2011 WI 67
Supreme Court of Wisconsin
State of Wisconsin,
ORDER ON MOTION FOR RECONSIDERATION OF THE COURT’S JULY 21, 2010 DECISION
July 12, 2011
Submitted on Briefs:
Source of Appeal:
ABRAHAMSON, C. J., BRADLEY, J. and CROOKS, J dissent (Opinion filed; combined authorship).
2011 WI 67
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
STATE OF WISCONSIN :
IN SUPREME COURT
JUL 12, 2011
A. John Voelker
Acting Clerk of Supreme Court
MOTION for reconsideration. Reconsideration denied.
¶1 PER CURIAM. Dimitri Henley characterizes his most
recent motion to this court as a motion for reconsideration of the court's
July 21, 2010 decision,
which concluded that in circumstances such as Henley presented, circuit court
judges lack the authority to grant a new trial in the interest of justice and
also denied his request of this court for a new trial in the interest of
¶2 We conclude as follows: (1) Henley's motion for reconsideration meets none of the criteria for granting a motion for reconsideration and is therefore denied; (2) determining whether to recuse is the sole responsibility of the individual justice for whom disqualification from participation is sought; (3) a majority of this court does not have the power to disqualify a judicial peer from performing the constitutional functions of a Wisconsin Supreme Court justice on a case-by-case basis; and (4) Henley has received due process.
A change of decision on reconsideration will ensue only when the court has overlooked controlling legal precedent or important policy considerations or has overlooked or misconstrued a controlling or significant fact appearing in the record.
¶5 Furthermore, it appears that
¶6 His assertion assumes that four justices of this court have the
power to remove a fellow justice from participating in pending matters on a
case-by-case basis. This court has not
squarely addressed the institutional question of whether four justices of this
court have the power, on a case-by-case basis, to prevent a judicial peer from
participating in a pending matter. Given
¶7 The reader should not be misled by the dissenting opinion's
attempts to characterize our decision as a ruling on whether Justice Roggensack
ought to have been disqualified from participation in Henley's case.
¶8 The question decided herein is an institutional question, i.e., whether recusal may be forced upon a fellow justice on a case-by-case basis by his or her judicial peers. This question implicates constitutional functions: that of the court as an institution and those of individual justices as constitutional officers. Accordingly, we determine the institutional question of whether the court has the power to prevent a justice from participating in pending proceedings, on a case-by-case basis.
¶9 Our decision on whether the court has the power to disqualify a
judicial peer on a case-by-case basis does not affect one particular justice
more than any other justice. By
participating in this decision, no justice is sitting as a judge of his or her
own cause. Rather, each justice, whether
a part of the majority opinion or writing in dissent, participated in deciding
this question. Full participation is
appropriate because the resolution of this question affects the court as an
institution, for which each justice has an equal role in judicial decision
making, and it affects the function of each justice as an independent
constitutional officer. Accordingly, all
justices are affected equally by our determination of the scope of the court's
power in this regard.
¶10 Although motions to disqualify a justice from participating in a particular case have increased dramatically since the United States Supreme Court decided Caperton, we have reviewed and decided challenges to individual justices' participation in particular cases prior to Caperton. On occasion, a motion to disqualify a justice has been brought before the justice participated in a pending matter, and on occasion, such a motion has been brought after that participation has occurred.
¶11 Furthermore, the issue presented in Caperton is not new to
this state. Nearly two decades ago, in In
re Disciplinary Proceedings Against Crosetto, 160 Wis. 2d 581, 466
N.W.2d 879 (1991), this court decided that when presented with a motion for
disqualification based on due process grounds, each justice must decide for
himself or herself whether his or her disqualification was required. In Crosetto, the motion to disqualify
came before the court had decided the pending matter. Crosetto alleged that each justice had a
disqualifying personal interest in Crosetto's disciplinary proceeding because
Crosetto had leveled personal criticisms against each justice on other
¶12 The court denied Crosetto's disqualification motion. In so doing, six justices of the court did
not convene to decide whether the seventh justice should be prevented from
participating in Crosetto's motion.
