                                                                     2015 WI 84

                  SUPREME COURT            OF    WISCONSIN
CASE NO.:               2013AP197-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent,
                             v.
                        Jesse L. Herrmann,
                                  Defendant-Appellant-Petitioner.

                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                         (Reported at 353 Wis. 2d 304, 844 N.W. 2d 665)
                                  (Ct. App. 2014 – Unpublished)

OPINION FILED:          July 15, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          February 3, 2015

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              La Crosse
   JUDGE:               Ramona Gonzalez

JUSTICES:
   CONCURRED:           PROSSER, J., ROGGENSACK, C.J., concur. (Opinion
                        Filed.)
                        ZIEGLER,J., ROGGENSACK, C.J., GABLEMAN, J.,
                        concur. (Opinion Filed.)
  DISSENTED:
  NOT PARTICIPATING:


ATTORNEYS:
       For the defendant-appellant-petitioner, there were briefs
by Pamela Moorshead, assistant state public defender, and oral
argument by Pamela Moorshead.




       For      the    plaintiff-respondent,    the   cause   was   argued   by
Robert G. Probst, assistant attorney general, with whom on the
brief was J.B. Van Hollen, attorney general.
                                                                          2015 WI 84
                                                                  NOTICE
                                                    This opinion is subject to further
                                                    editing and modification.   The final
                                                    version will appear in the bound
                                                    volume of the official reports.
No.        2013AP197-CR
(L.C. No.    2011CF349)

STATE OF WISCONSIN                              :            IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent,
                                                                       FILED
      v.
                                                                  JUL 15, 2015
Jesse L. Herrmann,
                                                                     Diane M. Fremgen
              Defendant-Appellant-Petitioner.                     Clerk of Supreme Court




      REVIEW of a decision of the Court of Appeals.                  Affirmed.


      ¶1      ANN   WALSH   BRADLEY,   J.      Petitioner,       Jesse     Herrmann,
seeks review of an unpublished decision of the court of appeals
affirming his judgment of conviction and a circuit court order
denying postconviction relief.1             The court of appeals determined
that statements made by the circuit court judge at sentencing

were insufficient to support a conclusion that she was biased.


      1
       State v. Herrmann, No. 2013AP197-CR, unpublished slip op.
(Wis. Ct. App. Feb. 13, 2014) (affirming order of the circuit
court for La Crosse County, Ramona A. Gonzalez, Judge).
                                                                               No.    2013AP197-CR



       ¶2     On review, Herrmann asserts that the circuit court's
statements at sentencing revealed that she lacked impartiality,
in    violation      of    his     due     process      rights.            Specifically,         he
contends that the judge's references to her sister's death in a
car   accident       similar       to     the   one    involved       in       Herrmann's      case
created the appearance of bias.
       ¶3     There       is   a   presumption         that    a     judge      acted    fairly,
impartially, and without prejudice.                          State v. Goodson, 2009 WI
App 107, ¶8, 320 Wis. 2d 166, 771 N.W.2d 385.                                  A defendant may
rebut the presumption by showing that the appearance of bias
reveals a great risk of actual bias.                           Caperton v. A.T. Massey
Coal Co., 556 U.S. 868, 885 (2009); Goodson, 320 Wis. 2d 166,

¶14; State v. Gudgeon, 2006 WI App 143, ¶23, 295 Wis. 2d 189,
720   N.W.2d       114;    see     also    Williams-Yulee           v.     Florida      Bar,    135
S. Ct. 1656 (2015).                Such a showing constitutes a due process
violation.         Gudgeon, 295 Wis. 2d 189, ¶23.
       ¶4     We    conclude       that     Herrmann         has    failed       to    rebut   the
presumption         of    impartiality.               When    the     sentencing         court's
statements are viewed in context, they do not reveal a great
risk of actual bias.               Because we determine that no due process
violation has been established, we affirm the court of appeals.
                                                 I
       ¶5     The facts in this case are undisputed.                              In June 2011
police were called to the scene of an automobile accident where
a pickup truck had rear-ended a car stopped in the left-hand
lane of a road, waiting to make a left turn.                              The truck hit the
car    with    such       force    that     it       pushed    the       car    into    oncoming
                                                 2
                                                                  No.     2013AP197-CR



traffic.      The grill of the truck ended up in the back seat of
the car.          There were five passengers in the car, three in the
back seat and two in the front.                   One died at the scene, the
other four sustained serious injuries.
       ¶6     The driver of the truck ran from the scene into the
woods toward a nearby bar.                Bystanders pursued the driver and
kept   him    there    until     police    arrived.      After    their     arrival,
officers identified the driver as Jesse Herrmann and smelled the
strong odor of alcohol emanating from him.                      Upon questioning,
Herrmann indicated that he did not know where he was or what was
happening.          He further stated that he had consumed too much
alcohol to be driving.            Officers also observed an unopened can

of beer lying on the highway and another unopened can lying on
the floor of Herrmann's truck.                 A subsequent blood test showed
that his blood alcohol concentration was 0.215.
       ¶7     Herrmann was arrested and charged with two counts of
operating a motor vehicle while intoxicated causing injury as a
second      and    subsequent    offense,       along   with    several     repeater
offenses: homicide by intoxicated use of a vehicle, two counts
of injury by intoxicated use of a vehicle, hit and run resulting
in death, hit and run resulting in injury, and first degree
reckless endangerment.            As a result of a plea agreement, the
State dropped the hit and run resulting in injury charge and the
reckless endangerment charge and Herrmann pled guilty to the

charges     that     remained.     The     plea   reduced      Herrmann's    maximum
possible sentence from 181.5 years of imprisonment to 134 years
of imprisonment.
                                           3
                                                                      No.     2013AP197-CR



        ¶8    Prior to sentencing, the circuit court ordered a pre-
sentence       investigation.            The     resulting          report      detailed
Herrmann's prior record, including a prior offense of operating
while    intoxicated      and    possession     of     an   open     intoxicant       in   a
vehicle.      He also had a conviction for disorderly conduct which
resulted from his being intoxicated, multiple convictions for
bail jumping, and a conviction for conspiracy to possess with
intent to distribute methamphetamine.                   He was one month into a
five-year period of probation from his drug offense when the
accident      occurred.     The    report      notes    that       Herrmann    told    his
parole agent that although he was participating in substance
abuse programs, he thought "it was a waste of time and money."

Ultimately, the report recommended that Herrmann be sentenced to
a 40 year period of confinement followed by 20 years of extended
supervision.
        ¶9    Herrmann    requested      and   obtained       an    alternative       pre-
sentence investigation.            Focusing primarily on statements from
Herrmann's family members, it recommended a sentence of 12-15
years confinement followed by 20 years of extended supervision.
        ¶10   At the beginning of the sentencing hearing, the judge
disclosed that she lost her sister to a drunk driver in 1976.
She   told    Herrmann    "I     don't   believe      that    this    will     have    any
impact on my ability to set that aside and sentence you based
upon the information presented on your case."                         She then asked

Herrmann if he had any question about that or problems with it.
He    indicated    that     he    did    not    and     the    sentencing        hearing
proceeded.
                                          4
                                                                           No.     2013AP197-CR



        ¶11    Several     individuals          spoke       at    the     hearing.          The
victims, their family members, a pastor, and witnesses who were
at     the    scene     testified       about       the    long-lasting          effects    the
accident has had upon them and the community.                            Several asked for
the court to impose the maximum sentence, citing the fact that
Herrmann       had      not    learned          his        lesson       from      his     prior
incarceration.           Members of Herrmann's family and his friends
spoke as well, trying to convey that he was not "a monster" and
that he needed treatment.
        ¶12    Prior to issuing the sentence, the judge acknowledged
that    "there    have     been     a    lot        of    communications         today,    this
morning and afternoon, about whether or not Mr. Herrmann is a

monster."       She then indicated that she felt "compelled to answer
that" in her statement.
        ¶13    First,    she   made      a     statement         about    the     problem    of
alcohol in our society, emphasizing that it is not limited to
Mr. Herrmann:

        It is so easy to be in this community, and like [the]
        Pastor indicated, I, too, have been shocked by the
        seeming blasé faire attitude that this community has
        about alcohol use, because it is easy when these
        tragedies occur to paint the person who's behind the
        wheel while intoxicated to be a monster, and so we
        have a lot of grief and a lot of energy and a lot of
        community outrage, and that community outrage is aimed
        and directed at the person behind the wheel, and I
        believe that when we do that, we lose an opportunity,
        we lose an opportunity for raising the consciousness
        of the community because we are not just here because
        of Mr. Herrmann . . . .




                                                5
                                                             No.     2013AP197-CR



     ¶14    The     judge   explained     that   although   people     complain
about drunk driving, individuals do little to actively change
behavior:

     People that get behind the wheel of a car while they
     have been drinking in my opinion any amount are
     putting themselves and this community at risk, and yet
     day after day, month after month our community just
     says, oh, well. We complain and we talk about how we
     should challenge the students at the university not to
     continually drink to excess, how kids disappear, and
     how much harm alcohol is, but how many of us actively,
     actively seek to change the behaviors of those in our
     lives? How many of us go out for that Friday fish fry
     and then not make any arrangements for who's going to
     drive the car home?
     ¶15    Next,     she    recognized     factors    in   Mr.      Herrmann's
background mitigating his culpability:

     Mr. Herrmann, if you look at his history [he] was the
     son of an alcoholic, alcoholism was in his family, the
     product of a broken home, involved in our juvenile
     justice system as a — as a juvenile, involved in our
     criminal justice system as an adult. He is a failure
     of what we do with children, with adolescents, and
     with adults who suffer and who continue to self-
     medicate, if we want to say as [his attorney] says, or
     just simply continue to use alcohol irresponsibly to
     the detriment of our society.     How many other young
     children are on the streets of our community who also
     like Mr. Herrmann come from situations where alcohol
     and the use of alcohol is a readily acceptable thing,
     that the overindulgence in alcohol is in many places
     cheered, where their 21st birthday is looked forward
     to not as a celebration of coming to adulthood but how
     many shots they can drink at the local taverns?
     ¶16    The judge then discussed how drunk driving affected
her own life as her sister had been killed by a drunk driver:

     In 1976 five young women got into a vehicle, and only
     one of them survived. The two gentlemen in the other
     vehicle were 17, drunk out of their minds, and they

                                        6
                                                                 No.   2013AP197-CR


       did not survive.   That was my personal story, and I
       will tell you that a day does not go by that I do not
       think of that personal tragedy, and I wish that I
       could tell these victims that that pain will one day
       disappear, but it doesn't.    Time makes it less. We
       redirect ourselves to other things, and a day does go
       by when we don't think of our loved ones and then we
       feel guilty at night because that happened, but life
       does go on, and I am very grateful today that I'm
       looking at four lovely young ladies and that only one
       family has to go through the pain that my family and
       the other three young ladies' families had to endure
       in 1976.
       ¶17   She further explained that although she understood the
pain   the   families    and   victims       were   suffering,   she   knew   from
experience that no matter what sentence she gave Mr. Herrmann,
it would not alleviate that pain:

       And so perhaps it is again destiny or a higher power
       or, Pastor, probably the prayers of many others that
       bring me to be the judge on this particular case
       because I probably more than anyone else who would be
       able to sit on this bench in this county understand
       the pain that these victims are feeling, but I have
       had the benefit of all those years since 1976 to
       understand that I have to make Mr. Herrmann pay, but
       that nothing I do to him will lessen that pain, and
       that if I don't do more than just incarcerate Mr.
       Herrmann, if I don't speak out on behalf of my
       community today, then this tragedy will continue to
       happen on our streets, and more families will suffer
       the way these families suffer today.
       ¶18   She again emphasized that the accident should not be
viewed as Mr. Herrmann simply being a monster, rather it is
indicative    of   a    greater   problem       that   our   society    has   with
drinking and driving:

       So, Mr. Herrmann, you're going to prison today, but
       that's just part of the story.   I want to make sure
       that the story is not about what a monster Jesse
       Herrmann was and is so that we can then wrap up this

                                         7
                                                                                No.        2013AP197-CR


        little episode in a nice neat little box and all go
        about our business as usual, that Mr. Herrmann the
        monster is off the streets, and we don't have to worry
        about this again, because no matter what I do to Mr.
        Herrmann, unless this community begins to take a
        different attitude about drinking and driving, and I'm
        talking about a different attitude, not paying lip
        service, but actually doing, we will see this tragedy
        happen again and again.
        ¶19   The judge next reviewed Herrmann's character and his
poor choices leading up to the accident.                                     In particular, she
discussed      Herrmann's               recent       release          from     federal        prison,
reliance      on    alcohol,        resistance            to    treatment,          and    Herrmann's

reported      attitude           with     authority.              Additionally,            the    judge
looked at the gravity of the offense and gave consideration to
the   number       of   witnesses             who    testified         to     the    effects       that
Herrmann's         crime     had        and    continue          to    have     on        them.      As
mitigating factors, the judge considered Herrmann's guilty plea,
age, and the fact that he has a family.
        ¶20   Weighing           all      these           factors,      the         court     imposed
consecutive sentences on the various counts totaling 31 years
initial       confinement              followed           by     40     years        of      extended
supervision.            In   addition,              the    court      imposed       and     stayed    a
consecutive sentence of 20 years of confinement for the charge
of hit and run resulting in death, and ordered 15 years of
probation.
        ¶21   Herrmann           filed         a     postconviction             motion        seeking
resentencing by a different judge.                             He asserted that the circuit
court     described          a     personal           experience         that        reflected       an
objective      bias     in       sentencing          and       that   the     court's       emotional


