Frontsheet

¶9 SHIRLEY S. ABRAHAMSON, C.J.; ANN WALSH BRADLEY, J.; N. PATRICK CROOKS, J. Chief Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley, and Justice N. Patrick Crooks join this opinion and proposed order regarding Allen's recusal motions.[1]

¶10 When Allen's pro bono counsel first filed recusal motions on April 17, 2009, challenging Justice Gableman's participation, perhaps none would have foreseen the extent to which these motions would challenge this court, and have challenged all of us, in the months that have followed, even though recusal issues have been percolating under and above the surface for many years.[2]

¶11 On February 4, 2010, Justice Gableman withdrew from further participation in the court's consideration of Allen's recusal motions against Justice Gableman and withdrew his separate writing in this matter.

¶12 Justices Prosser, Roggensack, and Ziegler conclude that Justice Gableman need not have withdrawn from participating in deciding whether the court lacks jurisdiction (power) to consider Allen's recusal motions directed at Justice Gableman. See J. Roggensack, ¶¶196-197.

¶13 Justices Prosser, Roggensack, and Ziegler further determine (1) that this court cannot independently review a justice's decision to deny a recusal motion except to decide whether the individual justice made the determination that the motion required, although this court can and should independently review denials of recusal motions by elected judges of the circuit court and court of appeals; and (2) that Allen's recusal motions have no merit.

¶14 During the court's long, drawn-out consideration of Allen's motions for his disqualification, Justice Gableman has alternated between participating and not participating in the consideration of the recusal motions directed to the court, finally withdrawing from participation on February 4, 2010.[3]

¶15 Allen's motions to Justice Gableman individually and to the court (on due process grounds) were filed on April 17, 2009. Nearly five months later, on September 10, 2009, Justice Gableman denied the recusal motion directed to him individually in a one-sentence order that contained no explanation.[4] Thus, the recusal motion directed to the court on due process grounds was not really ripe for the court's consideration until Justice Gableman's September 10, 2009 denial of Allen's motion.

¶16 On September 21, 2009, Allen filed a supplemental motion addressed to the court, requesting the court to review whether Justice Gableman had considered, as required by Wis. Stat. § 757.19(2)(g), whether he could not or it appeared he could not act impartially.

¶17 On January 15, 2010, Justice Gableman filed a supplement to his September 10 order, this time providing a 10-paragraph explanation for his decision to deny the recusal motion directed individually to him. This supplemental order discusses the merits of Allen's allegations and concludes: "The allegations in Allen's motion are simply wrong."[5]

¶18 On October 16, 2009, Justices Prosser, Roggensack, and Ziegler issued a press release, complaining that the court should have responded to Allen's motion within 5 weeks after April 17, 2009, when Allen's recusal motion was filed. Their complaint about the process and their charges about delay ignore the obvious complexities and challenging nature of the issues presented. The recusal issue was not ripe until Justice Gableman denied the recusal motion on September 10, 2009; Justice Gableman filed a supplemental order explaining his participation in the case on January 15, 2010. Justice Gableman withdrew from participation in the court's consideration of Allen's recusal motions on February 4, 2010. It should be clear to everyone that this has been a difficult and time-consuming process for all the justices.

¶19 The writings of the three justices who do not join this opinion palpably demonstrate the difficulties they have faced in joining together with one voice to respond to Allen's recusal motions directed to the court. The three justices' writings have been a moving target, based on an ever-changing variety of rationales.

¶20 The State requested that if the court were to give plenary consideration to Allen's recusal motions——and Justices Prosser, Roggensack, and Ziegler would have you believe that they have given plenary consideration——"such consideration should come only after full briefing and argument by the parties on the matter."[6] Responding to similar motions in several other cases, the State's briefs have recognized that "the issues are potentially broad and deep, deserving of full briefing and oral argument."[7]

¶21 We agree with Allen and the State about the need for full briefing and oral argument.

¶22 The court should have ordered briefs in April 2009 when Allen filed his first motions and the State responded. The court did not. The writings today show that the court's usual way of proceeding to decide matters, with briefs and oral argument, should be followed.

¶23 Opinions of this court should not "reach out and decide issues" without the benefit of full briefing by the parties. See Dairyland Greyhound Park, Inc. v. Doyle, 2006 WI 107, ¶335, 295 Wis. 2d 1, 719 N.W.2d 408 (Roggensack, J., concurring in part and dissenting in part).

¶24 "Sound judicial decision making requires 'both a vigorous prosecution and a vigorous defense' of the issues in dispute, Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 419, 98 S.Ct. 694, 699, 54 L.Ed.2d 648 (1978), and a constitutional rule announced sua sponte is entitled to less deference than one addressed on full briefing and argument. Cf. Ladner v. United States, 358 U.S. 169, 173, 79 S.Ct. 209, 211, 3 L.Ed.2d 199 (1958)"[8]

¶25 For the reasons set forth herein, we conclude that it is not too late to order briefs and schedule oral argument on Allen's motions. Indeed, key differing approaches in the writings issued today evidence the need for additional input. We conclude that the parties should be directed to file briefs in this court on the issues raised in the writings issued today, as well as the issues raised by Allen and by the State.

¶26 Briefs would assist on four key issues:

Briefs are needed on Justices Prosser, Roggensack, and Ziegler's attempt to divide the legal questions presented into segments in a failed attempt to persuade Justice Gableman to participate on one issue (court jurisdiction) but refrain from participating on other issues in the disposition of Allen's recusal motions. (¶¶27-32)

Briefs are needed on the substantive issue of whether this court has jurisdiction (power) to decide recusal motions challenging the participation of a justice in a particular case. Justices Prosser, Roggensack, and Ziegler's arguments do not analyze jurisdiction. Rather, they are directed at policy. (¶¶33-71)

III

Briefs are needed on the question of how to protect the rights of litigants to a fair, impartial Wisconsin Supreme Court if the justices are not willing to decide recusal motions challenging the participation of a justice. (¶¶72-88)

Briefs are needed on whether the grounds upon which Allen's motions rest justify disqualifying Justice Gableman from sitting on the merits of Allen's case.(¶¶87-116)

* * * *

¶27 First, briefs are needed on the three justices' attempt to divide the legal questions presented into segments to enable a challenged justice to participate in the jurisdictional issue but refrain from participating in the disposition of the recusal motions.

¶28 Justices Prosser, Roggensack, and Ziegler try to articulate the question of the jurisdiction of this court as an abstract legal question that affects all justices equally, so that a challenged justice could participate on this issue.[9] An examination is needed into whether a decision on the court's jurisdiction to review a justice's decision to participate really affects all justices equally. We are reminded of George Orwell's Animal Farm: "All animals are equal. But some animals are more equal than others."[10]

¶29 Perhaps betraying the obvious fallacy of their claim that the question whether the court has jurisdiction to review a justice's decision to participate has an "equal affect on all justices," the three, try as they might, have been unable to address the question without offering a characterization of the specific circumstances and allegations presented in this case.[11] The allegations relate to one justice, not to the other six.

¶30 The jurisdictional question raised in Allen's motions, no matter how phrased, is tied to the challenged justice's interests. The law relating to recusal affects Justice Gableman personally and immediately. The recusal motion challenges his participation in the present case and perhaps similar cases and rests on facts similar to those forming the basis of a Judicial Commission complaint against him pending before this court. At some time, every justice (as well as every appellate, circuit court, and municipal court judge in the state) may have a recusal motion directed to him or her. All those who hold judicial office are therefore potentially affected by a decision about recusal. But we are not affected by or interested in the jurisdictional issue and in the outcome of Allen's recusal motions in the same immediate way as Justice Gableman. Justice Gableman was correct in withdrawing from participation in the court's decision on the recusal motions.

¶31 It certainly appears that any challenged justice has a personal interest in the disposition of a recusal motion directed to him or her. How can Justices Prosser, Roggensack, and Ziegler get around this fact? Shouldn't the parties brief this issue? Is there any case law on the issue?

¶32 Furthermore, Justice Roggensack cites no authority for dividing the legal questions presented in a recusal motion into segments so that a challenged justice may cast a vote on one issue (court jurisdiction), while being barred from casting a vote on other issues. As best we can tell, the court has never subdivided a single matter before the court to accommodate an interested justice who wishes to cast a vote on a legal issue. Briefs are needed on this aspect of judicial disqualification.

¶33 Second, briefs are needed on the substantive issue of whether this court has jurisdiction (power) to decide recusal motions challenging a member of the court. This jurisdictional (power) issue was posed by Justice Roggensack. It was not raised by the parties. Allen and the State assumed the court has jurisdiction (power).[12] Why shouldn't they?

¶34 This court has jurisdiction over the Allen case and therefore has jurisdiction over all issues properly presented. It is well established that all Wisconsin courts, including municipal courts, have jurisdiction over federal constitutional claims.[13]

¶35 Justice Roggensack's writing argues that "a majority of the justices on this court do not have the power to disqualify a fellow justice from participation in a proceeding before this court." J. Roggensack, ¶207. This statement appears to answer a jurisdictional question——"does the court have power to disqualify a justice?" Yet the question is then analyzed not as a matter of the court's jurisdiction (or power) but as a question of judicial policy, that is, "should the court, as a matter of judicial policy, disqualify a justice?"

¶36 Justice Roggensack in fact acknowledges that the court has jurisdiction, at least for the limited review required by Wis. Stat. § 757.19(2)(g). Beyond that, the reasons offered for a lack of jurisdiction are policy reasons, including the inability to substitute a justice of this court, the differences between justices of this court and the elected judges of the circuit courts and court of appeals, and the "deeply divided" nature of the court's current membership. J. Roggensack, ¶¶217-218 & nn.9 & 10, ¶¶226-227.

¶37 These arguments implicate judicial policy, or at most offer reasons why review of individual recusal decisions by this court might have negative consequences, and why Justices Prosser, Roggensack and Ziegler therefore choose not to provide such review. See also J. Prosser, ¶¶248, 255-257. But such analysis does not affect the jurisdiction, or power, of the court as an institution.

¶38 We discuss whether such policy concerns can outweigh a litigant's right to a fair tribunal at ¶¶72 to ¶86, after we discuss the jurisdictional (power) question below.

¶39 This court has exercised its jurisdiction to decide disqualification motions directed against individual justices at least since 1898, when it decided Case v. Hoffman, 100 Wis. 314, 72 N.W. 390 (1897), reh'g granted, 74 N.W. 220 (1898). In Case, the court had already rendered a decision. After the decision was rendered, the court was asked to decide whether the author of the opinion (who died after the decision was released) had been disqualified from participating under what is now Wis. Stat. § 757.19(2)(e), because he had previously decided the matter as a trial judge.

¶40 The Case court declared that the deceased justice had individually decided before authoring the opinion that he could participate in the case: "[C]ertain we are that he concluded that he was not disqualified . . . ."[14] Nevertheless the Case court then reviewed the deceased justice's decision regarding his ability to sit on the case and overturned the deceased justice's decision to participate, holding he had previously decided the matter as a trial judge. The result was that the judgment in which the deceased justice participated was vacated and the cause reargued. Thus in 1898 a majority of the court exercised power to disqualify a fellow justice by vacating the decision in which the justice had unlawfully participated.

¶41 The court explained Case v. Hoffman, just as we have, in State v. American TV & Appliance of Madison, Inc., 151 Wis. 2d 175, 180, 443 N.W.2d 662 (1989), as follows: "Acknowledging the certainty that Judge Newman [the deceased justice] had concluded he was not disqualified and that it was his duty to participate in the decision, the court nevertheless held that Justice Newman was legally disqualified . . . ."[15]

¶42 In Donohoo v. Action Wisconsin, Inc., 2008 WI 110, 314 Wis. 2d 510, 754 N.W.2d 480, Donohoo "assert[ed] that Justice Butler was disqualified by law pursuant to Wis. Stat. § 757.19(2)(f) because of his substantial financial and personal interest in the outcome of the case . . . ." Donohoo, 314 Wis. 2d 510, ¶14. This court applied an objective standard to the recusal motion based on § 757.19(2)(f) and after reviewing the facts concluded "that the facts alleged by Donohoo do not support a finding that Justice Butler was disqualified by law from participating in this matter." Donohoo, 314 Wis. 2d 510, ¶3. Once again the court reviewed the merits of an allegation that a justice was statutorily disqualified.

¶43 These cases demonstrate that our past review of individual justices' disqualification decisions has not been confined to a limited review of "whether that individual justice made the determination that the motion required," as Justice Roggensack asserts.[16] The reference to the determination of an individual justice applies only to Wis. Stat. § 757.19(2)(g), which is only one of the bases for disqualification and the only statutory disqualification provision that requires a judge to make a subjective determination.[17]

¶44 Furthermore, even in disqualification motions involving the subjective determination of a justice under Wis. Stat. § 757.19(2)(g),[18] the court reviews the judge's subjective determination using objective standards.[19] State v. Harrell, 199 Wis. 2d 654, 663-64, 546 N.W.2d 115 (1996).[20]

¶45 Thus, this court has provided a forum to determine whether a justice has violated an objective or subjective statutory ground of disqualification.

