COURT OF APPEALS
DATED AND FILED
January 25, 2011
Acting Clerk of Court of Appeals
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
IN COURT OF APPEALS
In re the termination of parental rights to
from orders of the circuit court for
¶1 FINE, J. Troy J. appeals the order
terminating his parental rights to Torie D. J. He claims that the circuit court, the
Honorable Christopher R. Foley, presiding, should have disqualified itself from
the dispositional phase of the matter because
¶2 Torie was born in
September of 2006.
¶3 The Legal Aid Society was founded in 1916, and gives free
legal services to persons who cannot afford to hire a lawyer. It is a nonstock, not-for-profit corporation
organized under Wis. Stat. ch.
181. It is run by an independent board
of directors, none of whom is a representative of
¶4 The Legal Aid Society has provided guardian ad litem services to courts in
¶5 The stipulation further recounts:
Each year, judges in the Children’s Court Division appoint the Legal Aid Society of Milwaukee to serve as guardian ad litem for approximately 4,000 children in individual cases involving guardianships, children in need of protection or services, and termination of parental rights. Upon receipt of an appointment, [the Society]’s Chief Staff Attorney assigns each new case to an individual staff attorney based on experience, workload, vacation schedules, and other relevant factors.
¶6 Termination of parental rights
is a two-step process. First, a fact-finder decides whether there are
facts that justify governmental interference in whatever relationship there is
between the birth-parent and his or her child.
See Wis. Stat. §§ 48.415,
• In May,
• At the end of May of 2009,
• The only Legal Aid Society lawyer who
has acted as Torie’s guardian ad litem
The parties stipulated that
¶7 As we have seen, the parties do not dispute any of the
material facts. Further, resolution of this appeal turns on the application of Wis. Stat. § 757.19. Accordingly, our
review is de novo. See Trustees
of Ind. Univ. v. Town of
(2) Any judge shall disqualify himself or herself from any civil or criminal action or proceeding when one of the following situations occurs:
(a) When a judge is related to any party or counsel thereto or their spouses within the 3rd degree of kinship.
(b) When a judge is a party or a material witness, except that a judge need not disqualify himself or herself if the judge determines that any pleading purporting to make him or her a party is false, sham or frivolous.
(c) When a judge previously acted as counsel to any party in the same action or proceeding.
(d) When a judge prepared as counsel any legal instrument or paper whose validity or construction is at issue.
(e) When a judge of an appellate court previously handled the action or proceeding while judge of an inferior court.
(f) When a judge has a significant financial or personal interest in the outcome of the matter. Such interest does not occur solely by the judge being a member of a political or taxing body that is a party.
(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.
Section 757.19(2)(a)–(f) are clearly inapplicable. Also, Mr. J. apparently concedes, as he must, that § 757.19(2)(g) does not apply because Judge Foley has determined that he could and would be impartial in cases where Legal Aid Society lawyers appear before him as guardians ad litem. See Donohoo v. Action Wisconsin Inc., 2008 WI 110, ¶27, 314 Wis. 2d 510, 528, 754 N.W.2d 480, 489 (recusal under § 757.19(2)(g) is required only when a judge determines that he or she cannot be impartial). Thus, we turn to § 757.19(2)(a).
¶8 Disqualification under Wis.
Stat. § 757.19(2)(a) “as it applies to government attorneys is to
restrict its scope to only the attorney of record and any other attorneys who
appear or participate in the case. It
certainly does not include every government attorney who
happens to be employed in the same county office or governmental department.”