                                                     8
                                                                    No.     2013AP197-CR



involvement in the crime amounted to an improper factor on which
the sentence was based.             The circuit court denied the motion,
explaining that Herrmann took her remarks out of context.
      ¶22   On    appeal,    Herrmann     again      argued       that    the    circuit
court's statements at sentencing supported a conclusion that the
judge was biased.          The court of appeals disagreed.                      State v.
Herrmann, No. 2013AP197-CR, unpublished slip op. (Wis. Ct. App.
Feb. 13, 2014).       The court observed that it is not uncommon for
circuit court judges to have been personally victimized by the
types of crimes that are before them.                  Id., ¶9.          In this case,
the judge's statements merely reflected that she understood the
crime's     effect    on    the    victims.          Id.,   ¶10.          Viewing     the

sentencing as a whole, the court of appeals determined that a
reasonable person would not conclude that the judge was biased.
Id.
                                         II
      ¶23   We are asked to determine whether the circuit court
judge's     statements      at     sentencing        establish      that        she   was
objectively       biased    in    violation     of     Herrmann's         due    process
rights.     "Whether a judge was objectively not impartial is a
question of law that we review independently."                     State v. Pirtle,
2011 WI App 89, ¶34, 334 Wis. 2d 211, 799 N.W.2d 492; see also
Goodson,    320    Wis.     2d    166,   ¶7   ("Whether       a    circuit       court's
partiality can be questioned is a matter of law that we review
independently.").
      ¶24   There is a presumption that a judge has acted fairly,
impartially, and without prejudice.                  Goodson, 320 Wis. 2d 166,
                                          9
                                                                               No.     2013AP197-CR



¶8; State v. McBride, 187 Wis. 2d 409, 414, 523 N.W.2d 106 (Ct.
App. 1994).           The presumption is rebuttable, placing the burden
on     the    party     asserting         the        bias    to   show     that       bias       by    a
preponderance of the evidence.                           State v. Gudgeon, 295 Wis. 2d
189, ¶20; McBride, 187 Wis. 2d at 415.
                                                 III
        ¶25    "It    is    axiomatic           that      '[a]    fair    trial       in     a   fair
tribunal is a basic requirement of due process.'"                                Caperton, 556
U.S.    at    876       (quoting      In        re       Murchison,      349   U.S.     133,      136
(1955)); see also Guthrie v. WERC, 111 Wis. 2d 447, 454, 331
N.W.2d       331    (1983)    ("It        is,    of       course,     undisputable           that      a
minimal       rudiment       of     due    process          is    a   fair      and     impartial

decisionmaker.").                   Thus,            a      biased       decisionmaker                is
"constitutionally unacceptable."                          Withrow v. Larkin, 421 U.S.
35, 47 (1975).          As the court of appeals has acknowledged, "[t]he
right to an impartial judge is fundamental to our notion of due
process."          Goodson, 320 Wis. 2d 166, ¶8.
        ¶26    In determining whether a defendant's due process right
to trial by an impartial and unbiased judge has been violated,
Wisconsin          courts    have     taken          both     subjective        and     objective
approaches; "[t]he court applie[s] a subjective test based on
the judge's own determination of his or her impartiality and an
objective test based on whether impartiality can reasonably be
questioned."          State v. Rochelt, 165 Wis. 2d 373, 378, 477 N.W.2d
659 (Ct. App. 1991).                It is the application of the objective
test which is at issue in this case.


                                                 10
                                                                               No.   2013AP197-CR



       ¶27       Under           the     objective         approach,            courts       have
traditionally            considered          whether     "there       are   objective       facts
demonstrating           .    .    .    the     trial    judge     in    fact     treated     [the
defendant] unfairly."                   Goodson, 320 Wis. 2d 166, ¶9 (quoting
McBride, 187 Wis. 2d at 416).                     In other words, they inquire into
whether a reasonable person could conclude that the trial judge
failed to give the defendant a fair trial.
       ¶28       This approach is illustrated by State v. Rochelt, 165
Wis. 2d 373.           In that case, the defense discovered a letter from
the circuit court judge in the prosecutor's file which had been
sent to instructors at Police Training Services, requesting that
certain officers be released from classes to testify at trial.

Id.    at    377-78.             The   letter    described      the      officers     as    "'two
individuals, with clean, impeccable records, and with nothing to
gain        or    lose       by        their     testimony,'           suggesting      possible
prejudgment of their credibility."                       Id. at 379.
       ¶29       The     circuit        court     denied    the        defendant's       recusal
motion and the court of appeals affirmed.                               It agreed that the
judge's          letter      raised          questions     about         his     impartiality.
However, in assessing whether there was actual bias, the court
determined that nothing in the record tended to show that the
judge had failed to give the defendant a fair trial.                                       Id. at
381.        It referenced the fact that the defendant had given no
examples of unfairness.                   Id.    Accordingly, it "conclude[d] that
even    though         the   trial       judge's       letter     raise[d]       a   reasonable
question regarding the judge's impartiality, the fact is that
[the defendant] received a fair trial."                         Id.
                                                  11
                                                                    No.       2013AP197-CR



        ¶30    Courts    have    since    recognized     that     the    right       to   an
impartial decisionmaker stretches beyond the absence of actual
bias to encompass the appearance of bias as well.                          In Gudgeon,
295 Wis. 2d 189, the court of appeals considered the situation
where    a     judge    had    declined    a    probation    agent's          request     to
convert       the   defendant's    restitution       obligations         into    a   civil
judgment       in   a   short    note    stating    "No—I    want       his     probation
extended."          Id., ¶3.      At a subsequent extension hearing, the
judge extended the defendant's probation.                   The defendant alleged
that    the     note    showed    the     judge    was   biased     in    favor      of    a
particular result before listening to the evidence.                       Id., ¶1.
         ¶31    In setting forth the test for objective bias, the

Gudgeon court acknowledged that it was difficult to discern from
prior cases whether actual bias was necessary to show a due
process violation, or merely one method that was sufficient to
make the showing.         Id., ¶22.        It observed that federal precedent
suggested that even the appearance of partiality can violate due
process:

        "[E]very procedure which would offer a possible
        temptation to the average man as a judge . . . not to
        hold the balance nice, clear and true between the
        State and the accused, denies the latter due process
        of law." Tumey v. Ohio, 273 U.S. 510, 532 (1927).
        Such a stringent rule may sometimes bar trial by
        judges who have no actual bias and who would do their
        very best to weigh the scales of justice equally
        between contending parties.   But to perform its high
        function in the best way "justice must satisfy the
        appearance of justice."  Offutt v. United States, 348
        U.S. 11, 14 (1954).




                                           12
                                                                        No.     2013AP197-CR



Id.,   ¶21    (quoting       In    re    Murchison,     349    U.S.     at    136).         The
Gudgeon      court    recognized         that    the   seemingly      divergent        cases
shared a common theme: the appearance of partiality violated due
process "only where the apparent bias revealed a great risk of
actual bias."         Id., ¶23.
       ¶32    Ultimately,         the     Gudgeon      court     found        the    federal
jurisprudence persuasive.                 Incorporating Murchinson's language,
it concluded that "the appearance of bias offends constitutional
due process principles whenever a reasonable person——taking into
consideration        human     psychological         tendencies       and     weaknesses——
concludes that the average judge could not be trusted to 'hold
the balance nice, clear and true' under all the circumstances."

Id., ¶24.
       ¶33     The     court      of    appeals    later     repeated       this     test   in
Goodson, 320 Wis. 2d 166, ¶9.                      In that case, a judge told a
defendant during sentencing that if he violated the rules of
extended supervision "you will come back here, and you will be
given the maximum, period."                Id., ¶2.     Later, at a reconfinement
hearing after the defendant's supervision was revoked, the judge
ordered the defendant reconfined for the maximum period.                                Id.,
¶5.    Applying its test for objective bias, the court of appeals
determined      the    defendant's         due     process     rights    were       violated
because a reasonable person would conclude "that the judge had
made up his mind about [the defendant's] sentence before the
reconfinement hearing."                Id., ¶13.
       ¶34     Similarly,         in     Caperton,     556    U.S.    868,     the    United
States Supreme Court reaffirmed its position that actual bias
                                             13
                                                             No.   2013AP197-CR



need not be shown to establish a violation of a party's right to
a fair tribunal.        In that case, the Court considered whether the
petitioner's due process rights were violated when one of the
West Virginia Supreme Court justices refused to recuse himself
after receiving large campaign contributions from the respondent
corporation's chief executive officer.
        ¶35     After observing the difficulties in discerning the
real motives at work in deciding a case, the Court announced
that "the Due Process Clause has been implemented by objective
standards that do not require proof of actual bias."                     Id. at
883.        "Due process 'may sometimes bar trial by judges who have
no actual bias and who would do their very best to weigh the

scales of justice equally between contending parties.'"                  Id. at
886 (quoting Murchinson, 349 U.S. at 136).                 Like the court of
appeals in Gudgeon, the Court focused on whether there was a
serious risk of actual bias.2
        ¶36    Its inquiry into whether there was a serious risk of
actual bias centered on the circumstances of the case, which the
Court       referred   to   as   exceptional.   Id.   at   884.    The    Court
acknowledged the large size of the contributions in comparison
to the total amount of money contributed to the campaign, the


        2
       The court of appeals refers to a "great" risk of actual
bias, State v. Gudgeon, 2006 WI App 143, ¶23, 295 Wis. 2d 189,
720 N.W.2d 114, and the United States Supreme Court refers to a
"serious" risk of actual bias, Caperton v. A.T. Massey Coal Co.,
556 U.S. 868, 884 (2009).      Although stated differently, the
tests appear to be essentially the same.



                                        14
                                                                              No.     2013AP197-CR



total amount spent in the election, and the apparent effect such
contributions had on the outcome of the election.                                    It further
observed the close temporal relationship between the campaign
contributions, the justice's election, and the pendency of the
case.         Id.    at     886.           Under    these     circumstances,          the     Court
concluded that "there is a serious risk of actual bias——based on
objective       and        reasonable        perceptions——when           a    person     with     a
personal       stake       in    a    particular         case    had    a    significant        and
disproportionate             influence         in       placing        the    judge     on      the
case . . . ."          Id. at 884.
        ¶37    Admittedly, the Supreme Court was careful to limit its
analysis.       Although it ultimately concluded that the appearance

of bias that it was reviewing violated due process, the Court
described       this        as       "an     extraordinary         situation         where      the
Constitution requires recusal."                         Id. at 887.          Like the Gudgeon
court, it observed that its prior cases requiring recusal "dealt
with extreme facts that created an unconstitutional probability
of bias."       Id.
        ¶38    However, in determining that there was a serious risk
of actual bias the Court provided a test that can apply to a
multitude       of     scenarios:           "Due    process       requires      an     objective
inquiry into whether the contributor's influence on the election
under all the circumstances 'would offer a possible temptation
to the average . . . judge to . . . lead him not to hold the
balance nice, clear and true."                          Id. at 885.          It embraced that
framework       in        its    conclusion:            "We     find     that       Blakenship's
significant          and     disproportionate            influence——coupled            with     the
                                                   15
                                                                           No.     2013AP197-CR



temporal relationship between the election and the pending case—
—'offer a possible temptation to the average judge to . . . lead
him not to hold the balance nice, clear and true.'"                              Id. at 886.
       ¶39     More recently, the Supreme Court reaffirmed that there
is a "'vital state interest' in safeguarding 'public confidence
in the fairness and integrity in the nation's elected judges.'"
Williams-Yulee, 135 S. Ct. at 1666 (quoting Caperton, 556 U.S.
at     889).        It    acknowledged          that    "[t]he       concept       of    public
confidence       in      judicial     integrity        does    not    easily        reduce    to
precise        definition,      nor    does      it     lend     itself      to     proof     by
documentary record."             Id. at 1667.           Nevertheless, "justice must
satisfy      the    appearance        of   justice."           Id.    at     1666       (quoting

Offutt, 348 U.S. at 14).                   There is a compelling interest in
avoiding        "possible       temptation[s] . . . 'which                 might     lead     [a
judge] not to hold the balance, nice, clear and true.'"                                      Id.
(quoting Tumey, 273 U.S. at 532).
       ¶40      We acknowledge the concerns raised by Caperton and
Williams-Yulee.            A fundamental principle of our democracy is
that judges must be perceived as beyond price.                                Likewise, we
recognize that the precedent established by the United States
Supreme Court and our court of appeals provides that in limited
situations         the    appearance       of    bias    can     offend      due        process.
Specifically, the appearance of bias violates due process when
there is "a great risk of actual bias."                          Gudgeon, 295 Wis. 2d
189,    ¶23;     see     also    Caperton,       556    U.S.     at    884       (considering
whether there is "a serious risk of actual bias").


                                                16
                                                                    No.        2013AP197-CR



      ¶41    Lest there be any confusion engendered by the separate
writings below, Caperton addressed recusal in the context of the
appearance      of   bias.     Relying    on    a    case   that        originated      in
Wisconsin,      Caperton     specifically      announced         that     it     was   not
addressing whether there was actual bias.:

      We do not question his subjective                           findings of
      impartiality and propriety.      Nor do                    we determine
      whether there was actual bias . . .

      [T]he Due Process Clause has been implemented by
      objective standards that do not require proof of
      actual bias.   In defining these standards the Court
      has asked whether, "under a realistic appraisal of
      psychological tendencies and human weakness," the
      interest "poses such a risk of actual bias or
      prejudgment that the practice must be forbidden if the
      guarantee   of  due  process   is  to   be  adequately
      implemented."
Id. at 883-84 (quoting Withrow v. Larkin, 421 U.S. at 47).                              It
explained that due process may require recusal even when actual
bias is not present:

      Due process "may sometimes bar trial by judges who
      have no actual bias and who would do their very best
      to weigh the scales of justice equally between
      contending parties."
Id. at 886 (quoting Murchison, 349 U.S. at 136).
      ¶42    As evidenced by the separate writings, this court has
a   difficult    relationship     with    the       issue   of    recusal        and   its
controlling precedent in the context of the appearance of bias.3



      3
       This difficult relationship with the issue of judicial
recusal appears not only in our opinions but also in our
administrative function of rule making.