¶46 Inasmuch as this court provides review of a justice's recusal decision on state statutory grounds, this court cannot discriminate against a due process disqualification challenge to a justice by refusing to review the federal constitutional issue. "[T]he Federal Constitution prohibits state courts of general jurisdiction from refusing [to enforce a federal right] solely because the suit is brought under a federal law. . . . A state may not discriminate against rights arising under federal laws."[21]

¶47 Is there any guiding principle that differentiates between this court's power or jurisdiction when the disqualification challenge is based on statutory disqualification standards, whether objective or subjective, and when the challenge is based on the objective standard of the due process clauses of the federal and state constitutions? Should a litigant challenging a justice's participation on constitutional grounds be due less process from this court when he alleges that the constitution has been violated than when he alleges that our statutes have?[22]

¶48 Furthermore, in discussing the court's power over recusal motions, we should examine the court's judicial powers. The court has inherent authority to ensure "that the court functions efficiently and effectively to provide the fair administration of justice."[23] The court has stated that it "has express, inherent, implied and incidental judicial power. Judicial power extends beyond the power to adjudicate a particular controversy and encompasses the power to regulate matters related to adjudication."[24] With regard to the explicit constitutional powers of this court, our court has stated that "the judiciary's 'superintending power is as broad and as flexible as necessary to insure the due administration of justice in the courts of this state.'"[25] Moreover, the court has stated that "it was unsound jurisprudence to refuse to exercise judicial power where there was an established need for it and no explicit constitutional barrier to its exercise."[26] Don't recusal motions addressed to the court establish a need for the court to exercise its judicial power? Our colleagues are silent about the court's judicial powers.

¶49 Because this court has express, implied, incidental, and inherent powers; because the court has supervisory and administrative authority over all courts in Wisconsin, including the supreme court;[27] because this court is obligated to support the United States Constitution as the supreme law of the land;[28] because each justice is required to and does take an oath to support the federal and state constitutions;[29] because this court has inherent competency to adjudicate federal constitutional claims; because both the federal and state constitutions guarantee due process;[30] and because this court decides motions to disqualify justices and other decision makers on objective and subjective statutory grounds and due process grounds, doesn't this court have not only the power (jurisdiction) to hear a due process recusal motion but also a constitutional obligation to hear Allen's motions and to decide whether a justice of this court is disqualified on due process grounds from sitting on a case? It appears to us that the court does have such authority. Briefs would help.

¶50 Justices Prosser, Roggensack, and Ziegler want us to believe that this court does not have the power to disqualify a justice, regardless of the nature of the allegations. Yet they cite no statutory or constitutional provisions or case law, either in Wisconsin or in any other state or in the federal system, to support their assertion that the court lacks jurisdiction.

¶51 They seem to imply that litigants seeking to disqualify an allegedly partial justice on the Wisconsin Supreme Court must look only to the Wisconsin Constitution, which provides for impeachment, the next election, disciplinary proceedings, address of the legislature, or a mandatory retirement age.[31] Thus our colleagues confuse disqualifying a justice from participating in a case or a number of cases with removing a justice totally from office. Allen has not sought Justice Gableman's removal from office; he asks removal only from the present case.

¶52 Removal of a justice from office is a rare and extreme measure and is not a serious option for a litigant who has a pending case in the Wisconsin Supreme Court and seeks to be heard before a court composed only of impartial justices.[32]

¶53 Are our three colleagues concluding that the constitutional means for removing a justice are the exclusive ways of excluding a justice from participation in a case on disqualification grounds? If so, they cite no authority. Indeed, the court has summarized the cases as stating that "when a judge is removed, he must be removed by the constitutional method. [Prior cases] do not say that sanctions short of removal are constitutionally defective."[33]

¶54 Briefs are needed on whether the court has jurisdiction (power) over Allen's recusal motions under the court's express, inherent, implied, and incidental powers, and superintending and administrative authority, or whether the constitutional provisions on removal from office are exclusive, preempting the court's power to review a challenged justice's decision to participate in a case.

¶55 Our three colleagues support their stunning, counter-intuitive legal conclusion that this court lacks jurisdiction "by the past practices of this court and by the past, and current, practices of the United States Supreme Court."[34] Yet they acknowledge that "practices do not establish precedent."[35]

¶56 We have discussed the court's past practices in recusal. See ¶¶39-45. They do not support the position of the three justices.

¶57 With regard to the practices of the United States Supreme Court, Justice Roggensack offers no reasons why the practice at the United States Supreme Court, whose rules, practices, jurisdiction, and powers are different from our own, should control the practice or jurisdiction of this court.

¶58 In any event, the United States Supreme Court has not been consistent in handling motions addressed to the Court for recusal of a justice. Sometimes the Court has a docket entry statement simply denying the motion seeking recusal of a justice, with the challenged justice apparently participating in the denial.[36]

¶59 Other times the Court has a docket entry statement merely stating a denial of the motion by the challenged justice, with or without an explanation or statement by the challenged justice.[37]

¶60 A different docket entry statement was used in Cheney v. United States District Court for the District of Columbia, 541 U.S. 913 (2004). The first docket entry statement referred the motion addressed to the Court requesting Justice Scalia's recusal to Justice Scalia.[38] This seems to make clear that the court as a whole took jurisdiction over the motion in the first instance. Justice Scalia then individually denied the motion, publishing a memorandum opinion.[39] No court order was issued by the Court denying the motion.

¶61 The citation by Justices Prosser, Roggensack, and Ziegler, ¶220, to Justice Jackson's concurring statement in Jewell Ridge Coal Corp. v. Local No. 6167, 325 U.S. 897 (1945), is misguided. A concurrence by two justices lacks the authority of the Court. In fact, when the Court decided Jewell Ridge, a majority of the justices refused to adopt an order which stated that the Court was "without the authority" to disqualify an individual justice. See Appendix B, ¶¶138, 144 (citing William H. Rehnquist, The Supreme Court: How It Was, How It Is 65-67 (1987)). We examine this incident in detail in Appendix B, ¶¶140 to 148. The Jewell Ridge concurrence is of historic interest, but has no legal significance or impact on this court.

¶62 An examination of recusal practice at the United States Supreme Court reveals that even while the Court has, as a matter of tradition or general practice, left recusal decisions to individual justices, the Court appears always to have retained jurisdiction over recusal motions and maintained the authority to guarantee a fully qualified panel of justices. At least once, the members of the Court have, by majority vote, curtailed another sitting justice (Justice William O. Douglas) from participation in the court's decisions. See Appendix B, ¶¶161-162.

¶63 The parties should be invited to bring forth more information about the United States Supreme Court that may be helpful in informing this court about issues of jurisdiction and recusal practice. It would be helpful for briefs to address whether, even if the United States Supreme Court were to disavow its authority to disqualify a justice, such a pronouncement would have a controlling effect on this court's jurisdiction, which rests on Wisconsin law.[40]

¶64 Without briefs, Justices Prosser, Roggensack, and Ziegler have reached the extraordinary conclusion that this court never has power to guarantee that all members are impartial. If they truly believe this, why would they not just dismiss or deny Allen's motions, explaining the court's lack of jurisdiction?[41] But the justices do not take this course of action.

¶65 Rather, they base their decision to deny Allen's recusal motions on the substance of Allen's allegations. The three conclude that Allen's motions are "legally insufficient to state a claim cognizable under the . . . federal and state constitutions,"[42] and that "[n]o potential constitutional due process violation has been alleged here based on Justice Gableman's participation in Allen's case."[43]

¶66 Thus, Justices Prosser, Roggensack, and Ziegler have gone to extreme lengths to write on the court's jurisdiction over Allen's recusal motions addressed to the court, and then would not dispose of the motions on this basis.

¶67 We have also explored the disqualification experience of other states. Around the country and over the years, some state high courts have reviewed recusal decisions of their individual members; others have not. See Appendix C , ¶¶172-184. Recusal practice and procedure has been a matter of tradition or prudential considerations, not an espousal of a lack of jurisdiction or power. See Appendix C, ¶171 & n.39.[44]

¶68 Justices Prosser, Roggensack, and Ziegler have made no attempt to distinguish this court's supposed lack of jurisdiction (power) from the views of state supreme courts that have acknowledged that they have such jurisdiction and have exercised it. Rather than addressing or distinguishing the considerable authority that undermines their position, they simply ignore it.

¶69 Nothing we have learned thus far about the recusal practices of other state supreme courts provides a reason for this court to divest itself of an important aspect of its established jurisdiction or to depart from its established practice of providing review of an individual justice's decision not to disqualify himself or herself, especially when a constitutional claim is argued. In the wake of continuing concern about whether elected judges can be impartial, now is hardly the time to lessen our protections for impartial tribunals.

¶70 In sum, the writings of Justice Prosser, Justice Roggensack, and Justice Ziegler on the court's jurisdiction over recusal motions appear to have three major flaws (among others): They assert that a challenged justice has no personal interest in deciding the issue of the court's jurisdiction. Their writings have no support in the law. Their writings on the court's jurisdiction (power) are not determinative of the issues presented by Allen's recusal motions.

¶71 Briefs from adversarial parties are needed on the issue of the court's jurisdiction to review a challenged individual justice's decision to participate in a case.

III

¶72 Third, we turn to the implications of a decision that the court must not exercise jurisdiction over recusal motions addressed to it. Briefs are needed on how to protect the rights of litigants to a fair, impartial Wisconsin Supreme Court when the justices are not willing, as a matter of policy, to decide recusal motions challenging the participation of a justice in a particular case. Allen and the State have assumed that the rights of litigants to an impartial tribunal trump the court's discomfort or anxiety about the consequences of judging one of its own.

¶73 A motion challenging a justice's disqualification is disquieting to the challenged justice and to the other justices. Any question related personally to a fellow justice, whether recusal or violation of the Code of Judicial Conduct, "is not only a serious one, but is also an unwelcome and a delicate one to his associates. . . . But, unwelcome as the question is, it must be met, and it must be met squarely, and with a single desire to ascertain and administer the law as it is."[45]

¶74 Recusal motions against a colleague and proposed rules about recusal pose significant personal and legal difficulties for all the justices. These difficulties are exacerbated in the present case by the Judicial Commission's pending action against Justice Gableman for violation of the Code of Judicial Conduct. The allegations in that matter share some factual basis with Allen's allegations for disqualification in the present order.

¶75 Words cannot and do not fully capture our feelings of disquiet when we are asked to sit in judgment of a peer, knowing that we have worked with that justice and will continue to work with that justice for years to come. We shall see the justice at every oral argument, court opinion decision conference, petition for review conference, ceremony to admit lawyers, rules hearing, open administrative conference, judicial conference, educational seminar, and other court and non-court functions.

¶76 Despite the disquiet that a motion challenging a justice's disqualification causes, this court has stated that when a "movant has questioned the integrity of a justice of this court and hence the integrity of a decision of the court . . . [i]t behooves the court in the defense of its own legitimacy and of its integrity to consider such claims."[46]

¶77 Yet Justices Prosser, Roggensack, and Ziegler appear to conclude that policy reasons such as collegiality and public perception justify the court's not deciding recusal motions challenging a member of the court.[47] The three justices seem to believe that independent review by the court of an individual justice's recusal decision might exacerbate the public perception that members of the court are biased or result in an increased volume of recusal motions. See J. Prosser, ¶255.[48]

¶78 Justice Prosser suggests at ¶256 that the court should have denied Allen's motion "quickly, without comment," to avoid "exposing controversy within the court." We think otherwise. We believe that a hallmark of our courts in Anglo-American jurisprudence is that a court explains its decision. A court should be transparent and accountable by giving reasons for its decisions, reasons that can be evaluated and used to inform future decisions by the litigants, reviewing courts, and the public.

¶79 "An unreasoned decision has very little claim to acceptance by the defeated party, and is difficult or impossible to accept as an act reflecting systematic application of legal principles. Moreover, the necessity of stating reasons not infrequently changes the results by forcing the judges to come to grips with nettlesome facts or issues which their normal instincts would otherwise cause them to avoid."[49]

¶80 Do Justices Prosser, Roggensack, and Ziegler truly believe that any public perception of this court will be improved if this court places any challenged justice's individual decision of impartiality beyond any form of meaningful review?

¶81 In the Kading case upholding the court's power to impose a Code of Judicial Conduct for judges, the court explained that the Code was "a response to the compelling need to maintain public confidence in the judiciary. . . .' [N]othing tends to bring courts or the administration of justice into disrespect more than the spectacle of a prejudiced judge sitting in judgment upon the rights of litigants. A lack of confidence in the integrity of courts rocks the very foundations of organized society, promotes unrest and dissatisfaction, and even encourages revolution.'"[50]

¶82 Would it not command greater public respect and confidence if the court read briefs and heard arguments on Allen's recusal motions, analyzed the facts and applied the law in a full opinion, as we would in review of allegations asserted against any judge of any another court in the state?

