State v. Circuit Court For Dane Cnty.

• Decision Date: 05 July 2012
• Docket Number: 2011AP000765-W
• Citation: 2012 WI 82
• Parties: State v. Circuit Court for Dane County
• Court: Wisconsin Supreme Court

2012 WI 82

State

v.Circuit Court for Dane County

2011AP000765-W

SUPREME COURT OF WISCONSIN

Date: July 5, 2012

OFFICE OF THE CLERK

To:

Hon. Maryann Sumi

Circuit Court Judge

Dane County Courthouse

Carlo Esqueda

Clerk of Circuit Court

Steven C. Kilpatrick

Maria S. Lazar

Assistant Attorneys General

Ismael R. Ozanne

District Attorney

Roger A. Sage

Roger Sage Law Office

Lester A. Pines

Tamara Packard

Susan M. Crawford

Cullen Weston Pines & Bach LLP

Jina L. Jonen

WEAC

Madison, WI 53708-8003

Kurt C. Kobelt

Wisconsin Education Association

Kevin M. St. John

Deputy Attorney General

Robert J. Jambois

Jambois Law Office

Michael P. Screnock

Eric M. McLeod

Michael Best & Friedrich LLP

Joseph Louis Olson

Michael, Best & Friedrich, LLP

*Additional Parties listed on Page 17You are hereby notified that the Court has entered the following order:

+---------------------------------------------------------------------+
                ¦2011AP613-LV¦Ismael R. Ozanne v. Jeff Fitzgerald   ¦L.C. # 2011CV1244¦
                +------------+--------------------------------------+-----------------¦
                ¦2011AP765-W ¦State v. Circuit Court for Dane County¦L.C. # 2011CV1244¦
                +---------------------------------------------------------------------+
                

On December 30, 2011, Dane County District Attorney Ismael R. Ozanne filed a motion seeking the following:

1. Justice Michael J. Gableman individually to recuse himself from the instant case;

2. The court to issue an order disqualifying Justice Gableman from participation in the matter;

3. The court to issue an order vacating this court's June 14, 2011 Order reported at 2011 WI 43, 334 Wis. 2d 79, 798 N.W.2d 436;

4. In the alternative, the court to order oral argument on whether a claim for relief pursuant to Wis. Stat. § 806.07(1) (h) has been stated; and

5. The court to issue an order directing the Dane County Circuit Court, Judge Maryann Sumi presiding, to reinstate its prior orders nunc pro tunc to June 5, 2011.

On January 20, 2012, Justice Gableman denied the motion to recuse himself. (order attached)

On January 27, 2012, Representative Peter Barca joined the District Attorney's motion.

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 SHIRLEY S. 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) .

¶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).¹ 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.²

¶6 Today's order and the separate writing of 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 any of the typical analysis 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 court that the justice made the required 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 This court decided the collective bargaining case⁵ on June 14, 2011. On December 30, 2011, the Dane County District Attorney filed a motion directed to Justice Gableman individually to recuse himself and directed to the court to compel Justice Gableman's disqualification. The District Attorney's challenge to Justice Gableman's participation in the collective bargaining case was based on Michael Best & Friedrich LLP's representing a party in the collective bargaining case when "Justice Gableman received legal representation from[Michael Best] in a personal legal matter without any obligation to pay legal fees" (emphasis added).⁶

¶8 The District Attorney's challenge relies on Wis. Stat. § 757.19(2) (g), governing judicial disqualification, which provides as follows: "Any judge shall disqualify himself or herself from any civil or criminal action or proceeding when one of the following situations occurs: . . . (g) [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."

¶9 Justice Gableman responded to the District Attorney's challenge with an Order on January 20, 2012, refusing to disqualify himself. See attached Order. In his Order, Justice Gableman states the challenge to his participation as follows: "Respondent Ozanne brings this motion because he states that he believes that my participation in this case presents the appearance of impropriety. He states this conclusion based on the fact that the Michael Best & Friedrich firm was involved in the cases and had previously represented me."

¶10 The District Attorney then filed a supplemental memorandum of law arguing that Justice Gableman's Order ignored the very issue of partiality raised by the fee arrangement that the District Attorney had raised in his original motion. The District Attorney stated his challenge to Justice Gableman's participation in the collective bargaining case again as follows: The challenge was not based on Michael Best's representing a party in the collective bargaining case when Michael Best also represented Justice Gableman on a personal legal matter, as Justice Gableman's Order states.⁷ The District Attorney again asserted that his challenge was based on the fee arrangement.

¶11 After the District Attorney filed supplemental materials objecting to Justice Gableman's Order as not responsive to the challenge, Justice Gableman did not issue an amended or second order explaining that his subjective determination of his impartiality and ofthe appearance of impartiality encompassed consideration of all of the District Attorney's allegations, including the fee arrangement.

¶12 Yet, 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

¶13 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 determine whether Justice Gableman made the 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...