Instead, each justice, individually, decided Crosetto's motion. Each justice concluded for himself or herself
that he or she was impartial and that his or her participation did not create
the appearance of partiality.
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.
¶13 Crosetto's allegation that an appearance of partiality was sufficient to cause a denial of his right to due process under the federal and state constitutions is very similar to the motion that Henley brings before the court. Both motions were based on an underlying allegation falling within the parameters of Wis. Stat. § 757.19 (1989-90); both Crosetto's motion and Henley's motion alleged a due process violation based on the appearance of partiality; both motions were decided by the individual justice for whom disqualification was sought; and both Crosetto and Henley were provided due process by the decisions that the justices individually made.
¶14 In Donohoo v. Action
"Appellate review of [a justice's] subjective determination is limited to establishing whether the judge made a determination requiring disqualification. [Stated otherwise] [t]he reviewing court must objectively decide if the judge went through the required exercise of making a subjective determination."
¶15 The decisions on the merits of the motions to disqualify in Donohoo
and Crosetto were made first and last by the individual justice for whom
disqualification was sought. They are
consistent with this court's past treatment of motions to disqualify justices
from pending cases. See City
¶16 In each of the cases where the disqualification of a justice has
been addressed, except one, the justice for whom disqualification was sought
made the first and final decision on the merits of the disqualification
motion. The exception occurred in Case
v. Hoffman, 100
¶17 In Case, reconsideration of the court's decision was
premised on the allegation that Justice Newman should not have participated in
determining the merits of the case. When
the motion was decided, Justice Newman was dead and previous to his death, he
had not ruled on the motion.
¶18 Our review of the power of the court vis-à-vis an individual justice begins with Article VII of the Wisconsin Constitution. Article VII establishes the functions of the Wisconsin Supreme Court as an institution. Article VII also describes the functions of an individual justice as a constitutional officer. Therefore, we must interpret the scope of the court's power in a manner that is consistent with both functions as prescribed in the Wisconsin Constitution.
¶19 Under Article VII, the functions of the Wisconsin Supreme Court
include superintending authority over all courts (Wis. Const. art. VII, § 3(1)); appellate
jurisdiction over all courts (Wis. Const. art. VII, § 3(2)); and hearing of original actions and
proceedings (Wis. Const. art. VII, § 3(2)). The court also has those implied or inherent
powers "essential" to carrying out its constitutionally designated
functions. State v. Cannon, 199
¶20 The supreme court performs its functions in the administration of
justice. In so doing, the court
"has an inherent power to adopt those statewide measures which are
absolutely essential to the due administration of justice in the
state." In re Kading, 70
¶21 The court's superintending function may be exercised through
disciplinary proceedings brought for cause or disability under the statewide
Code of Judicial Conduct (Judicial Code). It is through the Judicial Code that the
court may exercise its power over an individual supreme court justice.
¶22 The Judicial Code provides justices with notice of conduct that is
prohibited and with procedural due process in the adjudication of all claimed
violations of the Judicial Code's provisions.
See, e.g., In re Judicial Disciplinary Proceedings Against
Laatsch, 2007 WI 20, 299
¶23 Furthermore, while employing the Judicial Code is a part of the supervisory function of the supreme court, the court's power to discipline judges and justices arises in Article VII of the Wisconsin Constitution. The Judicial Code provides no authority to the supreme court to disqualify a justice from participating in a particular case when that justice has considered and decided a motion to disqualify him or her. See Donohoo, 314 Wis. 2d 510, ¶¶24-25; City of Edgerton, 190 Wis. 2d at 521-22; Am. TV, 151 Wis. 2d at 183; Crosetto, 160 Wis. 2d at 584. Rather, through its supervisory function, the court has established a Judicial Code that employs statewide, uniform criteria for the exercise of judicial functions in all cases.
