City of Edgerton v. General Cas. Co. of Wisconsin

• Decision Date: 23 February 1995
• Docket Number: No. 91-1408,91-1408
• Citation: 527 N.W.2d 305,190 Wis.2d 510
• Parties: CITY OF EDGERTON and Edgerton Sand & Gravel, Inc., Plaintiffs-Respondents, v. GENERAL CASUALTY COMPANY OF WISCONSIN, Defendant-Appellant-Petitioner, Wisconsin Insurance Security Fund, Defendant, Aetna Casualty and Surety Company, Defendant-Co-Appellant-Petitioner, Hanover Insurance Companies, Wausau Insurance Companies, and Local Government Property Insurance Fund, Defendants.
• Court: Wisconsin Supreme Court

Page 305

527 N.W.2d 305

190 Wis.2d 510

CITY OF EDGERTON and Edgerton Sand & Gravel, Inc. Plaintiffs-Respondents, v. GENERAL CASUALTY COMPANY OF WISCONSIN, Defendant-Appellant-Petitioner Wisconsin Insurance Security Fund, Defendant Aetna Casualty and Surety Company, Defendant-Co-Appellant-Petitioner Hanover Insurance Companies, Wausau Insurance Companies, and Local Government Property Insurance Fund, Defendants.

No. 91-1408.

Supreme Court of Wisconsin.

Decided Feb. 23, 1995.

HEFFERNAN, Chief Justice.

We dismiss the motion of Edgerton Sand & Gravel, Inc. (ES & G) to vacate this court's decision of June 16, 1994, or, alternatively, for a rehearing in the matter. To the extent the motion seeks a second reconsideration, this court does not reconsider denials of reconsiderations. In addition, the motion must be dismissed because we conclude that the movant, ES & G, on multiple occasions, waived whatever objections it might have had to the participation of one of the justices in the court's decision.

Nevertheless, because the movant has questioned the integrity of a justice of this court and hence the integrity of a decision of the court, we address the movant's claim and conclude that the motion of ES & G is meritless. ¹ The court does not ordinarily exercise any jurisdiction after the remittitur of the judgment, opinion and the record to the circuit court. Ott v. Boring, 131 Wis. 472, 110 N.W. 824 (1907). However, this court has held that the Ott rule is inapplicable when it is asserted, as here, that the court's decision is void because a justice should not have participated in the case. State v. American TV & Appliance, 151 Wis.2d 175, 181, 443 N.W.2d 662 (1989). It behooves the court in the defense of its own legitimacy and of its integrity to consider such claims.

The movant, ES & G, was a plaintiff in the action seeking a declaration that it was afforded insurance coverage for the defense of administrative proceedings it considered to be the equivalent of a suit at law. By decision of June 16, 1994, a divided court (four-three) held against the plaintiffs, the author of this opinion on the motion for vacatur or rehearing being one of the minority.

On July 5, 1994, ES & G moved for reconsideration, contending that the court had misapprehended controlling law. The motion was based on the assertion that the court's decision was contrary to the intent of the United States Congress as determined by a recent decision of the United States Supreme Court, Key Tronic Corp. v. The United States, 511 U.S. 809, 114 S.Ct. 1960, 128 L.Ed.2d 797 (1994). ES & G also claimed that this court erred when it concluded that, under the terms of its insurance policy, the administrative proceedings involving ES & G were not reasonably to be construed as synonymous with a "suit."

Those legal assertions and a request to supplement the record were the sole bases for ES & G's reconsideration motion, notwithstanding On November 29, 1994, one year after oral argument, more than two months after KAT's request was denied and almost a month and one-half after ES & G's reconsideration motion was denied, ES & G filed the present motion, asserting that Justice Geske was disqualified under sec. 757.19(2) and (3), Stats., ² from participating in the original decision and asking for the vacation of the decision of June 16, 1994, or, in the alternative, for rehearing without the participation of Justice Geske. It is clear that ES & G previously waived any objection it might have had to Justice Geske's participation. We dismiss the motion for this reason, but we point out that, even if the disqualification issue had been raised timely on reconsideration, it would have been determined to be without merit.

that Kenosha Auto Transport (KAT) and two others, who had sought amicus status in the reconsideration, requested permission to file a motion and brief asking that the decision be vacated or that Justice Janine P. Geske be disqualified from the reconsideration. Although KAT's proposed motion and brief had been served on all parties, including ES & G, neither ES & G nor any other party joined in KAT's challenge or asserted Justice Geske's disqualification as ground for reconsideration or vacatur. KAT's motion to file an amicus brief was denied and its request to move for Justice Geske's disqualification was dismissed on September 15, 1994. ES & G's motion for reconsideration was denied on October 25, 1994, and the record was remitted to the circuit court on November 17, 1994.

