Adams v. State, 2009AP608

• Decision Date: 20 January 2012
• Docket Number: 2009AP608,L.C. #2007CV1479,L.C. #2007CV2104,L.C. #2008CV79,L.C. #2007CV1478
• Citation: 2012 WI 81
• Parties: Adams v. State of Wisconsin
• Court: Wisconsin Supreme Court

2012 WI 81

Adams

v.State of Wisconsin

2009AP608

L.C. #2007CV1478

L.C. #2007CV1479

L.C. #2007CV2104

L.C. #2008CV79

Supreme Court of Wisconsin

July 5, 2012

January 20, 2012

OFFICE OF THE CLERK

To:

Hon. James Welker

Circuit Court Judge

Rock County Courthouse

51 S. Main St.

Janesville, WI 53545

Eldred Mielke

Clerk of Circuit Court

Rock Co. Courthouse

51 S. Main Street

Janesville, WI 53545

Robert M. Hunter

Assistant Attorney General

P.O. Box 7857

Madison, WI 53707-7857

Glenn C. Reynolds

Elizabeth A. Mackey

Reynolds & Associates

407 E. Main St.

Madison, WI 53703-4276

Peter E. McKeever

Garvey McNeil & Associates, S.C.

One Odana Court

Madison, WI 53719

Michael P. Screnock

Eric M. McLeod

Michael Best & Friedrich LLP

P.O. Box 1806

Madison, WI 53701-1806

Christa Westerberg

McGillivray Westerberg & Bender LLC

211 S. Paterson Street, Suite 320

Madison, WI 53703

Andrew T. Phillips

Daniel J. Borowski

Patrick Casey Henneger

Phillips Borowski, S.C.

10140 N. Port Washington Rd.

Mequon, WI 53092

Jodi L. Habush

Midwest Environmental Advocates

551 W. Main Street

Madison, WI 53703

William P. O'Connor

Wheeler, Van Sickle & Anderson, S.C.

25 W. Main St., Ste. 801

Madison, WI 53703-3398

Carlos A. Pabellon

Assistant Corporation Counsel

Room 419

210 Martin Luther King, Jr. Blvd.

Madison, WI 53703-3345

H. D. Peterson

Stroud, Willink & Howard, LLC

P.O. Box 2236

Madison, WI 53701-2236

*Additional Parties listed on Page 16You are hereby notified that the Court has entered the following order:

WHEREAS, on January 9, 2012, Plaintiffs-Respondents-Petitioners, John Adams et al., filed a motion directed to Justice Michael J. Gableman individually to recuse himself from the instant case, under Wis. Stat. § 757.19(2)(g) and SCR 60.04(4), (4)(a), and also moved the court to order a rehearing in the instant case without Justice Gableman's participation.

On January 18, 2012, Petitioner-Respondent-Petitioner, Town of Magnolia, joined the Adams motion.

On January 20, 2012, Justice Gableman denied the motion to recuse himself, having determined that he could act in an impartial manner and that it would appear that he could act in an impartial manner. (order attached)

IT IS ORDERED that the motion to the court for a rehearing in the instant case without Justice Gableman's participation has not received four votes and is, therefore, not granted.

Justice Michael J. Gableman did not participate in this decision.

Diane M. Fremgen

Clerk of Supreme Court

JUSTICE DAVID T. PROSSER, JUSTICE PATIENCE DRAKE ROGGENSACK, and JUSTICE ANNETTE K. ZIEGLER write as follows:

¶1 Having carefully considered the motion directed to the court and the order issued by Justice Gableman, we determine that Justice Gableman made the required subjective determination that he could be impartial in the case and that it would appear that he could act in an impartial manner. See Donohoo v. Action Wis. Inc., 2008 WI 110, 314 Wis. 2d 510, 754 N.W.2d 480; State v. Harrell, 199 Wis. 2d 654, 546 N.W.2d 115 (1996); State v. American TV & Appliance of Madison, Inc., 151 Wis. 2d 175, 443 N.W.2d 662 (1989). The supreme court does not go beyond review of a justice's subjective determination that he or she may participate in a case under Wis. Stat. § 757.19(2)(g). Wis. S. Ct. IOP II.L.1.; Donohoo, 314 Wis. 2d 510, ¶24; Harrell, 199 Wis. 2d at 663-64; American TV, 151 Wis. 2d at 182-84. Furthermore, the supreme court does not remove justices involuntarily from pending cases. State v. Henley, 2011 WI 67, ¶¶2, 7-8, 338 Wis. 2d 610, 802 N.W.2d 175 (explaining that the court does not have the institutional power to remove a justice from a pending proceeding on a case-by-case basis, while expressly refusing to take up the issue of whether Justice Roggensack should have recused from participation in Henley's review).

¶2 The motion's reference to SCR 60.04(4) does not change this longstanding procedure. SCR 60.04(4) does not authorize the supreme court to remove a justice from an individual case. See Henley, 338 Wis. 2d 610, ¶8.

