State v. American TV and Appliance of Madison, Inc.

• Decision Date: 18 August 1989
• Docket Number: No. 85-2066,85-2066
• Citation: 151 Wis.2d 175,443 N.W.2d 662
• Parties: STATE of Wisconsin v. AMERICAN TV AND APPLIANCE OF MADISON, INC.
• Court: Wisconsin Supreme Court

Page 662

443 N.W.2d 662

151 Wis.2d 175

STATE of Wisconsin v. AMERICAN TV AND APPLIANCE OF MADISON, INC.

No. 85-2066.

Supreme Court of Wisconsin Aug. 18, 1989.

HEFFERNAN, Chief Justice.

We take jurisdiction of the motion filed by the Attorney General, on behalf of the State, asking that we vacate our decision of November 2, 1988, 146 Wis.2d 292, 430 N.W.2d 709 in the captioned case for the alleged reason that a justice of this court, the Honorable William A. Bablitch, who participated in that decision and was among the four-justice majority deciding the case, was disqualified by law. That alleged disqualification is based on the fact that, prior to taking part in the case, Justice Bablitch had purchased merchandise from the respondent, American, some of it through a friend who worked as salesman and department manager at American, at discounted prices assertedly more favorable than those offered to the general public. On the basis of applicable law and on the facts alleged by the State in its motion and supporting papers, we determine Justice Bablitch's participation in this case was neither impermissible nor improper. As the motion has no merit, legally or factually, we deny it.

Before addressing its merits, we first determine whether the court has jurisdiction to consider the motion at all. In ordinary course, this court has no jurisdiction to reconsider a decision after the 20-day time period for filing a motion for reconsideration set by sec. (Rule) 809.64, Stats., has expired. Here there was no motion for reconsideration. Moreover, in its response to the motion, the respondent has asserted that the court does not have jurisdiction to vacate or modify the decision because the case was properly remitted to the lower court on April 5, 1989.

The general rule is that, after remittitur, the Supreme Court has no jurisdiction to vacate or modify its judgment. Ott v. Boring, 131 Wis. 472, 110 N.W. 824 (1907). There, a motion was filed after remittitur seeking modification of the court's mandate on the ground of newly-discovered evidence. Denying a companion motion to have the remitted record returned to the court for determination of the modification motion, the court stated:

[T]he rule has been thoroughly adopted [in Wisconsin] that, when the record upon an appeal has been regularly transmitted to and filed with the court from which it originally came, this court's jurisdiction over the cause, as also to vacate or modify its own judgment, is at an end.... Id., 491-92, 110 N.W. 824.

Earlier in its opinion the court had qualified that rule: "[I]n the absence of statute making a different provision, the jurisdiction of the appellate court over a given cause terminates whenever regularly, without inadvertence or fraud, it returns the record to the court of general jurisdiction." Id., 487, 110 N.W. 824. Explicitly rejecting the practice then followed in New York of allowing post-remittitur recall of a record and reassumption of jurisdiction in order for an appellate court to review its decision, the court held that if post-remittitur jurisdiction is not conferred by statute, the Supreme Court has no jurisdiction over a case once it has been properly remitted to the lower court. Id., 492-93, 110 N.W. 824.

Under this rule, which continues to be the rule in Wisconsin, because the record in this case was remitted to the trial court on April 5, 1989, we would not have jurisdiction to consider the motion to vacate our decision were it not for the State's allegation that a member of this court who participated in it was disqualified by law from doing so. Where a justice who participated in a case was disqualified by law, the court's judgment in that case is void. Case v. Hoffman, 100 Wis. 314, 72 N.W. 390, reh'g granted 74 N.W. 220 (1898). In Case, Justice Newman, one of the three justices of the five-member Supreme Court who constituted the majority and the author of the court's opinion, had previously been a circuit judge and had sustained a demurrer in the case in the trial court. His order sustaining the demurrer earlier had been reversed on appeal and, on remand, the case was assigned to another judge. On appeal from judgment for the plaintiff following remand, the Supreme Court reversed, whereupon the respondent moved for rehearing and moved to set aside the judgment on the ground that Justice Newman was disqualified by law. Prior to the court's consideration of the motion to set aside the judgment, Justice Newman died.

