You're Excused: Judicial Recusal in Wisconsin

Originally Published November 4, 2014

Interpret and uphold the law, offer fair rulings, and promote justice: these are the duties of judges. Inherent in the fair ruling directive is an expectation that judges will be impartial. Impartiality is supremely difficult when the judge has prior involvement with a party, especially if that prior involvement impacts his or her future decisions.

In August 2012 Mr. Jermaine K.H. was convicted of committing violent acts against the mother of his child. The Honorable Mark Rohrer, former district attorney, prosecuted Jermaine in that case. Two years later he presided over Jermaine's custody dispute. Despite Jermaine’s request for a new judge, Rohrer remained  and terminated Jermaine's parental rights.

On the appeal in the matter, Adoption Choice, Inc. v. Jermaine K. H., Jermaine argued that the trial judges “recusal was mandatory because the criminal case was the same matter in controversy.” Wisconsin’s Court of Appeals for the Second District disagreed, ruling that the criminal case in question was not related to the child custody case being disputed. This was accurate. However, that is not the issue in this case. At issue here is whether the judge’s prior adversarial involvement with Jermaine just two years earlier should disqualify him from deciding on a termination of parental rights case where Jermaine’s criminal conviction is relevant.

Jermaine further contended that recusal was mandatory because a reasonable person would question the judge’s impartiality. Unfortunately, the court of appeals found that this standard does not apply here, but should it? When prior interactions have the possibility of influencing a judge’s decision, especially when the parties met previously as adversaries, shouldn’t judges recuse themselves for fairness sake?

Unfortunately for Jermaine, the Wisconsin 2nd District Court of Appeals does not agree. The court relied on a 1991 case, Wisconsin v. Hollingsworth, where the court decided that a “Due Process Clause violation only occurs when the judge’s conduct is so egregious that the probability of actual bias rises to an unconstitutional level” or “if the judge, in fact, treats him or her unfairly.” The appellate court could not find any actual or substantiated evidence of bias or unfair treatment.

Impartiality is a central tenet of the judiciary. When the court is performing the most intrusive of all family law acts – involuntary termination of parental rights, parents seeking to retain parental rights deserve impartiality.

The Wisconsin state legislature already had laws set out in §757.19(2)(a)-(f) for when a judge must recuse him or herself. Many of the standards leave the matter up to the judge. 

If judges currently possess sufficient authority to hear cases involving matters with which they previously were involved, then an amendment to the recusal statute (§757.19) on disqualification of judges is in order. As it stands, Wisconsin §757.19(2) lists seven different reasons for recusal, but the statute is silent on judges with prior involvement. To best serve Wisconsinite interests, the state legislature will be prudent to consider enacting a law similar to that in California. In California, judges with prior knowledge of evidentiary facts are disqualified from participation under section 170.1(a) of the California Code of Civil Procedure.

In the case at bar, Judge Rohrer had more than an evidentiary knowledge of vital facts that would influence an ordinary decision maker, and some of these facts were relevant to the case before him. Rohrer was aware that Jermaine physically abused the mother of his child. He was also aware that subsequent to the abuse, the mother sought to voluntarily terminate her own parental rights and also the rights of Jermaine. Lastly, Rohrer was aware that the mother’s reasoning for seeking the terminations was to avoid the child enduring similar abuses from Jermaine. Judge Rohrer had more than an extensive prior knowledge of Mr. Jermaine’s rap sheet – he helped build it.

According to the Wisconsin appellate court, the record did not reveal an “extreme circumstance” that violated Due Process. That may be so. But if only the most extreme of extreme is a required standard for a judge to recuse him or herself from the case, the potential for abuse is unnecessarily high.