On Point: 23. Judge

State v. Justin D. Gudgeon, 2006 WI App 143, PFR filed 7/14/06
For Gudgeon: Jefren E. Olsen, SPD, Madison Appellate

Issue: Whether a judge’s instruction to a probation agent, who asked that probation not be extended, “No—I want his probation extended,” evinced judicial bias so as to taint the judge’s subsequent extension order.

Holding: While the judge’s comment did not establish “actual bias” (“given our experience and the reputation of this particular trial judge as a fair and just administrator of the law”),

State of Wisconsin ex rel. Mateo D.O. v. Circuit Court, 2005 WI App 85

For Mateo D.O.: Colleen Bradley, SPD, Oshkosh Trial

Issue/Holding:

¶15. A petition for a writ of mandamus or prohibition is an appropriate remedy to redress the denial of judicial substitution. See State ex rel. James L.J. v. Circuit Court for Walworth County, 200 Wis. 2d 496,

State of Wisconsin ex rel. Mateo D.O. v. Circuit Court, 2005 WI App 85
For Mateo D.O.: Colleen Bradley, SPD, Oshkosh Trial

Issue/Holding:

¶15. A petition for a writ of mandamus or prohibition is an appropriate remedy to redress the denial of judicial substitution. See State ex rel. James L.J. v. Circuit Court for Walworth County, 200 Wis. 2d 496,

State v. Somkith Neuaone, 2005 WI App 124
For Neuaone: Ralph Sczygelski

Issue/Holding: Where the sole basis for recusal is a claim that the judge was exposed to relevant sentencing information that he was entitled to hear, the very premise for the claim is flawed, ¶17.

¶16            Whether a judge was a “neutral and detached magistrate” is a question of constitutional fact which we review de novo and without deference to the trial court’s ruling.  

Harrison Franklin v. McCaughtry, 398 F.3d 955 (7th Cir 2005), granting habeas relief in unpublished opinion of Wis COA

Issue/Holding: The tripartite test for judicial bias (subjective inquiry answered by trial judge’s determination of own impartiality; objective examination as to whether reasonable person could question judge’s impartiality; and if partiality is established, whether it was harmless, see State v. Rochelt, 165 Wis.

State of Wisconsin ex rel. Mateo D.O. v. Circuit Court, 2005 WI App 85
For Mateo D.O.: Colleen Bradley, SPD, Oshkosh Trial

Issue/Holding: The chief judge has authority to review denial of a substitution request in a delinquency proceeding, under §§ 938.29(1)(m) and 801.58(2). (Because § 801.58(2) is the more specific provision, it “applies when the juvenile’s request for substitution is denied,” ¶9; it plainly provides for “review[] by the chief judge of the judicial administrative district.”)

¶10.

Brown County DHS v. Terrance M., 2005 WI App 57
For Terrance M.: Theresa J. Schmieder

Issue/Holding:

¶11. The trial court ruled and the County now argues that Terrance’s substitution request was untimely because it was not filed before “hearing of any preliminary contested matters” under Wis. Stat. § 801.58. Terrance argues the applicable statute is Wis. Stat. § 48.29, which allows a request “either before or during the plea hearing ….”

State v. Van G. Norwood, 2005 WI App 218
For Norwood: Terry Evans Williams

Issue/Holding: Defendant’s withdrawal of his NGI plea prevented him from later invoking the right of judicial substitution provided by § 971.20(5), where a new judge was subsequently assigned and no prior right to substitution invoked.

The court’s analysis doesn’t track the actual language of the statute – “Because Norwood’s plea withdrawal constitutes a ‘proceeding’ within the meaning of § 971.20(5),

State of Wisconsin ex rel. Mateo D.O. v. Circuit Court, 2005 WI App 85
For Mateo D.O.: Colleen Bradley, SPD, Oshkosh Trial

Issue/Holding:

¶15. A petition for a writ of mandamus or prohibition is an appropriate remedy to redress the denial of judicial substitution. See State ex rel. James L.J. v. Circuit Court for Walworth County, 200 Wis. 2d 496,

State v. Terrance J. O’Neill, 2003 WI App 73
For O’Neill: Roger D. Sturdevant, SPD, Monroe

Issue: Whether a judge’s persistent and partisan efforts to require litigation on a recurrent issue on which the court of appeals had already reversed him, in an unpublished case in which the judge actively appeared as a party on the appeal, establishes disqualifying bias.

Holding: Bias not established: The judge intends to require litigation on the disputed issue in every case,