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Judicial Bias — Test — Objective Bias

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


¶21      The second component, the objective test, asks whether a reasonable person could question the judge’s impartiality. Franklin, 398 F.3d at 960; Walberg, 109 Wis. 2d at 106-07 (looks to whether partiality can “reasonably be questioned”). Actual bias on the part of the decision maker certainly meets this objective test. In re Murchison, 349 U.S. 133, 136 (1955); Franklin, 398 F.3d at 960-61. Sometimes, however, the appearance of partiality can also offend due process ….

¶22      We have reviewed numerous cases, both state and federal, that discuss these two aspects of objective bias. Initially, we had a difficult time discerning from them whether actual bias was necessary or merely sufficient. …

¶23      Further examination, however, reveals that this divergent case law can be harmonized. …

¶24      … In short, the appearance of bias offends constitutional due process principles whenever a reasonable person—taking into consideration human psychological tendencies and weaknesses—concludes that the average judge could not be trusted to “hold the balance nice, clear and true” under all the circumstances.

Compare this, not necessarily inconsistent synthesis from People v. Freeman, 147 Cal.App.4th 517 (Cal App 2007): “These federal and California decisions reflect that there may be situations where the appearance of judicial bias is sufficiently elevated so as to invoke constitutional due process rights. Thus, judicial bias may implicate constitutional due process not only when it is based on actual bias, but also when it involves an appearance of bias that could undermine the public’s confidence in a fair judiciary.”


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