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  • WisBar News
    July 20, 2015

    Wisconsin Supreme Court Justices Debate Judicial Recusal Law in Drunk Driving Homicide Case

    Joe Forward

    July 20, 2015 – The state supreme court has rejected claims that a sentencing judge was objectively biased in sentencing a man convicted of homicide by intoxicated use of a vehicle, although the judge noted that she lost a sister to a drunk driver in 1976.

    In State v. Herrmann, 2015 WI 84 (July 15, 2015), all seven justices agreed that La Crosse County Circuit Court Judge Ramona Gonzalez was not objectively biased when she sentenced defendant Jesse Herrmann, who was drunk when he rear-ended a car, killing one person and seriously injuring four others.

    But the supreme court was divided on whether a defendant or petitioner must show a judge was “actually biased” to prove a due process violation occurred, or whether proof showing a “serious risk of actual bias” is all that is needed. That is, the justices debated what a party must show to prove a judge had a conflict requiring recusal from the case.

    In a lead opinion, Justice Ann Walsh Bradley noted that “this court has a difficult relationship with the issue of recusal and its controlling precedent in the context of the appearance of bias,” highlighting criticism of a majority’s newly amended recusal rules.

    Bradley, joined by Justices Shirley Abrahamson and Patrick Crooks, concluded that “when determining whether a defendant’s right to an objectively impartial decisionmaker has been violated we consider the appearance of bias in addition to actual bias.”

    Justice Bradley noted that the U.S. Supreme Court – in Caperton v. A.T. Massey Coal Co. 556 U.S. 868 (2009) – applied an objective “appearance of bias” test to conclude that an elected state supreme court justice from West Virginia was required to recuse himself from a case based on campaign contributions from the CEO of a corporation that was a respondent.

    Based on Caperton and other cases, Bradley said Hermann failed to rebut a presumption that the judge acted with impartiality, despite her comments at sentencing, by failing to show that “the appearance of bias reveals a great risk of actual bias.”

     “[W]e conclude that, when viewed in context, a reasonable person would not question the court’s partiality based on these statements,” wrote Justice Bradley, noting the judge weighed many factors, including Herrmann’s prior record and the gravity of the crime.

    Justice David Prosser wrote a concurring opinion, joined by Chief Justice Patience Roggensack, highlighting the difficulty in applying an “appearance of bias” test.

    “The reality of contemporary life is that the appearance of bias can be created for a judge by someone other than the judge,” Justice Prosser wrote. “My concern with the lead opinion is its veneration of the ‘appearance of bias’ standard without providing any additional guidance as to when or how to apply this imprecise standard.”

    Justice Annette Ziegler also wrote a concurring opinion, joined by Chief Justice Roggensack and Justice Michael Gableman. They agreed that Herrmann failed to show objective bias, but said the lead opinion misstated what Herrmann was required to show.

    Justice Ziegler said a party must show actual bias, unless the case is “rare” with “extreme facts.” In those "exceptionally rare" cases, proof of a serious risk of actual bias could suffice.

    “If the test were only whether an appearance of bias existed, and nothing more extreme or exceptional were required, then this record would support the defendant’s contention that Judge Gonzalez should have recused herself,” Justice Ziegler wrote.

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