Civil Procedure — recusal

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Wisconsin Supreme Court

Civil

Civil Procedure — recusal

“Having carefully considered the motion directed to the court and the order issued by Justice Gableman, we determine that Justice Gableman made the required subjective determination that he could be impartial in the case and that it would appear that he could act in an impartial manner. See Donohoo v. Action Wis. Inc., 2008 WI 110, 314 Wis. 2d 510, 754 N.W.2d 480; State v. Harrell, 199 Wis. 2d 654, 546 N.W.2d 115 (1996); State v. American TV & Appliance of Madison, Inc., 151 Wis. 2d 175, 443 N.W.2d 662 (1989). The supreme court does not go beyond review of a justice’s subjective determination that he or she may participate in a case under Wis. Stat. § 757.19(2)(g). Wis. S. Ct. IOP II.L.1.; Donohoo, 314 Wis. 2d 510, ¶24; Harrell, 199 Wis. 2d at 663-64; American TV, 151 Wis. 2d at 182-84. Furthermore, the supreme court does not remove justices involuntarily from pending cases. State v. Henley, 2011 WI 67, ¶¶2, 7- 8, 338 Wis. 2d 610, 802 N.W.2d 175 (explaining that the court does not have the institutional power to remove a justice from a pending proceeding on a case-by-case basis, while expressly refusing to take up the issue of whether Justice Roggensack should have recused from participation in Henley’s review).”

“The motion’s reference to SCR 60.04(4) does not change this longstanding procedure. SCR 60.04(4) does not authorize the supreme court to remove a justice from an individual case. See Henley, 338 Wis. 2d 610, ¶8.”

Motion not granted.

2011AP613-LV & 2011AP765-W Ozanne v. Fitzgerald

Prosser, Roggensack, Ziegler, JJ.

Attorneys: For Defendant/Petitioner/Movant: Sage, Roger A., Madison; Lazar, Maria S., Madison; Kilpatrick, Steven C., Madison; For Respondent: Ozanne, Ismael R., Madison