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Judicial Bias — Prejudgment of Issue in Controversy

State v. Justin D. Gudgeon, 2006 WI App 143, PFR filed 7/14/06
For Gudgeon: Jefren E. Olsen, SPD, Madison Appellate

Issue: Whether a judge’s instruction to a probation agent, who asked that probation not be extended, “No—I want his probation extended,” evinced judicial bias so as to taint the judge’s subsequent extension order.

Holding: While the judge’s comment did not establish “actual bias” (“given our experience and the reputation of this particular trial judge as a fair and just administrator of the law”), ¶25, it nonetheless created an appearance of partiality:

¶26      The appearance of partiality, however, remains problematic. We must resolve this case based on what a reasonable person would conclude from reading the court’s notation, id. at 960, not what a reasonable trial judge, a reasonable appellate judge, or even a reasonable legal practitioner would conclude. The court here used strong language. “ I want his probation extended.” (Emphasis added.) “Want” signifies a personal desire on the court’s part. Of additional significance, this expressed desire refers not to an extension hearing—at which to decide the merits of extension versus a civil judgment—but to the extension itself, an ultimate outcome. Neutral and disinterested tribunals do not “want” any particular outcome. Moreover, a reasonable person familiar with human nature knows that average individuals sitting as judges would probably follow their inclination to rule consistent with rather than against their personal desires. The ordinary reasonable person would discern a great risk that the trial court in this case had already made up its mind to extend probation long before the extension hearing took place. Further, nothing in the transcript of the extension hearing would dispel these concerns. We therefore agree with Gudgeon that the extension hearing violated his due process right to an impartial tribunal.

(See also ¶30: “Although we may be convinced that the circuit court was not prejudging the extension issue,  that is not the test. The risk of bias that the ordinary reasonable person would discern—which is the test—is simply too great to comport with constitutional due process.”)

No comment on the court’s actual-bias analysis. Application of “ordinary reasonable person” to appearance of bias is notable; see, for example, this iteration of the test, State v. Pablo Cruz Santana, 220 Wis. 2d 674, 584 N.W.2d 151 (Ct. App. 1998):

Judicial disqualification under § 757.19(2)(g), Stats., concerns not an outsider’s objective determination, but rather the judge’s subjective determination. See State v. American TV & Appliance, 151 Wis.2d 175, 182, 443 N.W.2d 662, 665 (1989). It mandates a judge’s disqualification “ only when that judge makes a determination that, in fact or in appearance, he or she cannot act in an impartial manner.” Id. at 183, 443 N.W.2d at 665 (emphasis added). Disqualification is not required in a situation where “ one other than the judge objectively believes there is an appearance that the judge is unable to act in an impartial manner ….” Id. (emphasis added). This holding was reaffirmed more recently in State v. Harrell, 199 Wis.2d 654, 658, 546 N.W.2d 115, 117 (1996), when the supreme court stated: “Whether the general subjective situation exists and requires disqualification, however, is based upon the judge’s own determination of whether he or she may remain impartial.” Appellate review of such a determination is “limited to establishing whether the judge made a determination requiring disqualification.” Id. at 663-64, 546 N.W.2d at 119 (quoted source omitted).

Santana, to be sure,was discussing the disqualification statute, § 757.19(2)(g): why in light of Gudgeon would anyone now want to invoke the statute when it is narrower (as to appearance of bias) than the constitutional argument? For that matter, is it possible to say that the statute is unconstitutional precisely because it is narrower than the constitutional test? On the other hand, State v. Rochelt, 165 Wis. 2d 373, 378-81, 477 N.W.2d 659 (Ct. App. 1991) makes a couple of pertinent points: the statutory test is different from the constitutional test, fn. 1—though the court doesn’t say precisely how, it is now clear that for the latter the metric is how a reasonable person would view the situation and for the former it is a reasonable judge; and, “the appearance of possible prejudgment of the defendant’s guilt” establishes judicial partiality—a principle ratified in the more general sense of prejudgment of an issue in controversy by Gudgeon and  Franklin v. McCaughtry, 398 F.3d 955 (7th Cir. 2005). So, perhaps Gudgeon represents clarification rather than a change in caselaw. (Note, too, that Rochelt goes on to apply a harmless error test despite the existence of judicial bias, something that is now precluded byFranklin.


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