¶3 We pause to note, additionally, that Justice Gableman's order goes well beyond past responses to motions for the disqualifications of justices. See, e.g., Donohoo, 314 Wis. 2d 510, ¶¶4-14, 25 (recognizing Justice Butler's consideration of only one of three grounds for disqualification as sufficient to satisfy his subjective obligation); In re Disciplinary Proceedings Against Crosetto, 160 Wis. 2d 581, 601-02, 466 N.W.2d 879 (1991) (Abrahamson, J., dissenting) (then-Justice Abrahamson writing separately on the merits of a case in which she was asked to disqualify herself, with no explanation of her decision regarding the disqualification motion, her alleged partiality, or the appearance of such partiality). The standards that the Chief Justice requires in her dissent have never been the rule for this court.

JUSTICE ANN WALSH BRADLEY and JUSTICE N. PATRICK CROOKS join Chief Justice Abrahamson's writing.

CHIEF JUSTICE SHIRLEY S. ABRAHAMSON writes as follows:

¶4 I reluctantly conclude that Justice Gableman's Order dated January 20, 2012, does not demonstrate that Justice Gableman made the subjective determination required by Wis. Stat. § 757.19(2)(g) .¹

¶5 This court has previously decided cases in which a challenge to a judge or justice has been made under Wis. Stat. § 757.19(2)(g).² In each instance, the court issued an opinion (often an authored opinion, sometimes a per curiam) laying out the nature of the allegations against the challenged judge or justice in detail and thoroughly explaining how it concluded that the challenged judge or justice had made the required subjective determination that he or she could act in an impartial manner and that it appeared that he or she could act in an impartial manner.

¶6 Today's order and the separate writing by Justice David T. Prosser, Justice Patience Drake Roggensack, and Justice Annette K. Ziegler deviate sharply from past practice. The separate writing of my three colleagues is devoid of the typical analyses found in the court's recusal opinions. It does not describe the grounds on which Justice Gableman's recusal³ was sought, it does not analyze Justice Gableman's explanation of his refusal to disqualify himself as set forth in his Order, and it does not explain how the Order satisfies the three colleagues that the Justice made the required subjective determination. "'The reviewing court must objectively decide if the judge went through the required exercise of making a subjective determination.'" ⁴ Had my three colleagues engaged in such analysis, the issue of the adequacy of Justice Gableman's Order under Wis. Stat. § 757.19(2)(g) as a subjective determination of his ability to participate would quickly come to the fore.

¶7 Oral argument on the merits of this case was held on September 7, 2011. On January 9, 2012, Plaintiffs-Respondents-Petitioners, John Adams et al., filed a motion directed to Justice Michael J. Gableman individually to recuse himself from the instant case and a motion directed to the Court to order a rehearing in the instant case without Justice Gableman's participation.⁵ The Adams/Town challenge to Justice Gableman's participation is based on the allegation that the challengers did not know that Justice Gableman was represented by Michael Best & Friedrich LLP in a personal legal matter without any obligation to pay legal fees to Michael Best, and that Michael Best represents a party in the instant case.⁶ The Adams/Town motion is based on Michael Best's revealing on or about December 15, 2011, the fee arrangement it had with Justice Gableman when representing Justice Gableman in Wisconsin Judicial Commission v. Gableman, 2010 WI 61, 325 Wis. 2d 579, 784 N.W.2d 605.

¶8 On January 20, 2012, Justice Gableman issued an Order denying the motion to recuse himself. See attached Order.

¶9 In his Order, Justice Gableman states the challenge to his participation as follows: "The petitioners bring this motion because they state that they believe that my participation in this case presents the appearance of impropriety. They state this conclusion based on the factthat the Michael Best & Friedrich firm was involved in the case and had previously represented me."⁷

¶10 A challenged justice is to make a subjective determination whether the grounds alleged in the recusal motion require disqualification.⁸ And the court is to determine "whether the individual justice made the determination that the motion required."⁹

¶11 Our prior case law, upon which the three justices' separate writing relies, requires Justice Gableman to make a subjective determination of his impartiality in light of the allegations in the recusal motion and requires the court to objectively decide whether Justice Gableman went through the required exercise of making a subjective determination of impartiality on the basis of the allegations in the recusal motion. Justice Gableman's Order does not demonstrate that the Justice has made the required subjective determination. Thus, the separate writing of my three colleagues cannot conclude, as it does, that Justice Gableman has satisfied the requirements of Wis. Stat. § 757.19(2)(g).

¶12 Before I set forth my analysis, I must acknowledge that Justice Gableman's drafting an explanation of his refusal to recuse himself presents a complex and difficult situation for him personally. Justice Gableman's conduct concerning the fee arrangement is before thiscourt on three recusal challenges¹⁰ and may also be before other tribunals.¹¹ Thus, Justice Gableman may feel constrained in addressing pertinent facts in his Order denying recusal to avoid saying anything that might raise issues in another proceeding. Any caution and concern by the Justice is understandable.

¶13 Aware of the possibility of other proceedings, this court must also exercise caution and concern. We must be particularly careful to decide only the issue before us. The separate writing of my three colleagues and my own writing are to review Justice...