State v. Harrell, 199
¶9 First, unlike a private law firm, where partners and
associates share to varying degrees the profits earned by the firm, the Legal
Aid Society is non-profit and, as the parties have stipulated, its lawyers like
Ms. Foley are paid a straight salary that does not depend on the results of
cases where Legal Aid Society guardians ad
litem appear. Thus, we, like Harrell,
need not consider a situation where the person within the degree of
consanguinity set out in Wis. Stat. §
757.19(2)(a) “was a partner in a private law firm that represented one of the
parties.” Harrell, 199
¶10 Second, although the Preamble to Wisconsin’s Code of Judicial
Conduct, SCR 60, indicates that it is not to be “invoked by lawyers or
litigants for mere tactical advantage in a proceeding,” the Code “state[s]
basic standards which should govern the conduct of all judges and to provide
guidance to assist judges in establishing and maintaining high standards of
judicial and personal conduct.” As the
brief of the Legal Aid Society as guardian ad
litem here points out, SCR 60.04(4)(e)2 can help illumine the word
“counsel” in Wis. Stat. §
757.19(2)(a), and, consistent with Harrell, it provides, that unless
the parties waive their right to object: “a judge shall recuse himself or herself in a
proceeding when the facts … establish … [that] … the judge’s spouse, or a
person within the third degree of kinship of either of them … [i]s acting
as a lawyer in the proceeding.” (Emphasis
added.) See State v. Meeks, 2003 WI 104, ¶¶54, 60, 263 Wis. 2d 794, 821, 823, 666 N.W.2d 859,
873–874 (using SCR 20:1.6 to shed light on a lawyer’s duties to his or her
client under Wis. Stat. Rule
905.03, even though the Preamble to SCR 20 then provided that “the rules of
professional responsibility ‘are not intended to govern or affect judicial
application of either the attorney-client privilege or work product
privilege.’” Meeks, 2003 WI 104, ¶85,
¶11 Third, the crux of Wis.
Stat. § 757.19(2)(a) is that the judge is disqualified when he or she
gets a tangible or intangible benefit because the persons within the section’s
degree of sanguinity are in a position to gain from the judge’s exercise of his
or her duties. Here, as we have seen,
the parties stipulated that neither
¶12 Fourth, a guardian ad litem in a Children’s Court case, unlike a lawyer seeking a result for a client, seeks no outcome but what Wis. Stat. § 48.01(1) requires, namely the “best interests” of the child. See Wis. Stat. § 48.235(3)(a) (“The guardian ad litem shall be an advocate for the best interests of the person or unborn child for whom the appointment is made. The guardian ad litem shall function independently, in the same manner as an attorney for a party to the action, and shall consider, but shall not be bound by, the wishes of that person or the positions of others as to the best interests of that person or unborn child.”). Under the stipulation here, there is nothing that even suggests that Ms. Foley or Judge Foley would benefit in anyway (other than as the law requires) by Ms. Foley’s colleagues’ successful fulfillment of their guardian ad litem responsibilities, or any ruling that Judge Foley may make in any case where a Legal Aid Society lawyer is appearing before him as a guardian ad litem.
¶13 Similarly, although we agree with
My wife’s views, public or private, as to any issues that may come before this court, constitutional or otherwise, are of no consequence. She is a strong, independent woman who has long fought for the principle, among others, that women should be evaluated on their own merits and not judged in any way by the deeds or position in life of their husbands (and vice versa). I share that view and, in my opinion, it reflects the status of the law generally, as well as the law of recusal, regardless of whether the spouse or the judge is the male or the female. My position is the same in the specific case of a spouse whose views are expressed in the capacity of an officer, director, or manager of a public interest or advocacy organization that takes positions or supports legislation or litigation or other actions of local, state, or national importance.
Ibid. Of course,
¶14 Fifth, although it is true that if the Children’s Court judges ever perceived that the Legal Aid Society’s lawyers were not responsibly fulfilling their guardian ad litem responsibilities, the judges might seek to have Milwaukee County’s contract with the Society terminated and that Ms. Foley’s job might then be in jeopardy, a similar concern would underlie the situation in Harrell because if the public perceived that the district attorney’s office in which the judge’s wife worked was doing a shoddy job of protecting the community because of rulings the judge might make, the district attorney might lose the next election and the judge’s wife could then possibly lose her position. That alleged financial “benefit” is, however, so tenuous that it is not even clear that the Harrell court considered it; certainly, there is nothing in the majority or concurring opinions that indicates that it did.
¶15 As noted, Mr. J.’s only challenge to the order terminating his parental rights to Torie is that Judge Foley should have disqualified himself from the disposition phase. Accordingly, having determined that recusal was not required, we affirm.
By the Court.—Orders affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
matter first came to us as a no-merit appeal filed in March of 2010 on Troy
J.’s behalf by
 The order also terminated the parental rights of Torie’s mother. That matter is not before us.