Wednesday, March 03, 2010

Shark on Dead Tree

My latest column in the Milwaukee Journal Sentinel is here. I have a little over 500 words in the daily paper and decided to explain the concerns of Justices Prosser, Roggensack and Ziegler in State v. Allen. Of course, there is much more to say on the matter and I am finishing a law review article (more like 12,ooo words) that tries to do that.

I understand that this may, once again, prompt some to talk smack on the Gableman ad which I have, of course, criticized. (In fact, my criticism was cited by briefs in support of at least some of the recusal motions.) Nor does this necessarily mean that the position of those three justices on the power of the Court to mandate the recusal of a peer justice is consistent with Caperton. I think that's a more difficult question.

What I do maintain is that aggressive recusal requirements - particularly when not based on allegations of bias against a particular person or class of persons defined in a way that is divorced from judicial philosophy - will become unmanageable.

2 comments:

Anonymous said...

Get that guy a blog!

The first commenter, I mean.

Standard Contradictory Disclaimer™: Which I have, of course, criticized. Wink, wink!

Please, Uncle Rick, bring out the scary judicial activism puppet again!

William Tyroler said...

Nor does this necessarily mean that the position of those three justices on the power of the Court to mandate the recusal of a peer justice is consistent with Caperton. I think that's a more difficult question.

Just so. I'm baffled as to why those 3 justices think plenary review isn't mandated by State v. American TV, 151 Wis.2d 175, 179, 180-81, 443 N.W.2d 662(1989):

Where a justice who participated in a case was disqualified by law, the court's judgment in that case is void. .. . Here, if Justice Bablitch were disqualified by law from participating in this case, as the State contends, the court's decision would be void and ... we would retain jurisdiction to vacate or modify it.

In other words, under settled caselaw, if any given justice participated in the opinion despite a disqualification of some sort, his or participation renders the decision "void." Moreover, a disqualification-challenge can be raised after the decision is issued, on motion for reconsideration. Why, then, can't the potential taint be removed by plenary review before the decision is issued?