Memorandum Decision (per Roggensack, J.)
Disqualification, § 757.19(2)(e)
Justice Roggensack isn’t disqualified under § 757.19(2)(e) from participating in Henley’s pending appeal, even though as a court of appeals judge she decided the separate appeal of Henley’s jointly tried codefendant Adams.
¶23 … I conclude that disqualification/recusal is directed under Wis. Stat. § 757.19(2)(e) only when the same defendant in the action or proceeding on which an appellate judge has already participated as a judge is once again before a court on which the same judge is serving.
Disqualification is mandatory where a judge or justice “handled the action or proceeding” while on an “inferior court.” Does Justice Roggensack’s participation in the codefendant’s appeal mean that she “handled the action or proceeding” now before the court? Analysis probably turns on how broadly “action or proceeding” is defined, e.g., In re Estate of Thompson, 2003 WI App 70, ¶26, 261 Wis. 2d 723, 661 N.W.2d 869 (“An ‘action,’ however, as used in the Wisconsin statutes, means “‘a lawsuit brought in a court’” and ‘denotes the entire controversy at issue.’”) Adams and Henley having been jointly tried, the “action” against Adams was the very “action” against Henley; the lawsuit brought against the one was brought against the other. And, in Wisconsin law, the “lawsuit” brought against Adams (and reviewed by Justice Roggensack) denotes the “entire” controversy. At a minimum, then, the plain text of the disqualification statute does not clearly support the Justice’s conclusion that the “same defendant” must have been a party to the litigation “previously handled.”
The Decision also notably neglects to say anything pertinent about the facts. In ruling against Adams, the court of appeals panel (including, of course, then-Judge Roggensack) noted that, “At the postconviction hearing, Adams’s trial counsel testified that he and counsel for co-defendant Henley had agreed not to call witnesses in order to highlight the weaknesses of the State’s case,” State v. Jarret M. Adams, ¶4, 2002AP39-CR, 11/7/02. The court went on to conclude that this joint strategy was entirely “reasonable,” ¶8. It is that very conclusion—the one Justice Roggensack previously ruled on—that is back in front of her, albeit now under the rubric of interest of justice rather than (as in the prior go-round) ineffective assistance of counsel. To say that, under this concrete set of facts, Henley doesn’t present the “same action or proceeding” as Adams is arbitrary.
Can this Decision be cited? If so, to what effect? It’s not an “opinion” by the court, hence there’s no public domain cite. Chapter 809 doesn’t address the problem. (Update: a PDC was assigned, 2/24/10, so the Decision should now be citable, as 2010 WI 12.) Supreme court Internal Operating Procedures clearly indicate (§ 27.31), “The decision of a justice to recuse himself or herself is that of the justice alone,” but says nothing about the precedential or persuasive effect of such a decision. Still, the decision perhaps might be likened to an in-chambers opinion by a United States Supreme Court Justice, an event that, albeit a bit obscure, does carry at least some weight (“It was written by Justice Ginsburg in April as an ‘in-chambers’ opinion, a sort of one-justice ruling that is rare and hard to categorize — so much so that until 40 years ago, they were not included in the U.S. Reports. Ginsburg’s in-chamber opinion in April was the first written by any justice in two years. … but occasionally justices feel compelled to lay out their reasoning for the guidance of the parties and future litigants.”). Nor is the Decision necessarily the final word: “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). It’s in the interest of the full court, then, to resolve the issue and in that instance, a precedential “opinion” would be released.
UPDATE. Scotusblog has collected several links relating to “the longstanding but under-explored practice of ‘in chambers’ decision making,” principally: Daniel Gonen, Judging in Chambers: The Powers of a Single Justice on the U.S. Supreme Court (“This Article explores this power, largely focusing on the Supreme Court level, and offers a critical assessment of its use as a matter of both constitutional theory and sound judicial policy.”); and, The Green Bag, In-Chambers Opinions (“Our goal is to enable you to see and cite the same words and punctuation as the Justices do when they turn to the In Chambers Opinions provided to them by Ms. Rapp.”).