¶83 If the court itself is not willing to decide due process issues of disqualification of a justice because of judicial policy reasons, then is it not incumbent on the court to establish a procedure for an impartial state tribunal to decide recusal motions challenging a justice of this court? The court can do it. The court has inherent power "to promulgate rules . . . and the power to provide process where none exists."[51] Briefs and full consideration of alternative processes available to this court for deciding recusal motions challenging a justice are needed.

¶84 As a practical matter, Justices Prosser, Roggensack, and Ziegler are implicitly telling all litigants in Wisconsin that they need to go to the federal courts to seek relief from a Wisconsin justice who they believe is biased. If Justices Prosser, Roggensack, and Ziegler believe that the court should not review an individual justice's decision to participate in a case on policy grounds, is it good judicial policy to close the Wisconsin courthouse doors and force litigants into the federal courts?

¶85 Federal review is not easy for a litigant. It involves more costs and more delay. Litigants challenging state court recusal decisions may go to federal district court using an application for a writ of habeas corpus, or bringing a suit under 42 U.S.C. § 1983.[52] Or they can seek review in the United States Supreme Court by way of a petition for certiorari. There is only a 1.1% chance of the United States Supreme Court granting such a petition.[53]

¶86 Justices Prosser, Roggensack, and Ziegler appear fixated on the recusal motions from their perspective as members of the court and from the perspective of a challenged justice.[54] They appear totally insensitive to the due process rights of litigants and the interests of the people of Wisconsin in a fair, impartial Wisconsin Supreme Court.[55]

¶87 Fourth, briefs are needed on whether the grounds upon which Allen's motions rest justify disqualifying Justice Gableman.

¶88 One of the grounds upon which Allen's motions challenging Justice Gableman's participation rest is due process——the guarantee of a fair trial in a fair tribunal——as most recently addressed by the United States Supreme Court in Caperton v. A.T. Massey Coal Co., Inc., ___ U.S. ___, 129 S. Ct. 2252 (2009). According to Caperton, 129 S. Ct. at 2263, "the Due Process Clause has been implemented by objective standards that do not require proof of actual bias." A litigant may be denied due process when "there is a serious risk of actual bias——based on objective and reasonable perceptions . . . ." Caperton, 129 S. Ct. at 2263; See J. Crooks, ¶188.

¶89 Our three colleagues give Caperton short shrift——two brief paragraphs. They announce at ¶222 that "Caperton has no relevance here." They devote a single brief paragraph to Caperton at ¶238. Our colleagues just don't seem to get it.[56] All state courts are bound by the teachings of Caperton, and Caperton is generally viewed as a major case involving more than campaign contributions and affecting court practice across the country.[57] Without significant analysis, our colleagues seem to treat Caperton as merely an outlier rather than an important statement about the constitutional requirement of fair tribunals. How should the principles articulated in Caperton be applied in different factual settings? Answering this question is no easy task, but briefs, argument, and serious deliberation would greatly assist us in interpreting and applying Caperton.

¶90 State supreme courts, other than Michigan, have not yet begun to address the ramifications of Caperton.

¶91 Recently, the Michigan Supreme Court abandoned its past practice that individual justices alone respond to motions to recuse, without review.[58] In November 2009, the Michigan court adopted a rule stating that if a justice's participation in a case is challenged, the challenged justice shall decide the issue and publish his or her reasoning for the decision. If the challenged justice denies the motion for disqualification, then upon a party's motion to the court the entire court shall decide the motion for disqualification and explain the reasons for its grant or denial of the motion for disqualification.[59]

¶92 Adoption of this rule followed years of acrimonious dispute among the justices. Following the Caperton decision, former Michigan Chief Justice Clifford Taylor declared that "Caperton has to mean that the challenged justice can't make the recusal decision alone."[60]

¶93 Caperton explicitly announced the need for objective review to recusal challenges to a judge. A judge's own inquiry into actual bias is not adequate for due process purposes. Caperton, 129 S. Ct. at 2265, declares that "[t]he failure to consider objective standards requiring recusal is not consistent with the imperatives of due process." Protection is needed, according to Caperton, against a judge making his own recusal decision because an appellate court cannot easily superintend or review a judge's subjective determination. Caperton, 129 S. Ct. at 2263.[61] Indeed, when the challenged justice in the Caperton case explained his individual decision not to recuse himself, he acknowledged that the court retained "authority under Aetna [Life Ins. Co. v Lavoie, 475 U.S. 813, 821-22 (1986)] to remove me from the case," but that the court had not exercised this authority. Caperton v. A.T. Massey Coal Co., 679 S.E.2d 223, 301 (W. Va. 2008) (Benjamin, C.J., concurring). Presumably if the West Virginia court had been willing to keep its own house in order, no due process violation would have occurred and review by the United States Supreme Court would not have been necessary.

¶94 So how do the three justices, Justices Prosser, Roggensack, and Ziegler, review Justice Gableman's individual decision to participate in the present case? They act contrary to the dictates of Caperton that a judge's own inquiry is not adequate for due process. Our three colleagues expressly limit their review to "establishing whether the judge made a determination requiring disqualification."[62] They state that they will not "address whether [Justice Gableman] correctly or incorrectly decided the [disqualification] issues presented [to him]."[63]

¶95 Asking the justice whose impartiality has been challenged to provide the only and final word as to whether he or she is in fact impartial makes little sense. That an independent judge is to decide matters presented to a tribunal is central to our normal concepts of due process.[64] See J. Crooks, ¶190.

¶96 Commentators have variously described a lack of independent review of a judge's decision on a recusal challenge as "one of the most heavily criticized features of U.S. disqualification law,"[65] a "Catch-22"[66] and akin to having a student "grade his own paper."[67]

¶97 All the justices agree that a recusal motion should go to the individual justice in the first instance. The only cases at issue here are those in which a justice determines that he or she is unbiased, but a litigant believes otherwise and seeks court review. The judge's own self-affirmations provide no serious reassurance to the litigant, and little protection for the values of uniformity, public confidence, and error-correction.

¶98 Nevertheless, Justices Prosser, Roggensack, and Ziegler ignore these values and Caperton. Does their reasoning demonstrate a disconnect between this court's interpretation of § 757.19(2)(g) as a subjective standard and the objective standard recognized in Caperton? Justice Crooks' concurrence explains, ¶192, that we cannot ignore the ramifications of Caperton on our interpretation of Wis. Stat. § 757.19 and on recusal law in Wisconsin. A proper interpretation of the statute could avoid the need to reach constitutional questions.[68] Briefs are needed on the interplay of Caperton and § 757.19, the statute mandating disqualification.

¶99 In the views of Justices Prosser, Roggensack, and Ziegler, the procedural guarantee of independent review of a judge's impartiality applies to all decision makers except the seven justices of this court, where the legal issues may be most challenging and the stakes the highest.

¶100 Turning to the need for briefs on the merits of Allen's allegations, three justices, Justices Prosser, Roggensack, and Ziegler, conclude at ¶231 that "Allen's allegations do not even begin to approach a due process violation."[69] We do not decide whether Allen's allegations would be successful. This issue should be briefed and argued.

¶101 On the basis of the parties' motions and memoranda, we can only conclude that the allegations are sufficient to justify briefs, oral argument, and full consideration.

¶102 Allegations of bias in favor of prosecutors and against criminal defense counsel and against criminal defendants are cognizable grounds for a motion to the court to disqualify a judge. Cases have so held.[70]

¶103 United States Supreme Court Justice John Paul Stevens has written that "[a] campaign promise to 'be tough on crime,' or 'to enforce the death penalty,' is evidence of bias that should disqualify a candidate from sitting in criminal cases."[71]

¶104 Chief Justice Roberts in dissent in Caperton, 129 S. Ct. at 2269, queried: "If the supporter wants to help elect judges who are 'tough on crime,' must the judge recuse in all criminal cases?"[72]

¶105 Judge Posner, writing for the United States Court of Appeals for the Seventh Circuit, ruled on whether a trial in Milwaukee County Circuit Court, with Judge Christ T. Seraphim presiding, was a trial by a biased tribunal violating the defendant's federal constitutional rights.[73] The issue was whether Judge Seraphim's antipathy towards defense counsel for raising legal issues on behalf of his client constituted bias or the appearance of bias against the defendant.

¶106 The federal court described Judge Seraphim's attitude toward the role of the defense counsel in that case as follows: Judge Seraphim "indicated that good behavior [by the defendant's counsel] meant not just avoiding unethical conduct but also not pressing too hard, even well within ethical boundaries, in favor of an obviously guilty defendant."[74]

¶107 Judge Posner explained that he was not sure that Judge Seraphim was actually biased against the defendant but that "[i]n judging the fairness of a trial it is sometimes helpful to adopt the vantage point of the defendant and ask whether a rational albeit criminal individual could be persuaded that he had had a fair trial . . . ."[75] From the vantage point of the defendant, according to the court of appeals, "[t]he appearance was of a judge who had made up his mind at the start that the defendant was guilty . . . ."[76]

¶108 The federal court of appeals ordered the defendant released unless the State brought the defendant to trial within 120 days.

¶109 Broadly speaking, Allen's allegations against Justice Gableman are that the Justice believes defense counsel should not claim statutory or constitutional rights for a guilty client or perhaps a certain type of guilty client.[77] This allegation is similar to Judge Seraphim's implying he was angry at the lawyer "because the client was unworthy of the protracted efforts that the lawyer was making on his behalf."[78]

¶110 The recusal motions in the present case are not, as Justices Prosser, Roggensack, and Ziegler would have us believe, merely limited "at [their] heart . . . [to a] judicial candidate's announced concerns for issues bearing on law enforcement." J. Roggensack, ¶231. The grounds for the recusal motions in the present case, it can be argued, may be characterized in the same way that Judge Posner characterized Judge Seraphim's conduct in the Walberg case, namely as a judge's view towards the function of defense counsel constituting bias or the appearance of bias against a defendant.[79]

¶111 Justices Prosser, Roggensack, and Ziegler (¶¶199, 238) conclude that Allen's factual allegations cannot support a cognizable due process claim. They criticize Allen's motion for not offering documentation of "the manner in which Justice Gableman has treated defendants who have appeared in criminal proceedings in courts over which Justice Gableman has presided." They themselves supplement the record, ¶¶245-246. If we had briefs, the parties might bring forth documentation and argue whether the proof the three justices offer relates to matters at issue here.

¶112 In State v. Sveum, defense counsel argues that Justice Gableman has an unbroken record of siding with the State in criminal cases in this court.[80] Briefs and arguments might debate the accuracy and relevance of this argument.

¶113 The question for this court may ultimately revolve around determining when "tough on crime" judicial electioneering risks depriving a criminal defendant of the constitutional right to an unbiased judge. Not an easy question, but an important one. The role of this court should be to face and decide this challenging and recurring issue, not to avoid it. Briefs would help.

¶114 Furthermore, the grounds for the recusal motions in the present case can also be characterized as stating "extreme facts," see J. Ziegler, passim, although there is a question whether "extreme facts" is the appropriate standard. We need briefs and oral argument to explore the correct due process standard and to then demonstrate how that standard should be applied to the facts of the case.

¶115 Justice Crooks at ¶¶189 and 191 highlights the highly unusual allegations and circumstances in the instant case. We comment, as did the United States Supreme Court in Caperton, that we know of no other case in Wisconsin or elsewhere that presents similar facts:

A. A campaign television ad by Justice Gableman's campaign characterizing a "loophole" his opponent found as a public defender in a criminal case. The ad is the subject of a pending charge by the Wisconsin Judicial Commission against Justice Gableman as a violation of the Code of Judicial Conduct, SCR 60.06(3)(c).[81]

B. The Report of the Judicial Conduct Panel (three judges) on the Judicial Commission's complaint against Justice Gableman, in which the majority of the panel found no violation. One judge on the panel criticizes the television ad as having a misleading implication and as showing disdain for the role of criminal defense counsel. Another judge concludes that the ad was a statement that misrepresented a fact in violation of SCR 60.06(3)(c).[82]

C. The comments of Justice Gableman's counsel at the hearing before the Judicial Conduct Panel and at a meeting with media, demeaning the role of criminal defense attorneys.[83]

D. The Board of Governors of the State Bar of Wisconsin's unanimous Public Policy Position regarding the constitutional right of criminal defendants to effective legal assistance, apparently in response to the campaign ad at issue and comments by Justice Gableman's counsel.[84]

¶116 Even if this were an easy case on the merits of the allegations, and it is not, and even if one supposes that Allen's motions would fail to move the court in the final analysis, the court should still take up and decide the matter in a manner that provides guidance for judges and litigants in future cases. This case presents an opportunity for this court to begin to develop a sorely needed jurisprudence of judicial disqualification. We are persuaded that the court needs briefs and oral argument to help the court decide as the State puts it, the potentially "broad and deep" issues presented.

* * * *

¶117 Justices Prosser, Roggensack, and Ziegler conclude that Justice Gableman need not have withdrawn from participating in deciding whether the court lacks jurisdiction to consider Allen's recusal motions directed at Justice Gableman. See J. Roggensack, ¶¶196-197.

