State v. Harrell

• Decision Date: 28 March 1996
• Docket Number: No. 94-1655-CR,94-1655-CR
• Citation: 546 N.W.2d 115,199 Wis.2d 654
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Crystal HARRELL a/k/a Crystal Parker, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 115

546 N.W.2d 115

199 Wis.2d 654

STATE of Wisconsin, Plaintiff-Respondent, v. Crystal HARRELL a/k/a Crystal Parker, Defendant-Appellant.

No. 94-1655-CR.

Supreme Court of Wisconsin.

Argued Jan. 11, 1996.

Decided March 28, 1996.

Circuit Court, Dane County; Robert De Chambeau, Judge.

For the defendant-appellant there were briefs and oral argument by David D. Cook, Argyle.

For the plaintiff-respondent the cause was argued by James M. Freimuth, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General.

STEINMETZ, Justice.

The issue before us is whether, in a case tried by the district attorney's office, a circuit court judge, whose spouse is an assistant district attorney in the same county, is required to disqualify himself or herself under either Wis.Stat. § 757.19(2)(a) (1993-94), ¹--prohibiting a judge from hearing a case when a close relative is "counsel thereto" for either party--or Wis.Stat. § 757.19(2)(g), ²--prohibiting a judge from hearing a case when the judge determines he or she cannot retain his or her impartiality. We hold that neither Wis.Stat. § 757.19(2)(a) nor Wis.Stat. § 757.19(2)(g) requires a judge to disqualify himself or herself in such a situation as long as his or her spouse did not participate in, or help prepare, the case.

Crystal Parker (a/k/a Crystal Harrell) was charged with two counts of retail theft in violation of Wis.Stat. § 943.50(1m) and (4)(a). ³ Since Parker was on parole for a 1991 felony retail theft conviction in Dane County, she was charged as a repeat offender under Wis.Stat. § 939.62(1)(a). ⁴ She entered a plea of no contest to count 1 and guilty to count 2 of the complaint in Dane County Circuit Court, Judge Robert A. DeChambeau.

Parker then moved to vacate the conviction and disqualify the judge based on Judge DeChambeau's marriage to Gretchen Hayward, an Assistant District Attorney in the Dane County District Attorney's office. Judge DeChambeau denied Parker's motion for relief without a hearing and Parker appealed. The court of appeals certified the appeal to this court pursuant to Wis.Stat. § 809.61.

Wisconsin Statutes § 757.19(2) provides seven situations where it is mandatory that judges disqualify themselves from a case. In State v. American TV & Appliance, 151 Wis.2d 175, 182, 443 N.W.2d 662 (1989), we found that this subsection contains six fact- specific situations, the existence of which can be determined objectively, and one general subjective situation which is based solely upon the judge's state of mind. As to the objective situations, "the very existence of [such a] relationship creates a disqualification by law." Id. Whether the general subjective situation exists and requires disqualification, however, is based upon the judge's own determination of whether he or she may remain impartial. See id. Parker challenges Judge DeChambeau's decision on both grounds: she asserts that his spouse's position violated one of the objective situations and that it should not have been possible for him to have subjectively determined that he could remain impartial.

In order to determine the merit of Parker's claims, this court must interpret both Wis.Stat. § 757.19(2)(a) and (2)(g). Statutory interpretation is a question of law which we review de novo. See Rolo v. Goers, 174 Wis.2d 709, 715, 497 N.W.2d 724, 726 (1993). The ultimate goal of statutory interpretation is to ascertain the intent of the legislature. See id. The first step of this process is to look at the language of the statute itself. See In Interest of Jamie L., 172 Wis.2d 218, 225, 493 N.W.2d 56, 59 (1992). If the statute is ambiguous, this court must look beyond the statute's language and examine the scope, history, context, subject matter and purpose of the statute. See Rolo, 174 Wis.2d at 715, 497 N.W.2d 724.

Parker's first argument is based upon one of the objective situations, specifically, disqualification based upon consanguinity. See Wis.Stat. § 757.19(2)(a). Subsection 2(a) requires disqualification when "a judge is related to any party or counsel thereto ... within the 3rd degree of kinship." Id. Parker asserts that the language "counsel thereto" must include any member of the law firm representing a party to the suit. In the context of a government prosecutor, Parker's interpretation would include all members of the government office which was trying the case.

