Motion to Recuse Judge in Wisconsin

Background

“A judge shall disqualify herself if the judge determines that, for any reason, ... she cannot, or it appears ... she cannot, act in an impartial manner.” (See Brown v. O'Connor (2012) 823 N.W.2d 839.)

“A judge must disqualify herself only when that judge makes a determination that, in fact or in appearance, ... she cannot act in an impartial manner.” (See Brown v. O'Connor (2012) 823 N.W.2d 839.)

“Misconduct of a trial judge must find its proof in the record.” (See Halbman v. Farmers (2008) WI App. 36.)

General Information for Complaints and Motions

“When analyzing a judicial bias claim, we always presume that the judge was fair, impartial, and capable of ignoring any biasing influences. This is a rebuttable presumption.” (See id.)

“The test for bias comprises two inquiries, one subjective and one objective. Either sort of bias can violate a defendant's due process right to an impartial judge. Judges must disqualify themselves based on subjective bias whenever they have any personal doubts as to whether they can avoid partiality to one side. . .” (See id.)

“The second component, the objective test, asks whether a reasonable person could question the judge's impartiality. . . [T]he appearance of partiality can also offend due process. . .” (See id.)

Standard of Review and Burdens of Proof

“When the motion for recusal is made only to the judge against whom bias is asserted, and no review is requested, then the decision regarding recusal begins and ends with the decision of that judge.” (See Miller v. Carroll (In re Paternity of B.J.M.) (2020) 392 Wis. 2d 49, 78-79.)

“But when a court is called upon to review a recusal decision, whether by appellate review or motion to this court, such a determination is no longer solely up to the judge against whom bias is asserted.” (See id.)

“If a constitutional due process challenge is asserted, it is up to the reviewing court to address the issue.” (See id.)

“We have repeatedly stated that we review the exercise of discretion by a trial judge. We do not substitute our discretion for the judge at trial in a case such as this.” (See Taake v. Taake (1975) 70 Wis. 2d 115, 129-30.)

“Motions to disqualify are reviewed under the erroneous exercise of discretion standard, and, accordingly, the scope of appellate review is limited.” (See Marten Transport v. Hartford Specialty (1995) 194 Wis. 2d 1, 13.)

The Court’s Decisions

It is well settled that “a judge is not required to disqualify herself when one other than the judge objectively believes there is an appearance that the judge is unable to act in an impartial manner.” (See Brown v. O'Connor (2012) 823 N.W.2d 839.)

It is also well settled that "a fair trial in a fair tribunal is a basic requirement of due process. We presume that a judge has acted fairly, impartially, and without bias. To overcome that presumption, the burden is on the party asserting judicial bias to show bias by a preponderance of the evidence.” (See Miller v. Carroll (In re Paternity of B.J.M.) (2020) 392 Wis. 2d 49, 62.)