¶118 Justices Prosser, Roggensack, and Ziegler further determine (1) that this court cannot independently review a justice's decision to deny a recusal motion except to decide whether the individual justice made the determination that the motion required, although this court can and should independently review denials of recusal motions by elected judges of the circuit court and court of appeals; and (2) that Allen's recusal motions have no merit.

¶119 The writings by Justices Prosser, Roggensack, and Ziegler make false accusations and stretch, misconstrue, or omit relevant law. Even with such an effort, the writings are inconsistent and incoherent. It is evident that the three justices joining have had to cobble together their disparate views on three questions: (1) whether the court has jurisdiction (power) to disqualify a justice for any reason at all; (2) whether as a matter of policy the court should ever exercise such jurisdiction (or power) to disqualify a justice for any reason; and (3) whether the grounds stated in these recusal motions have merit justifying recusal. Because the justices fuse and obfuscate distinctions between jurisdiction, policy, and the merits of Allen's allegations, their writings do not cogently or convincingly answer any of these three issues. Either they miss these distinctions or hope that the reader will miss them.

¶120 Allen's recusal motions have spawned a cottage industry that has occupied the court,[85] not always constructively.[86] We are concerned that because the issues raised by Allen's recusal motions have not been handled in an open, transparent, comprehensive manner, today's numerous writings will generate a new series of unintended consequences.

¶121 We have described some of the subject areas upon which briefs are needed. There are other areas too.[87]

¶122 We have had to explore many of these subjects in the legal literature without the assistance of briefs and fully focused arguments. We offer the results of our research in the Appendices, as set forth in the margin.[88]

¶123 In sum, disqualification of judges is an issue of immediate significance and law development, especially as a result of the United States Supreme Court's decision in Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252 (2009). United States Supreme Court Chief Justice Roberts identified in dissent at least forty "fundamental questions" that "courts will now have to determine."[89] This court's recently rescinded and re-adopted amendment to the rules for judicial disqualification based solely on campaign contributions further highlights the need for our sound deliberation and guidance on the challenging and emotionally fraught issues surrounding judicial disqualification.

¶124 Unwarranted recusal motions, like any unwarranted court proceeding, should not be condoned. "A tension exists between the public's right to a judge who is impartial and has the appearance of impartiality on the one hand and the need to ensure that the law of disqualification is not abused by litigants and attorneys for purposes of delay or judge shopping. The law of disqualification attempts to ensure that a balance between these policy considerations is achieved."[90]

¶125 Our decisions on recusal motions should strike such a balance and provide workable guidance for future cases and should assure the public that the court is committed to providing a fair, impartial Wisconsin supreme court. Briefing and argument will help assure that we meet these goals.

¶126 Our proposed order, which garners only three votes, would read as follows:

IT IS ORDERED that within 30 days after the date of this decision Allen must file a brief in this court addressing the issues raised herein and in his motions; that within 20 days of filing the State must file either a brief or a statement that no brief will be filed; and that if a brief is filed by the State, within 10 days of the State's filing Allen must file either a reply brief or a statement that no reply brief will be filed.

¶127 For the reasons set forth, we would order briefs and oral argument on Allen's recusal motions against Justice Gableman addressed to the court.

APPENDIX A. Unresolved Recusal Issues: The National Union Fire Insurance and Crosetto Cases

¶128 Two writings from 1990 and 1991 relate to recusal issues which have not been resolved and which still trouble the court.

¶129 In National Union Fire Insurance Co. v. Circuit Court for St. Croix County, No. 90-0935-W, unpublished order (Wis. S. Ct. May 29, 1990), the circuit court judge granted the opposing party's motion for a new trial. The insurance company moved for recusal under Wis. Stat. § 757.19(2)(g), arguing that the judge had shown bias and prejudice against the insurance company's insured and its counsel. When the judge declined to recuse himself, the insurance company petitioned for a supervisory writ from this court as a remedy. The court denied the petition, offering no rationale. Then-Justice Abrahamson dissented. The reasons stated in the dissent are hauntingly relevant now.

¶130 The full text of Justice Abrahamson's dissent follows:

The petition in this case goes to the heart of the judicial system——the right to a fair trial before an impartial judge. The National Union Fire Insurance Company alleges, rightly or wrongly, that the circuit court judge's self-declaration of impartiality is not supported by the record and that the judge's recusal is required by law. I believe that this court owes the petitioner, the legal community and the public more than a cryptic order denying the petition without any explanation. I believe that the court ought to decide the merits of the Insurance Company's petition in this case and should provide guidance to the circuit judges on the issue of disqualification. I would therefore order a response.

The facts giving rise to this petition are undisputed. After a jury verdict in favor of National Union Fire Insurance Company (here the Insurance Company), the circuit court granted the opposing party's motion for a new trial. The Insurance Company then requested, pursuant to sec. 757.19(2)(g), Stats. 1987-88, that the circuit judge recuse himself from any further proceedings in the case because he had evinced bias and prejudice against the Insurance Company's insured and its counsel. The circuit judge reviewed the record and determined that he was able to be impartial at the new trial.

On April 17, 1990, the Insurance Company petitioned the court of appeals for a supervisory writ prohibiting the circuit judge from presiding over the new trial. On April 18, 1990, the court of appeals denied the order apparently on the ground that a petition for a supervisory writ was not the proper procedure; rather, the Insurance Company would have to challenge the circuit judge's denial of the recusal motion on appeal from the judgment entered after the new trial. Pursuant to sec. 809.71, the Insurance Company now petitions this court for a supervisory writ prohibiting the circuit judge from presiding at the new trial.

II.

The first issue is whether the Insurance Company may seek review of a denial of a recusal motion by supervisory writ. Commentators and courts who have considered the procedure for review of a judge's denial of a recusal motion have concluded that a petition for a supervisory writ of prohibition or mandamus, rather than appeal, is the recommended procedure.^N1

^N1 Several federal courts of appeals have recommended this procedure. "The less technical, more modern, and probably more widely held view is that mandamus is available. . . . " Stempel, Rehnquist, Recusal, and Reform, 52 Bklyn. L. Rev. 589, 637 (1987). See also Moore, Appellate Review of Judicial Disqualification Decisions in the Federal Courts, 35 Hastings L.J. 829 (1984); Hjemfelt, Statutory Disqualification of Federal Judges, 30 Kansas L. Rev. 255, 262-63 (1982); Leubsdorf, Theories of Judging and Judge Disqualification, 62 N.Y.U. L. Rev. 237, 275-76 (19787) [sic]; Fall, Liljeberg v. Health Services Acquisition Corp.: The Supreme Court Encourages Disqualification of Federal Judges Under Section 455(a), 1989 Wis. L. Rev. 1033, 1041; Comment, Questioning the Impartiality of Judges: Disqualifying Federal District Court Judges Under 28 U.S.C. § 455(a), 60 Temple L. Q. 697, 730-35 (1987); Note, Judicial Disqualification in the Federal Courts: A Proposal to Conform Provisions to Underlying Policies, 67 Iowa L. Rev. 525, 543-44 (1982).

In any event, as an alternative procedure the Insurance Company also sought leave to appeal a non-final order as an alternative procedure in the court of appeals.

The United States Supreme Court has declared review by appeal after trial inadequate. In Berger v. United States, 255 U.S. 22, 36 (1921), the Court stated:

"The remedy by appeal is inadequate. It comes after the trial, and if prejudice exists, it has worked its evil, and a judgement of it in a reviewing tribunal is precarious. It goes there fortified by presumptions, and nothing can be more elusive of estimate or a decision than a disposition of mind in which there is a personal judgment."

Because the judge deciding judicial disqualification in the first instance is the very judge who is charged with being partial, prompt review by an appellate court before trial when possible is especially important to preserve the integrity of the trial, to foster public confidence in the judicial system, and to avoid the subtle, subconscious pressure on an appellate court to uphold a judgment rendered after trial.

I conclude that the Insurance Company's petition for a writ of prohibition is the proper procedure to seek review in the court of appeals and in this court of a circuit court judge's denial of a motion to recuse.

III.

The law of judicial recusal cannot be found in a single statute, court rule or case. It is found in several places. The judge and the reviewing court must consider whether judicial disqualification is required by statute. Sec. 751.19, Stats. 1987-88, is, however, only the beginning. [footnote to text of Wis. Stat. § 757.19 omitted] Other statutes may come into play. Furthermore our case law dictates that judges and reviewing courts must also consider the Code of Judicial Ethics, the Fourteenth Amendment's due process clause, and the common law doctrine of fair trial. And this court might also review a judge's denial of a recusal motion under its superintending power. Each of these sources of the law of disqualification——and the listing is probably not complete——may have a significant impact on resolution of the case at bar.

A tension exists between the public's right to a judge who is impartial and has the appearance of impartiality on the one hand and the need to ensure that the law of disqualification is not abused by litigants and attorneys for purposes of delay or judge shopping. The law of disqualification attempts to ensure that a balance between these policy considerations is achieved.

Statutory Grounds for Judicial Disqualification. When a motion for recusal is made, both the judge and the reviewing court should look to the statutes to determine whether the motion should be granted. Sec. 751.19, Stats. 1987-88, provides, inter alia, that "any judge shall disqualify himself or herself . . . when a judge determines that, for any reason, he or she cannot, or it appears he or she cannot, act in an impartial manner." Sec. 751.19(2)(g). In State v. American TV & Appliance, 151 Wis. 2d 175, 183, 443 N.W.2d 662 (1989) (Abrahamson, J. not participating), this court interpreted sec. 751.19(2)(g) as adopting a subjective test for impartiality and appearance of impartiality: a justice's (or judge's) determination that he or she is impartial or that there is no appearance of partiality cannot be challenged by the parties or a reviewing court. In this case the circuit judge has decided he is not biased against the Insurance Company. I cannot determine from the order of either the court of appeals or this court whether the denial of the petition in the instant case is based on the reasoning of American TV.

Congress and the commentators are critical of the subjective test. It does not protect litigants adequately. In 1874 Congress adopted an objective test for disqualification of federal judges "to promote public confidence in the impartiality of the judicial process by saying, in effect, if there is a reasonable factual basis for doubting the judge's impartiality, he should disqualify himself and let another judge preside over the case." H.R. Rep. No 1453, 93d Cong., 2d Sess. 2, reprinted in 1974 U.S. Code Cong. & Ad. News 6351, 6355.

The court's adoption of the subjective test in American TV has significantly reduced the effectiveness of sec. 751.19(2)(g). The legislature or the court (under its rule-making power) [footnote to Wis. Stat. § 751.12 (1987-88) omitted] should amend sec. 751.19(2)(g) to establish, in addition to the subjective test, an objective test: A judge or justice should also disqualify himself or herself in any proceeding in which his or her impartiality or appearance of impartiality might reasonably be questioned. With the hope that a change will be proposed, I call this matter to the attention of the Revisor of Statutes and the Law Revision Committee, secs. 13.83(1)(c), 13.93(2)(d), Stats. 1987-88, the Judicial Council, the State Bar of Wisconsin and other interested persons.

Code of Judicial Ethics. The Code of Judicial Ethics sets forth a subjective and an objective test to determine a judge's impartiality. Code of Judicial Ethics, 36 Wis. 2d 252, 256, Standard 3 (1967). The subjective test is based on the judge's own determination of his or her impartiality. Under the objective test the judge or reviewing court must determine whether a reasonable person on these facts would conclude that the judge is partial or that there is an appearance of partiality.

In State v. Walberg, 109 Wis. 2d 96, 105-06, 325 N.W.2d 687 (1982), and State v. Asfoor, 75 Wis. 2d 411, 436, 249 N.W.2d 529 (1977), the court applied the Code and concluded that the subjective and objective tests are to be used to determine whether a circuit judge should be disqualified from sitting.

The American TV decision may cast doubt on the applicability of the two tests and of the applicability of Standard 3 of the Code of Judicial Ethics in cases where a litigant challenges the judge's denial of the recusal motion in an appellate court. The court wrote in American TV that "the Code of Judicial Ethics governs the ethical conduct of judges; it has no effect on their qualification or disqualification to act and a judge may be disciplined for conduct that would not have required disqualification under sec. 757.19, Stats." 151 Wis. 2d at 185.

Any conflict or confusion in our cases might be clarified in this case or by legislative amendment to the statutes or by court amendment to the Supreme Court Rules. SCR ch. 60 sets forth the Code of Judicial Ethics.

Due Process. A third source of law that must be considered on any challenge of judicial partiality is the federal and state constitutions. The due process clause guarantees the right to a neutral and detached judge. See Aetna Life Insurance Co. v. LaVoie, 475 U.S. 813 (1986); Liljeberg v. Health Services Acquisition Corp., [486 U.S. 847], 108 S. Ct. 2194 (1988); State v. Walberg, supra, 109 Wis. 2d at 105; Guthrie v. W.E.R.C., 111 Wis. 2d 447, 454, 331 N.W.2d 331 (1983). The United States Supreme Court has stressed that fairness requires not only "an absence of actual bias in the trial of cases" but also "'the appearance of justice.'" In re Murchison, 349 U.S. 133, 136 (1955). See also Guthrie, supra.

