2011 Wisconsin Code
Chapter 757. General provisions concerning courts of record, judges, attorneys and clerks.
757.19 Disqualification of judge.
757.19757.19 Disqualification of judge.
757.19(1)(1) In this section, "judge" includes the supreme court justices, court of appeals judges, circuit court judges and municipal judges.
757.19(2)(2) Any judge shall disqualify himself or herself from any civil or criminal action or proceeding when one of the following situations occurs:
757.19(2)(a)(a) When a judge is related to any party or counsel thereto or their spouses within the 3rd degree of kinship.
757.19(2)(b)(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.
757.19(2)(c)(c) When a judge previously acted as counsel to any party in the same action or proceeding.
757.19(2)(d)(d) When a judge prepared as counsel any legal instrument or paper whose validity or construction is at issue.
757.19(2)(e)(e) When a judge of an appellate court previously handled the action or proceeding while judge of an inferior court.
757.19(2)(f)(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.
757.19(2)(g)(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.
757.19(3)(3) Any disqualification that may occur under sub. (2) may be waived by agreement of all parties and the judge after full and complete disclosure on the record of the factors creating such disqualification.
757.19(4)(4) Any disqualification under sub. (2) in a civil or criminal action or proceeding must occur, unless waived under sub. (3), when the factors creating such disqualification first become known to the judge.
757.19(5)(5) When a judge is disqualified, the judge shall file in writing the reasons and the assignment of another judge shall be requested under s. 751.03.
757.19(6)(6) In addition to other remedies, an alleged violation under this section or abuse of the disqualification procedure shall be referred to the judicial commission.
757.19 - ANNOT.History: 1977 c. 135; 1977 c. 187 s. 96; 1977 c. 447, 449; Stats. 1977 s. 757.19; 1979 c. 175 s. 53; 1979 c. 221; 1985 a. 332.
757.19 - ANNOT.Judicial Council Note, 1977: Section 256.19 [757.19] has been repealed and recreated to more comprehensively set out the procedure in Wisconsin for a judge to disqualify himself or herself. The new provisions apply to courts of record and municipal courts and define those situations in which a judge should in the interest of justice disqualify himself or herself from hearing a matter. Subsection (2) (g) is a catch-all provision to be used in those situations where a particular set of circumstances dictates that a judge disqualify himself or herself.
757.19 - ANNOT.The new judge disqualification section contains provisions for assuring that a disqualification is timely made and also provides for waiver of a statutory disqualification upon agreement of all interested parties and the judge. Alleged violations of this section will be brought to the attention of the judicial commission for appropriate review. [Bill 74-S]
757.19 - ANNOT.Judges are disqualified only if they have acted as counsel for a party in the matter to be determined. Sturdevant v. State, 49 Wis. 2d 142, 181 N.W.2d 523 (1970).
757.19 - ANNOT.A judge who represented the defendant as counsel in another phase of a criminal matter had no power to act as judge in hearing a related postconviction motion and should have, sua sponte, disqualified himself. Rainey v. State, 65 Wis. 2d 374, 222 N.W.2d 620 (1974).
757.19 - ANNOT.Although the judge was apparently biased against defense counsel, the judge's refusal to recuse himself was harmless error under the facts of the case. State v. Walberg, 109 Wis. 2d 96, 325 N.W.2d 687 (1982).
757.19 - ANNOT.Under sub. (2) (g) the self-disqualification decision is subjective, and review is limited to determining whether the judge concluded disqualification was necessary. State v. American TV & Appliance, 151 Wis. 2d 175, 443 N.W.2d 662 (1989).
757.19 - ANNOT.That a judge's spouse was employed in the office of the district attorney, but had no connection to a particular case, did not require the judge's disqualification. State v. Harrell, 199 Wis. 2d 654, 546 N.W.2d 115 (1996), 94-1655.
757.19 - ANNOT.The fact that the trial judge "witnesses" the actions of the jurors, witnesses, lawyers, and parties does not transform the judge into a "material witness" under sub. (2) (b). State v. Hampton, 217 Wis. 2d 614, 579 N.W.2d 260 (Ct. App. 1998), 95-0152.
757.19 - ANNOT.A motion to vacate a supreme court decision on the grounds that a participating justice was disqualified, filed 1300 days after the decision was issued and 600 days after the facts on which the motion was based became known, was untimely and frivolous. Jackson v. Benson, 2002 WI 14, 249 Wis. 2d 681, 639 N.W.2d 545, 97-0270.
757.19 - ANNOT.Sub. (2) (g) does not require disqualification when a person other than the judge objectively believes that there is an appearance that the judge is unable to act in an impartial manner. In re Estate of Sharpley, 2002 WI App 201, 257 Wis. 2d. 152, 653 N.W.2d 124, 01-2167.
757.19 - ANNOT.When analyzing a judicial bias claim, there is a rebuttable presumption that the judge was fair, impartial, and capable of ignoring any biasing influences. The test for bias comprises two inquiries, one subjective and one objective, either of which can violate a defendant's due process right to an impartial judge. Actual bias on the part of the decision maker meets the objective test. The appearance of partiality can also offend due process. Every procedure that would offer a possible temptation to the average person 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. State v. Gudgeon, 2006 WI App 143, 295 Wis. 2d 189, 720 N.W.2d 114, 05-1528.
757.19 - ANNOT.Absent a pervasive and perverse animus a judge may assess a case and potential arguments based on what he or she knows from the case in the course of the judge's judicial responsibilities. Opinions formed by the judge on the basis of facts introduced or events occurring in the course of current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. State v. Rodriguez, 2006 WI App 163, 295 Wis. 2d 801, 722 N.W.2d 136, 05-1265.
757.19 - ANNOT.A court's rejection of a plea does not in and of itself become a "personal interest in the outcome of the matter," and sub. (2) (f) is not implicated. State v. Conger, 2010 WI 56, 325 Wis. 2d 664, ___ N.W.2d ___, 08-0755.
757.19 - ANNOT.In lieu of exclusive reliance on a judge's personal inquiry, or on appellate review of the judge's determination respecting actual bias, the due process clause has been implemented by objective standards that do not require proof of actual bias. In defining these standards the U.S. Supreme Court has asked whether, under a realistic appraisal of psychological tendencies and human weakness, the interest poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented. Caperton v. A. T. Massey Coal Co. 556 U.S. ___, 129 S. Ct. 2252, 2272, 173 L. Ed. 2d 1208 (2009).
757.19 - ANNOT.There is a serious risk of actual bias, based on objective and reasonable perceptions, when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent. The inquiry centers on the contribution's relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect the contribution had on the outcome of the election. Whether campaign contributions were a necessary and sufficient cause of a judge's victory is not the proper inquiry. Due process requires an objective inquiry into whether the contributor's influence on the election under all the circumstances would offer a possible temptation to the average judge to lead the judge not to hold the balance "nice, clear, and true." Caperton v. A. T. Massey Coal Co. 556 U.S. ___, 129 S. Ct. 2252, 2272, 173 L. Ed. 2d 1208 (2009).
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