                                                                           (continued)
                                         17
                                                  No.     2013AP197-CR




     In 2009 a majority of this court adopted verbatim the
petition of Wisconsin Manufacturers & Commerce and the Wisconsin
Relators that amended Wisconsin's rules of judicial conduct with
regard to judicial recusal as it relates to judicial campaigns.
In the matter of amendment of the Code of Judicial Conduct's
rules on recusal; in the matter of amendment of Wis. Stat.
§ 757.19. S. Ct. Order 08-16, 08-25, 09-10 & 09-11, 2010 WI 73
(issued July 7, 2010, eff. July 7, 2010) (Bradley, J.,
dissenting, joined by Abrahamson, C.J., and Crooks, J.).      In
response, the Brennan Center for Justice, a non-partisan public
policy and law institute at the New York University School of
Law, observed that the majority's newly amended recusal rule
"violated the spirit——if not the very letter" of Caperton.
Jonathan Blitzer, Vanishing Recusal Prospects in Wisconsin,
Brennan Center for Justice (Jan. 26, 2010).        It expressed
additional concern that the recusal rules were "a serious blow
to the integrity of the Court." Id.

      A similar concern that the majority's newly amended recusal
rules   subverted   the  integrity  of   the  court   was  widely
disseminated in editorials across the state:

       •   Milwaukee Journal Sentinel: "A breach in reality. In
           a 4-3 vote, justices thumb their noses at the
           perception of connections between large campaign
           contributions and the court's integrity, objectivity
           and credibility." (Oct. 29, 2009)

       •   Appleton Post-Crescent: "Supreme    Court    rule     robs
           public trust." (Nov. 1, 2009)

       •   Green Bay Press Gazette: "Big Money always finds a
           loophole." (Nov. 5, 2009)

       •   Eau Claire Leader Telegram: "High Court in session;
           bring your wallet." (Nov. 1, 2009)

       •   Racine Journal Times: "Supreme Court recusal rule is
           disgrace to state." (Nov. 2, 2009)

       •   Sheboygan Press: "Is justice for sale in Wisconsin?"
           (Nov. 2, 2009)

       •   Oshkosh Northwestern: "Supreme Court   fails    to   clean
           blemished image." (Oct. 30, 2009).
                                                        (continued)
                               18
                                                                          No.    2013AP197-CR



       ¶43     The concurrence of Justice Ziegler discusses Caperton
at length, so severely cabining its reach that it appears to
apply only during a "perfect storm" in West Virginia.                               Justice
Ziegler's concurrence, ¶138.               Taking a different approach, the
concurrence       of     Justice     Prosser       acknowledges             that     it    is
uncomfortable        with     controlling       precedent       stating         "[c]learly,
this writer is uncomfortable with the decisions in Gudgeon and
Goodson."        Justice Prosser's concurrence, ¶102.                           It takes to
task   both     District      Two   and   District       Three       of    the     court   of
appeals by asserting several inadequacies in the Gudgeon and
Goodson      opinions,       including    that    they    are    not       forthright      in
disclosing all the facts of the cases.                   Id.

       ¶44     This court has previously and extensively analyzed and
re-analyzed the issue of judicial recusal in the context of the
appearance of bias.            See, for example, State v. Allen, 2010 WI
10, 322 Wis. 2d 372, 778 N.W.2d 863, where our writings covered
128    pages    of     the    Wisconsin     Reports.           See    also       Ozanne    v.
Fitzgerald, 2012 WI 82, 342 Wis. 2d 396, 822 N.W.2d 67; State v.
Henley, 2011 WI 67, 338 Wis. 2d 610, 802 N.W.2d 175.

     In sidestepping the directive of Caperton, some on the
court announced a heretofore unknown premise——never previously
enunciated and not since embraced in the annals of this
country's jurisprudence on judicial recusal. They advanced that
the public's right to vote (which the justices found in the
First Amendment of the United States Constitution) justified
their lack of adherence to Caperton and its due process
considerations.   In the matter of amendment of the Code of
Judicial Conduct's rules on recusal; in the matter of amendment
of Wis. Stat. § 757.19, S. Ct. Order 08-16, 08-25, 09-10 & 09-
11, 2010 WI 73 (Roggensack, J., separate writing).



                                           19
                                                                   No.      2013AP197-CR



        ¶45   The separate writings today appear to continue that
discussion,         but   add   little    additional     insight       or     argument.
Rather than re-engage in the debate at length here and skew the
focus of this opinion, the reader is instead referred to our
prior lengthy discussion of the issue in the cases cited above.
        ¶46   In sum, when determining whether a defendant's right
to an objectively impartial decisionmaker has been violated we
consider      the    appearance    of    bias   in   addition    to    actual     bias.
When the appearance of bias reveals a great risk of actual bias,
the presumption of impartiality is rebutted, and a due process
violation occurs.          Caperton, 556 U.S. at 885; Goodson, 320 Wis.
2d 166, ¶9; Gudgeon, 295 Wis. 2d 189, ¶¶21, 24.

        ¶47   We turn next to apply this test to the facts of this
case.
                                          IV
        ¶48   Herrmann      contends     that    the   circuit        court    judge's
statements about her sister could cause a reasonable person to
question      her    impartiality.        Specifically,     he     points       to   the
judge's statement about her sister's car accident during the
sentencing hearing:

        In 1976 five young women got into a vehicle, and only
        one of them survived. The two gentlemen in the other
        vehicle were 17, drunk out of their minds, and they
        did not survive.   That was my personal story, and I
        will tell you that a day does not go by that I do not
        think of that personal tragedy, and I wish that I
        could tell these victims that that pain will one day
        disappear, but it doesn't.    Time makes it less. We
        redirect ourselves to other things, and a day does go
        by when we don't think of our loved ones and then we
        feel guilty at night because that happened, but life

                                          20
                                                                          No.     2013AP197-CR


        does go on, and I am very grateful today that I'm
        looking at four lovely young ladies and that only one
        family has to go through the pain that my family and
        the other three young ladies' families had to endure
        in 1976.
        ¶49    He     also   points       to        the   judge's     statement          about
understanding         the    pain    the       families     and     the     victims       were

suffering:

        And so perhaps it is again destiny or a higher power
        or, Pastor, probably the prayers of many others that
        bring me to be the judge on this particular case
        because I probably more than anyone else who would be
        able to sit on this bench in this county understand
        the pain that these victims are feeling, but I have
        had the benefit of all those years since 1976 to
        understand that I have to make Mr. Herrmann pay, but
        that nothing I do to him will lessen that pain, and
        that if I don't do more than just incarcerate Mr.
        Herrmann, if I don't speak out on behalf of my
        community today, then this tragedy will continue to
        happen on our streets, and more families will suffer
        the way these families suffer today.
Like the circuit court and the court of appeals, we conclude
that,    when       viewed   in    context,      a    reasonable     person       would    not

question the court's partiality based on these statements.
        ¶50    In this case there was a lengthy sentencing hearing.
Twenty        individuals     testified         before     the      judge       issued     the
sentence, including each of the four surviving victims.                                    The
first victim to testify spoke about the loss of her friend in
the accident and the trouble she was having coping with that
loss,     in    addition      to    her    own       injuries.       The        next   victim
testified about how Herrmann chose to drink and how selfish it
was for him to run away after the crash.                     She requested that the
court hold him accountable.                These sentiments were repeated by


                                               21
                                                                    No.     2013AP197-CR



the third victim, who likewise criticized Herrmann for running
away.     The last victim to testify focused on how long it was
taking for them to recover, and how much their friend will be
missed.
        ¶51     The victims' testimony was followed by testimony from
their families.        Several individuals spoke about how beloved the
deceased victim had been and how devastating the injuries were
to the surviving victims.               They requested that the court not
allow Herrmann the opportunity to ever drive drunk again or to
make similar poor decisions in the future.                       They stressed that
he had chosen to drink and chosen to drive.                    They requested that
justice be done and stated that in this case, there was no

reason to impose anything but the maximum sentence.
        ¶52     A pastor from the community also spoke.                   He asked the
court "to make a clear statement that we will not tolerate the
abuse of alcohol, that we will not look with leniency upon the
devastating consequences of the willful abuse of alcohol."                           He
likewise stressed that Herrmann's actions were willful and had a
devastating       impact   on    the    community.        He   requested     that   the
court impose the maximum penalty.
        ¶53     The pastor's testimony was followed by the statement
of   an       individual   who    was    present     at    the    scene.       He   saw
Herrmann's truck smash into the car and stopped to help.                             He
spoke about the gruesome nature of the scene and that Herrmann

just ran away.         Another witness's statement was read into the
record.        The crash occurred near his house and he ran out to
help.     He indicated that while he was trying to help the victims
                                          22
                                                                     No.     2013AP197-CR



and    waiting         for   emergency       responders      to    arrive,       Herrmann
appeared not to care how the victims were doing.
       ¶54         There were also witnesses who spoke on behalf of
Herrmann.         His mother expressed her sympathy for the victims and
stated that this was an accident, not something Herrmann had
planned.          Although he was being portrayed as a monster, she
explained         that   Herrmann    was     a    caring    son,   grandson,      father,
brother, uncle, and friend.                 No amount of prison time was going
to bring back the deceased or take away any of the victims' pain
and suffering.
       ¶55       Similarly, the mother of Herrmann's son testified that
he    was    a    good   father.      She        stressed   that   this    was    not   an

intentional act.             One of his friends spoke about how Herrmann
had assisted her when she needed help.                        His sister explained
that he had been a good brother.                       His father testified that
Herrmann would never intentionally harm anyone and reiterated
that    he       was   not   a   monster.         Lastly,   Herrmann's     grandmother
spoke.       She expressed her sympathies for the victims and stated
that Herrmann had been a good grandson.
       ¶56       It was after hearing all of these statements that the
judge apparently felt compelled to answer the assertions about
Herrmann being a monster.             She began by acknowledging that there
is a problem of drinking and driving in our society, which is
not limited to Herrmann.              Then, she recognized multiple factors

in Herrmann's background mitigating his culpability, including
the fact that there was alcoholism in his family, he came from a


                                             23
                                                                          No.    2013AP197-CR



broken    home,      and    had    been   involved       in    the    juvenile      justice
system.
        ¶57   She     suggested       that        Herrmann's        story       illustrates
society's failure to help children and to help adults who suffer
with alcoholism.            She asked "How many other young children are
on the streets of our community who also like Mr. Herrmann come
from    situations         where   alcohol    and       the   use    of     alcohol     is   a
readily acceptable thing[?]"
        ¶58   It was at this point that the judge brought up her
sister's accident, assuring the victims and their family members
that she understood that such an accident is a painful tragedy.
Her remarks, however, also conveyed that although she understood

the pain the families and victims were suffering, no matter what
sentence      she    gave    Mr.   Herrmann,       it    would      not   alleviate     that
pain:
        I have had the benefit of all those years since 1976
        to understand that I have to make Mr. Herrmann pay,
        but that nothing I do to him will lessen that pain,
        and that if I don't do more than just incarcerate Mr.
        Herrmann, if I don't speak out on behalf of my
        community today, then this tragedy will continue to
        happen on our streets, and more families will suffer
        the way these families suffer today.
        ¶59   The judge then emphasized that the accident should not
be viewed as Mr. Herrmann simply being a monster, rather it is
indicative      of    a     greater   problem       that      our    society      has   with
drinking and driving:

        So, Mr. Herrmann, you're going to prison today, but
        that's just part of the story.   I want to make sure
        that the story is not about what a monster Jesse
        Herrmann was and is so that we can then wrap up this
        little episode in a nice neat little box and all go

                                             24
                                                                   No.     2013AP197-CR


        about our business as usual, that Mr. Herrmann the
        monster is off the streets, and we don't have to worry
        about this again, because no matter what I do to Mr.
        Herrmann, unless this community begins to take a
        different attitude about drinking and driving, and I'm
        talking about a different attitude, not paying lip
        service, but actually doing, we will see this tragedy
        happen again and again.
        ¶60    In   this   context,    it    is     apparent    that   although    the
judge's statements about her sister were personal, they were
used in an attempt to illustrate the seriousness of the crime
and the need to deter drunk driving in our society.                       They do not
appear as an expression of bias against Herrmann.

        ¶61    As the judge's statements addressed the seriousness of
the   crime      and   the   need     to    deter    drunk     driving,    they   were
consistent with the requirements placed on judges to discuss the
objectives of the sentence.                This court explained in State v.
Gallion, 2004 WI 42, ¶40, 270 Wis. 2d 535, 678 N.W.2d 197, that
"[c]ircuit courts are required to specify the objectives of the
sentence on the record.             These objectives include, but are not
limited to, the protection of the community, punishment of the
defendant, rehabilitation of the defendant, and deterrence to
others."         The   court   also    identified       several    mitigating      and
aggravating factors for sentencing courts to consider.4                      Id., ¶43
n.11.

        4
            These include:

        (1) Past record of criminal offenses; (2) history of
        undesirable behavior pattern; (3) the defendant's
        personality, character and social traits; (4) result
        of   presentence   investigation;  (5)   vicious   or
        aggravated nature of the crime; (6) degree of the
                                                       (continued)
                                            25
                                                                        No.     2013AP197-CR



        ¶62       Similar    requirements          have     been    incorporated        into
Wisconsin's statutes.              Wisconsin Stat. § 973.017(2) provides:

        When a court makes a sentencing decision concerning a
        person convicted of a criminal offense committed on or
        after February 1, 2003, the court shall consider all
        of the following:

        (ad) The protection of the public.
        (ag) The gravity of the offense.
        (ak) The rehabilitative needs of the defendant.