¶24 In regard to limiting an individual Wisconsin Supreme Court justice's constitutional authority to act, Article VII of the Wisconsin Constitution also establishes the circumstances under which a justice can be prevented from exercising his or her judicial functions. It provides that a justice may be removed from office only through impeachment (Wis. Const. art. VII, § 1); pursuant to a disciplinary proceeding brought before the supreme court for cause or disability (Wis. Const. art. VII, § 11); and by address of both houses of the legislature (Wis. Const. art. VII, § 13). The voters may also recall a justice (Wis. Const. art. XIII, § 12).
¶25 As we have explained, aside from actions brought under the Judicial Code, "[t]he only constitutional authority" to remove a justice rests with the legislature, by impeachment or address, see In re Kading, 70 Wis. 2d at 535, or the voters by recall. Accordingly, we conclude that this court does not have the power to remove a justice from participating in an individual proceeding, on a case-by-case basis.
¶26 Our conclusion explaining the scope of power that this court may exercise over a judicial peer is consistent with the court's past decisions on motions to disqualify a justice. It also is reflected in the court's IOP. The IOP directs that motions to disqualify a justice are to be decided solely by the justice at whom the motion is directed. IOP II.L.1. provides:
Recusal or Disqualification of Justices. A justice may recuse himself or herself under any circumstances sufficient to require such action. The grounds for disqualification of a justice are set forth in Wis. Stat. § 757.19. The decision of a justice to recuse or disqualify himself or herself is that of the justice alone.
¶27 In addition, the court's IOP mirrors the way in which the United States Supreme Court addresses motions to disqualify a Supreme Court Justice. When a motion is made to disqualify a Justice of the Supreme Court, one of three things happens: (1) the Justice for whom disqualification is sought decides the motion individually, (2) the entire Supreme Court, including the Justice for whom disqualification is sought, issues a one sentence denial of the motion for disqualification, or infrequently, (3) the entire Supreme Court issues a one sentence denial of the motion for disqualification, with a notation that one of the Justices for whom recusal was sought did not participate.
¶28 Furthermore, the United States Supreme Court has never held that a majority of that Court has the power to disqualify another Justice, i.e., a judicial peer, from participating in a pending proceeding because the Justice at whom the motion is directed is not impartial or that there is the appearance that the Justice is not impartial. Significantly, the United States Supreme Court has not changed its own procedures on recusal subsequent to its decision in Caperton.
has been written about the institutional power of a majority of the Supreme
Court relative to a motion to disqualify a fellow Justice. However, Justice Robert Jackson took issue with motions to disqualify an
individual Justice that were addressed to the court as a whole and therefore,
appeared to seek disqualification of a judicial peer by the vote of a majority
of the court. In Jewell Ridge Coal
Corp. v. Local No. 6167, United Mine Workers of America, 325 U.S. 897
(1945), he explained his concern:
"In my opinion the complaint is one which cannot properly be
addressed to the Court as a whole and for that reason I concur in denying
¶30 More recently, in a 2004 interview, Justice Ruth Bader Ginsburg
explained that the decision about whether a Supreme Court Justice will be
disqualified from participating in a proceeding is always made by the
individual Justice at whom the motion to disqualify is directed. Ruth Bader Ginsburg, An Open Discussion
with Justice Ruth Bader Ginsburg, 36
¶31 For more than 150 years, the Wisconsin Supreme Court has provided
due process to movants seeking disqualification of a justice in a pending
proceeding by consistently following the practice of the United States Supreme
Court in like motions and in regard to challenges to court decisions based on
allegations that a particular justice should not have participated. As explained above, the court's past practice
for addressing motions to disqualify a justice from a particular proceeding is
firmly grounded in and required by the Wisconsin Constitution, which sets out
the functions of the court and the ways in which performance of the duties of a
justice may be limited. Due process is
provided in all cases by the justice at whom the motion to disqualify is
directed. Crosetto, 160
¶33 First, as the United States Supreme Court repeatedly said in its
decision in Caperton, that decision is based on extraordinary and
extreme facts. Caperton, 556
¶34 The Supreme Court reinforced the focus of Caperton's holding
in Citizens United v. Federal Election Commission, 558 U.S. __, 130
S. Ct. 876 (2010), when it explained, "Caperton held that a
judge was required to recuse himself" based on the timing of the
extraordinary judicial campaign contributions that were made.
