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Judicial Disqualification – Relationship to Guardian ad litem

State v. Troy J., 2010AP670, District 1, 1/25/11

court of appeals decision (1-judge, not for publication); for Troy J.: Randall E. Paulson, SPD, Milwaukee Appellate; case activity

The judge presiding over disposition-phase of a TPR wasn’t required to disqualify himself where his daughter was employed to work in the guardian ad litem office of the local agency providing GAL work under contract, given that she had no involvement in that particular case.

Interesting issue, well-written decision; can’t be published, though, because it’s a 1-judge panel. The trial judge notified the parties of his daughter’s hiring, with this comment, ¶11 n. 3: “I cannot put into words the inordinate pride Deb and I feel [by his daughter’s decision to join the Legal Aid Society]. … When your child chooses to emulate your professional efforts—particularly in an arena that touches the soul of a community—the pride, joy and humility you feel is unspeakable.” The judge then overruled counsel’s ensuing objection to the judge remaining on the case. The question on appeal relates to statutory disqualification, as opposed to constitutionally mandated recusal. We were reminded just last week that statutory grounds may impose “stricter grounds for disqualification than the Due Process Clause.” But that does not, as this case illustrates, make statutory disqualification overly strict.

Assume you are Troy J., and the GAL has recommended termination of your parental rights, with the judge to make the call. But the judge has just gushed like a geyser about how the agency contracted to provide GAL recommendations “touches the soul of a community.” And how the judge is unspeakably proud of his progeny’s employment by that very agency. (That, at least, isn’t an unreasonable take of the judge’s comments.) Would you think the judge possessed of – to borrow the judge’s own terminology – “inordinate” regard for the GAL’s recommendation? Ah, but appearances simply do not matter: as the court of appeals properly points out, ¶7, once the judge determines he can be impartial, it simply is irrelevant under the disqualification statute what others might think.

The question thus reduces to whether disqualification is mandated by § 757.19(2)(a) (“When a judge is related to any party or counsel thereto or their spouses within the 3rd degree of kinship”), which turns on whether employment by the Legal Aid Society made the judge’s daughter “counsel” in the action. The court of appeals deems controlling State v. Harrell, 199 Wis. 2d 654, 659–660, 546 N.W.2d 115, 117 (1996) (DQ provision applies “to only the attorney of record and any other attorneys who appear or participate in the case.  It certainly does not include every government attorney who happens to be employed in the same county office or governmental department”). Long and short of it is that Legal Aid stands on same footing as a governmental agency. The daughter didn’t “appear or participate in the case,” so under Harrell the judicial disqualification provision wasn’t triggered.

Of the several reasons marshaled by the court of appeals as to why the daughter’s employment didn’t disqualify the judge, a couple stand out. Recusal under § 757.19(2)(a), as illumined by SCR 60.04(4)(e)2, is limited to instances in which the “counsel” related to the judge “is acting as a lawyer in the proceeding,” ¶10. Here, it is undisputed that the judge’s daughter didn’t appear in the proceeding, so it follows that she wasn’t “counsel” and the judge wasn’t disqualified. This analysis assumes that ethical provisions indeed inform matters of statutory construction and procedure. The court of appeals cites authority that indeed stands for that proposition, id. This is not, therefore, to say that the court of appeals was “wrong” – as noted, authority exists for the court’s approach – but, rather, to remind that SCRs should be consulted, when appropriate, as aids to statutory construction.

Separately, the court draws a parallel to Judge Reinhardt’s recent refusal to recuse himself in Perry v. Schwarzenegger, No. 10-16696, 2011 WL 17699, at *1 (9th Cir. Jan. 4, 2011) (spouse’s position as amicus’s executive director didn’t recquire recusal):

¶13 … Judge Reinhardt denied the motion, and explained:

My wife’s views, public or private, as to any issues that may come before this court, constitutional or otherwise, are of no consequence. … My position is the same in the specific case of a spouse whose views are expressed in the capacity of an officer, director, or manager of a public interest or advocacy organization that takes positions or supports legislation or litigation or other actions of local, state, or national importance.

Judge Reinhardt’s assertion that his “wife’s views … are of no consequence” refers, we assume, to matters affecting Judge Reinhardt’s judicial responsibilities and not their other interactions.  By the same token, that Judge Foley is proud that his daughter is working for the Legal Aid Society, and that the guardians ad litem employed by the Society who appear before him are trying to achieve what the law requires, that is, the “best interests” of children, does not mean, contrary to Mr. J.’s implication, that Judge Foley must be disqualified from all cases where Society lawyers appear as guardians ad litem.

Judge Reinhardt’s decision has been severely criticized, for whatever it’s worth, as among other things, obscuring the very basis for objection:

Might a judge’s impartiality reasonably be questioned when that judge takes part in reviewing the decision in a case in which his wife consulted with plaintiffs’ counsel about the very decision to file the lawsuit, in which his wife authorized the ideological organization that she heads—and that has vaunted its “lead role” on the broader ideological cause at issue—to file amicus briefs supporting plaintiffs in the trial proceedings, and in which his wife publicly celebrated the very ruling that her husband is now reviewing?

Whether or not that criticism is valid is almost beside the point, because in Wisconsin you wouldn’t even be able to raise it, at least under the disqualification statute: once the judge says he’s not biased further inquiry is concluded. All the more reason, perhaps, to put some bite into the other subsections of the statute.

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