State v. Allen

• Decision Date: 11 February 2010
• Docket Number: No. 2007AP000795.,2007AP000795.
• Citation: 2010 WI 10,778 N.W.2d 863
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Aaron Antonio ALLEN, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

778 N.W.2d 863

2010 WI 10

STATE of Wisconsin, Plaintiff-Respondent, v. Aaron Antonio ALLEN, Defendant-Appellant-Petitioner.

No. 2007AP000795.

Supreme Court of Wisconsin.

Decided February 11, 2010.

¶ 1 PER CURIAM.

The members of the court disagree as to the disposition of petitioner Aaron Antonio Allen's motions for the recusal of Justice Michael J. Gableman citing the Fourteenth Amendment of the United States Constitution; Article I, Sections 1 and 8 of the Wisconsin Constitution; and Wis. Stat. § 757.19(2)(g).

¶ 2 On February 4, 2010, Justice Michael J. Gableman informed the members of the court that he was withdrawing from participation in the court's consideration of Allen's recusal motions and was withdrawing his separate written opinion. Only six justices are therefore participating.

¶ 3 Three justices, Chief Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley, and Justice N. Patrick Crooks, would order briefs and oral argument, as the parties have requested

¶ 4 Three justices, Justice David T. Prosser, Justice Patience Drake Roggensack, and Justice Annette Kingsland Ziegler, would issue an order denying the motions

¶ 5 Chief Justice Abrahamson and Justices Bradley and Crooks write in support of their proposed disposition

¶ 6 Justice Roggensack, joined by Justices Prosser and Ziegler, writes in support of their proposed disposition.

¶ 7 Individual writings by Justices Crooks, Prosser, and Ziegler are also filed.

¶ 8 Because the members of the court disagree as to the disposition of Allen's motions as set forth above, the motions are not granted. No four justices have agreed to grant the motions.

¶ 9 SHIRLEY S. ABRAHAMSON, C.J.; ANN WALSH BRADLEY, J.; N. PATRICK CROOKS, J. Chief Justice Shirley S. Abrahamson

Justice Ann Walsh Bradley, and Justice N. Patrick Crooks join this opinion and proposed order regarding Allen's recusal motions.¹

¶ 10 When Allen's pro bono counsel first filed recusal motions on April 17, 2009, challenging Justice Gableman's participation, perhaps none would have foreseen the extent to which these motions would challenge this court, and have challenged all of us, in the months that have followed, even though recusal issues have been percolating under and above the surface for many years.²

¶ 11 On February 4, 2010, Justice Gableman withdrew from further participation in the court's consideration of Allen's recusal motions against Justice Gableman and withdrew his separate writing in this matter.

¶ 12 Justices Prosser, Roggensack, and Ziegler conclude that Justice Gableman need not have withdrawn from participating in deciding whether the court lacks jurisdiction (power) to consider Allen's recusal motions directed at Justice Gableman. See J. Roggensack, ¶¶ 196-197.

¶ 13 Justices Prosser, Roggensack, and Ziegler further determine (1) that this court cannot independently review a justice's decision to deny a recusal motion except to decide whether the individual justice made the determination that the motion required, although this court can and should independently review denials of recusal motions by elected judges of the circuit court and court of appeals; and (2) that Allen's recusal motions have no merit.

¶ 14 During the court's long, drawn-out consideration of Allen's motions for his disqualification, Justice Gableman has alternated between participating and not participating in the consideration of the recusal motions directed to the court, finally withdrawing from participation on February 4, 2010.³

¶ 15 Allen's motions to Justice Gableman individually and to the court (on due process grounds) were filed on April 17, 2009. Nearly five months later, on September 10, 2009, Justice Gableman denied the recusal motion directed to him individually in a one-sentence order that contained no explanation.⁴ Thus, the recusal motion directed to the court on due process grounds was not really ripe for the court's consideration until Justice Gableman's September 10, 2009 denial of Allen's motion.

¶ 16 On September 21, 2009, Allen filed a supplemental motion addressed to the court, requesting the court to review whether Justice Gableman had considered, as required by Wis. Stat. § 757.19(2)(g), whether he could not or it appeared he could not act impartially.