¶35 In addition, were Caperton expanded to support the
disqualification of a justice on facts less extreme and egregious than those on
which the Caperton decision was based, a party could attempt to affect
the outcome of his case by filing disqualification motions against certain
justices and not against other justices.
See Allen, 322
¶36 Furthermore, four justices forcing a fellow justice off a pending case will not increase the public's perception that the court is an impartial decision maker. Rather, the specter of four justices preventing another justice from participating will just as likely be seen by the public as a biased act of four justices who view a pending issue differently from the justice whom they disqualified.
¶37 Finally, removal of a justice from participating in an individual
case negatively impacts judicial independence.
This is so because motions for disqualification are not made in regard
to a justice that the movant believes will decide the pending case in the
movant's favor. Rather, they are made to
exert pressure on a justice the movant believes will not decide the case as the
movant wants it to be decided, or in motions after decision in order to cancel
a justice's participation from a decision under which the movant did not
prevail. See Donohoo, 314
Wis. 2d 510, ¶¶1-2
(moving to disqualify Justice Butler, who decided against Donohoo); Jackson
v. Benson, 2002 WI 14, ¶2
& n.2, 249 Wis. 2d 681, 639 N.W.2d 545 (seeking the disqualification
of Justice Wilcox, who had participated in the majority decision against
¶39 Accordingly, we conclude as follows: (1) Henley's motion for reconsideration meets none of the criteria for granting a motion for reconsideration and is therefore denied; (2) determining whether to recuse is the sole responsibility of the individual justice for whom disqualification from participation is sought; (3) a majority of this court does not have the power to disqualify a judicial peer from performing the constitutional functions of a Wisconsin Supreme Court justice on a case-by-case basis; and (4) Henley has received due process.
¶40 The motion for reconsideration is denied without costs.
¶41 SHIRLEY S. ABRAHAMSON, C.J., ANN WALSH BRADLEY, J., and N. PATRICK
CROOKS, J. (dissenting). The
per curiam correctly observes that
(A) Our court has failed to provide any process for judicial review of Justice Roggensack's decision not to recuse herself.
Justice Patience D. Roggensack has
inappropriately participated in the
it is Justice Roggensack who provides the fourth, and deciding, vote for the unauthored
per curiam denying
¶44 Justice Roggensack joins three colleagues, Justices David T. Prosser, Annette K. Ziegler, and Michael J. Gableman, to make four to rule on the motion to disqualify Justice Roggensack. Thus Justice Roggensack participates in a matter reviewing her own conduct. Without her vote there is no "per curiam," no "by the court." Without her vote there is no decision by the court.
¶45 Justice Roggensack fails to respect a bedrock principle of law that predates the American justice system by more than a century——"no man is allowed to be a judge of his own cause"——a principle recently repeated by Justice Anthony Kennedy, writing for a majority of the United States Supreme Court in the Caperton case.
¶46 That Justice Roggensack participates in this motion for reconsideration is not a due process or ethical calculation but a mathematical one: one vote plus three votes equals an attempt to achieve a majority.
¶47 The per curiam attempts to obfuscate Justice Roggensack's being the
judge of her own cause by saying that she can participate because "all
justices are affected equally by [the] determination of the scope of the
court's power in this regard." Per
curiam op., ¶9
(emphasis added). This attempt to
obfuscate is not persuasive.
¶48 It was Justice Roggensack's participation in a related case while
she was a judge of the court of appeals that has stimulated the two recusal
¶49 A justice's participation in a motion addressed to the court challenging that justice's refusal to disqualify is unprecedented in this court. In every case in which a motion has been addressed to the court seeking review of a justice's participation in a case, the challenged justice has not participated in deciding the motion.
¶50 Over the years, several justices, including most recently Justice Ziegler and Justice Gableman, did not participate in the court's decisions on motions seeking court review of their decisions to participate in cases. Why is this case different from all other cases addressing recusal of a justice?