Common Law. A fourth source of law that has bearing on judicial disqualification is the common law. This court has recognized the existence of a common law philosophy or position with respect to disqualification that applies along with the statutory provisions for disqualification. Guthrie v. W.E.R.C., supra, 111 Wis. 2d at 456.

Superintending Power. The fifth basis this court may use for disqualifying a judge is its "superintending authority over all courts." Wis. Const. art. VII, sec. 3(1). The constitutional grant of superintending control over all courts and judges vests in this court an independent and separate jurisdiction to adopt measures necessary for the due administration of justice in the state, including assuring litigants a fair trial. See Wickhem, The Power of Superintending Control of the Wisconsin Supreme Court, 1941 Wis. L. Rev. 153 (1941); State v. Holmes, 106 Wis. 2d 31, 44, 315 N.W.2d 703 (1982); In re Hon. Charles E. Kading, 70 Wis. 2d 508, 520, 235 N.W.2d 409, 238 N.W.2d 63, 239 N.W.2d 297 (1975).

This list of laws applicable to disqualification is not all inclusive. Litigants may be able to cite other sources of law which the judge and a reviewing court should consider.^N4

^N4 For discussion of judicial disqualification in addition to those cited elsewhere herein, see also J. Shaman, S. Lubet, and J. Alfini, Judicial Conduct and Ethics ch. 5 (1990); L. Abramson, Judicial Disqualification under Canon 3C of the Code of Judicial Conduct (American Judicature Society 1986); Bloom, Judicial Bias and Financial Interest as Grounds for Disqualification of Federal Judges, 35 Case W. Res. L. Rev. 662, (1985); Rieger, The Judicial Councils Reform and Judicial Conduct and Disability Act: Will Judges Judge Judges?, 37 Emory L. J. 45 (1988); Weinstein, The Limited Power of the Federal Courts of Appeals to Order a Case Reassigned to Another District Judge, 120 Fed. Rules Dec. 267 (1988); Symposium, Judicial Ethics, 35 L. & Contemp. Prob. 1 (1970); Kilgarlin and Bruch, Disqualification and Recusal of Judges, 17 St. Mary's L.J. 599 (1986); Sparks, Judicial Recusal: Rule 18 a, 12 St. Mary's L.J. 723 (1981); Lewis, Systematic [sic] Due Process: Procedural Concepts and the Problem of Recusal, 38 U. Kansas L. Rev. 381 (1990); Burbank, Procedural Rulemaking under the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, 131 U. Pa. L. Rev. 283 (1982); Frank, Disqualification of Judges, 56 Yale L. J. 605 (1947); Note, Disqualification of Judges for Bias in the Federal Courts, 79 Harv. L. Rev. 1435 (1966); Note, State v. Fie: Determining the Proper Standard for Recusal of Judges in North Carolina, 65 N.C. L. Rev. 1138 (1987); Note, A District Judge Must Request a Visiting Judge to Hear any Motion to Disqualify Him, 20 S. Tex. L. J. 395 (1980); Note, Disqualification of Federal Judges for Bias or Prejudice, 46 U. Chi. L. Rev. 236 (1978).

See also State v. Carviou, [154 Wis. 2d 641, 454 N.W.2d 562] (Ct. App. 1990).

I conclude that the court ought to order a response to the petition in this case. The court should then decide the petition, providing guidance on the proper procedure for invoking appellate review of a circuit judge's denial of a recusal motion and on the laws applicable to disqualification under the circumstances of this case.

* * * *

¶131 The recusal motion in Matter of Disciplinary Proceedings Against Crosetto, 160 Wis. 2d 581, 466 N.W.2d 879 (1991) rested on statutory grounds of Wis. Stat. § 757.19(2)(f) and (2)(g) and on "federal and state constitutional provisions," which was a secondary and not very well developed argument. The essence of the motion was that Crosetto had sued the justices in federal court and although the federal case had been dismissed, Attorney Crosetto alleged that each justice was biased.[91]

¶132 In Crosetto, the recusal motion asked each justice individually to recuse himself or herself. The per curiam decision, which then-Justice Abrahamson did not join, reports that each justice individually responded. No motion sought court review of these individual decisions. Accordingly, because the question was not raised, neither the per curiam nor Justice Abrahamson's dissent addressed the issue of what a court should do when a motion asks the entire court to review an individual justice's recusal decision. Justice Abrahamson's dissent proposed what actions the court should take for handling recusal motions.

¶133 The court sanctioned Attorney Crosetto. Justice Abrahamson dissented. The Crosetto dissent went beyond the case, outlining some key questions the court should address relating to recusal, questions that were then troublesome and unanswered and are still troublesome and unanswered. One significant issue raised in the dissent is that due process requires the application of an objective fairness standard, in contrast to the subjective standard the court was using under Wis. Stat. § 757.19(2)(g).

¶134 This "subjective standard" interpretation of Wis. Stat. § 757.19(2)(g) underlies Justice Roggensack's writing today, and it is problematic.

¶135 Justice Abrahamson also urged the court to accept the offer of the Judicial Council to assist the court in adopting a rule of procedure relating to a justice's recusal. The court did not accept the Judicial Council's offer of assistance on this subject before or after Crosetto.

¶136 Here is the full text of the part of Justice Abrahamson's dissent in Crosetto addressing generally recusal of justices of this court:

Attorney Crosetto moved that the seven justices recuse themselves. The motion papers assert that the risk of bias is "impermissibly high" because Attorney Crosetto and other plaintiffs in a federal suit against the justices relating to the integrated bar "levelled direct, personal, and substantial criticism against the justices in pleadings and in a brief filed in the federal lawsuit."^N15 Memorandum in Support of Motion, p. 3.

N15. Attorney Crosetto reasons that the justices have a personal interest in this disciplinary proceeding as follows: (1) allegations in the lawsuit——e.g., accusing the justices of violating Attorney Crosetto's civil rights for more than a decade, of reneging on a promise given under oath, and of possibly giving inconsistent answers under oath to interrogatories——may seriously damage the justices' reputations; (2) an elected justice's interest in reputation is greater than almost any financial interest he or she may have; (3) this proceeding gives the justices an opportunity to diffuse and diminish the allegations against them by reprimanding Attorney Crosetto and thus tarnishing Attorney Crosetto's reputation. Some lawyers apparently believe that voicing a complaint against a judge jeopardizes the attorney or the clients. See lawyers' comments reported in the Wisconsin Equal Justice Task Force, Final Report, p. 244 (1990).

Recusal is a serious matter. Court statistics show that circuit court judges recused themselves in more than 4,000 cases in 1990. The issue of recusal of a justice has arisen at least three times in this court in the last 18 months.

The majority opinion suggests that Attorney Crosetto's motion for recusal was untimely. When and how should a litigant move for recusal of a justice? Does the court's hearing the matter on oral argument or on briefs affect the timing or procedure? Ordinarily parties do not know whether justices have recused themselves until the opinion is released.

Is the subjective standard set forth in American TV and Appliance of Madison, Inc., 151 Wis. 2d 175, 182-83, 443 N.W.2d 662 (1989) (Abrahamson, J., not participating), the correct standard? Compare State ex rel. National Union Fire Ins. Co. v. Cir. Court for St. Croix County, Case No. 90-0935-W, Order filed May 29, 1990 (Abrahamson, J., dissenting); and Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988), adopting the objective standard.

Is it appropriate for the court to prohibit justices from explaining, either in a published opinion or in a document in the case file, why they recuse themselves, while justices may explain in an opinion why they are not recusing themselves? ^N16

N16. On September 6, 1990, this court adopted the following interpretation of Procedure L.1. of the Court's Internal Operating Procedures: ["]A justice who recuses himself or herself may file with the court or as part of a published opinion only the statement that: A. The justice took no part. B. The justice did not participate. C. The justice withdrew from participation.["] Compare American Bar Association Code of Judicial Conduct (1990), Canon 3 E and F which state: "E. (1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned . . . . F. A judge disqualified by the terms of Section 3E may disclose on the record the basis of the judge's disqualification. If following the disclosure of any basis for disqualification other than personal bias or prejudice concerning a party, the parties and lawyers, without participation by the judge, all agree that the judge should not be disqualified, and the judge is then willing to participate, the judge may participate in the proceeding. The agreement shall be incorporated in the record of the proceeding."

What action should the court take when all or a majority of justices have to recuse themselves? BAPR responded to Attorney Crosetto's recusal motion in part by pointing out that the Supreme Court must hear the matter because it is the only entity with jurisdiction to decide attorney disciplinary proceedings. The Judicial Council has raised similar issues concerning disciplinary action against a justice of the Supreme Court. See Judicial Council Report dated April 26, 1990. The Judicial Council reviewed the problems, asked the court to consider the adoption of a rule or procedure relating to the handling of such matters, and offered to assist the court with drafting a rule. The court has not responded to the Council's report.

This case demonstrates the need for this court to address promptly issues relating to recusal.

Matter of Disciplinary Proceedings Against Crosetto, 160 Wis. 2d 581, 601-604, 466 N.W.2d 879, (1991) (Abrahamson, J., dissenting).

* * * *

APPENDIX B. The United States Supreme Court Retains Jurisdiction to Disqualify One of Its Own Members

¶137 Multiple lessons are learned from a review of the disqualification practices of the United States Supreme Court to inform the court of its powers and jurisdiction to review a justice's refusal to recuse himself or herself.[92]

¶138 Over the years, numerous challenges have been made to United States Supreme Court justices. The Court has never held that it lacks the power to exclude a judicial peer from participation in a case. Most importantly, for our purposes, seven justices of the United States Supreme Court refused to adopt an order in 1945 stating that the Court was "without the authority" to rule on the participation of a justice in a case. A recounting of this incident appears in William H. Rehnquist, The Supreme Court: How It Was, How It Is 65-67 (1987). The Court has not adopted such an order since 1945. Indeed, as we shall explain, the Court has retained its power to rule on motions for a justice's disqualification and has exercised its authority over the disqualification of a justice.[93]

¶139 The general practice of the United States Supreme Court has been not to review the recusal decision of an individual justice.[94] In contrast, the Wisconsin Supreme Court's practice has been to review the decision of an individual justice to participate.[95]

¶140 In discussing disqualification in the United States Supreme Court we start by examining Jewell Ridge Coal Corp. v. Local No. 6167, 325 U.S. 897 (1945), one of the early notorious cases seeking disqualification of a justice. We begin here because the case demonstrates that the Court does not have a consistent practice in coping with disqualification challenges, that the Court's disqualification practices have been subject to criticism, and that the Court has refused to hold that it lacks the power to exclude the participation of a judicial peer. We examine the Jewell Ridge concurrence at length because it is often cited by judges in recusal cases, as Justice Roggensack has, without any explanation, and without any understanding of its historic context and meaning as a concurrence. See J. Roggensack, ¶220.

¶141 In a motion for a rehearing in Jewell Ridge, Justice Black's participation in the case was challenged on the ground that one of the litigants was represented by a lawyer who had been Justice Black's personal attorney and former law partner.[96] The entire Court, with Justice Black participating, issued a docket entry statement as follows: "Petition for rehearing denied."[97]

¶142 Justice Jackson, joined only by Justice Frankfurter, filed a four-paragraph concurrence without a citation to any legal authority, objecting to the Court's issuing an order deciding the motion. Justice Jackson concluded that Justice Black alone should respond to the motion for disqualification.

¶143 Justice Jackson observed that the "[p]ractice of the Justices over the years [about motions to disqualify] has not been uniform, and the diversity of attitudes to the question doubtless leads to some confusion as to what the bar may expect and as to whether the action in any case is a matter of individual or collective responsibility."[98] Justice Jackson also opined that the complaint was "one that cannot properly be addressed to the Court as a whole and for that reason I concur in denying it."[99]

¶144 Seven members of the Court disagreed with Justices Jackson and Frankfurter; the seven treated the disqualification motion as one addressed to the Court, and they answered it for the Court. Indeed a majority refused to adopt an order proposed by Chief Justice Stone stating that the Court was "without the authority" to rule on Justice Black's participation.[100]

¶145 The late John P. Frank, in what remains one of the seminal dissertations on judicial disqualification, concluded that although "Jackson's views on the subject are not at all points clear, his statement shows an enormous difference of opinion in the Supreme Court on the subject of disqualification of its members."[101]

¶146 Justice Black's participation in Jewell Ridge and Justice Jackson's concurrence have generated substantial commentary, and the case is best understood in its historical context. The Jewell Ridge concurrence was authored amidst a sharp rivalry among members of the Court over both judicial principles and the question of who might be appointed the next Chief Justice.[102] As a generalization, "the Court of the 1941-54 era featured human rather than institutional dimensions of judging . . . in contrast to the Court of today."[103] More particularly, Justices Jackson and Black had a personal and jurisprudential rivalry that one contemporary journalist characterized as a "blood feud."[104]

¶147 Justice Jackson's concurrence was widely understood then (and now) to have been authored primarily as a public criticism of Justice Black's participation in the case, rather than as a finely reasoned legal argument.[105] Furthermore, Jewell Ridge was decided when no federal disqualification statute applied to Supreme Court Justices.[106] Today, 28 U.S.C. § 455, as amended in 1974, sets out objective standards and grounds for disqualification, and they apply to Justices of the Court.[107]

¶148 In sum, Justice Jackson's concurrence is just that——a concurrence, not an opinion of the Court. Justice Jackson's concurrence was not adopted by the Court in Jewell Ridge and has not been expressly adopted thereafter.

