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Judge’s comments prejudging potential motion to stay juvenile sex offender registration requirement didn’t establish bias

State v. B.S.S., 2021AP2174, District 2, 10/12/22 (one-judge decision; ineligible for publication); case activity

B.S.S. was adjudicated delinquent for sexual assault. She anticipated filing a motion to stay the sex offender registration requirement, see § 938.34(15m)(c) and State v. Cesar G., 2004 WI 61, 272 Wis. 2d 22, 682 N.W.2d 1, so she asked the court to provide funding for a defense expert to do a psychosexual evaluation to support the motion and to adjourn the dispositional hearing to get the evaluation done. In the course of denying her motions, the court made comments about the relevant legal standard for staying the requirement. (¶¶3-10). B.S.S. argues the court’s statements  show the court had prejudged, and thus was biased against, her request for a stay. The court of appeals rejects her claim.

B.S.S. alleges the circuit court was objectively biased. “Objective bias can exist in two situations: (1) where there is an appearance of bias; and (2) where objective facts demonstrate that a judge treated a party unfairly.” State v. Marcotte, 2020 WI App 28, ¶17, 392 Wis. 2d 183, 943 N.W.2d 911. The appearance of bias is sufficient when it “reveals a great risk of actual bias….” Id. “[C]omments indicating a circuit court has prejudged a defendant’s sentence can give rise to objective bias.” Id., ¶20. The test is whether a reasonable person would conclude prejudgment from the comments. Id.

¶29     B.S.S. failed to show actual bias or a great risk of actual bias. First, despite B.S.S.’s claim, the circuit court’s comments during the hearing on her motion for funding, which ultimately related to the stay factors the court would have to address if and when B.S.S. filed a motion to stay the juvenile sex offender-registration requirement,  do not demonstrate prejudgment or a risk of bias as to disposition or as to a yet-to-be-filed motion to stay juvenile sex offender registration. This is so because the comments B.S.S. complains about arose in the context of the circuit court explaining why it was denying B.S.S.’s request for funding after B.S.S.’s lawyer repeatedly argued the psychosexual evaluation was needed in order to support a future motion to stay sex offender registration because an evaluation would specifically address B.S.S.’s likelihood of re-offending (one of the stay factors). Thus, in this context, the court’s analysis as to whether it would grant the funding request was necessarily intertwined with its ultimate analysis of the factors it would be required to consider in addressing a future motion to stay.

¶30     In explaining its rationale, which was premised on an assumption that the evaluation B.S.S. sought would be favorable to her and indicate a low likelihood of re-offending, the circuit court aptly provided its reasons for denying funding for the psychosexual evaluation. Thus, in this context—which was necessitated by B.S.S.’s own argument as to why funding for the evaluation was necessary—the circuit court’s analysis of the stay factors did not constitute prejudgment or actual bias. Rather, the court’s analysis, which was based on both its assumption that B.S.S. would not re-offend and its consideration of the other pertinent factors, led it to conclude that because it would not grant a stay as to the sex-offender-registration requirement, it was unnecessary to grant the funding request. Accordingly, the circuit court’s comments related to the stay factors were appropriate here because they related directly to its reason for denying B.S.S.’s funding request. Under these circumstances, a reasonable p392 erson who reviewed the Record in this case would not conclude that the circuit court acted with bias.

Read that closely: the circuit court assumed one of the relevant factors for granting a stay was favorable and then reviewed the other factors and, finding them militating against a stay request, “conclude[d] that because it would not grant a stay .., it was unnecessary to grant the funding request.” In other words: “I’m denying your request for time and funding for an expert to support your motion because it’s all unnecessary: I am going to deny your stay motion.” And that isn’t prejudgment of the stay motion—which hadn’t even been filed or fully argued yet? The court of appeals’ reasoning proves its own incorrectness.

B.S.S. also argues the circuit court erroneously denied her request for a stay when it eventually fully addressed the request at the dispositional hearing. The court of appeals rejects that argument, too, holding the court properly exercised its discretion by considering the relevant legal factors as applied to the B.S.S.’s case. While the court gave more weight to the seriousness of the offense than to the dueling opinions about her risk to reoffend (B.S.S. obtained a favorable expert risk assessment after disposition (¶22)), that was within its power, and it didn’t erroneously give too much weight to that factor. (¶¶12-21, 36-42).

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