State v. Henley

• Decision Date: 12 July 2011
• Docket Number: No. 2008AP697–CR.,2008AP697–CR.
• Citation: 802 N.W.2d 175,2011 WI 67
• Parties: STATE of Wisconsin, Plaintiff–Appellant,v.Dimitri HENLEY, Defendant–Respondent.
• Court: Wisconsin Supreme Court

802 N.W.2d 175

2011 WI 67

STATE of Wisconsin, Plaintiff–Appellant,

v.Dimitri HENLEY, Defendant–Respondent.

No. 2008AP697–CR.

Supreme Court of Wisconsin.

Decided July 12, 2011.

ORDER ON MOTION FOR RECONSIDERATION OF THE COURT'S JULY 21, 2010 DECISION

PER CURIAM.

¶ 1 Dimitri Henley characterizes his most recent motion to this court as a motion for reconsideration of the court's July 21, 2010 decision,¹ which concluded that in circumstances such as Henley presented, circuit court judges lack the authority to grant a new trial in the interest of justice and also denied his request of this court for a new trial in the interest of justice. Henley contends that by denying him a new trial and by providing no court procedures for reviewing Justice Roggensack's decision not to recuse, ² this court has denied his right to due process under the Fourteenth Amendment to the United States Constitution.³

¶ 2 We conclude as follows: (1) Henley's motion for reconsideration meets none of the criteria for granting a motion for reconsideration and is therefore denied; (2) determining whether to recuse is the sole responsibility of the individual justice for whom disqualification from participation is sought; (3) a majority of this court does not have the power to disqualify a judicial peer from performing the constitutional functions of a Wisconsin Supreme Court justice on a case-by-case basis; and (4) Henley has received due process.

I. DISCUSSION

¶ 3 Henley styles his pending motion as a motion for reconsideration of the court's opinion issued July 21, 2010 that denied him a new trial.⁴ Internal Operating Procedures (IOP) II.J. provides the basis on which reconsideration may be granted:

A change of decision on reconsideration will ensue only when the court has overlooked controlling legal precedent or important policy considerations or has overlooked or misconstrued a controlling or significant fact appearing in the record.

¶ 4 Henley cites no controlling legal precedent, important policy consideration or controlling or significant fact of record that the court's July 21, 2010 opinion overlooked in deciding that a new trial was not warranted. Accordingly, his motion for reconsideration meets none of the criteria for granting reconsideration and therefore, it is denied.

¶ 5 Furthermore, it appears that Henley is attempting to obtain reconsideration of the court's May 24, 2010 decision that did not grant his motion to remove Justice Roggensack from participation.⁵ He contends that his right to due process was violated because Justice Roggensack's participation created an appearance of partiality, as explained in Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009). Henley cites no authority under which he may bring a motion for reconsideration of the court's decision not to disqualify Justice Roggensack.

¶ 6 His assertion assumes that four justices of this court have the power to remove a fellow justice from participating in pending matters on a case-by-case basis. This court has not squarely addressed the institutional question of whether four justices of this court have the power, on a case-by-case basis, to prevent a judicial peer from participating in a pending matter. Given Henley's motion, and the repetitive nature of motions addressed to the court that request removal of justices from pending proceedings,⁶ we address this institutional question now.⁷

¶ 7 The reader should not be misled by the dissenting opinion's attempts to characterize our decision as a ruling on whether Justice Roggensack ought to have been disqualified from participation in Henley's case. Henley's motion to the court to disqualify Justice Roggensack was not granted, and we see no reason to take it up again. Accordingly, the dissent repeatedly mischaracterizes what we decide in this opinion.⁸

¶ 8 The question decided herein is an institutional question, i.e., whether recusal may be forced upon a fellow justice on a case-by-case basis by his or her judicial peers. This question implicates constitutional functions: that of the court as an institution and those of individual justices as constitutional officers. Accordingly, we determine the institutional question of whether the court has the power ⁹ to prevent a justice from participating in pending proceedings, on a case-by-case basis.

¶ 9 Our decision on whether the court has the power to disqualify a judicial peer on a case-by-case basis does not affect one particular justice more than any other justice. By participating in this decision, no justice is sitting as a judge of his or her own cause. Rather, each justice, whether a part of the majority opinion or writing in dissent, participated in deciding this question. Full participation is appropriate because the resolution of this question affects the court as an institution, for which each justice has an equal role in judicial decision making, and it affects the function of each justice as an independent constitutional officer. Accordingly, all justices are affected equally by our determination of the scope of the court's power in this regard. See State v. Allen, 2010 WI 10, ¶ 206, 322 Wis.2d 372, 778 N.W.2d 863 (Roggensack, J.).