In determining the motion to set aside the judgment, the court applied the disqualification statute which provided: "No judge of an appellate court ... shall decide or take part in the decision of any cause or matter which shall have been determined by him, while sitting as a judge of any other court, unless there shall not be a quorum without him." Section 2580, R.S. 1878. Acknowledging the certainty that Judge Newman had concluded he was not disqualified and that it was his duty to participate in the decision, the court nevertheless held that Justice Newman was legally disqualified to participate in the case. Regarding the effect of that disqualification, the court said,

Where, however, it is expressly declared by a constitutional or statutory provision that in a certain specified case a judge shall not sit, or shall not act, or shall take no part in the decision, the almost uniform current of authority is to the effect that any judgment rendered by such judge in such a case is coram non judice and void.... The same rule has been applied when the disqualified judge has acted simply as one of a bench composed of several judges, even though the vote of the disqualified judge was not necessary to the decision; and with greater force would the reason of the rule apply when, as in this case, such judge gave the casting vote and decided the cause. Id., 356-57, 72 N.W. 390.

Because the judgment was void, the court rejected the option of entering judgment without Justice Newman's vote and ordered the case reargued.

Here, if Justice Bablitch were disqualified by law from participating in this case, as the State contends, the court's decision would be void and, notwithstanding the Ott post-remittitur rule, we would retain jurisdiction to vacate or modify it. "A judgment or order which is void may be expunged by a court at any time. Such right to expunge a void order or judgment is not limited by statutory requirements for reopening, appealing from, or modifying orders or judgments." State ex rel. Wall v. Sovinski, 234 Wis. 336, 342, 291 N.W. 344 (1940). Consequently, the Ott rule is inapplicable to the circumstances alleged here.

We therefore conclude that the court has jurisdiction to consider the State's motion and we address it on the merits. Doing so, we determine that neither on the law asserted nor on the facts alleged therein can it be established that Justice Bablitch was disqualified by law from participating in this case. Furthermore, the motion is so devoid of arguable merit as to render further briefing by the parties unnecessary.

The State contends that Justice Bablitch was disqualified under sec. 757.19(2)(g), Stats., because "[h]is receipt of discounts from a litigant greater than that available to the general public on several thousands of dollars in purchases based on an arrangement with an American TV manager certainly would leave his impartiality open to reasonable question." That contention is meritless: neither the statute nor the cases cited by the State mandate Justice Bablitch's disqualification.

The mandatory disqualification statute, sec. 757.19(2), Stats., ¹ establishes seven situations in which a judge must disqualify himself or herself from an action or proceeding. The first six of these are susceptible of objective determination, that is, without recourse to the judge's state of mind. For example, subsection (a) requires disqualification when a judge is related to any party or counsel to a party or the spouse of any party or counsel within the third degree of kinship. The effect, if any, of such a relationship upon a judge's ability to act impartially in a case is immaterial; the very existence of the relationship creates a disqualification by law. The same type of objective determination applies to the situations described in subsections (b) through (f).

However, the seventh situation requiring disqualification set forth in sec. 757.19(2), Stats., concerns not what exists in the external world subject to objective determination, but what exists in the judge's mind. Subsection (g) requires disqualification "[w]hen a judge determines that, for any reason, he or she cannot, or it appears he or she cannot, act in an impartial manner." The determination of a basis for disqualification here is subjective.

Section 757.19(2)(g), Stats., mandates a judge's disqualification only when that judge makes a determination that, in fact or in appearance, he or she cannot act in an impartial manner. It does not require disqualification in a situation where one other than the judge objectively believes there is an appearance that the judge is unable to act in an impartial manner; neither does it require disqualification, as the State contends, in a situation in which the judge's impartiality "can reasonably be questioned" by someone other than the judge.

The State does not allege that Justice Bablitch had determined that there was an appearance of his inability to act impartially. Neither does the State allege that Justice Bablitch had determined he could not act in an impartial manner in this case. Indeed, the papers filed with the State's motion show exactly the opposite. After State of Wisconsin v. American was decided, the Judicial Commission conducted an investigation into allegations that Justice Bablitch had engaged in judicial misconduct on the basis of facts substantially the same as those presented here. Following the Judicial Commission's dismissal of...