¶51 The answer, of course, is that this per curiam is not different. We need go no further for an illustration of the axiom that a justice does not participate in the court's decisions on motions seeking court review of that justice's decision to participate than Justice Roggensack's not participating in two orders of this court relating to the court's consideration of Henley's prior motion seeking court review of Justice Roggensack's decision to participate in the Henley case.
¶52 Justice Roggensack did not participate in the Feb. 8, 2010, order ordering briefs on the issue of Justice Roggensack's disqualification. The order is attached.
¶53 Justice Roggensack did not participate in the May 24, 2010, order in which Justices Prosser, Ziegler, and Gableman declared the court had no power to disqualify Justice Roggensack. The order is attached.
¶54 Moreover, Justice Roggensack, without explanation, withdraws from participation in an unpublished order dismissing Yasmine Clark's motion to file an amicus brief to reconsider the Henley opinion, even though Justice Roggensack previously participated in granting Ms. Clark's motion to file the amicus brief.
¶55 Acting inconsistently in deciding various issues in the Henley
case, Justice Roggensack now participates in this per curiam decision that
addresses a motion to reconsider the
¶56 Justice Roggensack's inconsistent conduct in sometimes
disqualifying herself in the
¶57 We turn now to the writings of Justice Roggensack and three colleagues. Four justices, Justices Prosser, Roggensack, Ziegler, and Gableman, writing as a per curiam, reach the following conclusions:
(A) This court does not "have the power to disqualify a judicial peer from performing the constitutional functions of a Wisconsin Supreme Court Justice on a case by case basis."
¶58 Justices Patience D. Roggensack, David T. Prosser, Annette K. Ziegler, and Michael J. Gableman decide that the court has no power to disqualify Justice Roggensack. They reach this decision without the benefit of briefs or oral argument. The court has never had the benefit of briefs or oral argument on this issue in any case. Thus the court deviates from the traditional adversarial system, the foundation of our legal system and jurisprudence.
¶59 The per curiam joined by these four justices essentially treats the
due process claim challenging the participation of a justice as nonjusticiable
but then, in an inconsistent shift, decides the due process issue. Thus Justice Roggensack participates in
deciding the constitutional validity of her participation in the
¶60 Will Justices Prosser, Roggensack, Ziegler and Gableman comment on all recusal motions challenging a justice, thus rendering an advisory opinion even though they insist they lack the power to disqualify a justice?  Or will they comment on only those recusal motions in which they can hold in favor of the challenged justice? And are they going to continue to comment on the grounds raised for disqualification without briefs or oral argument, as they do in the present case?
¶61 We three disagree with the conclusions that our four colleagues reach. The allegations in the motion and the conclusions in the per curiam are sufficient to justify briefs, oral argument, and full consideration. This motion should have been handled in an open, transparent, comprehensive manner.
¶62 In support of their conclusions, the four justices joining the per curiam substantially rely on and repeat much of Justice Roggensack's authored writing in State v. Allen, 2010 WI 10, 322 Wis. 2d 372, 778 N.W.2d 863, in which Justices Prosser and Ziegler both joined and wrote separately. Justice Gableman withdrew from participation in Allen, which involved the defendant's challenge to Justice Gableman's participation.
¶63 We three wrote at great length in Allen, covering 87 printed pages in the Wisconsin Reporter. In addition, Justice Crooks wrote a six-page separate opinion. We concluded in Allen on the basis of our research (although we sought briefs) that the court not only had jurisdiction (power) to decide the disqualification of a justice, but also had the constitutional responsibility to decide the issue.
¶64 In Allen, we wrote on all the topics addressed in the per curiam, including the court's jurisdiction to disqualify a justice or a judge; all the cases the per curiam cites; the subjective and objective grounds of disqualification under Wis. Stat. § 757.19(2); this court's prior cases deciding the due process and statutory rights of a litigant when a challenged justice or a judge participated in a matter; the recusal practices of the United States Supreme Court and supreme courts of other states; the Caperton decision; and due process standards of disqualification.
