Recusal cannot be forced upon a fellow justice
by judicial peers on a case-by-case basis
A defendant argued that Justice Patience Roggensack should
have recused herself in determining whether the
defendant should get a new trial, and the absence of a review process
violated his due process rights.
By org jforward wisbar Joe Forward, Legal Writer,
State Bar of Wisconsin
July 25, 2011
– About a year ago, the Wisconsin Supreme Court ruled
4-3 that a circuit court did not have authority to grant a new trial to
a criminal defendant, convicted in 2000 for sexually assaulting a female
freshman at the University of Wisconsin-Whitewater.
After that decision, the defendant (Dimitri Henley) filed
a motion for reconsideration, arguing that Justice Patience Roggensack should not have participated in that
decision because she participated in a related case (the
co-defendant’s case) while a court of appeals judge.
As the court notes: “Henley contends that by denying him a new
trial and by providing no court procedures reviewing Justice Roggensack’s decision not to recuse, the court has denied his right to due
process under the Fourteenth Amendment to the United States Constitution.”
v. Henley, 2011 WI 67 (July 12, 2011), the supreme court issued
a per curiam opinion, denying Henley’s motion
for reconsideration and determining that recusal cannot be
forced upon a fellow justice by a majority of judicial peers.
Under In re Disciplinary Proceedings Against Crosetto, 160 Wis. 2d
581, 466 N.W.2d 879 (1991), the majority explained,
“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.”
It notes supreme court Internal Operating Procedure II.L.1, which states that the “decision of
a justice to recuse or disqualify himself or herself is that
of the justice alone.”
The court also explained that the U.S. Supreme
Court’s decision in Caperton v. A.T. Massey Coal Co. Inc., 556 U.S. __, 129 S. Ct. 2252 (2009), does not
require a different result. The Caperton court
held that a state judge was required to recuse himself after
receiving extraordinary campaign contributions from a party with a
Chief Justice Shirley Abrahamson, Justice Ann Walsh Bradley, and
Justices N. Patrick Crooks dissented, arguing that “Justice Roggensack participates in a matter reviewing
her own conduct,” and “fails to respect a bedrock principle
of law that predates the American justice system by more than a century
– ‘no man is allowed to be a judge of his own cause.
The dissenters note that Justice Roggensack did not
participate in the order for briefs on the issue of her
disqualification, did not participate in the order declaring the court
had no power to disqualify her, and withdrew from participation on a
motion to file an amicus brief.
“Acting inconsistently in deciding various issues in the
Henley case, Justice Roggensack now
participates in this per curiam decision that
addresses a motion to reconsider the Henley case,” wrote
the dissenters, who believed that the allegations in Henley's motion
justified full briefing and full consideration.
However, the per curiam opinion notes that 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.”