We set forth the significant facts. The case was argued to the court on Monday, November 29, 1993. At the outset of the argument, shortly after counsel for one of the petitioners on review commenced his presentation, Justice Geske stated:

"I ... want to make a disclosure. Last night when I was looking one more time at the amicus briefs, I noted that Mr. Burrell had filed an amicus brief on behalf of the Insurance Environmental Litigation Association, and I looked at the appendix and I noted that one of the companies listed in that is St. Paul Companies. My husband is employed by that company. I do not believe that presents any conflict and will not influence me. If anybody has any objections to me sitting on this case, I would appreciate hearing from you in letter by the end of the week."

Justice Geske's declaration in open court disclosed that her husband was an employee of a company that, while not a party to the litigation, was a member of an association that had submitted a nonparty amicus brief. No objection was raised by any of the parties at oral argument nor was any objection raised "by the end of the week." No objection to Justice Geske's participation whatsoever was raised until KAT, a nonparty, raised the question in the proposed amicus brief it tendered to the court on September 2, 1994.

The disqualification statute provides that any disqualification "may be waived by agreement of all parties and the judge after Wisconsin law, sec. 19.43, Stats., and the rules of this court, SCR 60.18, require members of the judiciary to file each year with the Ethics Board a statement of economic interests, including their assets and liabilities. As matters of public record, those statements are available for inspection by any interested person. A judge in a particular case who is aware of facts that may be relevant to the issue of his or her disqualification must disclose those facts to the parties for purposes of waiver under sec. 757.19(3), Stats. This is a duty imposed on a judge by law. A party concerned about those facts should then, at a minimum, examine the judge's financial disclosure on record because information in those records may prompt further inquiry.

full and complete disclosure on the record of factors creating the disqualification." Section 757.19(3), Stats. It is significant to note that ES & G does not argue that the disclosure made by Justice Geske and the setting of a time limit to object or to waive objection to her participation was not a proper procedural framework for the waiver of disqualification. Rather, counsel for ES & G argues that the disclosure was not sufficient--that it did not constitute a "full and complete disclosure."

We conclude that under the circumstances of this case the disclosure made by Justice Geske was sufficient--that all the facts necessary for counsel to determine whether to assert or waive any disqualification were either disclosed or were readily obtainable of record prior to the "weekend deadline" suggested by Justice Geske. Following that disclosure, if ES & G had been concerned, it could have examined the financial disclosures Justice Geske had filed with the Ethics Board and if those disclosures did not satisfy ES & G in respect to Justice Geske's financial ties to St. Paul Companies, it could have asked for more information from her or could have advised her "by the end of the week" that it objected to her participation.

If ES & G's counsel examined the public record, it apparently did not deem the information in it sufficient to pursue the disqualification issue. Now, however, ES & G's substituted counsel asserts that Justice Geske's disqualification was required on the basis of inferences it makes from that information. Clearly, ES & G waived any possible disqualification by not acting by the "end of the week" and for one year following oral argument.

Even after the court's decision on June 16, 1994--after learning that Justice Geske was the scrivener for the court--ES & G's counsel did not raise the question of Justice Geske's qualification to sit but asserted in its reconsideration motion only that the court had failed to follow what counsel considered controlling law. Despite the fact that ES & G had been served with a copy of KAT's proposed amicus motion and brief raising the disqualification issue, it did not join in KAT's motion or express to the court in its motion for reconsideration on the merits any position in respect to disqualification.

Hence, we conclude that on at least two discrete occasions ES & G's counsel failed to make any objection to Justice Geske's participation. These successive waivers in themselves bar ES & G from asserting its motion for vacatur at this time, months after it could have informed itself of the facts on which its motion is based and made any concern known to the court. The motion must be dismissed.

We could well rest our determination of the motion solely upon the absence of ES & G's timely assertion of its purported rights or we could, and do, base it also on the fact that there has been one reconsideration of the court's decision and we will not entertain a request for a second. Blau v. City of Milwaukee, 232 Wis. 197, 208, 285 N.W. 347, 286 N.W. 874, 287 N.W. 594 (1939). Nonetheless, when there is an attack upon the impartiality of the court or of one of its justices, we should determine whether such attack is meritorious or meretricious. We...