¶65 For ease of reference we include pinpoint citations to our analysis in Allen of cases discussed in the per curiam decision:
Caperton v. A.T Massey Coal
Co., Inc., 556
In re Disciplinary
Proceedings Against Crosetto, 160
Donohoo v. Action Wisconsin,
Inc., 2008 WI 110, 314
State v. Harrell, 199
State v. American TV &
Appliance of Madison, Inc., 151
Case v. Hoffman, 100
State v. Cannon, 199
In re Kading, 70
Jackson v. Benson,
2002 WI 14, 249
Cheney v. United States Dist.
Court for Dist. of Columbia, 541 U.S. 913 (2004): See Allen, 322
Microsoft Corp. v. United
Hanrahan v. Hampton,
Laird v. Tatum, 409
U.S. 901 (1972): See Allen,
Gravel v. United States,
409 U.S. 902 (1972): See Allen,
Guy v. United States,
409 U.S. 896 (1972): See Allen,
Ernest v. U.S. Attorney for
S. Dist. of Alabama, 474
Kerpelman v. Attorney
Grievance Comm'n of Md., 450 U.S. 970 (1981): See Allen, 322
Serzysko v. Chase Manhattan
Jewell Ridge Coal Corp. v.
Local No. 6167, 325 U.S. 897 (1945): See Allen, 322
¶66 We have reviewed our Allen writings. We shall not rewrite our writings in Allen or attempt to summarize them. We stand by our Allen writings. We incorporate them in full into this dissent.
¶67 For the reasons set forth, we dissent from the denial of
 State v. Henley,
2010 WI 97, 328
 The right to due process of law is also protected by Article I, Section 8 of the Wisconsin Constitution.
 State v. Henley,
 The dissenting opinion of the combined authorship of Chief Justice Abrahamson, Justice Bradley and Justice Crooks (hereinafter Abrahamson dissent) notes that Henley is not seeking reconsideration of the court's decision on the merits of whether Henley should be afforded a new trial. Abrahamson dissent, ¶41.
 A motion to disqualify a justice on a case-by-case basis has become the motion du jour, as litigants attempt to manipulate the decisions of this court by disqualifying justices whom they think may decide against the position a litigant takes. Between April 2009 and April 2010, 12 motions requested the court to disqualify a justice from participating in a pending case. In that one year period, more motions to disqualify a justice from a pending case were filed than the total of such motions in the preceding 10 years.
 The dissent avoids the per curiam's legal conclusion that a majority of the court does not have the institutional power to disqualify a sitting justice on a case-by-case basis. For example, the Abrahamson dissent attempts to shift the reader's focus with a number of irrelevant, rhetorical questions. Abrahamson dissent, ¶60.
 Abrahamson dissent, ¶¶45-49, 51-56.
 The court may act when a quorum of four members of the court participate, Wis. Const. art. VII, § 4, cl. 1, and a majority votes to act.
 See supra note 6 above.
 Chief Justice
Abrahamson served on the Wisconsin Supreme Court when In re Disciplinary
Proceedings Against Crosetto, 160
 The Code of Judicial Conduct is contained in ch. 60 of the Supreme Court Rules. It was formerly referred to as the Code of Judicial Ethics.
 The supervisory function of the supreme court also embodies the authority to regulate the practice of law in Wisconsin, Sands v. Menard, Inc., 2010 WI 96, ¶51, 328 Wis. 2d 647, 787 N.W.2d 384, and the authority to control the course of litigation in the circuit courts, State ex rel. Fourth National Bank of Philadelphia v. Johnson, 103 Wis. 591, 613, 79 N.W. 1081 (1899).
 Of course, defeat in an
election (Wis. Const. art. VII, § 4(1),
 For example, in Cheney v. United States District Court for the District of Columbia, 541 U.S. 913 (2004), Justice Scalia, individually, decided the Sierra Club's motion to disqualify him. See also Microsoft Corp. v. United States, 530 U.S. 1301 (2000) (Justice Rehnquist denied the motion for his disqualification.); Hanrahan v. Hampton, 446 U.S. 1301 (1980) (Justice Rehnquist denied the motion to disqualify him.); Laird v. Tatum, 409 U.S. 901 (1972) (Justice Rehnquist denied the motion to disqualify him.); Gravel v. United States, 409 U.S. 902 (1972) (Justice Rehnquist denied the motion for his own disqualification.); and Guy v. United States, 409 U.S. 896 (1972) (Justices Blackmun and Rehnquist individually denied the disqualification motions that were directed to each Justice.).
