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Order on Judicial Disqualification in: State v. Dimitri Henley, 2008AP697, 5/24/10

Wisconsin supreme court order

The underlying question is whether Justice Roggensack “previously handled” Henley’s earlier appeal when she was a court of appeals judge; if so, then by statute she must be disqualified from participating in his now-pending appeal. She declined to disqualify herself in a memorandum decision, 2010 WI 12. Further background, here. And here, especially with respect to State v. Aaron Antonio Allen, 2010 WI 10, and its similar question. The question now is whether Justice Roggensack’s disqualification decision is reviewable by the full court. The answer, which you can find in the unpublished order at the link above, is … No. And so we have a conundrum to end all conundrums: how is that a court whose very purpose is to perform the function of review finds itself unable or unwilling to review the authority of a justice to sit in judgment on a case? Keep in mind the following, settled principle: “Where a justice who participated in a case was disqualified by law, the court’s judgment in that case is void,” State v. American TV and Appliance of Madison, Inc., 151 Wis. 2d 175, 179, 443 N.W.2d 662 (1989). Which means that if Justice Roggensack erred in refusing to step down, her ensuing participation will render “void” the opinion issued by the full panel– except that no one will ever know because her decision isn’t reviewable. Whether or not the court fully realizes it, a real crisis in legitimacy is developing.

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