Michael Damon Rippo v. Renee Baker, Warden, USSC No. 16-6316, 2017 WL 855913 (March 6, 2017) (per curiam), reversing and remanding Rippo v. State, 368 P.3d 729 (Nev. 2016); Scotusblog page
In this per curiam decision, the Supreme Court holds the lower court erred in demanding a defendant show actual bias to satisfy his claim that his due process right to an impartial judge was violated.
During his trial for capital murder and other offenses, Rippo learned the judge was the target of a federal bribery probe. Rippo surmised that the prosecutor’s office handling his case was playing a role in the investigation of the judge, so he asked the judge to disqualify himself on due process grounds, arguing that a judge could not impartially adjudicate a case in which one of the parties was criminally investigating him. The trial judge declined to recuse himself, and Rippo’s subsequent motions for a new trial were denied, even after the judge was indicted on federal charges and documents from the judge’s criminal trial indicated that the prosecutor’s office in Rippo’s case had indeed participated in the investigation of the trial judge.
In its most recent rejection of Rippo’s claim the state supreme court said Rippo was unable to support his assertion that the trial judge was “actually biased” in Rippo’s case.
We vacate the Nevada Supreme Court’s judgment because it applied the wrong legal standard. Under our precedents, the Due Process Clause may sometimes demand recusal even when a judge “‘ha[s] no actual bias.’” Aetna Life Ins. Co. v. Lavoie, 475 U. S. 813, 825 (1986). Recusal is required when, objectively speaking, “the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.” Withrow v. Larkin, 421 U. S. 35, 47 (1975); see Williams v. Pennsylvania, 579 U. S. ___, ___ [, 136 S. Ct. 1899] (2016) (slip op., at 6) (“The Court asks not whether a judge harbors an actual, subjective bias, but instead whether, as an objective matter, the average judge in his position is likely to be neutral, or whether there is an unconstitutional potential for bias” (internal quotation marks omitted)). Our decision in Bracy [v. Gramley, 520 U.S. 899 (1997),] is not to the contrary: Although we explained that the petitioner there had pointed to facts suggesting actual, subjective bias, we did not hold that a litigant must show as a matter of course that a judge was “actually biased in [the litigant’s] case,” … 368 P. 3d, at 744— much less that he must do so when, as here, he does not allege a theory of “camouflaging bias.” The Nevada Supreme Court did not ask the question our precedents require: whether, considering all the circumstances alleged, the risk of bias was too high to be constitutionally tolerable. …. (Slip op. at 2-3).
Wisconsin law—as it must—applies the same standard, see, e.g., State v. Gudgeon, 2006 WI App 143, 295 Wis. 2d 189, 720 N.W.2d 114, and State v. Goodson, 2009 WI App 107, 320 Wis. 2d 166, 771 N.W.2d 385, but some members of the supreme court have expressed discomfort with that test, see State v. Herrmann, 2015 WI 84, 364 Wis. 2d 336, 867 N.W.2d 772 (discussed here). This per curiam affirmance shows that discomfort should be set aside for good.