 In Ernest v. United States Attorney for the Southern District of Alabama, 474 U.S. 1016 (1985), the Court, including Justice Powell, issued a one sentence denial of the motion to disqualify Justice Powell; in Kerpelman v. Attorney Grievance Commission of Maryland, 450 U.S. 970 (1981), the Court, including Justice Burger, summarily denied the motion to disqualify Justice Burger; in Serzysko v. Chase Manhattan Bank, 409 U.S. 1029 (1972) the Court, including Justices Powell and Rehnquist, denied motions to disqualify Justice Powell and Justice Rehnquist in a one sentence statement.
 There have been occasions when
a Justice's health has impacted on court work.
For example, in 1975 Justice William O. Douglas suffered a
serious stroke that left him severely compromised. Seven of the remaining Justices decided not
to assign Justice Douglas any more opinions to write. However, Justice Douglas was not disqualified
from further participation in pending cases.
See David J. Garrow, Mental Decrepitude on the
 In Caperton v. A.T.
Massey Coal Co., Inc., 556
 State v. Henley,
2010 WI 97, 328
The words "recusal" and
"disqualification" are effectively synonymous and are often used interchangeably,
as we use them here. Some distinguish
between the two words, using "recusal" to refer to a judge's decision
to stand down voluntarily and "disqualification" to refer to the
statutorily or constitutionally mandated removal of a judge on the request of a
 See McKnett v. St.
Louis & S.F. Ry. Co., 292 U.S. 230, 232-34 (1934) ("[T]he Federal
Constitution prohibits state courts of general jurisdiction from refusing [to
enforce a federal right] solely because the suit is brought under federal
law. . . . A state may not discriminate against rights arising
under federal laws."). See also
Terry v. Kolski, 78
 Here is the history of
Justice Roggensack denied the motion, concluding that
she is not precluded from participation in the present case under Wis. Stat. § 757.19(2)(e) and (g)
or SCR 60.04(4). For the memorandum
decision, see State v. Henley, 2010 WI 12, 322
The court then issued the attached unpublished order
dated May 24, 2010, addressing
In the May 24, 2010, court order, Justice David T. Prosser, Justice Annette K. Ziegler, and Justice Michael J. Gableman concluded that the court does not have the power to disqualify a fellow justice, referring to the writings of Justices Prosser, Roggensack, and Ziegler in State v. Allen, 2010 WI 10, 322 Wis. 2d 372, 778 N.W.2d 863. Chief Justice Abrahamson, Justice Ann Walsh Bradley, and Justice N. Patrick Crooks also referred to their separate writing in State v. Allen, concluding that it appears the court has the power (jurisdiction) to disqualify a justice and that this court has exercised its jurisdiction to decide disqualification motions against individual justices under § 757.19(2).
In the motion
presently before the court,
 See, for example, Justice Scalia's reference to "the wisdom of the ancient maxim 'aliquis non debet esse Judex in propria causa'——no man ought to be a judge of his own cause," in Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 329 n.* (2007) (Scalia, J., concurring) (quoting Dr. Bonham's Case, 77 Eng. Rep. 638, 646, 652 (C.P. 1610)); and Ex parte Ah Oi, 13 Haw. 534, 1901 WL 1300, *14 (1901) (Galbraith, J., dissenting) ("'No man shall be a judge in his own cause' is a maxim that is ancient in use and of universal application in Anglo-Saxon communities.").
See also In re Murchison, 349
To this end no man can be a judge in his own
case and no man is permitted to try cases where he has an interest in the
outcome. That interest cannot be defined
with precision. Circumstances and
relationships must be considered. This
Court has said, however, that 'Every procedure which would offer a possible
temptation to the average man as a judge . . . not to hold the balance
nice, clear, and true between the State and the accused denies the latter due
process of law.' Tumey v. State of
 Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252, 2265 (2009) (reversing a judgment of the Supreme Court of Appeals of West Virginia on the grounds that the Due Process Clause of the Fourteenth Amendment to the United States Constitution was violated when a justice in the majority participated in the case when objective standards required recusal).