¶149 Despite Justice Jackson's Jewell Ridge concurrence, the rules of the United States Supreme Court treat motions for recusal the same as any other motion. Motions for recusal, like all motions, are addressed to the entire Court.[108]

¶150 The Court has not been consistent in handling motions addressed to the Court for recusal of a justice. Sometimes the Court has a docket entry statement simply denying the motion seeking recusal of a justice, with the challenged justice apparently participating in the denial.[109]

¶151 Other times the Court has a docket entry statement merely stating a denial of the motion by the challenged justice, with or without an explanation or statement by the challenged justice.[110]

¶152 A different docket entry statement was used in Cheney v. United States District Court for the District of Columbia, 541 U.S. 913 (2004). The first docket entry statement referred the motion addressed to the Court requesting Justice Scalia's recusal to Justice Scalia.[111] This seems to make clear that the court as a whole took jurisdiction over the motion in the first instance. Justice Scalia then individually denied the motion, publishing a memorandum opinion.[112] No court order was issued by the Court denying the motion.

¶153 Justice Rehnquist wrote in 1972 that "under the existing practice of the Court disqualification has been a matter of individual decision . . . ."[113] Later, in Hanrahan, Justice Rehnquist wrote: "Since generally the Court as an institution leaves such motions [of recusal], even though they be addressed to it, to the decision of the individual Justices to whom they refer, . . . I shall treat the motion as addressed to me individually."[114]

¶154 In the Cheney case, the Court's docket entry statement referring the recusal motion to Justice Scalia simply stated: "In accordance with its historic practice, the Court refers the motion to recuse in this case to Justice Scalia."[115]

¶155 The operative words are "practice," "generally," and "historic practice." Stating that the "historic practice" and "practice" of the Court leave disqualification to the individual justice is not the same thing as stating that the Court does not have the power or jurisdiction to determine or review an individual justice's alleged disqualification. To those who write and read opinions carefully, the word "generally" leaves open the possibility of a different practice or result at a later date or in a different circumstance. As one commentator describing the practice at the United States Supreme Court phrased it, "[A]lthough the standard for recusal has received significant judicial attention, the actual procedure by which the decision is made is truly a creature of tradition."[116]

¶156 Finally, the docket records of the Court and the "historic practice" of the Court do not tell the complete story about how the Court treats recusal of justices as a collective decision.

¶157 The Justices benefit from deliberate consultation with their colleagues about disqualification. Justice Ruth Bader Ginsburg has stated that "[i]n the end [recusal] is a decision the individual Justice makes, but always with consultation among the rest of us."[117]

¶158 Common judgment about recusal is not only used on an ad hoc basis but is also used to memorialize recusal policies in anticipation of recurring situations. In 1993, seven sitting justices publicly issued a "Statement of Recusal Policy" relating to relatives who practice law and whose law firms may appear before the Court.[118] Chief Justice Roberts, who took his seat on September 29, 2005, adopted this written policy on September 30, 2005.[119]

¶159 A comparable recognition of the Court's collective responsibility was also invoked when Justice Thurgood Marshall sent his October 4, 1984, memorandum to the other Justices, "describing a new policy on recusals he proposed to adopt in cases involving the NAACP."[120] Justice Marshall received "crisp blessings" in writing from all eight other Justices.[121]

¶160 These actions evidence a clear and sensible willingness on the part of the Justices to exercise their collective supervisory power over both the possibility of actual bias and the appearance of fairness at the Court.

¶161 An even clearer exercise of the Court's inherent institutional responsibility to provide a qualified group of justices was evidenced on October 17, 1975, when eight of the court's nine members met and voted (7 to 1, with Justice White in opposition), to effectively strip the voting and writing power of Associate Justice William O. Douglas.[122] Specifically, the other justices agreed that Justice Douglas would not be assigned to write any opinions and that the court would not mandate any 5-4 decisions in which Justice Douglas was in the majority.[123] Justice Douglas had suffered a serious stroke and "[h]is disturbingly uneven behavior inside the Court and in public showed that he was not well enough to serve as a judge."[124]

¶162 In other words, "when Douglas failed to recuse himself . . . the rest of the Court took over and made the decision for him."[125] The method and reasons for such action are different than the present case, but the invocation of the Court's institutional power over its individual members is clear.

¶163 The conclusion to be drawn from the disqualification practice of the United States Supreme Court is that the public practice has not been consistent. Justices apparently informally confer and agree on disqualification practices. Most importantly, the Court has never denied its power to decide the disqualification of one of its members or its obligation to provide a legally qualified forum to all litigants. Indeed the Court has exercised its power to disqualify one of its own members, Justice William O. Douglas, and forced the retirement of another, Justice Joseph McKenna.

¶164 What is clear from examining the disqualification practice of the United States Supreme Court is that it generally has not reviewed the individual decision of a Justice in response to a recusal motion, but has not ceded its power to disqualify one of its own members.[126]

¶165 Thus the practice of the United States Supreme Court is very different from the practice of the Wisconsin Supreme Court. The Wisconsin Supreme Court has repeatedly reviewed an individual justice's decision to participate in a case. See ¶¶39-45. The practice in this state has been to exercise, rather than to reserve, our jurisdiction to decide the merits of a justice's response to a disqualification motion, "in the defense of [the court's] own legitimacy and of its integrity . . . ."[127]

¶166 Numerous proposals have been floated to change the disqualification practice at the United States Supreme Court. No one has suggested that the Court lacks the power to change its disqualification practice to provide for Court review of an individual justice's decision not to recuse himself or herself.

* * * *

APPENDIX C. The Recusal Practice of Our Sister State Supreme Courts Is Instructive

¶167 This year's decision in Caperton has spurred increasing commentary and a certain amount of hand-wringing among lawyers and judges. With good reason. One need not understand the furthest implications of the decision to know that these implications will be significant.

¶168 Dissenting from the decision, Chief Justice Roberts observed that "Judges and litigants will surely encounter other[] [uncertainties] when they are forced to . . . apply the majority's decision in different circumstances." 129 S. Ct. at 2272 (Roberts, C.J., dissenting). Justice Scalia proclaimed: "[T]he principal consequence of today's decision is to create vast uncertainty with respect to a point of law that can be raised in all litigated cases in (at least) those 39 States that elect their judges." 129 S. Ct. at 2274 (Scalia, J., dissenting).

¶169 An outpouring of literature and commentary discussing a "post-Caperton" landscape has already begun.[128] State courts, and most immediately our own, are on the front lines of resolving the boiling and at times contentious uncertainty.

¶170 In addressing "where we go from here," understanding the current recusal practices of state supreme courts and assessing "how we got here" will be invaluable. We have therefore looked around the country at the history and practice of recusal decisions, particularly in the other states' courts of last resort.

¶171 Three core observations:

1. Caperton raises problems that most state high courts have not yet begun to address. One recent exception is the Michigan Supreme Court.

2. Some state high courts have reviewed recusal decisions of their individual members; others have not. Courts have altered their practice at different points in their history.

3. State supreme courts' recusal practice, at least before Caperton, has been a matter of tradition or prudential considerations, not an espousal of a lack of power or jurisdiction.[129]

¶172 Several states' supreme courts have explicitly exercised or reserved the authority of the state's highest court to disqualify one or more of its own members.[130]

¶173 Board of Justices of Burlington v. Fennimore, 1 N.J.L. 190, 1793 WL 176 (N.J. 1793), is cited as an early example of a court sitting in judgment of one of its own.[131] In Fennimore the Chief Justice of the Supreme Court of Judicature of New Jersey had an interest in the case. The court published a declaration by the other two judges that "the interest was too remote and indefinite," and that it was therefore appropriate for him to sit and preside.

¶174 In another early case, in 1863, the Supreme Court of Florida, faced with the question whether stock-holder and trustee relationships of two of its members were sufficient to disqualify them under the state statute, concluded that when there is any question about the qualification of a judge "the safest and legal way of determining the same is by a decision of the Court . . . ."[132]

¶175 The Florida Supreme Court recognized in 1979 that its procedural treatment of requests for disqualification of a justice had not always been consistent.[133] In In re Estate of Carlton, 378 So. 2d 1212, 1216-17 (Fla. 1979), the Court "receded" from earlier cases and adopted what it called the "modern" view that each justice must determine for himself both the legal sufficiency of a request seeking his disqualification and the propriety of withdrawing in any particular circumstances. The selection of different practices at different times makes clear that it is a choice made by the court for prudential reasons, not for lack of jurisdiction.

¶176 In 1927, the Supreme Court of Oklahoma disqualified two of its own justices from participating in a contempt proceeding in which the lawyer argued the justices were biased against him. The Oklahoma Supreme Court flatly rejected the argument of the two challenged justices that they should be "the sole and only judges of their own qualifications, and that, if they abuse this discretion . . . the only remedy is by a proceeding for impeachment."[134]

¶177 The Oklahoma Supreme Court concluded that under the state constitution and laws (which are substantially similar to those in Wisconsin), the court had the power and authority, when the question was properly presented, to disqualify any one or more of its members. When "it was provided what constitutes disqualification for justices of the Supreme Court, but no provision was made under the law as to how or in what manner the question of disqualification was to be determined . . . the question should be determined by the court the same way as any other question properly before it . . . ."[135]

¶178 Some state supreme courts have promulgated rules of procedure for supreme court review of the disqualification of a justice by the court.

¶179 Most recently, in November 2009, the Michigan Supreme Court discarded its past practice that individual justices alone respond to motions to recuse,[136] without review. The Michigan Supreme Court has now adopted a rule stating that if a justice's participation in a case is challenged, the challenged justice shall decide the issue and publish his or her reasoning for the decision. If the challenged justice denies the motion for disqualification, then upon a party's motion to the court the entire court shall decide the motion for disqualification and explain the reasons for its grant or denial of the motion for disqualification.[137]

¶180 Texas Rule of Appellate Procedure 16.3, promulgated by the Supreme Court of Texas, requires that an appellate judge or justice faced with a motion to recuse must either individually grant the motion or certify the matter to the entire court for en banc consideration. The challenged judge or justice must not participate in the court's decision on the motion. Tex. Rules App. Proc. Rule 16.3.

¶181 The Vermont Supreme Court adopted Rules of Appellate Procedure modeled on the Texas rule to provide that a justice faced with a disqualification motion must either disqualify himself or herself or certify the matter to the other members of the Court for decision. The challenged justice may not sit to consider the motion. Vt. Rules of App. Proc. Rule 31(e)(2). This rule supersedes the prior practice that an individual justice rules on a motion to recuse.[138]

¶182 The Vermont court promulgated its rule on an emergency basis in 1987 without resort to the customary procedures for notice and comment because of the large number of pending motions to disqualify and the fact that the "existing appellate rules and Code [did] not provide suitable and adequate procedures for ruling upon motions to disqualify." Reporter's Notes to Vt. Rules of App. Proc. Rule 31(e)(2)——1987 Emergency Amendment.

¶183 In other states, statutes set forth a procedure for the supreme court to review a justice's disqualification. For example, a Nevada statute provides that the Supreme Court of Nevada sits——without the participation of the challenged justice——to determine whether alleged bias or other grounds require the disqualification of one of its members. Nev. Rev. Stat. Ann. § 1.225(4) (2009).

¶184 In several states, the historic practice appears to be for an individual justice of the supreme court to decide a motion for his or her recusal without decision or formal review by the other members of the court.[139]

¶185 None of these observations regarding the history and the recusal practices of the state supreme courts provides a reason for this court to depart from its established practice of reviewing an individual justice's decision not to disqualify himself or herself. Those high courts which have, in the past, chosen not to review the recusal decisions of individual justices must now contend with how they will guarantee due process in the wake of Caperton. In Wisconsin we should stay the course.

¶194 PATIENCE DRAKE ROGGENSACK, J. Aaron Antonio Allen (Allen) moves the court for an order disqualifying Justice Michael Gableman from further participation in these proceedings after the entire court, including Justice Gableman, acted to accept Allen's petition for review. Allen bases his motion on the due process clauses of the Fourteenth Amendment of the United States Constitution and Article I, Sections 1 and 8 of the Wisconsin Constitution.

¶195 Allen's motion assumes that a majority of this court has the power to disqualify a fellow justice from participation in a pending matter. This assumption presents a question for the entire court because each justice is equally affected by whether we conclude that a majority of the court has the power to disqualify a fellow justice.