        (b)   Any  applicable    mitigating   factors   and                       any
        applicable    aggravating    factors,    including                        the
        aggravating factors specified in subs. (3) to (8).
 Wis. Stat. § 973.017(2) (2009-10).5
        ¶63       Here,     the     circuit        court      judge     fulfilled       her
obligations under the statute and Gallion.                         After her statements
about       her    sister    and    the   serious         problem     society    has    with
drinking and driving, the judge reviewed elements of Herrmann's
character.           She observed that he had a habit of running away
when        things    got   difficult.         She        discussed    Herrmann's       poor



        defendant's culpability; (7) defendant's demeanor at
        trial; (8) defendant's age, educational background and
        employment record; (9) defendant's remorse, repentance
        and cooperativeness; (10) defendant's need for close
        rehabilitative control; (11) the rights of the public;
        and (12) the length of pretrial detention

State v. Gallion, 2004 WI 42, ¶43 n.11, 270 Wis. 2d 535, 678
N.W.2d 197 (quoting Harris v. State, 75 Wis. 2d 513, 519-20, 250
N.W.2d 7 (1977)).
        5
       All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.



                                              26
                                                                               No.     2013AP197-CR



choices       leading     up    to     the   accident,        including         his       choice   to
drink and his choice to drive.
        ¶64    The judge considered that Herrmann had already been
given opportunities to adjust his behavior.                               He previously had
been fined and had the benefit of alcohol and drug assessments
and treatment in the community and in an institutional setting.
Additionally,        he    previously         had      the    benefit          of    supervision.
Throughout it all, Herrmann resisted treatment.
        ¶65    Stressing the gravity of the offense, the judge noted
how   many     witnesses        testified         to   the        effects      that    Herrmann's
crime had and continue to have on them.                             Lastly, as mitigating
factors, the judge considered Herrmann's guilty plea, his age,

and the fact that he has a family.                           It was after weighing all
these factors that the court imposed Herrmann's sentence of 31
years    initial        confinement          followed        by    40    years       of    extended
supervision,        a    sentence       less      than   the        40    years       confinement
recommended in the PSI.
        ¶66    The circuit court's statements were made in compliance
with the requirements of Wis. Stat. § 973.017(2) and Gallion.
When viewed in that context, they do not reveal a great risk of
actual bias.        Accordingly, we determine that Herrmann has failed
to rebut the presumption of impartiality.
                                                  V
        ¶67    In   sum,       there    is    a   presumption           that    a     judge   acted
fairly, impartially, and without prejudice.                               Goodson, 320 Wis.
2d 166, ¶8.         A defendant may rebut the presumption by showing
that the appearance of bias reveals a great risk of actual bias.
                                                  27
                                                                      No.     2013AP197-CR



Caperton, 556 U.S. at 885; Goodson, 320 Wis. 2d 166, ¶¶9, 14;
Gudgeon,    295     Wis.   2d   189,   ¶24,    see    also    Williams-Yulee,           135
S. Ct.     1660.        Such    a    showing    constitutes          a      due   process
violation.        Gudgeon, 295 Wis. 2d 189, ¶23.
     ¶68     We    conclude     that   Herrmann       has    failed      to    rebut    the
presumption        of   impartiality.          When    the     sentencing         court's
statements are viewed in context, they do not reveal a great
risk of actual bias.            Because we determine that no due process
violation has been established, we affirm the court of appeals.
     By    the     Court.—The       decision   of     the    court    of      appeals   is
affirmed.




                                          28
                                                                      2013AP197-CR.dtp


        ¶69   DAVID T. PROSSER, J.             (concurring).      I agree with the
bottom line of the lead opinion.                On the basis of the facts set
out in the lead opinion, I have no difficulty in concluding that
the sentencing judge in this case was not biased against the
defendant and that a reasonable person, fully apprised of the
facts in the record, would not reach a different determination.
        ¶70   I do not join the lead opinion because it relies on
three cases, State v. Gudgeon, 2006 WI App 143, 295 Wis. 2d 189,

720     N.W.2d 114;      State     v.    Goodson,    2009    WI      App   107,    320
Wis. 2d 166, 771 N.W.2d 385; and Caperton v. A.T. Massey Coal
Co., 556 U.S. 868 (2009), that tend to confuse and undermine the
administration of justice.
        ¶71   These cases create "objective" tests of bias that are
so loose and vague that they are almost impossible for courts to

apply    in   a   fair   and   consistent       manner.      Consequently,        these
tests can be manipulated by parties, manipulated by non-parties,
and manipulated by judges, to achieve some desired result.                        This
manipulation is not law; it is gamesmanship.
        ¶72   Because the lead has pointed to Gudgeon, Goodson, and
Caperton as prime examples of controlling authority, these cases
require a closer look than they have received.
                               I. STATE V. GUDGEON
        ¶73   State v. Gudgeon was decided by the court of appeals
in 2006.      The defendant was charged on July 24, 2000, with three

offenses: (1) operating a motor vehicle without owner's consent,
(2)     fleeing    or    eluding    an    officer,     and     (3)    resisting      or
obstructing an officer.            These charges "arose from an incident
                                           1
                                                                                2013AP197-CR.dtp
in which Gudgeon took off with another individual's motorcycle
and attempted to flee from police."                          Gudgeon, 295 Wis. 2d 189,

¶2.     "After Gudgeon abandoned the motorcycle in a ditch, one of
the officers in pursuit accidentally ran into it.                                The bike was
destroyed."           Id.
        ¶74       When Gudgeon entered a plea to the first of the three
offenses on August 24, 2000, as part of a plea bargain, he was
given       two    years     of    probation,        with    six      months   of     jail    time
subject to work release privileges.                          The six months were then
stayed.        This withheld sentence was designed to assist Gudgeon
in paying $8,425 in restitution for the destroyed motorcycle.1
Id.
        ¶75       Unfortunately, Gudgeon did not take advantage of the
court's       leniency.           He   violated      the     rules     of   probation,        then
stipulated to serving six months of jail time.

        ¶76       On May 15, 2002, Gudgeon's probation agent notified
the court that Gudgeon's probation was about to expire.                                        She
advised        that     Gudgeon        was    unable        to   use    his     work    release
privileges         because        of   pending    charges        in    Kenosha      County     and
McHenry County, Illinois.                    She recommended that Gudgeon's unpaid
restitution be converted to a civil judgment.                                  Id., ¶3.        She
gave        reasons    for    this      recommendation,            namely,     that    a     civil
judgment would earn interest for the victim, while extending
Gudgeon's supervision would not; and Gudgeon's supervision might
be difficult if Gudgeon were convicted in Illinois.                              Id.


        1
       Some of the facts outlined in this concurrence are taken
from Gudgeon's 2005 brief to the court of appeals.


                                                 2
                                                                     2013AP197-CR.dtp
      ¶77   In reply, Judge Michael Gibbs——who replaced the judge
who   had   sentenced    Gudgeon       because      of     judicial     rotation——
handwrote at the bottom of the letter, "No——I want his probation
extended," and he sent copies of the agent's letter "to the
probation   agent,     the     district       attorney,    and   Gudgeon's      last
attorney of record."         Id.

      ¶78   On   May   30,     2002,   Gudgeon's         probation     agent    sent
another letter to the court, acknowledging that the court wanted
Gudgeon's probation extended but asserting that Gudgeon would
not agree to a probation extension without first discussing the
matter with a lawyer.         Gudgeon's refusal to permit his extension
by waiver meant that an extension hearing was required.
      ¶79   Gudgeon's refusal to waive the probation extension was
noted at the August 21 extension hearing.                 An assistant district
attorney pointed out that Gudgeon had outstanding restitution

and Gudgeon admitted that he had paid only a small portion out
of the required $8,425, so that he still owed $7,834.53.                          He
also had other court costs to pay.                Gudgeon explained that he
had not paid more because he had spent a lot of time in custody
and had not been able to work.                Judge Gibbs extended Gudgeon's
probation at the hearing, explaining, "The only way I can see
where we can make sure you are going to pay is to keep the
hammer over your head, give you an incentive to pay it. . . .
Your probation is going to be extended for two years.                        If you
pay that off, you get off supervision.                   The sooner you pay it

off, the sooner you get off probation."                  Gudgeon did not appeal
the extension.


                                          3
                                                                               2013AP197-CR.dtp
       ¶80     The    following       year     Gudgeon's         probation      was     revoked
because of new violations, and he was sentenced to prison.                                     He
did not appeal this sentence either.
       ¶81     Gudgeon's       next     step       was    to     file   a    postconviction
motion under Wis. Stat. § 974.06.                        "He alleged [in the motion]
that    his     due    process        rights       had    been     violated      during     the
extension      proceedings          because    the       presiding      judge     was    not    a
neutral       magistrate.           Gudgeon        read    the     court's       handwritten
notation on the letter from his probation agent as prejudging
the case with respect to whether to extend probation."                              Id., ¶5.

       ¶82     The court of appeals bought Gudgeon's argument.                                 It
assumed a sufficient reason for a collateral attack under Wis.
Stat. § 974.06 because of newly discovered evidence, even though
the    court    had    sent     a     copy    of    the    letter       with    notation       to
Gudgeon's last attorney and Gudgeon had obviously discussed the

judge's thinking with his probation agent.                         The court of appeals
then suggested that the circuit court had deprived Gudgeon of an
impartial       and     unbiased        tribunal          and     deemed       this     denial
equivalent to deprivation of counsel——a "structural error" not
subject to harmless error analysis.
       ¶83     In sum, although the court of appeals was unwilling to
conclude       that    Judge     Gibbs       was     actually       biased      ("We     cannot
conclude that the court's notation on the letter persuasively
establishes actual bias in and of itself given our experience
and the reputation of this particular trial judge as a fair and

just administrator of the law"), it nonetheless detected the
"appearance of partiality."                  Gudgeon, 295 Wis. 2d 189, ¶25.                 The
court said:
                                               4
                                                      2013AP197-CR.dtp
       [T]he appearance of bias offends constitutional due
       process principles whenever a reasonable person——
       taking    into   consideration    human   psychological
       tendencies and weaknesses——concludes that the average
       judge could not be trusted to "hold the balance nice,
       clear and true" under all the circumstances.

Id., ¶24.
       ¶84    The court of appeals quoted various opinions to define
the    role   of    appellate         judges.         Appellate    judges      "determine

whether 'the potential for bias is sufficiently great' to sway
the average person serving as judge away from neutrality" and
"due    process       is     violated . . . [when]         the     risk   of     bias    is
impermissibly high."           Id.     The court added:

            We must resolve this case based on what a
       reasonable person would conclude from reading the
       court's notation, not what a reasonable trial judge, a
       reasonable appellate judge, or even a reasonable legal
       practitioner would conclude.
Id., ¶26.
       ¶85    In my view, the Gudgeon case does not provide clear
guidance to Wisconsin judges.                 Appellate judges are supposed to
determine,      not     as    fact     but   as   a    matter     of   law,    whether   a
reasonable person——taking into consideration human psychological

tendencies and weaknesses——would "conclude" ("conclude" implies
a legal determination) that the average judge (not the judge who
is the subject of inquiry) could be trusted to make a fair
decision,      given         certain     facts.          These     appellate       judges

apparently may not consider such legal realities as the fact
that   judges      in      Walworth    County     frequently      extended       probation
when a probationer failed to pay off or make good progress in
paying off restitution, and the law that criminal court judges
lose    control         of    restitution         when    probation       ends     and    a

                                             5
                                                                          2013AP197-CR.dtp
probationer's        unpaid     restitution        is      converted      to     a    civil
judgment.       See Huml v. Vlazny, 2006 WI 87, 293 Wis. 2d 169, 716

N.W.2d 807.          Reasonable      trial       judges,     reasonable         appellate
judges,       and   reasonable      legal    practitioners          would      know     that
circuit judges, "for cause or by order," may extend probation
for a stated period, Wis. Stat. § 973.09(3)(a), especially when
"The probationer has not made a good faith effort to discharge
court-ordered obligations or pay fees owed under s. 304.074."
Wis. Stat. § 973.09(3)(c)1.
        ¶86    Apparently, a "reasonable person" who is not a judge
or legal practitioner may not consider this information.                              It is
not at all clear what "the reasonable person" is supposed to
consider beyond his or her psychological hunches.
        ¶87    The Gudgeon court said, "Although we may be convinced
that the circuit court was not prejudging the extension issue,

that    is    not   the    test.     The    risk    of     bias    that   the    ordinary
reasonable person would discern . . . is the test."                             Id., ¶30.
That "risk" "is simply too great to comport with constitutional
due process."        Id.
        ¶88    The court of appeals remanded the case to the circuit
court    for    a   new    probation   extension         hearing,     saying     "when     a
tribunal predetermines how it will rule, the error is structural
and    poisons      the    entire   proceeding."           Id.,    ¶31.      This      court
denied the State's petition for review.                      When the Gudgeon case
was remanded, however, Gudgeon himself waived rights to a new

hearing——likely           knowing   that    he     could     not    establish         "newly
discovered evidence" or escape from another extension of his
probation.
                                            6
                                                                                       2013AP197-CR.dtp
                                  II. STATE V. GOODSON

        ¶89    State      v.    Goodson        was       decided      in     2009,      three      years
after Gudgeon.             The court forthrightly acknowledged that "Our
decision       in    Gudgeon      guides         our       conclusion."                Goodson,       320
Wis. 2d 166, ¶10.
        ¶90    In    Goodson,         the      defendant          was        convicted        of   five
criminal offenses, including two felony counts of possession of
a     short-barreled           firearm         and       fourth-degree             sexual       assault
(reduced from second-degree sexual assault).2                                   He was given a 45-
month prison sentence by Outagamie County Circuit Judge Harold
Froehlich.          Goodson's         sentence           was    reversed         by    the    court    of
appeals       on     grounds      that         his        counsel       provided            ineffective
assistance at the sentencing hearing.
        ¶91    The case was remanded and assigned to Circuit Judge
Mark McGinnis.            At a new sentencing hearing on October 11, 2005,

Judge       McGinnis      described         Goodson's           abuse      of    his    ex-wife       and
daughter,         noting       that       he   had        "physically,             psychologically,
emotionally, sexually, you raped her, verbally abused and just
abused      her     for    many   years.             Do    I    think        you      are    dangerous?
Absolutely."
        ¶92    Judge McGinnis added, "I am tempted to just give you
the    maximum       today.           I    don't         have    to     go      along       with   joint
recommendations . . . .                   I sit here and read this file over, and



        2
       Some of the facts in this discussion are taken from
Goodson's brief in the court of appeals as well as a prior
unpublished court of appeals decision, State v. Goodson, No.
2004AP2913-CR, unpublished slip op. (Jul. 6, 2005).


