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Judicial Bias/Disqualification — Judge as Subject of Recall Drive

State v. Pablo Cruz Santana, 220 Wis. 2d 674, 584 N.W.2d 151 (Ct. App. 1998)
For Santana: Steven P. Weiss, SPD, Madison Appellate


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). …… It is apparent that Judge Kennedy considered whether there was any bias or prejudice in his sentencing decision that would require him to recuse himself from considering the postconviction motions relating to the sentencing.4 He concluded that he could be impartial. As outlined above, this is all that § 757.19(2)(g), Stats., requires.

4 A former California supreme court justice used the following metaphor to describe the dilemma of deciding controversial cases while facing reelection. He said it was like “finding a crocodile in your bathtub when you go in to shave in the morning. You know it’s there, and you try not to think about it, but it’s hard to think about much else while you’re shaving.” Gerald F. Uelmen, Crocodiles in the Bathtub: Maintaining the Independence of State Supreme Courts in an Era of Judicial Politicization, 72 Notre Dame L. Rev. 1133, 1133 (1977).
The article also notes that while a judge will never admit that his or her vote was influenced by public pressure, “It takes a truly sensitive judge to even engage in the soul searching inquiry into the impact of the crocodiles in the bathtub upon his or her decisionmaking process.” Id. at 1142. We are convinced that the record reveals that Judge Kennedy engaged in this kind of personal inquiry when his sentencing decision was questioned.


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