Tuesday, July 12, 2011
The Wisconsin Supreme Court has held that it lacks authority to review the decision of an individual justice to decline recusal:
We have concluded that this court does not have the power to remove a justice from participating in an individual proceeding, on a case-by-case basis. State v. Henley, 2011 WI 67, ¶25, __ Wis. 2d __, __ N.W.2d __. We explained that our decision in regard to the scope of the court's power when asked to remove a justice on a case-by-case basis is consistent with the court's Internal Operation Procedures, IOP II.L.1., and that it is also "mirrors the way in which the United States Supreme Court addresses motions to disqualify a Supreme Court Justice." Henley, __ Wis. 2d __, ¶¶26-27. We also concluded that due process is provided by the decisions of the individual justices who decide to participate in the cases presented to the court. Id., ¶¶13, 31. Accordingly, for the reasons stated more fully in Henley, we deny Polsky's motion to disqualify Justice Roggensack.
As this is Wisconsin, there is a dissent, authored by Chief Justice Abrahamson:
I dissent for the reasons set forth in the dissents in State v. Allen, 2010 WI 10, 322 Wis. 2d 372, 778 N.W.2d 863; in State v. Henley, 2011 WI 67, ___ Wis. 2d ___, ___ N.W.2d ___ (recusal motion); and in State v. Henley, 2011 WI 68, ___ Wis. 2d ___, ___ N.W.2d ___ (amicus reconsideration). I conclude that as a matter of federal and state constitutional due process the court must determine whether a party is denied due process when a justice refuses to recuse upon motion of a party.
I am authorized to state that Justices ANN WALSH BRADLEY and N. PATRICK CROOKS join this dissent.
Justice Ziegler did not participate.