                                                     7
                                                                   2013AP197-CR.dtp
I say why.       What did your ex-wife ever do to deserve that?                 And
the answer is: She didn't do anything to deserve it, period."
     ¶93     Judge McGinnis then imposed sentence:

     On one of the firearm counts, the court sentenced
     Goodson to six years' imprisonment, with three years'
     initial    confinement    and    three  years'    extended
     supervision.      On the other firearm count and the
     sexual assault, it withheld sentence and placed
     Goodson   on    probation   consecutive  to   the   prison
     sentence.      On the remaining two misdemeanors, it
     sentenced Goodson to ninety-day jail terms, concurrent
     with each other but consecutive to the prison
     sentence.    The court announced it was structuring the
     sentence like this to "[hang the] maximum penalty over
     [Goodson] . . . ." The court warned Goodson "[I]f you
     deviate one inch from these rules, and you may think
     I'm kidding, but I'm not, you will come back here, and
     you will be given the maximum, period.             Do you
     understand that?" Goodson replied that he did.
Id., ¶2 (footnote omitted).

     ¶94     Like   Judge        Froehlich's    sentence,    Judge    McGinnis's
sentence resulted in 45 months of confinement, but Goodson was
given 857 days of credit on the sentence because of his time in
custody.     This resulted in 338 days of remaining confinement——
less than a year.
     ¶95     When Goodson completed his confinement time, he was
inadvertently reincarcerated at the Outagamie County Jail, where
he was soon charged with battery by a prisoner.                      Due to its
mistake     of   taking        Goodson   into   custody,    the   Department     of
Corrections recommended limiting reconfinement to the 113 days
of   time    served       in     jail.      Judge   McGinnis      accepted    this
recommendation, giving Goodson the benefit of the doubt.                       Id.,
¶¶3-4.     In other words, Judge McGinnis did not give Goodson "the
maximum."

                                           8
                                                                        2013AP197-CR.dtp
        ¶96       Five months later, however, after Goodson's extended
supervision was revoked for numerous violations, Judge McGinnis
reconfined Goodson for the maximum period of time available——two
years, eight months, and 17 days.                    Goodson had been arrested
after he threatened a new girlfriend, and attempted to commit
suicide       by     driving    the    girlfriend's        truck    head-on    into      a
concrete pole, causing himself serious injury.
        ¶97       The circuit court's sentence seemed to shock the court
of appeals: "By prejudging Goodson's reconfinement sentence, the
court was objectively biased.               Therefore, Goodson is entitled to
a new reconfinement sentence hearing."                 Id., ¶1.

        ¶98       The court stated that Goodson's appeal "requires us to
determine whether Goodson was sentenced by an impartial judge.
Whether       a    circuit   court's      partiality    can    be   questioned      is   a
matter of law that we review independently."                    Id., ¶7.

        ¶99       The court of appeals then concluded that the circuit
court    was       objectively     biased——that      is,      the   court    gave   "the
appearance of bias" and the court was actually biased as well,
although          "Goodson     concedes     he   cannot      show    the    court     was
subjectively biased."             Id., ¶8.       As to the appearance of bias,
the court quoted the Gudgeon passage about the reasonable person
concluding that "the average judge could not be trusted."                           Id.,
¶9 (quoting Gudgeon, 295 Wis. 2d 189, ¶24).                         The court added:
"[T]he appearance of partiality constitutes objective bias when
a   reasonable        person     could    question     the    court's      impartiality

based on the court's statements."                 Id., ¶9 (citing Gudgeon, 295
Wis. 2d 189, ¶26).
        ¶100 The court continued:
                                             9
                                                       2013AP197-CR.dtp
             We agree with Goodson that a reasonable person
        would interpret the court's statements to mean it made
        up its mind before the reconfinement hearing. . . .

             . . . .

             Here,   the   court  unequivocally   promised  to
        sentence Goodson to the maximum period of time if he
        violated his supervision rules.    A reasonable person
        would conclude that a judge would intend to keep such
        a promise——that the judge had made up his mind about
        Goodson's sentence before the reconfinement hearing.
        This appearance constitutes objective bias.
Id., ¶¶10, 13

        ¶101 The court went on to conclude that "There could not be
a   more   explicit          statement       confirming        that    the    sentence       was
predecided.           This is definitive evidence of actual bias."                           Id.,

¶16.
        ¶102 Clearly,           this       writer   is     uncomfortable             with    the
decisions        in    Gudgeon       and     Goodson.          Both    courts       failed     to
disclose all the facts.                Both courts did not contend that the
defendants had actually suffered unfair treatment.                              Both courts
left open the question whether there would have been any "bias"
at all if the judges had kept their thinking to themselves.                                   The
Goodson     court,       following         Gudgeon,      did     not    explain       why     the

imposition of a heavy penalty in a sentence that is stayed, see,
Wis.     Stat.        § 973.09(1)(a),         would      not     be     "prejudging"         the
defendant's sentence if his or her probation were revoked.                                    The
court's ruling is certainly inconsistent with the practice in
drug courts.
        ¶103 More important, the two cases applied their ambiguous
tests      for        bias      in     situations——probation              extension          and
reconfinement          sentencing——in         which      the    stakes       were    not     very

high.      One        wonders    whether      the   court      of     appeals       would    have
                                               10
                                                                        2013AP197-CR.dtp
developed       and    applied     the    same     tests    if   confronted        with    a
situation where the stakes were critical, such as wiping out a
homicide conviction after a four-week jury trial, even though a
judge's candid statement may never have been heard by a jury
trying the facts.            After all, in the Gudgeon court's view, bias—

—and even more, the appearance of bias——may be wholly unrelated
to any actual unfairness to the defendant.
                      III. CAPERTON V. A.T. MASSEY COAL CO.
        ¶104 The Caperton case is a different animal.                    The facts in
Caperton     created         the   widespread       impression       that      a   single
individual spent more than $3 million to elect a new supreme
court justice who would overturn a $50 million jury verdict in a
specific case involving the individual that was soon to come
before    the    West       Virginia     Supreme    Court.       The   United        States
Supreme    Court's          decision   is   completely       understandable.            The

problem in Caperton, like the problem in Gudgeon and Goodson, is
that its broad language is difficult to cabin and thus invites
application in materially different fact situations.
        ¶105 The Caperton majority said that an appellate court's
objective inquiry is "whether the average judge in his position
is     'likely'        to     be   neutral,        or      whether     there       is     an
unconstitutional 'potential for bias,'" Caperton, 556 U.S. at
881; whether an interest "poses such a risk of actual bias or
prejudgment that the practice must be forbidden," id. at 884,
whether there is "a serious risk of actual bias."                              Id.      The

Court    added:       "[O]bjective       standards      may . . . require          recusal
whether or not actual bias exists or can be proved."                               Id. at
886.
                                            11
                                                                            2013AP197-CR.dtp
        ¶106 The Caperton Court noted that "Massey and its amici

predict     that       various   adverse        consequences     will        follow     from
recognizing        a    constitutional      violation      here——ranging             from    a
flood      of   recusal        motions"     to     interference         with      judicial
elections.      Id. at 887.         "We disagree."         Id.    The Supreme Court
may have been correct in Caperton but it was not correct with
respect to this latter comment, at least in Wisconsin.
        ¶107 The       reality     of     contemporary      life        is      that       the
appearance of bias can be created for a judge by someone other
than the judge.          What are judges to do in this situation?                           How
are they supposed to assess the reasonable person's conclusions
if the reasonable person is basing his conclusions on misleading
information?
        ¶108 My concern with the lead opinion is its veneration of
the     "appearance       of     bias"     standard     without         providing           any

additional guidance as to when or how to apply this imprecise
standard.       The lead opinion's discussion of the "appearance of
bias" sharply contrasts with its detailed analysis of the facts
that properly determine the outcome of this case.
        ¶109 Chief       Justice     Roberts      stated    in        his     dissent       in
Caperton:

        The Court's new "rule" provides no guidance to judges
        and    litigants   about    when   recusal   will   be
        constitutionally required.   This will inevitably lead
        to an increase in allegations that judges are biased,
        however groundless those charges may be.       The end
        result will do far more to erode public confidence in
        judicial impartiality than an isolated failure to
        recuse in a particular case.
Id.   at    890-91      (Roberts,       C.J.,    dissenting).          I     share     Chief
Justice     Roberts'      concerns      about    the   state     of    the     law    as    it
                                           12
                                                      2013AP197-CR.dtp
relates to bias and constitutionally required recusal.       Without
clarification and guidance, these developments in the law may
"do   far   more   to   erode   public   confidence   in    judicial
impartiality" than the occasional misstep by a judge.
      ¶110 For the foregoing reasons, I respectfully concur.
      ¶111 I am authorized to state that Chief Justice PATIENCE
DRAKE ROGGENSACK joins this opinion.




                                13
                                                                  No.   2013AP197-CR.akz




       ¶112 ANNETTE KINGSLAND ZIEGLER, J.                  (concurring).        I agree
with the lead opinion's conclusion that Jesse Herrmann has not
shown that the sentencing judge, Judge Ramona A. Gonzalez, was
objectively biased in violation of due process.                           I write to
clarify the due process recusal test. Citing cases including
Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009), the lead

opinion states that "[a] defendant may rebut the presumption

[that a judge acted fairly, impartially, and without prejudice]
by showing that the appearance of bias reveals a great risk of
actual    bias."      Lead    op.,    ¶3.       However,    due   process       requires
recusal only if a judge is actually biased or if a "rare" or an
"exceptional case" with "extreme facts" creates a "serious risk
of actual bias."          Caperton v. A.T. Massey Coal Co., 556 U.S.
868, 883-84, 886-88, 890.
       ¶113 Caperton concludes that objective proof of actual bias
or the probability of a serious risk of actual bias must exist
before    recusal    is     required.       Caperton,       556    U.S.    at    883-84.

Stated otherwise, it is not reasonable to question a judge's
impartiality unless one can prove by objective evidence that
actual bias or the probability of a serious risk of actual bias
exists.    See id. at 884.
       ¶114 The recusal test to be applied is the test explained
by the Supreme Court in Caperton, which requires a "rare" or an
"exceptional case" with "extreme facts" that create a "serious
risk of actual bias."            Caperton, 556 U.S. at 883-84, 886-88,
890.      If   the   test    were    only       whether    an   appearance      of   bias
                                            1
                                                      No.   2013AP197-CR.akz


existed, and nothing more extreme or exceptional were required,
then this record would support the defendant's contention that
Judge Gonzalez should have recused herself.       To succeed on a due
process claim, much more is required.
     ¶115 Accordingly, I write to discuss the due process test
of   Caperton.     I   note   that   the   Judicial     Code1    and    the
disqualification       statute   provide    for       specific     factual
circumstances under which a judge must recuse, even when that
judge could be completely fair.       See, e.g., Supreme Court Rule

("SCR") 60.04(4)(a) to (f); Wis. Stat. § 757.19(2)(a) to (f).2

     1
       "The Code of Judicial Conduct is contained in ch. 60 of
the Supreme Court Rules.    It was formerly referred to as the
Code of Judicial Ethics."     State v. Henley, 2011 WI 67, ¶21
n.12, 338 Wis. 2d 610, 802 N.W.2d 175.
     2
       The provisions of the disqualification statute and Supreme
Court Rule ("SCR") Ch. 60, which identify specific factual
circumstances where recusal is required, do not employ an
analysis about reasonableness. However, "[t]he Judicial Code
provides no authority to the supreme court to disqualify a
justice from participating in a particular case when that
justice has considered and decided a motion to disqualify him or
her." Henley, 338 Wis. 2d 610, ¶23. "[T]his court does not have
the power to remove a justice from participating in an
individual proceeding, on a case-by-case basis."       Id., ¶25.
When presented with a disqualification motion, a "justice must
decide   for    himself   or   herself   whether   his   or   her
disqualification [is] required." Id., ¶11; see also id., ¶¶13,
26.   In addition, the disqualification statute requires recusal
"[w]hen a judge determines that, for any reason, he or she
cannot, or it appears he or she cannot, act in an impartial
manner." Wis. Stat. § 757.19(2)(g).