¶ 10 Although motions to disqualify a justice from participating in a particular case have increased dramatically since the United States Supreme Court decided Caperton,¹⁰ we have reviewed and decided challenges to individual justices' participation in particular cases prior to Caperton. On occasion, a motion to disqualify a justice has been brought before the justice participated in a pending matter, and on occasion, such a motion has been brought after that participation has occurred.

¶ 11 Furthermore, the issue presented in Caperton is not new to this state. Nearly two decades ago, in In re Disciplinary Proceedings Against Crosetto, 160 Wis.2d 581, 466 N.W.2d 879 (1991), this court decided that when presented with a motion for disqualification based on due process grounds, each justice must decide for himself or herself whether his or her disqualification was required. In Crosetto, the motion to disqualify came before the court had decided the pending matter. Crosetto alleged that each justice had a disqualifying personal interest in Crosetto's disciplinary proceeding because Crosetto had leveled personal criticisms against each justice on other occasions. Id. at 584, 466 N.W.2d 879. Crosetto based his motion on the appearance of partiality, citing the due process clauses of the federal and state constitutions, and on Wis. Stat. § 757.19(2) (1989–90), just as Henley has here. Id. at 583, 466 N.W.2d 879.

¶ 12 The court denied Crosetto's disqualification motion. In so doing, six justices of the court did not convene to decide whether the seventh justice should be prevented from participating in Crosetto's motion. Instead, each justice, individually, decided Crosetto's motion. Each justice concluded for himself or herself that he or she was impartial and that his or her participation did not create the appearance of partiality.¹¹ Id. at 584, 466 N.W.2d 879. The court explained:

The members of this court, individually, have determined that none has a significant personal interest in the outcome of this disciplinary proceeding such as would require our disqualification. Each is satisfied that his or her impartiality in this proceeding is unimpaired and, further, that our acting in this matter does not create the appearance of a lack of impartiality.Id. (emphasis added).

¶ 13 Crosetto's allegation that an appearance of partiality was sufficient to cause a denial of his right to due process under the federal and state constitutions is very similar to the motion that Henley brings before the court. Both motions were based on an underlying allegation falling within the parameters of Wis. Stat. § 757.19 (1989–90); both Crosetto's motion and Henley's motion alleged a due process violation based on the appearance of partiality; both motions were decided by the individual justice for whom disqualification was sought; and both Crosetto and Henley were provided due process by the decisions that the justices individually made.

¶ 14 In Donohoo v. Action Wisconsin, Inc., 2008 WI 110, ¶¶ 1–2, 314 Wis.2d 510, 754 N.W.2d 480, the disqualification claim was made after the court had decided the pending case. Donohoo's motion for reconsideration contended that Justice Butler should not have participated because he had received contributions to his election campaign from members of Action Wisconsin's board and from its attorney while Action Wisconsin's case was pending before this court. Id., ¶ 25. We explained the court's level of review when a party moves for disqualification of a justice in a pending case:

“Appellate review of [a justice's] subjective determination is limited to establishing whether the judge made a determination requiring disqualification. [Stated otherwise] [t]he reviewing court must objectively decide if the judge went through the required exercise of making a subjective determination.”

Id., ¶ 24 (quoting State v. Harrell, 199 Wis.2d 654, 663–64, 546 N.W.2d 115 (1996)) (internal quotation marks and citations omitted).

¶ 15 The decisions on the merits of the motions to disqualify in Donohoo and Crosetto were made first and last by the individual justice for whom disqualification was sought. They are consistent with this court's past treatment of motions to disqualify justices from pending cases. See City of Edgerton v. Gen. Cas. Co. of Wis., 190 Wis.2d 510, 521–22, 527 N.W.2d 305 (1995) (concluding that Justice Geske's declaration in open court that she would be impartial despite the type of industry that employed a family member demonstrated that she, herself, made the determination required); State v. Am. TV & Appliance of Madison, Inc., 151 Wis.2d 175, 183, 443 N.W.2d 662 (1989) (concluding that because Justice Bablitch decided for himself that he could be...