02-0808 State v. O'Neill

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“Judge Johnston and the parties agree that our January 14, 2002 order in case no. 00-CF-10 has no precedential value because it is not a published decision. Wis. Stat. § 809.23(3). Since the supreme court did not accept review, Judge Johnston is not bound to cease employing the challenged procedure in any case other than case no. 00-CF-10.

“We are not persuaded by O’Neill’s argument that Judge Johnston’s focus on the authority of the circuit court in the appellate proceedings in case no. 00-CF-10, rather than on O’Neill’s statutory and constitutional challenges, demonstrates the judge’s bias. Judge Johnston’s focus was on the circuit court’s authority because, in his view, there was no statutory or constitutional impediment to the challenged procedure. Moreover, since on this interlocutory appeal O’Neill is not arguing the merits of his challenge to the procedure, we have no basis for concluding on this appeal that the challenged procedure is so antithetical to a fair trial that Judge Johnston’s intent to continue to use the procedure, in itself, demonstrates a disregard of O’Neill’s right to a fair trial. …

“It is true, as the State contends, that Judge Johnston’s position in case no. 00-CF-10 was adversarial to O’Neill’s position. However, the issue as we framed it in our January 14, 2002 order was the authority of the circuit court to impose a non-traditional procedure when both parties objected. The issue concerns the authority of all circuit courts-not just Judge Johnston’s authority. Judge Johnston believes in the benefits of the challenged procedure and the authority of the circuit court to impose it over the objection of both parties. We do not agree that this constitutes a ‘personal stake’ in the outcome of the issue.”

Order affirmed.

Recommended for publication in the official reports.

Dist IV, Lafayette County, Johnston, J., Vergeront, P.J.

Attorneys:

For Appellant: Roger D. Sturdevant, Monroe

For Respondent: Charlotte L. Doherty, Darlington; Sally L. Wellman, Madison