     Section   757.19(2)(g),  [Wis.]  Stats.,  mandates   a
     judge's disqualification only when that judge makes a
     determination that, in fact or in appearance, he or
     she cannot act in an impartial manner.    It does not
     require disqualification in a situation where one
     other than the judge objectively believes there is an
                                                     (continued)
                                2
                                                                         No.    2013AP197-CR.akz


Caperton makes clear that a judge need not recuse simply because
someone    claims       that       the    judge       is   partial.       In    other       words,
Caperton    concludes             that     a   reasonable,           well-informed         person,
knowledgeable about judicial ethical standards and the justice
system and aware of the facts and circumstances the judge knows
or reasonably should know, would reasonably question the judge's
ability    to      be        impartial         because      of       actual     bias       or     the
probability     of           a    serious         risk     of    actual        bias.             Such
circumstances are exceedingly rare.3

     ¶116 Because we are bound by the Supreme Court precedent in
Caperton    when    applying             the   due    process        clause    of    the    United

States    Constitution,            it     is   important        to    clearly       set    out    the
Caperton    test        so       that     those      who   consider       seeking         judicial
recusal will be well-informed, as will the judges who decide
recusal    motions.              Further,      because      "motions      to    disqualify          a
justice from participating in a particular case have increased


     appearance that the judge is unable to act in an
     impartial    manner;    neither   does   it    require
     disqualification . . . in a situation in which the
     judge's impartiality 'can reasonably be questioned' by
     someone other than the judge.

Donohoo v. Action Wisconsin Inc., 2008 WI 110, ¶24, 314
Wis. 2d 510, 754 N.W.2d 480 (quoted source omitted) (ellipsis
added in Donohoo).   Because Donohoo and Henley are controlling
precedent, I rely on them in this opinion.
     3
       For example, the Judicial Code requires recusal "when
reasonable, well-informed persons knowledgeable about judicial
ethics standards and the justice system and aware of the facts
and circumstances the judge knows or reasonably should know
would   reasonably   question   the  judge's  ability  to   be
impartial[.]" SCR 60.04(4) (intro.).


                                                  3
                                                                            No.   2013AP197-CR.akz


dramatically             since    the     United          States    Supreme       Court       decided
Caperton,"          State v. Henley, 2011 WI 67, ¶10, 338 Wis. 2d 610,
802 N.W.2d 175, it is important to recognize that Caperton's
holding is very limited.                       Caperton will be discussed in more
detail.
                                          I. DISCUSSION
        ¶117 "A          fair     trial        in     a    fair     tribunal       is     a     basic
requirement of due process."                        In re Murchison, 349 U.S. 133, 136
(1955).      "'Due process requires a neutral and detached judge. If

the judge evidences a lack of impartiality, whatever its origin
or justification, the judge cannot sit in judgment.'"                                     State v.

Rochelt, 165 Wis. 2d 373, 378, 477 N.W.2d 659 (Ct. App. 4 1991)
(quoting        State       v.     Washington,             83     Wis. 2d     808,       833,      266
N.W.2d 597 (1978)).               "The operation of the due process clause in
the     realm       of     judicial       impartiality,            then,    is     primarily        to
protect the individual's right to a fair trial."                                         People v.
Freeman, 222 P.3d 177, 181 (Cal. 2010).                            "We presume that judges

are     impartial,"              and    someone            who     challenges        a        judge's
impartiality bears a heavy burden to "rebut that presumption."
State     v.     Pinno,          2014     WI        74,    ¶103,    356     Wis. 2d 106,           850
N.W.2d 207.
        ¶118 "[W]hile a showing of actual bias is not required for
judicial disqualification under the due process clause, neither
is the mere appearance of bias sufficient."                                 Freeman, 222 P.3d
at    178.     In    a     due    process           recusal      challenge,       "[i]t       is   not
sufficient to show that there is an appearance of bias or that
the circumstance might lead one to speculate that the judge is

                                                     4
                                                                          No.      2013AP197-CR.akz


biased."       State     v.        O'Neill,         2003     WI     App         73,      ¶12,    261
Wis. 2d 534,     663     N.W.2d 292            (citing       State        v.       McBride,       187
Wis. 2d 409, 416, 523 N.W.2d 106 (Ct. App. 1994)).
     ¶119 "Instead,       based          on    an    objective          assessment         of     the
circumstances    in     the     particular           case,       there     must       exist      'the
probability     of     actual       bias       on    the     part        of     the      judge     or
decisionmaker        [that]        is    too        high     to     be        constitutionally
tolerable.'"     Freeman, 222 P.3d at 178 (quoting Caperton, 556
U.S. at 877) (quotation marks omitted).                            In other words, this

objective assessment "asks whether objective facts show actual
bias."     O'Neill,      261       Wis. 2d 534,            ¶11     (citing         McBride,      187

Wis. 2d at 415-16). "Thus, actual bias——either its presence, or
the great risk of it——is the underlying concern of objective
bias [due process] analysis."                       State v. Goodson, 2009 WI App
107, ¶14, 320 Wis. 2d 166, 771 N.W.2d 385.                          The Supreme Court in
Caperton "emphasized that only the most 'extreme facts' would
justify    judicial     disqualification               based       on     the       due    process

clause."     Freeman, 222 P.3d at 178 (quoting Caperton, 556 U.S.
at 886-89).     Accordingly, when a litigant asserts actual bias,
he or she must show extreme facts such as those in Caperton.
See id.
     ¶120 "Where       only     the      appearance         of     bias       is    at    issue,    a
litigant's    recourse        is    to     seek      disqualification               under       state
disqualification        statutes:          'Because          the     codes          of    judicial
conduct provide more protection than due process requires, most
disputes over disqualification will be resolved without resort
to the Constitution.'"             Id. (quoting Caperton, 556 U.S. at 890).

                                               5
                                                                     No.    2013AP197-CR.akz


Wisconsin's Judicial Code and disqualification statute aim to
prevent    the        appearance       of    bias      by    requiring        recusal    in
specifically described factual situations even though the judge
is actually unbiased.4             See, e.g., SCR 60.04(4)(a) to (f); Wis.
Stat. § 757.19(2)(a) to (f); see also Pinno, 356 Wis. 2d 106,
¶97 (holding that the Judicial Code did not require recusal and
noting that the judge had an "appearance of impartiality"); In
re Disciplinary Proceedings Against Crosetto, 160 Wis. 2d 581,
583-84, 466 N.W.2d 879 (1991) (holding that the disqualification

statute did not require recusal because there was no "appearance
of a lack of impartiality").                   For example, recusal is required
when "[t]he judge of an appellate court previously handled the
action     or         proceeding        as         judge     of      another       court."
SCR 60.04(4)(b); see also Wis. Stat. § 757.19(2)(e) (requiring

recusal    of    "a    judge      of   an    appellate       court    [who]    previously
handled    the    action     or    proceeding        while    judge    of     an   inferior
court").         Specifically          defined       requirements      of     recusal    in

SCR Ch. 60 and the disqualification statute are not at issue in
this case because Herrmann's challenge is under the more general
notion    of     reasonableness         as   it     intersects       with    due   process
protection.
     ¶121 Thus,         I   analyze      the       circumstances      when    recusal    is
sought based on what is sometimes referred to as the "reasonable

     4
       These enumerated situations might require recusal although
due process does not. See State v. Pinno, 2014 WI 74, ¶94, 356
Wis. 2d 106, 850 N.W.2d 207 ("'[T]he codes of judicial conduct
provide more protection than due process requires . . . .'"
(quoting Caperton, 556 U.S. at 890)).


                                               6
                                                       No.   2013AP197-CR.akz


person" standard. When such a challenge is made, the burden is
to show a "rare" or an "extraordinary situation" with "extreme"
facts that create a "serious, objective risk of actual bias,"
such that it is the limited situation where recusal is required,
as was demonstrated under the unique facts of Caperton.                    See
Caperton, 556 U.S. at 886-87, 890.        The Supreme Court made clear
that it is a "rare instance[]" indeed where a judicial officer
is   required     to   recuse   when     no    rule   specifies       factual
circumstances that call for recusal.          Id. at 890.

     ¶122 If due process required a judge to recuse because of
an appearance of bias, then what is unreasonable about Herrmann
thinking   that   Judge   Gonzalez     appeared    biased    based    on   her
statements such that she must recuse?             In 1976 a drunk driver
struck a car holding five young women, killing four of them.
One of the women who died was Judge Gonzalez's sister.               Herrmann
drove his truck while intoxicated and rear-ended a car carrying
five young women.      Herrmann's accident killed one of the young

women and seriously injured the other four.            During Herrmann's
sentencing hearing, Judge Gonzalez stated:

     In 1976 five young women got into a vehicle, and only
     one of them survived. The two gentlemen in the other
     vehicle were 17, drunk out of their minds, and they
     did not survive.    That was my personal story, and I
     will tell you that a day does not go by that I do not
     think of that personal tragedy, and I wish that I
     could tell these victims that that pain will one day
     disappear, but it doesn't.
Judge Gonzalez further stated:

     Perhaps   it    is  again   destiny   or  a   higher
     power . . . that bring[s] me to be the judge on this
     particular case because I probably more than anyone
     else who would be able to sit on this bench in this
                               7
                                                                No.    2013AP197-CR.akz

     county understand the pain that these victims are
     feeling, but I have had the benefit of all those years
     since 1976 to understand that I have to make Mr.
     Herrmann pay . . . .
     ¶123 Because       a   complete       understanding       of    Caperton      is    so
important   to   understanding         a    judge's    obligations          upon   being
moved to recuse, I now turn to Caperton.
     ¶124 As     the    following      discussion      shows,        Caperton's      very
limited   holding      does   not   allow      "an    attack    on     virtually        any
ju[dge] for nearly any reason and [does not] allow litigants to
'pick their court' by filing recusal motions against certain
ju[dges] and not others."           State v. Allen, 2010 WI 10, ¶260, 322
Wis. 2d 372, 778 N.W.2d 863 (Ziegler, J., concurring).                        "Such an
expansion   of   Caperton     could        cause   gridlock     in    the    court      and
delay justice being dispensed.                 The Supreme Court made clear
that it did not intend such consequences."                     Id.      In fact, the
Supreme Court noted that "[n]ot every campaign contribution by a
litigant or [an] attorney creates a probability of bias that
requires a judge's recusal, but this is an exceptional case."5

     5
       Although the Supreme Court in Caperton was discussing due
process when it stated that not every campaign contribution
requires a judge's recusal, the same principle applies under the
Judicial Code. Wisconsin's Judicial Code states that "[a] judge
shall not be required to recuse himself or herself in a
proceeding based solely on any endorsement or the judge's
campaign committee's receipt of a lawful campaign contribution,
including a campaign contribution from an individual or entity
involved in the proceeding."    SCR 60.04(7). As the comment to
this rule explains:

          Campaign contributions to judicial candidates are
     a fundamental component of judicial elections. . . .

          The purpose of [SCR 60.04(7)] is to make clear
     that the receipt of a lawful campaign contribution by
                                                    (continued)
                               8
                                                               No.   2013AP197-CR.akz


Caperton, 556 U.S. at 884.              The exceptional circumstances of
Caperton    demonstrated       the    probability     of   a   serious      risk      of
actual    bias   that    the   Court   determined     that     there    was    a     due
process    violation.          The   Supreme   Court       noted     that     such     a
violation would indeed be "rare."               Id. at 890.             A campaign
contribution     or     expenditure    alone   does    not     result    in    a     due
process violation.         Even the large expenditure in Caperton was
but one of many factors that, collectively, were fundamental to
the Court's decision.           In Caperton the Court did not conclude

that, standing alone, a lawful contribution, large expenditure,
or other significant support in a campaign would require a judge
to recuse.

     a judicial candidate's campaign committee does not, by
     itself, require the candidate to recuse himself or
     herself as a judge from a proceeding involving a
     contributor. An endorsement of the judge by a lawyer,
     other individual, or entity also does not, by itself,
     require a judge's recusal from a proceeding involving
     the endorser.    Not every campaign contribution by a
     litigant or [an] attorney creates a probability of
     bias that requires a judge's recusal.

          Campaign contributions must be publicly reported.
     Disqualifying    a  judge   from   participating    in   a
     proceeding   solely   because    the    judge's   campaign
     committee received a lawful contribution would create
     the   impression   that   receipt    of   a   contribution
     automatically impairs the judge's integrity. It would
     have the effect of discouraging "the broadest possible
     participation in financing campaigns by all citizens
     of the state" through voluntary contributions, see
     Wis. Stat. § 11.001, because it would deprive citizens
     who lawfully contribute to judicial campaigns, whether
     individually or through an organization, of access to
     the judges they help elect.

SCR 60.04(7) cmt.


                                         9
                                                                              No.   2013AP197-CR.akz


        ¶125 For      purposes          of        clarification,          in        Wisconsin,         a
judicial    candidate         may    not          even    solicit        or    accept       campaign
contributions. In other words, it is fundamental that a judicial
candidate         cannot      ask        anyone           for      any        campaign          money.
SCR 60.06(4) ("A judge, candidate for judicial office, or judge-
elect     shall       not     personally                solicit     or        accept        campaign
contributions.").
        ¶126 In      addition,      a    judicial          candidate          certainly         cannot
control whether a third party expends resources in an attempt to

affect the outcome of a contested seat.                              Caperton was decided

before Citizens United v. Federal Election Commission, in which
the United States Supreme Court struck down as unconstitutional,
under     the     First     Amendment,            a      federal    law        that       prohibited
corporations         from   making       independent            expenditures              for   speech
that expressly advocates the election or defeat of a candidate.
Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 365-66
(2010).

        ¶127 Thus, even if a judicial candidate were to publicly
request that third parties not spend money to support his or her
campaign    or       to   discredit          an    opponent's        campaign,            the    First
Amendment entitles third parties to do so anyway.                                   See id.      If a
campaign        contribution        or       an       independent         expenditure           in     a
campaign were enough to require recusal, no sensible stopping
point     would      exist.         Sometimes             people     support          a     judicial
candidate       by    directly      contributing            to     his    or        her    campaign.
Sometimes       people      do   not         support        a    judicial           candidate        and
directly contribute to an opponent's campaign.                                  Sometimes third

                                                   10
                                                                     No.   2013AP197-CR.akz


parties exercise their First Amendment rights to either support
or     discredit    a     judicial      candidate.            Should       all    of    these
circumstances       require       recusal?            Does    one     scenario         require
recusal more than the others, if a "reasonable person" says so?
       ¶128 The Court in Caperton recognized that the answer to
those questions is "no" and that it is a rare and exceptional
circumstance wherein much more must be proved before a judge
must    recuse.         Extreme   circumstances          must       converge      so    as    to
create     the    probability      of    a     serious        risk    of    actual       bias.