Parker's reading of the statute, however, is too broad. The only practical interpretation of the language "counsel thereto" as it applies to government attorneys is to restrict its scope to only the attorney of record and any other attorneys who appear or participate in the case. ⁵ It certainly does not include every government attorney who happens to be employed in the same county office or governmental department.

Although the language "counsel thereto" is clearly ambiguous, ⁶ and the legislative history not particularly helpful, ⁷ there is significant persuasive authority which supports this position. ⁸ First, the commentary to Canon 3E(1)(d)(ii) (1990) ⁹ of the ABA Model Code of Judicial Conduct, which contains similar, though not identical, language states, "[t]he fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not of itself disqualify the judge." ABA Model Code of Judicial Conduct Canon 3E(1)(d)(ii) cmt. (1990). The State Bar of Wisconsin has endorsed this reading of the ABA Code of Judicial Conduct concluding that "when a relative's associate appears as counsel the judge may not have to disqualify him/herself." State Bar of Wisconsin Standing Comm. on Professional Ethics, Memorandum Opinion 12/76-A (1990) (emphasis added).

Second, at least one state court has come to the same conclusion. The Michigan Court of Appeals interpreted a similar statute, which required disqualification if there was a relationship between the judge and "any of the attorneys or counselors for any party," to only include "the prosecuting attorney [who] appears personally...." People v. Dycus, 70 Mich.App. 734, 246 N.W.2d 326, 327 (1976). The court specifically found that the fact that a judge was related to an attorney who worked in the prosecutor's office in no way raised any "taint, or suspected taint, of bias or prejudice" in the judge in question. Id.

Finally, the special characteristics of government attorneys make it unlikely that a judge's relationship with one would affect his or her impartiality. For example, a member of a government prosecutor's office does not have the same type of interest in the outcome of a trial as does a member of a private law firm. See Advisory Committee on Judicial Activities for the Judicial Conference of the United States, Advisory Op. 38, II-104 (1974). The prosecutor has no financial interest in the outcome of the case and any reputational interest "without the financial interest, is not enough to create [even] an appearance of partiality [in the judge]." State v. Logan, 236 Kan. 79, 689 P.2d 778, 785 (1984). The thought that a judge would have an increased propensity to convict criminals because of such a relationship is equally "preposterous." People v. Moffat, 202 Ill.App.3d 43, 148 Ill.Dec. 50, 59, 560 N.E.2d 352, 361 (1990). Furthermore, a government prosecutor's sole goal is not simply to convict criminals. Discussing the United States Attorney's office, the United States Supreme Court stated that:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in criminal prosecution is not that it shall win a case, but that justice shall be done.

Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). Government prosecutors in this state hold true to similar ideals. See O'Neil v. State, 189 Wis. 259, 261, 207 N.W. 280 (1926) ("A prosecutor should not act as a partisan eager to convict, but as an officer of the court, whose duty it is to aid in arriving in the truth in every case....").

It is clear from the record that Judge DeChambeau's spouse neither actually appeared in this case nor involved herself in its preparation. In fact, according to court records, Attorney Gretchen Hayward has never appeared in court before Judge DeChambeau. As such, their relationship does not fall within the scope of Wis.Stat. § 757.19(2)(a).

Parker's second argument is based upon the subjective portion of the judicial disqualification statute. Wisconsin Statutes § 757.19(2)(g) requires disqualification when a judge determines that he or she cannot, or that it appears that he or she cannot, act impartially in a case. In American TV we stated that subsection (2)(g) concerns "not what exists in the external world ... but what exists in the judge's mind." American TV, 151 Wis.2d at 182-83, 443 N.W.2d 662. We explained:

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 ... in a situation in which the judge's impartiality 'can reasonably be questioned' by someone other than the judge.'

Id. at 183, 443 N.W.2d 662. Appellate review of this subjective determination is "limited to establishing whether the judge made a determination requiring disqualification." Id. at 186, 443 N.W.2d 662. See also City of Edgerton v. General Cas. Co., 190 Wis.2d 510, 521-22, 527 N.W.2d 305 (1995); In re Disciplinary Proc. Against Crosetto, 160 Wis.2d 581, 584, 466 N.W.2d 879 (1991). The reviewing court must objectively decide if the judge went through the required...