Judicial Recusals

By John DiMotto

In Wisconsin, as in all states, there are a number of circumstances when a judge must recuse himself/herself from handling a case. The issues of recusal, or disqualification of a judge, is addressed in Wisconsin Statute section 757.19.

There are 7 distinct instances that require a judge to recuse himself/herself from a case:

1) When the judge is related to any party, counsel or their spouses.

2) When a judge is a party or material witness.

3) When a judge has previously acted as counsel to any party in the same action.

4) When a judge prepared as counsel any legal document whose validity or construction is in issue.

5) When an appellate judge previously handled the case while a judge in an inferior court.

6) When a judge has a significant financial or personal interest in the outcome of the case.

7) When a judge determines that, for any reason, he/she cannot, or it appears he/she cannot act in an impartial manner.

Any disqualification that may occur under the above seven factors may be waived by the agreement of all parties and the judge after full disclosure on the record.

Of the seven factors, the seventh one is the most nebulous and a self-disqualification decision is subjective. Under the seventh one, disqualification is not required when a person other than the judge objectively believes there is an appearance that the judge is unable to act in an impartial manner.

Practically speaking, if a judge does not believe he/she can be fair, it must be disclosed and the judge should recuse himself/herself.

The issue of recusal has been in the forefront of the news in Wisconsin of late. In fact the Wisconsin Supreme Court this past week set forth a rule involving recusal and campaign contributions. It was hotly debated and the rule that passed did so 4-3. Many people, including some judges, believe that the rule that was enacted will weaken and even jeopardize the independence of the judiciary. Some people believe it sends a message that judges are "for sale" in Wisconsin. The Wisconsin rule comes the same day as the United States Supreme Court ruling in the Citizen's United case which decimated the McCain - Feingold Campaign Contribution law which sought to put some order and limits on campaign contributions in elections in general.

The issue of when a judge should recuse himself/herself revolves around what is fair.