Caperton, 556 U.S. at 884.                If Caperton were to have required

any    less,     there    would   be    no     sensible       stopping      point       for    a
judge's     duty     to     recuse.          "Caperton        involved      extreme          and
extraordinary facts which the Supreme Court recognized in its
majority       opinion     no   less    than      a   dozen    times."           Allen,      322
Wis. 2d 372, ¶261 (Ziegler, J., concurring); see also id., ¶263
n.4 (identifying a dozen times where Caperton highlighted that
case's extreme and extraordinary facts); State v. Henley, 2011

WI 67, ¶33, 338 Wis. 2d 610, 802 N.W.2d 175 ("[A]s the United
States     Supreme        Court   repeatedly          said     in    its    decision          in
Caperton, that decision is based on extraordinary and extreme
facts.").
       ¶129 The "extreme facts" that amounted to a due process
violation in Caperton began with a $50 million jury verdict that
was    entered     in     favor   of    Caperton       and     against      A.T.       Massey.
Caperton, 556 U.S. at 872.                "After the verdict but before the
appeal, West Virginia held its 2004 judicial elections."                               Id. at
873.     Five justices sit on the West Virginia Supreme Court of

                                             11
                                                                No.   2013AP197-CR.akz


Appeals.       Id. at 874-75.          Whoever won the West Virginia Supreme
Court of Appeals' 2004 election would most certainly be on the
court when it decided whether to sustain or overturn this $50
million verdict against A.T. Massey.                 Id. at 873.
        ¶130 Donald      Blankenship,      who    was   A.T.   Massey's      chairman,
chief executive officer, and president, "[knew] that the Supreme
Court of Appeals of West Virginia would consider the appeal in
the case."         Id.     Blankenship spent $3 million to support the
election of Brent Benjamin, an attorney who was running against

Justice Warren McGraw for a seat on the West Virginia Supreme
Court of Appeals.          Id.    Specifically, Blankenship "contribut[ed]

the $1,000 statutory maximum to Benjamin's campaign committee";
Blankenship        donated       almost    $2.5      million    to    a      political
organization        that   supported       Benjamin's     campaign     and     opposed
Justice McGraw's campaign6; and Blankenship additionally spent
"just       over   $500,000      on    independent      expenditures——for       direct
mailings and letters soliciting donations as well as television

and newspaper advertisements——to support . . . Brent Benjamin."
Id. (ellipsis in original) (quotation marks omitted).
        ¶131 Blankenship's        $3    million    of    expenditures     supporting
the election of Benjamin, who if elected would be on the West

        6
       Blankenship's $2.5 million donation to this political
organization accounted for more than two-thirds of the funds
raised by this organization during this election.   Caperton v.
A.T. Massey Coal Co., 679 S.E.2d 223, 304 (W. Va. 2008)
(Benjamin, Acting C.J., concurring), rev'd and remanded, 556
U.S.   868  (2009)  ("Mr.   Blankenship personally  contributed
$2,460,500 [to this organization]. The remaining contributions,
totaling $1,163,000, were given by other individuals and
organizations.").


                                           12
                                                                           No.    2013AP197-CR.akz


Virginia Supreme Court of Appeals when it decided the pending
case involving Blankenship's company, dwarfed all other spending
in the election.              In particular, Blankenship's $3 million of
expenditures       supporting          Benjamin           were     "more     than       the    total
amount spent by all other Benjamin supporters and three times
the amount spent by Benjamin's own committee."                                   Id.     "Caperton
contend[ed]       that   Blankenship              spent       $1   million       more    than       the
total amount spent by the campaign committees of both candidates
combined."        Id.       In    short,          Blankenship        spent       $3    million       in

support     of     Benjamin,           all        of     Benjamin's        other        supporters
collectively        spent        less        than        $3     million      on        independent
expenditures        in   support             of        Benjamin,     Benjamin's           campaign
committee        spent   $828,663,7               and     Justice      McGraw's           campaign
committee spent $1,313,861.8                  See id.
     ¶132 In       addition,       the       United       States     Supreme          Court    noted
that the election results were not a landslide victory.                                       Id.     A
total of 716,337 people voted in the West Virginia Supreme Court

of Appeals race.          See id.            Benjamin was elected with a narrow
margin    of     53.3%   of      the    votes.            Id.      Benjamin       defeated          his
opponent by fewer than 50,000 votes (Benjamin received 382,036
votes and Justice McGraw received 334,301).                           Id.



     7
       Justice Benjamin's relevant campaign finance filing is
available      at     http://apps.sos.wv.gov/elections/candidate-
search/readpdf.aspx?DocId=5595.
     8
       Justice McGraw's relevant campaign finance filing is
available      at     http://apps.sos.wv.gov/elections/candidate-
search/readpdf.aspx?DocId=5627.


                                                  13
                                                                  No.    2013AP197-CR.akz


       ¶133 Approximately 11 months after Justice Benjamin won the
election, and shortly before A.T. Massey filed its petition for
appeal, Caperton moved to disqualify Justice Benjamin in the
particular case that was pending the entire election between
A.T. Massey and Caperton.                 Id. at 873-74.       Caperton argued that
the    due    process       clause      required     Justice    Benjamin's        recusal
"based       on     the    conflict       caused     by     Blankenship's        campaign
involvement."         Id. at 874.          Justice Benjamin denied the recusal
motion.       Id.     The West Virginia Supreme Court of Appeals, by a

3-to-2    vote,      reversed       the    $50    million    verdict     against     A.T.
Massey.      Id.     Justice Benjamin joined the majority opinion.                   Id.
       ¶134 "Caperton sought rehearing, and the parties moved for
disqualification of three of the five justices who decided the
appeal."      Id.     In particular, Caperton again moved to disqualify
Justice Benjamin.                Id. at 875.         Justice Benjamin denied the
motion.       Id.         Justice Elliot Maynard, who joined the three-
justice      majority       opinion,       granted     Caperton's      recusal     motion

because "[p]hotos had surfaced of Justice Maynard vacationing
with   Blankenship          in    the   French     Riviera     while    the   case    was
pending."         Id. at 874.        Justice Larry Starcher, one of the two
dissenting        justices,       "granted    [A.T.]      Massey's     recusal    motion,
apparently based on his public criticism of Blankenship's role
in the 2004 elections."                   Id. at 874-75.         The West Virginia
Supreme Court of Appeals subsequently granted rehearing.                          Id. at
875.     Justice Benjamin, then serving as acting chief justice,
selected two West Virginia circuit judges to replace the two
recused justices on the case between Caperton and A.T. Massey.

                                             14
                                                                      No.     2013AP197-CR.akz


Id.       Accordingly,         unlike      a     justice      in   Wisconsin,         Justice
Benjamin could have been replaced had he recused himself.                                    See
id. at 874-75.          The West Virginia Supreme Court of Appeals again
voted 3-to-2 to reverse the $50 million verdict against A.T.
Massey.         Id.     at   875.        Justice       Benjamin       again       joined     the
majority.        Id.      Caperton petitioned the United States Supreme
Court     to    review       Justice       Benjamin's        denial      of    its    recusal
motions.
        ¶135 The United States Supreme Court granted certiorari to

determine       "whether      the    Due    Process     Clause      of      the   Fourteenth
Amendment was violated when [Justice Benjamin] denied a recusal
motion."        Id. at 872.          The Supreme Court determined "that, in

all the circumstances of [that] case, due process require[d]
recusal."       Id.
        ¶136 The United States Supreme Court concluded that there
was a serious risk of Justice Benjamin's actual bias in sitting
on Caperton because:               (1) the case had been pending since before

Justice Benjamin was elected; (2) the jury verdict in that case
was   $50      million;      (3)    if   elected,      Justice      Benjamin         would    be
sitting on the court that would review this $50 million verdict;
(4)     Blankenship's          extraordinary            $3     million         expenditures
supporting Benjamin dwarfed the amount spent by both campaign
committees combined; (5) Blankenship's $3 million expenditures
exceeded       the     expenditures        of    all   other       Benjamin       supporters
combined; and (6) Blankenship's $3 million expenditures had a
"significant and disproportionate influence" in helping Benjamin
win a close election.                See Caperton, 556 U.S. at 883-86.                       The

                                                15
                                                                   No.    2013AP197-CR.akz


Supreme     Court    emphasized           that     "[t]he    temporal      relationship
between the campaign contributions, the justice's election, and
the pendency of the case [was] also critical."                      Id. at 886.
       ¶137 The      Supreme Court            made clear that            no one factor
alone——or anything short of this combination of factors——would
have constituted a due process violation so to require recusal.
In that regard, the Supreme Court noted that its holding was
based on "all the circumstances of [that] case . . . ."                              Id. at
872.       The    Court     further        noted     that   "[a]pplication           of     the

constitutional       standard        implicated        in   [Caperton]         will []       be

confined to rare instances."               Id. at 890.
       ¶138 "[N]owhere in the Caperton decision does the Supreme
Court state that any lesser fact situation would have required
Justice Benjamin's recusal in that case, and nowhere does the
Supreme    Court     conclude    that        he    would    be   required       to    recuse
himself from an unrelated civil case that involved different
parties."           Allen,     322        Wis. 2d 372,       ¶269        (Ziegler,          J.,

concurring).        "To suggest that Caperton says otherwise is to
invent new law and to invite recusal motions based upon 'spin'
instead of whether a justice can be fair and impartial.                                    Such
practice    is    destructive        to    the     credibility    of     the    court,       as
justices are always presumed to be fair and impartial."                                     Id.
"To be clear, nowhere in Caperton does the majority state that
anything     less    than     this        'perfect     storm,'    created       by        those
extreme and extraordinary facts coupled with the timing of the
election and the parties' pending case, would be sufficient to
constitute a due process violation."                  Id.

                                             16
                                                                  No.   2013AP197-CR.akz


      ¶139 In    short,    the    Supreme      Court       in    Caperton     expressly
 recognized that its holding was limited by the rare nucleus of
 facts presented in that case.            The Court, when considering the
 objective test, which Wisconsin adopted in State v. Asfoor, 75
 Wis. 2d 411, 436, 249 N.W.2d 529 (1977),9 stated:

      We conclude that there is a serious risk of actual
      bias——based on objective and reasonable perceptions——
      when a person with a personal stake in a particular
      case had a significant and disproportionate influence
      in placing the judge on the case by raising funds or
      directing the judge's election campaign when the case
      was pending or imminent.
Caperton, 556 U.S. at 884.          In other words, it was not the $3

 million dollar expenditure alone that required recusal.                        Id. at
 883-86.   Accordingly, the due process test for judicial recusal
 set forth in Caperton was met because those extraordinary and
 extreme facts converged in a pending case where one person's
 contributions     had      a     "significant             and      disproportionate
 influence" on a close election.               See id.; see also Allen, 322
 Wis. 2d 372,    ¶¶261-262,       269,   271         (Ziegler,     J.,    concurring)

 (recognizing the limits of Caperton); Henley, 338 Wis. 2d 610,
 ¶¶32-33 (same).
      ¶140 In    accord    with     Caperton,          the      "reasonable     person"
 recusal   standard   is   controlled         by     the   objective     due    process
 recusal test explained in Caperton.                 Indeed, more than 30 years
 ago this court defined the Judicial Code's reasonable person
 recusal standard as synonymous with the objective due process

      9
        See State v. Walberg,                 109     Wis. 2d 96, 105-06,           325
 N.W.2d 687 (1982) (recognizing               that    Asfoor adopted this           due
 process recusal test).


                                         17
                                                                 No.    2013AP197-CR.akz


recusal test.        See State v. Walberg, 109 Wis. 2d 96, 105-06, 325
N.W.2d 687 (1982) (applying the reasonable person standard from
the   Judicial      Code     to   determine     whether    a   judge's     failure    to
recuse himself violated the objective due process recusal test).
That test has been further explained by Caperton wherein the
Supreme     Court    cautioned      that   the    objective      due    process    test
requires recusal only in an "exceptional case" with "extreme
facts"     that     create    a   "serious      risk"     of   actual    bias.       See
Caperton, 556 U.S. at 884, 886-88; see also Freeman, 222 P.3d at

184 (citing Caperton, 556 U.S. at 889-90).
      ¶141 If a judge were required to recuse whenever a person
could conjure a reason to question a judge's impartiality, a
judge could be attacked without a standard on which to evaluate
the attack.         We have rejected a loose and standardless test, as
the Supreme Court in Caperton did, in no small part because it
would invite mischief and judge shopping.10                       See Henley, 338
Wis. 2d 610,      ¶35;     Allen,    322   Wis. 2d 372,        ¶¶260-262     (Ziegler,

J., concurring); Donohoo v. Action Wisconsin Inc., 2008 WI 110,
¶¶29-30, 314 Wis. 2d 510, 754 N.W.2d 480. As demonstrated by our
conclusion that recusal was not required in Donohoo, Henley,
Pinno, and similar cases,11 the recusal standard is the one set


      10
       A circuit court or court of appeals judge who recuses
himself or herself may get replaced by a substitution judge.
See Wis. Stat. §§ 757.19(5), 751.03.    A circuit court or court
of appeals judge may be replaced by a reserve judge.
§ 751.03(1).    However, a supreme court justice who recuses
himself or herself from a case cannot be replaced. See id.
      11
           See Henley, 338 Wis. 2d 610, ¶¶11-17 (collecting cases).


