to say, except: take a look at ¶3, which recites the court’s Internal Operating Procedures II.J.
The more profound question relates to reviewability of a justice’s decision not to recuse / disqualify him or herself, whether on account of constitutional bias or statutory ineligibility. In this particular instance it is the latter – Justice Roggensack arguably “handled the action or proceeding” in a prior appeal when a judge on the court of appeals, hence was rendered ineligible by dint of § 757.19(2)(e) – but the result covers any and all challenges no matter the cause. As the majority puts it, “The question decided herein is an institutional question, i.e., whether recusal may be forced upon a fellow justice on a case-by-case basis by his or her judicial peers,” ¶8, a question it precedentially answers in the negative. Long and short of it: “Due process is provided in all cases by the justice at whom the motion to disqualify is directed,” ¶31. All that is required, in other words, is that the individual justice decline to step down from the case. Also see, Polsky v. Virnich, 2011 WI 69, ¶4 (“We have concluded that this court does not have the power to remove a justice from participating in an individual proceeding, on a case-by-case basis. State v. Henley, 2011 WI 67, ¶25, __ Wis. 2d __, __ N.W.2d __. … We also concluded that due process is provided by the decisions of the individual justices who decide to participate in the cases presented to the court. Id., ¶¶13, 31″).
Left unaddressed, the following principle: “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 problem, starkly put, is that being “disqualified by law” is a substantive issue, while requiring that the justice rule on whether he or she is disqualified is a procedural one. We know that Justice Roggensack didn’t believe that she was disqualified. Maybe her construction of the disqualification statute was correct, maybe it wasn’t, but we’ll never know because the majority has placed review completely and totally off-limits. Nor is the majority’s explication of Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. __, 129 S. Ct. 2252 (2009) compelling, ¶¶32-38. If due process were satisfied merely by the individual justice’s ruling on recusal, then how could the Supreme Court have held that “due process requires recusal” because of the probability of that justice’s actual bias? It may well be that, as the majority says (¶33), “in Caperton, the United States Supreme Court reviewed the actions of a state court justice and concluded that the justice, himself, did not apply the correct standard to the motion to recuse when he decided it.” But doesn’t this mean that the Court indeed perceived that the merits of recusal are subject to review; that something more is required than simply putting the question to the individual justice? What if Justice Roggensack “did not apply the correct standard” in deciding that she hadn’t “previously handled” Henley’s “action or proceeding”? The majority has just said it simply doesn’t matter whether or not the recusal decision was “correct,” because ultimately the court simply lacks authority to review the decision, ¶25 (“we conclude that this court does not have the power to remove a justice from participating in an individual proceeding, on a case-by-case basis”).