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Judicial Bias – (Non-Pecuniary) Stake in Outcome

State v. Terrance J. O’Neill, 2003 WI App 73
For O’Neill: Roger D. Sturdevant, SPD, Monroe

Issue: Whether a judge’s persistent and partisan efforts to require litigation on a recurrent issue on which the court of appeals had already reversed him, in an unpublished case in which the judge actively appeared as a party on the appeal, establishes disqualifying bias.

Holding: Bias not established: The judge intends to require litigation on the disputed issue in every case, unless and until a published, precedential decision binds him otherwise; therefore he isn’t singling out O’Neill for special treatment. ¶16. Nor was it improper for the judge to intervene in the prior case, in that the circuit court was a named respondent in that writ petition. ¶17. Nor does the judge’s position, even though adversarial to O’Neill’s position, create a personal (and therefore disqualifying) stake in the outcome. ¶18.

¶19. We agree with the State that a judge’s non-pecuniary interest, as well as a pecuniary interest, may require recusal on due process grounds, see Aetna Life Insurance Co. v. LaVoie, 475 U.S. 813, 829 (1986) (Brennan, J. concurring); and the type of interest that requires recusal cannot be defined with precision. In re Murchison, 349 U.S. 133, 136 (1955). However, in the context of applying federal rules requiring recusal for bias, federal courts have made clear that a judge’s prior adverse rulings or expressions of the judge’s views of the law are not sufficient to demonstrate a “personal” bias that requires recusal. See, e.g., Oliver v. Michigan State Bd. of Educ., 508 F.2d 178, 180 (6th Cir 1974); City of Cleveland v. Cleveland Elec. Illuminating Co., 503 F. Supp 368, 373-74 (N.D. Ohio 1980); Person v. General Motors Corp., 730 F. Supp. 516, 518-19 (S.D.N.Y. 1990). Our reasoning is similarly grounded: Judge Johnston’s legal position on the permissibility of the challenged procedure and his conviction of the wisdom of the procedure, however firmly held, are not a bias that indicates he is unable to be a neutral and detached judge in this case. Moreover, we do not see how Judge Johnston’s “stake” in the outcome of the issue affects his ability to be neutral in this case. The outcome will be determined by this court or the supreme court, and Judge Johnston has made it clear he will follow any order or decision of this court or the supreme court as the law requires him to do.

On a pragmatic level, the appellate court is simply encouraging the trial court’s wasteful requirement of repetitive litigation on an issue already rejected — in precedential form or not. See State v. Skibinski, 2001 WI App 109, ¶ 4 n. 4. Separately, why was the trial judge allowed to intervene in the prior litigation, anyway? The circuit court may have been named as an institutional party, but the specific judge was not (or at least should not have been) named; besides, the state was the real party in interest. In any event, the net effect was for this particular judge to make himself a party to the litigation, which certainly seems counter to the spirit if not precise letter of § 757.22(1) (“No judge, while holding office, may be in any manner engaged or act as attorney or counsel”), § 757.19(2)(b) (judge disqualified from sitting in same case s/he is party), and/or § 757.19(2)(c) (judge disqualified when previously acted as counsel to party in same action). Establishing that Judge Johnston was party or counsel in O’Neill’s case would be a stretch, of course. But what about where, as in the prior case, the judge inserted himself in the lineup? When the judge makes himself a party to the litigation by intervening, then why wouldn’t the cited provisions apply?

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