See Justice Crooks' separate writing in State v. Allen, 2010 WI 10, ¶190, 322 Wis. 2d 372, 778 N.W.2d 863, commending Justice Gableman on withdrawing from the Allen decision, which involved a disqualification motion addressed to Justice Gableman.
 The defendant's same due process arguments about the court's decision apply to the court's denial of his motion for reconsideration:
(A) Justice Roggensack has inappropriately
participated in the denial of
(B) The per curiam decision explicitly declares that no process exists in this court to review a single justice's decision not to recuse herself on due process grounds short of removal from office through constitutional means or judicial discipline. Per curiam, ¶¶24-25.
 In In re
Disciplinary Proceedings Against Crosetto, 160
 See Krier v. Vilione, Nos. 2006AP1573 & 2006AP2290 (motions filed challenging Justices Ziegler and Gableman; neither justice participated in court order ruling on motion.)
See the unpublished court orders in the following cases, in which the challenged justice did not participate in the court's order about disqualifying the justice:
v. Carter, No.
2006AP1811-CR, unpublished order (
v. Cross, No.
2009AP3-CR, unpublished order (
v. Jones, No.
2008AP2342-CR, unpublished order (
v. Littlejohn, No.
2007AP900-CR, unpublished order (
v. McGuire, No.
2007AP2711-CR, unpublished order (
v. Sveum, No.
2008AP658-CR, unpublished order (
See the following cases in which the challenged justice did not participate in the court's decision determining the validity of a decision in which the challenged justice participated:
v. American TV, 151
 See note 3 above.
 See note 3 above.
 See note 3 above.
 See unpublished order
in State v. Henley, of even date as this per curiam, dismissing Yasmine
Clark's motion to reconsider the
 For a discussion asserting that due process should be extended so that once a judge has recused himself or herself, the judge may no longer affect the case, see S. Matthew Cook, Note, Extending the Due Process Clause to Prevent a Previously Recused Judge from Later Attempting to Affect the Case from Which He was Recused, 1997 B.Y.U. L. Rev. 423.
 Per curiam opinion joined by Justices Prosser, Roggensack, Ziegler, and Gableman, ¶¶2, 25, 39.
As we stated in our writing in State v. Allen, 2010
WI 10, 322
 Per curiam opinion joined by Justices Prosser, Roggensack, Ziegler, and Gableman, ¶¶2, 32-35, 39.
 As Justice Crooks wrote
in Allen, 322
 Compare Justice Prosser's separate writing in Allen, 322 Wis. 2d 372, ¶250, suggesting solutions such as personal and collective persuasion of a colleague who refuses to withdraw, delay of a case, or involvement of the Judicial Commission, with his position in the order in State v. Henley (attached) suggesting an advisory opinion.
 For a proposed resolution before the American Bar Association recommending that state supreme courts clearly articulate procedures for judicial disqualification determinations, including prompt review by another judge or tribunal, or as otherwise provided by law or rule of court, of denials of requests to disqualify a judge, see:
AMERICAN BAR ASSOCIATION
STANDING COMMITTEE ON JUDICIAL
REPORT TO THE HOUSE OF DELEGATES
RESOLVED, That the American Bar Association urges states to establish clearly articulated procedures for:
A. Judicial disqualification determinations; and
B. Prompt review by another judge or tribunal, or as otherwise provided by law or rule of court, of denials of requests to disqualify a judge.
. . .
FURTHER RESOLVED, That the Standing Committee on Ethics and Professional Responsibility and the Standing Committee on Professional Discipline should proceed on an expedited basis to consider what amendments, if any, should be made to the ABA Model Code of Judicial Conduct or to the ABA Model Rules of Professional Conduct to provide necessary additional guidance to the states on disclosure requirements and standards for judicial disqualification.