¶196 Our decision on this issue does not depend on the factual context in which it arises, i.e., the issue would be the same if the motion to disqualify were directed at any justice. This is so because the vote of each justice on the scope of the court's power in regard to preventing a judicial peer from fully performing his or her elected office affects every justice on the court, in this case and in future cases as well. Therefore, if one justice were disqualified from participating in the decision on whether four justices may disqualify a fellow justice from fully performing his or her elected office, all justices would be disqualified from participating because all are equally affected by our decision on this issue.

¶197 For the reasons set forth in Section II.A., we conclude that a majority of the Wisconsin Supreme Court does not have the power to disqualify a fellow justice from fully performing his or her elected office as a justice of the Wisconsin Supreme Court. Justices David T. Prosser, Patience Drake Roggensack and Annette Kingsland Ziegler join the conclusions above and Section II.A. of this opinion. Justice Michael J. Gableman chose to withdraw from participation in Section II.A., even though United States Supreme Court Justices do not recuse themselves from similar motions. United States Supreme Court Justices at whom disqualification motions are directed participate in the decisions on such motions.[148]

¶198 In addition, Allen moves the court, pursuant to Wis. Stat. § 757.19(2)(g) (2007-08),[149] for an order disqualifying Justice Gableman from participating in the consideration of this matter, alleging that he is disqualified by law from participation.

¶199 We conclude in Section II.B. that Allen's motion is legally insufficient to state a claim cognizable under the due process clauses of the federal and state constitutions and that Justice Gableman fully performed his responsibilities under Wis. Stat. § 757.19(2)(g). Accordingly, we vote to deny Allen's motion to disqualify Justice Gableman. Justices David T. Prosser, Patience Drake Roggensack and Annette Kingsland Ziegler join in this decision. Justice Michael J. Gableman has never participated in the decision set out in Section II.B.

¶200 Chief Justice Abrahamson, Justice Bradley and Justice Crooks decide that they have the power to disqualify another duly elected justice from participation in a pending matter if they think he or she should be removed. See Chief Justice Abrahamson, Justice Bradley and Justice Crooks's writing [hereinafter Abrahamson, C.J.'s writing], passim. However, they do not decide Allen's motion, preferring to have briefing and oral argument before they do so. Id.

I. BACKGROUND

¶201 Allen has filed one motion to Justice Gableman individually and two motions to the court as a whole, seeking to disqualify Justice Gableman from further participation in this proceeding. Allen's first motion was filed on April 17, 2009. Allen claims that Justice Gableman's continued participation violates his rights under the due process clauses of the Fourteenth Amendment of the United States Constitution and Article I, Sections 1 and 8 of the Wisconsin Constitution and that Justice Gableman is disqualified by law, pursuant to Wis. Stat. § 757.19(2)(g), from further participation.

¶202 Allen bases his disqualification motions, to the court as a whole and to Justice Gableman individually, on campaign speech by Justice Gableman, campaign speech by his campaign committee and its spokesman and campaign speech by independent third parties during the course of Justice Gableman's 2008 campaign. Allen also objects to comments Justice Gableman's defense counsel made. Allen alleges that the campaign speech and defense counsel's speech evidence bias and the appearance of bias by Justice Gableman against all defendants in criminal proceedings.

¶203 On September 10, 2009, Justice Gableman addressed Allen's motion that was directed to him individually. He issued a written order denying Allen's motion for his disqualification based on Allen's assertion that Justice Gableman was disqualified by law, pursuant to Wis. Stat. § 757.19(2)(g), from participating in this proceeding, and that Justice Gableman's continued participation denied him due process of law.[150] Justice Gableman's September 10, 2009, order was followed by a Supplemental Motion for Recusal in which Allen requested the entire court to "determine whether [Justice Gableman] actually made the determination required by Wis. Stat. § 757.19(2)(g)."

II. DISCUSSION

A. Whether Four Justices Have the Power to

Disqualify a Fellow Justice

¶204 One part of this proceeding involves a motion that four justices disqualify a fellow justice from further participation. That motion is based on sweeping allegations that campaign speech, including multiple radio and television commercials by the justice's campaign committee and independent third parties, as well as statements by defense counsel,[151] are all attributable to a justice and that this "speech" evidences bias and the appearance of bias against all defendants in criminal proceedings. Allen alleges he would be denied due process of law under the Fourteenth Amendment to the United States Constitution and Article I, Sections 1 and 8 of the Wisconsin Constitution if that justice participates in this proceeding.

¶205 Allen makes no allegation that Justice Gableman is biased against him personally, that he has had any past involvement in or knowledge of Allen's case, or that he has any stated position toward the issues that Allen has presented in this case. In short, Allen's motion effectively seeks disqualification of a justice in all criminal cases on grounds of alleged bias against all criminal defendants.

¶206 Whether four justices have the power to disqualify a fellow justice from fully performing his or her elected office is a question that the entire court ought to address in advance of deciding Allen's motions directed at Justice Gableman. A decision on this issue is necessarily for the entire court because we have never decided this question and each justice on the court is equally affected by whether we conclude that a majority of the court has the power to disqualify a fellow justice. Our decision on this issue does not depend on the factual context in which it arises, i.e., the issue would be the same if the motion to disqualify were directed at any justice. This is so because the vote of each justice on the scope of the court's power in regard to preventing a judicial peer from fully performing his or her elected office affects every justice on the court, in this case and in all future cases as well. Therefore, if one justice were required to disqualify himself or herself from consideration of so important a question, every justice would be required to disqualify himself or herself.

¶207 We conclude that a majority of the justices on this court do not have the power to disqualify a fellow justice from participation in a proceeding before this court.[152] Our decision is supported by the past practices of this court and by the past, and current, practices of the United States Supreme Court.

¶208 While our past practices do not establish precedent, we note that in all past decisions of this court, when the justice against whom a disqualification motion was made was capable of deciding the motion, our review has been limited to whether that individual justice made the determination that the motion required. In such cases, "[t]he reviewing court [] objectively decide[s] if the judge went through the required exercise of making a subjective determination. . . . This is all that is required." Donohoo v. Action Wis., Inc., 2008 WI 110, ¶¶24-25, 314 Wis. 2d 510, 754 N.W.2d 480 (concluding that Justice Butler, himself, decided that he could be impartial);[153] see also Jackson v. Benson, 2002 WI 14, ¶2, 249 Wis. 2d 681, 639 N.W.2d 545 (concluding that the motion to vacate an opinion in which Justice Wilcox participated was frivolous due to the inordinate delay); 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 disclosure in open court that she would be impartial despite the nature of her husband's employer showed she, herself, made the required subjective determination); State v. Am. TV & Appliance of Madison, Inc., 151 Wis. 2d 175, 183, 443 N.W.2d 662 (1989) (concluding that once Justice Bablitch, himself, decided that he could be impartial, he was not disqualified by law from participating in the proceeding).

¶209 The rationale in those cases is consistent, but Donohoo, Jackson, City of Edgerton and American TV do not address the broader issue that affects each justice equally, with which we are concerned in Section II.A. That is, does a majority of the justices on this court have the power to prevent a sitting justice from fully participating in the work of his or her elected office.

¶210 In Donohoo, Jackson, City of Edgerton and American TV, the motions seeking disqualification of a justice came after the court had issued its decision in a pending case. However, as with Allen's motion, In re Disciplinary Proceedings Against Crosetto, 160 Wis. 2d 581, 466 N.W.2d 879 (1991), disqualification was sought before the court issued its decision. In Crosetto, the Wisconsin Supreme Court addressed whether all justices ought to be disqualified from participation. Crosetto's motion for disqualification alleged that each justice had a personal interest in the disciplinary proceeding because of Crosetto's personal criticisms of the justices in an ancillary proceeding. Id. at 584. Crosetto based his motion for disqualification on the appearance of a lack of impartiality. Id. He cited Wis. Stat. § 757.19(2), and he also cited the due process clauses of the federal and state constitutions as legal bases for his motion. Id. at 583.

¶211 Six justices on this court did not convene to decide whether a seventh justice could participate in the decision in Crosetto. Instead, each justice of the court decided Crosetto's due process motion for himself or herself.[154] As 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. at 584 (emphasis added).

¶212 Chief Justice Abrahamson, who was a member of the court that decided Crosetto's motion, did not disqualify herself or request that the other justices decide Crosetto's due process challenge for her. Instead, she individually decided for herself that she was not disqualified from further participation by the due process clauses of the federal and state constitutions or by Wis. Stat. § 757.19(2).[155] Id. She also wrote a separate opinion that dissented from the discipline imposed and addressed whether a justice should apply a subjective or an objective standard to Crosetto's motion for disqualification. Id. at 602-03 (Abrahamson, J., dissenting). The issue of whether someone other than then-Justice Abrahamson should decide whether she should be disqualified was never mentioned in her separate opinion.

¶213 However, now that the disqualification motion is not directed at her, Abrahamson, C.J.'s writing argues that four justices of this court have the power to disqualify another justice from participation. Abrahamson, C.J.'s writing, ¶34. This position is in direct conflict with the action that she took on her own behalf in Crosetto. She cites Case v. Hoffman, 100 Wis. 314, 74 N.W. 220 (1898), in support of her contention. Abrahamson, C.J.'s writing, ¶¶39-41. However, Case does not support the position she takes.

¶214 Case arose in a very interesting context because Justice Newman, for whom disqualification was sought, was dead when the court took up the motion. Case, 100 Wis. at 354. Justice Newman had previously participated in the decision, but he had never ruled on the disqualification motion. Id. Therefore, the remaining justices had to decide it, as Justice Newman obviously could not. Accordingly, Case is not support for this court to determine that a majority of the justices have the power to disqualify a justice from participating in a proceeding before the court.

¶215 It is imperative to note that Case was published long before then-Justice Abrahamson's decision in Crosetto. Therefore, if Chief Justice Abrahamson truly understood Case's holding to require the court to act in the manner that she now urges, she would have acted differently in Crosetto. The reader should note that despite more than 50 pages of narration and a voluminous appendix, Abrahamson, C.J.'s writing fails to mention any reason for Chief Justice Abrahamson's change of position, now that it is not she, but rather, a different justice, who is the subject of a disqualification motion.

¶216 Abrahamson, C.J.'s writing also cites State v. Carprue, 2004 WI 111, 274 Wis. 2d 656, 683 N.W.2d 31, as support for the power of four justices to disqualify another justice. Abrahamson, C.J.'s writing, ¶86 n.54. Carprue does not support their position. Carprue involved a claim that a circuit court judge should have disqualified herself. Carprue confirmed that a judge's decision about disqualification is "up to the judge's own determination. This provision 'leaves the responsibility of withdrawal to the integrity of the individual judge.'" Carprue, 274 Wis. 2d 656, ¶61 (quoting State v. Harrell, 199 Wis. 2d 654, 665, 546 N.W.2d 115 (1996)).

¶217 Furthermore, it is a vastly different matter for this court to review whether a circuit court judge should have participated in a proceeding at the circuit court than it is to conclude that the majority of this court has the power to disqualify a fellow justice from participation in a pending matter. When a circuit court judge is disqualified from participating in a proceeding, another circuit court judge takes his or her place. However, when a supreme court justice is disqualified, no other person can take his or her place.[156]

¶218 The critical nature of a justice's decision on a motion for disqualification was explained by United States Supreme Court Justice Ruth Bader Ginsburg in the context of the question of disqualification of a Supreme Court Justice. She said, "Because there's no substitute for a Supreme Court Justice, it is important that we not lightly [disqualify] ourselves." Ruth Bader Ginsburg, The Day, Berry & Howard Visiting Scholar: An Open Discussion with Ruth Bader Ginsburg, 36 Conn. L. Rev. 1033, 1039 (2004).

¶219 The Wisconsin Supreme Court's history of requiring the justice who is the focus of a disqualification motion to decide the motion is consistent with the precedent of the United States Supreme Court.[157] When a motion is made to disqualify a justice of the United States Supreme Court, either the justice for whom disqualification is sought addresses the motion individually, e.g., Cheney v. United States District Court for the District of Columbia, 541 U.S. 913 (2004)[158] (Justice Scalia sitting individually in response to the Sierra Club's motion to disqualify him), or, less frequently, the entire Supreme Court, including the justice for whom recusal is sought, issues a one sentence denial of the motion for disqualification, e.g., Ernest v. United States Attorney for the Southern District of Alabama, 474 U.S. 1016 (1985).[159]

¶220 The United States Supreme Court has never held that a majority of that Court has the power to disqualify a judicial peer, i.e., a duly appointed and confirmed United States Supreme Court Justice, from participating in any case to come before the Court because of an allegation that the justice at whom the motion was directed was not impartial.[160] As Justice Robert Jackson explained, "[t]here is no authority known to me under which a majority of this Court has power under any circumstances to exclude one of its duly commissioned Justices from sitting or voting in any case." Jewell Ridge Coal Corp. v. Local No. 6167, United Mine Workers of Am., 325 U.S. 897, 897 (1945) (Jackson, J., concurring).