¶ 17 On January 15, 2010, Justice Gableman filed a supplement to his September 10 order, this time providing a 10-paragraph explanation for his decision to deny the recusal motion directed individually to him. This supplemental order discusses the merits of Allen's allegations and concludes: "The allegations in Allen's motion are simply wrong."⁵

¶ 18 On October 16, 2009, Justices Prosser, Roggensack, and Ziegler issued a press release, complaining that the court should have responded to Allen's motion within 5 weeks after April 17, 2009, when Allen's recusal motion was filed. Their complaint about the process and their charges about delay ignore the obvious complexities and challenging nature of the issues presented. The recusal issue was not ripe until Justice Gableman denied the recusal motion on September 10, 2009; Justice Gableman filed a supplemental order explaining his participation in the case on January 15, 2010. Justice Gableman withdrew from participation in the court's consideration of Allen's recusal motions on February 4, 2010. It should be clear to everyone that this has been a difficult and time-consuming process for all the justices.

¶ 19 The writings of the three justices who do not join this opinion palpably demonstrate the difficulties they have faced in joining together with one voice to respond to Allen's recusal motions directed to the court. The three justices' writings have been a moving target, based on an ever-changing variety of rationales.

¶ 20 The State requested that if the court were to give plenary consideration to Allen's recusal motions—and Justices Prosser, Roggensack, and Ziegler would have you believe that they have given plenary consideration—"such consideration should come only after full briefing and argument by the parties on the matter."⁶ Responding to similar motions in several other cases, the State's briefs have recognized that "the issues are potentially broad and deep, deserving of full briefing and oral argument."⁷

¶ 21 We agree with Allen and the State about the need for full briefing and oral argument.

¶ 22 The court should have ordered briefs in April 2009 when Allen filed his first motions and the State responded. The court did not. The writings today show that the court's usual way of proceeding to decide matters, with briefs and oral argument, should be followed.

¶ 23 Opinions of this court should not "reach out and decide issues" without the benefit of full briefing by the parties. See Dairyland Greyhound Park, Inc. v. Doyle, 2006 WI 107, ¶ 335, 295 Wis.2d 1, 719 N.W.2d 408 (Roggensack, J., concurring in part and dissenting in part).

¶ 24 "Sound judicial decision making requires `both a vigorous prosecution and a vigorous defense' of the issues in dispute, Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 419, 98 S.Ct. 694, 699, 54 L.Ed.2d 648 (1978), and a constitutional rule announced sua sponte is entitled to less deference than one addressed on full briefing and argument. Cf. Ladner v. United States, 358 U.S. 169, 173, 79 S.Ct. 209, 211, 3 L.Ed.2d 199 (1958)"⁸

¶ 25 For the reasons set forth herein, we conclude that it is not too late to order briefs and schedule oral argument on Allen's motions. Indeed, key differing approaches in the writings issued today evidence the need for additional input. We conclude that the parties should be directed to file briefs in this court on the issues raised in the writings issued today, as well as the issues raised by Allen and by the State.

¶ 26 Briefs would assist on four key issues:

I

Briefs are needed on Justices Prosser, Roggensack, and Ziegler's attempt to divide the legal questions presented into segments in a failed attempt to persuade Justice Gableman to participate on one issue (court jurisdiction) but refrain from participating on other issues in the disposition of Allen's recusal motions. (¶¶ 27-32)

II

Briefs are needed on the substantive issue of whether this court has jurisdiction (power) to decide recusal motions challenging the participation of a justice in a particular case. Justices Prosser, Roggensack, and Ziegler's arguments do not analyze jurisdiction. Rather, they are directed at policy. (¶¶ 33-71)

III

Briefs are needed on the question of how to protect the rights of litigants to a fair, impartial Wisconsin Supreme Court if the justices are not willing to decide recusal motions challenging the participation of a justice. (¶¶ 72-88)

IV

Briefs are needed on whether the grounds upon which Allen's motions rest justify disqualifying Justice Gableman from sitting on the merits of Allen's case.(¶¶ 87-116)

* * * *

I

¶ 27 First, briefs are needed on the three justices' attempt to divide the legal questions presented into segments to enable a challenged justice to participate in the jurisdictional issue but refrain from participating in the disposition of the recusal motions.

¶ 28 Justices Prosser, Roggensack, and Ziegler try to articulate the question of the jurisdiction of this court as an abstract legal question that affects all justices equally, so that a challenged justice could participate on this issue.⁹ An examination is needed into whether a decision on the court's jurisdiction to review a justice's decision to participate really affects all justices equally. We are reminded of George Orwell's Animal Farm: "All animals are equal. But some animals are more equal than others."¹⁰

¶ 29 Perhaps betraying the obvious fallacy of their claim that the question whether the court has jurisdiction to review a justice's decision to participate has an "equal affect on all justices," the three, try as they might, have been unable to address the question without offering a characterization of...