On Point: 23. Judge

Wisconsin Judicial Commission v. Kenneth W. Gorski, 2020 WI 5, imposing a public reprimand on a court commissioner; case activity

Gorski, a part-time court commissioner, earns a public reprimand for failing to recuse himself from a case being handled by a lawyer who is a close friend and for his treatment of the pro se litigant in that case.

United States v. James Atwood, No. 18-2113 (7th Cir. Oct. 24, 2019)

Atwood is entitled to a new sentencing hearing because the judge in his case was communicating ex parte with the prosecutor’s office about other cases, and the content of the correspondence invited doubt about the judge’s impartiality in proceedings involving the prosecutor’s office.

Timothy W. Miller v. Angela L. Carroll, petition to review a published court of appeals decision granted 8/14/19; case activity (including briefs)

Issues (based on Carroll’s Petition for Review)

1. Does a judge’s acceptance of one party’s Facebook “friend” request by itself overcome the presumption that a judge is fair, impartial, and capable of ignoring any biasing influences, given the absence of any allegation of subjective bias or of facts showing the judge treated the other party unfairly, and when there were no electronic social media (“ESM”) communications between the judge and the party regarding the merits of the case?
2. Does the fact a party “liked” a judge’s Facebook posts unrelated to the pending litigation or commented on a Facebook post unrelated to the pending litigation constitute an ex parte communication between a party and a judge?

In re Judicial Disciplinary Proceedings Against Piontek, 2019 WI 51, 5/21/19; case activity

The supreme court suspends Judge Michael Piontek from office for five days for “obviously unethical” and “clearly improper” misconduct in two criminal cases.

State v. Deshawn J. Driver, 2018AP870-CR, District 1, 2/26/19 (not recommended for publication); case activity (including briefs)

At the start of Driver’s restitution hearing, before hearing testimony from any witness, the judge told defense counsel on the record that the victim’s word “is more credible than your client’s words[.]” Later in the hearing, when defense counsel told the judge that Driver and his co-defendant did not see “a lot” of the items the victim claimed were in the stolen car, the trial court said it would “take that without their testimony” and added, “That’s why I didn’t give them a chance to say it.” Does that show “objective bias”? You bet it does.

Timothy W. Miller v. Angela L. Carroll, 2019 WI App 10, petition for review granted, 8/14/19, affirmed, 2020 WI 56; case activity (including briefs)

After a contested hearing between Miller and Carroll about custody and physical placement of their child, and before issuing a decision, the circuit judge accepted a Facebook “friend” request from Carroll. Miller argued the circuit court demonstrated objective bias by doing so. The court of appeals agrees.

State v. Esmeralda Rivera-Hernandez, 2018AP311-312-CR, 2/20/19, District 2 (1-judge opinion; ineligible for publication); case activity (including briefs)

DAs have almost limitless discretion in deciding whether to initiate a prosecution. But their discretion to terminate a prosecution is subject to independent review by the circuit court, which must consider the public’s interest in: (1) the proper enforcement of its laws, and (2) deferring to the prosecutor’s legitimate discretion.  See State v. Kenyon, 85 Wis. 2d 36, 45, 270 N.W.2d 170 (1978). In this case, the court of appeals holds the circuit court erroneously exercised its discretion when it considered (1) but not (2).

State v. Emerson D. Lamb, 2017AP1430-CR, District 3, 9/25/18 (not recommended for publication); case activity (including briefs)

The sentencing judge made comments at Lamb’s sentencing before it had heard any sentencing arguments from the parties, and those comments showed a serious risk that the court had prejudged Lamb’s sentence. Accordingly, the judge was objectively biased and Lamb is entitled to a new sentencing hearing before a different judge.

Petitioner v. Robert D. Evans, 2018 WI App 53; case activity (including briefs)

Evans, the respondent in a domestic abuse injunction proceeding, filed a substitution request on the day of the injunction hearing. To find a substitute judge in cases where substitution is requested so close to the hearing, the clerk uses an “email volunteer system”: An email is sent out to all the other judges to see if anyone is available to take over the case, and the first judge who is gets the case. (¶¶2-4). The court of appeals finds nothing prohibiting this method of assigning a substitute judge.

Dane County DHS v. C.B., 2018AP38 & 39, 4/9/2018, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Yes, that headline is correct: The circuit court did not terminate C.B.’s parental rights, and the court of appeals rejects the County’s challenges to the circuit court’s decision (and admonishes the County’s lawyer for an improper argument).