¶221 Similarly, in the more than 150 years that the Wisconsin Supreme Court has served the people of Wisconsin, it consistently has followed the practice of the United States Supreme Court in regard to disqualification of a judicial peer.

¶222 Allen cites Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. __, 129 S. Ct. 2252 (2009), as support for his assertion that a majority of this court should disqualify a judicial peer. Caperton has no relevance here. First, the United States Supreme Court was not considering the disqualification of a judicial peer in Caperton; rather, it was considering the disqualification of a state court justice. Second, the state court justice did decide all motions for his disqualification; other state court justices did not decide them, even though they voiced their opposition to his decisions.

¶223 Abrahamson, C.J.'s writing also asserts that a federal constitutional claim must be addressed and that a state constitutional claim must have a remedy. The writing then assumes that a majority of the court must decide those claims. Abrahamson, C.J.'s writing, ¶46, ¶47 n.22. We agree that constitutional questions properly presented should be addressed and that providing a remedy for meritorious claims is important. However, addressing claims and providing a remedy do not require that a majority of the court have the power to disqualify a fellow justice from court proceedings. Constitutional claims, both federal and state, are addressed by the individual justice against whom the allegations were made, just as they were in Crosetto, when then-Justice Abrahamson decided for herself whether the allegations that the due process clauses of the federal and state constitutions required her disqualification. Crosetto, 160 Wis. 2d at 584. As the opinion she joined stated, "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).[161]

¶224 Chief Justice Abrahamson, Justice Bradley and Justice Crooks contend that four justices of this court have the power to remove another justice under our superintending powers. Abrahamson, C.J.'s writing, ¶48. There is a process by which a justice may be removed from the court, but only with due process accorded to the justice. All judges and justices accept the constitutional provisions for their removal and the remedies available under the judicial code upon election to the judicial branch of government.[162] However, those bases for removal are a far cry from what Abrahamson, C.J.'s writing is proposing. She asserts that four justices can disqualify a fellow justice based on the allegation that a defendant's due process rights were violated by campaign speech. She accords no substantive standards and no procedural due process. Such a suggestion is shocking.[163]

¶225 Finally, Chief Justice Abrahamson, Justice Bradley and Justice Crooks assume that if they have the power to force another justice off a pending case, both an impartial court and the appearance of an impartial court will result. Abrahamson, C.J.'s writing, passim. Their unspoken assumption is based on the faulty premise that giving four members of the court the power to disqualify a fellow justice will increase the appearance of impartiality of the court.

¶226 This is a deeply divided court, at a very philosophical level concerning how a state supreme court should function. The public perception of this court is also deeply divided. Therefore, four justices forcing another justice off the court is just as apt to be perceived as a biased act resulting in a biased tribunal, as is the justice remaining on the case and participating in it after he or she has considered the disqualification motion. What Chief Justice Abrahamson, Justice Bradley and Justice Crooks propose is the opening of Pandora's Box to ever-increasing attempts to manipulate the outcomes in pending matters by changing the composition of the court that will decide the issues presented.

¶227 Actual fairness and the appearance of an unbiased tribunal are very important to us, but impartiality will not be furthered by granting four justices the power to prevent another justice from fulfilling his judicial office.

¶228 In summary, as is the practice of the United States Supreme Court and has been the practice of this court for more than 150 years, we, who join in this opinion, conclude that a majority of the justices on the Wisconsin Supreme Court do not have the power to disqualify a fellow justice from participation in a proceeding before this court.

¶229 Justices David T. Prosser, Patience Drake Roggensack and Annette Kingsland Ziegler join in this opinion.[164]

B. Whether Justice Gableman Made

the Required Determination[165]

¶230 Motions such as Allen's have institutional impacts on the court as a whole. Such motions with their allegations of bias and the appearance of bias receive significant attention in the mass media and tend to undermine the public's trust and confidence in the impartiality of this court's decisions and in the integrity of all justices, not only the justice at whom the motion is directed. Accordingly, motions to disqualify a justice are never routine matters for the court.

¶231 At its heart, Allen's motion is based on the allegation that a judicial candidate's announced concerns for issues bearing on law enforcement is sufficient to violate Allen's constitutional right to due process of law. His motion extensively quotes campaign speech and Justice Gableman's attorney's defense of that speech. However, Allen's allegations do not even begin to approach a due process violation.

¶232 Not every pleading that labels itself as a due process challenge actually states such a challenge.[166] Therefore, as a foundational matter, we independently review whether a complaint states a claim upon which relief may be granted. John Doe 1 v. Archdiocese of Milwaukee, 2007 WI 95, ¶12, 303 Wis. 2d 34, 734 N.W.2d 827. In so doing, we accept the facts set forth in the pleadings as true for purposes of determining the sufficiency of the pleading. Id. However, we do not accept the pleadings' legal conclusions. Id.

¶233 The United States Supreme Court has explained that due process is violated only when a practice "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Aetna Life Ins. Co. v. LaVoie, 475 U.S. 813, 821 (1986). The right to an impartial judge is so rooted in our traditions as to be fundamental, and therefore, it is guaranteed by due process. State v. Hollingsworth, 160 Wis. 2d 883, 893, 467 N.W.2d 555 (Ct. App. 1991).

¶234 However, the preclusion of bias that is guaranteed by due process to every party is bias against the specific party who is then before the court or bias due to the judge's having a financial interest in the outcome of the particular case then pending. Bracy v. Gramley, 520 U.S. 899, 904-05 (1997).

¶235 This bias of a constitutional nature is not a generalized displeasure with a particular group, when that group is not also a constitutionally protected class. Aetna, 475 U.S. at 820-21 (concluding that allegations of a judge's general hostility toward insurance companies does not support the conclusion that such a judge's participation violated due process). The bias Allen alleges is bias against every person who is a defendant in every criminal proceeding; it is not bias against Allen.

¶236 Bias also is not a judge's past interpretation of issues that may appear again in a party's pending case. State v. O'Neill, 2003 WI App 73, ¶16, 261 Wis. 2d 534, 663 N.W.2d 292 (concluding that a judge's use of a procedure that was earlier challenged is not evidence of bias against the defendant).

¶237 Allen has alleged no particularized bias by Justice Gableman against him personally, nor has he alleged that Justice Gableman had any financial interest in the outcome of his case. Allen has not alleged that Justice Gableman has had any past contacts of any type with him or his case. Allen has not alleged that Justice Gableman even knows who he is. No potential constitutional due process violation has been alleged here based on Justice Gableman's participation in Allen's case.

¶238 Allen's claim is not comparable to the claim made in Caperton. Caperton was based on claims of particularized bias against a party in a pending case because of actions taken by the other party. Caperton, 129 S. Ct. at 2263-64. Those actions were alleged to have directly benefitted a justice who at that time was about to decide Caperton's case. Id. at 2265. Here, there has been no allegation of bias against Allen because of any connection between Justice Gableman and Allen. Accordingly, Allen has failed to state a claim cognizable under the due process clauses of either the federal or state constitution.

¶239 Allen also has sought disqualification based on statutory grounds.[167] He alleged that Wis. Stat. § 757.19(2)(g) requires Justice Gableman's disqualification. Section 757.19(2)(g) provides:

(2) Any judge shall disqualify himself or herself from any civil or criminal action or proceeding when one of the following situations occurs:

. . .

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

¶240 Our most recent consideration of an alleged violation of Wis. Stat. § 757.19(2)(g) occurred in Donohoo. There, Donohoo alleged that Justice Butler contravened § 757.19(2)(g) when he accepted financial contributions from an attorney who had a case pending before the court. Donohoo, 314 Wis. 2d 510, ¶25. As we considered Donohoo's allegations, we reiterated the standards that are applied by this court to a justice's disqualification decision in regard to an alleged violation of § 757.19(2)(g). Id., ¶24. We said:

Appellate review of [the justice's] subjective determination is "limited to establishing whether the judge made a determination requiring disqualification." American TV, 151 Wis. 2d at 186 (further citations omitted). The reviewing court must objectively decide if the judge went through the required exercise of making a subjective determination.

Id. (citing Harrell, 199 Wis. 2d at 663-64). In addition, when a motion is made to disqualify a justice from past or future proceedings, we do not address whether the justice correctly or incorrectly decided the issues presented. Am. TV, 151 Wis. 2d at 183. As we explained,

To the extent prior cases cited by the State suggest that a reviewing court, in determining whether a judge should have recused himself, is to independently and objectively determine whether there was an appearance of []partiality, . . . or whether the judge's impartiality can reasonably be questioned . . . they are inapplicable to a determination whether a judge was disqualified by sec. 757.19(2)(g), Stats.

Id. at 183-84.

¶241 We now apply these standards to the decision made by Justice Gableman. The motion to disqualify Justice Gableman has been pending before the court since April 17, 2009.[168] Prior to addressing Allen's motion, Justice Gableman had all of Allen's submissions before him. He also had the response of the State, which was filed April 28, 2009. When he denied Allen's motion requesting him to disqualify himself, he said:

Having considered the motion of defendant-appellant-petitioner, Aaron Antonio Allen, individually directed to Justice Michael J. Gableman for his recusal from participation in Case No. 2007AP795, and after careful consideration of the motion for recusal;

IT IS ORDERED that the motion to Justice Michael J. Gableman individually is hereby denied.

¶242 The order denying Allen's motion was released on September 10, 2009, after "careful consideration of the motion." Justice Gableman authored the order with all of the alleged grounds for disqualification that are now before the court. He had plenty of time to research and carefully consider the arguments made in support of and in opposition to the motion. He made a subjective determination that the grounds specified in Allen's motion did not warrant his disqualification. The order that was issued is objective proof of Justice Gableman's subjective decision. Justice Gableman's order satisfied the test we set out in Donohoo. Accordingly, we conclude that Justice Gableman made the decisions he was required to make, just as Chief Justice Abrahamson did in Crosetto.

¶243 Although we are probably pointing out the obvious, the affirmative vote of four justices is required to grant a pending motion. There are not four justices who have voted to grant Allen's motions. Therefore, his motions, that were first presented to the court on April 17, 2009, are denied.

¶244 Abrahamson, C.J.'s writing laments that we did not order briefing on Allen's motions to disqualify Justice Gableman.[169] The writing concludes with a proposed "ordering" of briefs on Allen's motions. The proposed "order" is unfortunate for at least two reasons. First, the "order" is without legal authority. This is so because our internal operating procedures require the affirmative vote of four justices before briefing on an issue that was not set forth in the petition for review may be ordered. IOP II.B.1. Allen did not list the disqualification of Justice Gableman either in his petition for review or in his supplemental petition for review, and there are not four justices who have voted to have additional briefing on the issues his motions raise. Second, the proposed "order" may cause unnecessary confusion, and perhaps expense, for the participating attorneys who are "ordered" to file briefs on motions that have not garnered the affirmative votes of four justices.

¶245 And finally, we cannot leave this decision without noting, with a degree of sadness, that in satisfying his perceived need to attack Justice Gableman's fairness, Allen did not bother to investigate the manner in which Justice Gableman has treated defendants who have appeared in criminal proceedings in courts over which Justice Gableman has presided. Had Allen made even a cursory investigation into the person who is Justice Michael Gableman, he would have found that in 2003, while the Circuit Court Judge of Burnett County, Justice Gableman founded the Burnett County Restorative Justice Program, an alternative model to the traditional criminal court's adversary proceeding.[170] Justice Gableman remained the chairman of the Burnett County Restorative Justice Program for six years. During that time he proposed and oversaw the development of numerous special services to criminal defendants: the Inmate Community Service Program, a program under which inmates could reduce their jail time by working for charitable and municipal organizations,[171] and the Victim-Offender Mediation Program, a program that permits willing victims the opportunity to take an active part in the rehabilitation of the offender.[172] In 2006 as Judge in Burnett County, Justice Gableman founded the Burnett County Drug and Alcohol Court that presented an alternate way of approaching longstanding drug and alcohol addiction problems that many criminal defendants struggle to overcome.[173]

¶246 Accordingly, based on our discussion above, Justices Prosser, Roggensack and Ziegler vote to deny all of the motions that Allen has filed seeking the disqualification of Justice Gableman.


Case No.:		2007AP795
Complete Title:
		State of Wisconsin, Plaintiff-Respondent, v. Aaron Antonio Allen, Defendant-Appellant-Petitioner.



Opinion Filed:		February 11, 2010
Submitted on Briefs:
Oral Argument:

Source of Appeal:
	Court:	Circuit
	County:	Milwaukee
	Judge:	Dennis P. Moroney

Justices:
	Concurred:
	Dissented:
	Not Participating:

Attorneys:

(L.C. No.	1995CF952095)
STATE OF WISCONSIN :		IN SUPREME COURT

State of Wisconsin, Plaintiff-Respondent, v. Aaron Antonio Allen, Defendant-Appellant-Petitioner.			FILED FEB 11, 2010 David R. Schanker Clerk of Supreme Court