                                           18
                                                                       No.   2013AP197-CR.akz


forth in Caperton, which requires the challenger to demonstrate
by objective proof that actual bias or the probability of a
serious risk of actual bias exists.                      See Caperton, 556 U.S. at
883-84, 886-87.
        ¶142 When a recusal motion is brought, the movant bears a
burden "to overcome the presumption of impartiality."                                     Pinno,
356     Wis. 2d 106,       ¶97.          Interpreting      the     reasonable             person
standard more broadly than Caperton's due process recusal test
would    turn     the    movant's       burden    of    proof     on    its    head.          The

objective       due     process       recusal    test     asks     whether          there     are
"extreme     facts"       in   an      "exceptional       case"     where,          "based     on
objective and reasonable perceptions," "there is a serious risk
of actual bias." Caperton, 556 U.S. at 884, 886-88.

        ¶143 In       Pinno,      a     consolidated       opinion,           one     of     the
defendants,        Travis      Seaton,      was        convicted        of     first-degree
reckless homicide as a repeater.                   Id., ¶11.           He filed a post-
conviction motion in which he argued "that his sentence was too

harsh,    reasserted        his       argument    that    one     of     the    jurors        was
biased,     and       argued      that    'other       acts      evidence'          was     used
improperly."          Id., ¶18.          The circuit court, Judge Richard J.
Nuss presiding, who also presided over the trial, denied the
motion.     Id., ¶¶2, 18.              The court of appeals affirmed.                        Id.,
¶18.     Seaton then filed another post-conviction motion, in which
he "argued for the first time that his Sixth Amendment right to
a public trial was violated.                In the alternative, Seaton argued
that his counsel was ineffective for failing to object to the
closure of the courtroom."                  Id., ¶19.            Seaton also filed a

                                            19
                                                        No.    2013AP197-CR.akz


motion requesting that Judge Nuss recuse himself from ruling on
the post-conviction motion.       Id., ¶22.        Judge Nuss denied the
recusal motion and post-conviction motion.          Id., ¶24.
     ¶144 On appeal, we held that "Judge Nuss properly denied
Seaton's recusal motion."      Id., ¶97.        First, Seaton argued that
the judicial disqualification statute, Wis. Stat. § 757.19(2),
required   Judge   Nuss's   recusal.      See    id.,   ¶93.      Because    no
specifically   described    factual     circumstance    set    out   in   Wis.
Stat. § 757.19(2)(a) to (f) was applicable, we concluded that

"[t]he relevant recusal standard in the Wisconsin Statutes is a
subjective one," namely § 757.19(2)(g).             See id.       We had to

determine "objectively whether [Judge Nuss] actually made the
subjective determination" that he could remain on the case.                 Id.
We concluded that "Judge Nuss determined that he was not biased;
therefore, he complied with § 757.19(2)(g)."12          Id.
     ¶145 Next, we examined Ch. 60 of the Supreme Court Rules
("SCR")——Wisconsin's Judicial Code——to analyze Seaton's recusal

claim.     Id., ¶¶95-96.     We concluded that SCR Ch. 60 did not




     12
       In addition to satisfying Wis. Stat. § 757.19(2)(g), a
judge also satisfies the subjective due process recusal test by
determining that he or she is impartial. State v. McBride, 187
Wis. 2d 409, 415-16, 523 N.W.2d 106 (Ct. App. 1994) (citing
State v. Rochelt, 165 Wis. 2d 373, 378-79, 477 N.W.2d 659 (Ct.
App. 1991)); see also Caperton, 556 U.S. at 882 ("We do not
question    [Justice   Benjamin's]   subjective   findings   of
impartiality and propriety. Nor do we determine whether there
was actual bias."). In other words, if a judge determines that
he or she is impartial, that determination is difficult to
overcome.


                                   20
                                                               No.   2013AP197-CR.akz


require    recusal    because   "[n]one       of   SCR     60.04(4)'s      enumerated
circumstances fits the facts" presented.                 Id., ¶96.
     ¶146 We    also     concluded     that    the     due    process      test   from
Caperton did not require Judge Nuss's recusal.                       Id., ¶94.       We
reasoned    that     "Judge   Nuss's    conduct       does     not    approach     the
extreme circumstances that violate due process."                     Id.    In other
words, the defendant-movant did not demonstrate a Caperton-type
extraordinary      circumstance    with      extreme       facts   that    created   a
strong risk of actual bias.            In short, we held that Judge Nuss

properly denied the recusal motion because (1) he determined
that he was not biased; (2) his situation did not match any of
the specific situations enumerated in Wis. Stat. § 757.19(2) or
SCR 60.04(4); and (3) there were no "extreme circumstances that
violate[d] due process" as there were in Caperton.13                        See id.,
¶¶93-97.
     ¶147 In       the   present       case,       Judge     Gonzalez      expressly
determined that she could be impartial, and it is undisputed

that none of the specific situations enumerated in SCR Ch. 60 or
Wis. Stat. § 757.19(2)(a) to (f) are applicable.                      Accordingly,
in order for Judge Gonzalez to have been required to recuse,
Herrmann would have had to prove actual bias or the probability
of a serious risk of actual bias, as explained in Caperton.                        See


     13
       In Pinno we noted the reasonable person recusal standard
in SCR 60.04(4)(intro.).   State v. Pinno, 2014 WI 74, ¶96, 356
Wis. 2d 106, 850 N.W.2d 207.     We did not separately analyze
whether that standard required Judge Nuss's recusal, apparently
because we recognized that it is coextensive with the objective
due process test from Caperton. See id., ¶¶94-97.


                                        21
                                                                  No.       2013AP197-CR.akz


also    id.,      ¶¶92-97;      Henley,     338    Wis. 2d 610,       ¶¶10-17,      32-35;
Allen,      322    Wis. 2d 372,        ¶¶260-264     (Ziegler,        J.,    concurring);
Donohoo, 314 Wis. 2d 510, ¶¶19-28.
       ¶148 In light of Caperton, the Wisconsin Court of Appeals'
application of the due process test in Goodson and Gudgeon is
called      into    question.          Caperton     undermines        the    validity    of
Goodson and Gudgeon and at the very least it tailors those cases
to the conflict therein which may be otherwise prohibited even
if not a due process violation.14                       The United States Supreme

Court in Caperton has further refined the Goodson and Gudgeon

analysis       such     that     we   now   must    review      whether       recusal    is
required due to extreme and exceptional circumstances as were
present in Caperton, and we now know that such circumstances
will rarely be demonstrable.                  See Caperton, 556 U.S. at 887,
890.
       ¶149 In        line     with   our   reasoning        today,    the     California
Supreme     Court      recently       explained    in    a   unanimous       opinion    how


       14
       In Gudgeon the court of appeals held that due process was
violated because the circuit court prejudged the issue of
whether to extend the defendant's probation. State v. Gudgeon,
2006 WI App 143, ¶¶25-26, 295 Wis. 2d 189, 720 N.W.2d 114.
Likewise, in Goodson the court of appeals held that due process
was   violated   because   the  circuit   court  prejudged   the
reconfinement sentence that it would give to the defendant if
his probation or extended supervision were revoked.     State v.
Goodson, 2009 WI App 107, ¶1, 320 Wis. 2d 166, 771 N.W.2d 385.
Even if Caperton abrogated Gudgeon and Goodson, prejudgment can
require recusal.    See SCR 60.04(4)(f) (requiring recusal if a
"judge, while a judge or a candidate for judicial office, has
made a public statement that commits, or appears to commit, the
judge with respect to any of the following: 1. An issue in the
proceeding. 2. The controversy in the proceeding").


                                             22
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Caperton's "application is limited" to its probability of actual
bias and that due process does not require recusal for a "mere
appearance" of impropriety.                       Freeman, 222 P.3d at 178, 184.                       I
agree.           Mere appearance of bias cannot meet the high standard
set forth in Caperton.                       The California Supreme Court reasoned
that     the          United     States       Supreme     Court       in    Caperton       "made       it
abundantly             clear     that       the   due    process      clause       should       not    be
routinely          invoked        as    a    ground      for    judicial         disqualification.
Rather,          it    is   the      exceptional         case    presenting         extreme      facts

where        a   due     process        violation        will    be   found."            Id.    at    184

(citing Caperton, 556 U.S. at 889-90).
        ¶150 In Freeman the defendant appeared before Judge Robert
O'Neill for a pre-trial hearing in which she sought new counsel.
Id.    at        179.       At    the       hearing,      the    defendant         informed      Judge
O'Neill of "rumors" that the defendant was stalking Judge Elias,
a colleague and long-time friend of Judge O'Neill.                                       Id.     Judge
O'Neill          stated     that       Judge      Elias    "is    a    friend       of    mine"       and

therefore recused himself from the defendant's case.                                      Id.    After
the stalking rumors proved unfounded, the defendant's case was
reassigned to Judge O'Neill.                        Id. at 180.             Judge O'Neill then
presided          over         the      defendant's        trial,          the     defendant          was
convicted, and Judge O'Neill sentenced her.15                               Id.     The defendant


        15
       We recently held that a circuit court judge, who had been
properly substituted out of a case pursuant to Wis. Stat.
§ 971.20, "erred" in returning to the defendant's case to
"presid[e]   over   the   defendant's  trial,  sentencing,   and
postconviction motions." State v. Harrison, 2015 WI 5, ¶8, 360
Wis. 2d 246, 858 N.W.2d 372.


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appealed,    and     "[t]he    Court   of     Appeal        reversed    defendant's
conviction on the ground that defendant's due process rights
were violated by Judge O'Neill's failure to disqualify himself
when the case was reassigned to him."                Id.
     ¶151 On review, the California Supreme Court reversed the
court of appeal's decision, holding that "this case does not
present      the      'extreme       facts'      that         require        judicial
disqualification on due process grounds."                      Id. at 179.        The
California     Supreme      Court   noted     that     it    granted    review    "to

determine whether the appearance of bias by a judge requires
recusal     under     the     due    process     clause        of      the   federal
Constitution."       Id. at 178.       It held that "while a showing of

actual bias is not required for judicial disqualification under
the due process clause, neither is the mere appearance of bias
sufficient."        Id.     "Where only the appearance of bias is at
issue, a litigant's recourse is to seek disqualification under
state disqualification statutes[.]"              Id.        "Less extreme cases——

including those that involve the mere appearance, but not the
probability, of bias——should be resolved under more expansive
disqualification statutes and codes of judicial conduct."                        Id.
at 185 (citing Caperton, 556 U.S. at 889-90).16

     16
       In Caperton the Supreme Court noted that "the codes of
judicial conduct provide more protection than due process
requires . . . ."    Caperton, 556 U.S. at 890.       The Court
reasoned that "States have implemented [judicial reforms] to
eliminate even the appearance of partiality."   Id. at 888.   As
noted elsewhere in this opinion, SCR Ch. 60 aims to prohibit the
appearance of impartiality and articulates specific, defined
standards for recusal by listing specific instances where
recusal is required even if a judge actually would be impartial.
See, e.g., SCR 60.04(4)(a) to (f); Pinno, 356 Wis. 2d 106, ¶¶95-
                                                     (continued)
                               24
                                                                            No.    2013AP197-CR.akz


        ¶152 The       California         Supreme         Court         explained         that       the
defendant        could       have        sought        recusal           under       California's
disqualification            statute        because        "an        explicit        ground           for
judicial disqualification in California's statutory scheme is a
public    perception         of    partiality,          that       is,     the    appearance           of
bias."         Id.   at    181    (citations          omitted).            "By    contrast,           the
United State Supreme Court's due process case law focuses on
actual bias. This does not mean that actual bias must be proven
to establish a due process violation."                            Id.    "Rather, consistent

with     its    concern      that        due     process          guarantees        an     impartial
adjudicator, the [United States Supreme Court] has focused on
those     circumstances            where,        even        if     actual        bias         is    not
demonstrated, the probability of bias on the part of a judge is
so great as to become 'constitutionally intolerable.'"                                          Id. at
181-82    (quoting         Caperton,       556     U.S.      at     882)      (quotation            marks
omitted).        Although Judge O'Neill was a friend of an alleged
victim     of    the      defendant's          stalking,           "[t]his       case      does       not

implicate any of the concerns——pecuniary interest, enmeshment in
contempt       proceedings,         or    the     amount          and    timing      of        campaign
contributions——which              were     the     factual          bases     for        the     United
States    Supreme         Court's    decisions          in    which      it      found     that       due
process required judicial disqualification."                             Id. at 185.


97. However, under Wisconsin's Judicial Code, "[a] judge shall
not be required to recuse himself or herself in a proceeding
based solely on . . . the judge's campaign committee's receipt
of a lawful campaign contribution, including a campaign
contribution from an individual or entity involved in the
proceeding." SCR 60.04(7).


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       While it is true that dicta in these decisions may
       foreshadow other, as yet unknown, circumstances that
       might amount to a due process violation, that dicta is
       bounded by repeated admonitions that finding such a
       violation in this sphere is extraordinary; the [due
       process] clause operates only as a 'fail-safe' and
       only in the context of extreme facts.
Id.

       ¶153 A      judge    should         recuse     when       required      to     do    so   and
should    not      recuse     when      recusal       is    not     required.          Wisconsin
Supreme Court justices need to be particularly mindful of when
they   must     recuse      and       when    recusal       is    not    required.           Unlike
Justice     Benjamin        in    Caperton,          Judge        O'Neill      in   Freeman,       a
Wisconsin Circuit Court judge, or a Wisconsin Court of Appeals
judge, a Wisconsin Supreme Court justice who recuses cannot be
replaced.          Thus,     recusal          has    far-reaching           consequences         and
leaves    the      citizens      of     the    state       without      full    supreme       court
consideration in a case of statewide significance.
       ¶154 Complications that may occur when a full supreme court
does not consider a case are self-evident.                                    Citizens of the

state deserve to have the entire supreme court decide all cases
unless     extreme     circumstances                require       otherwise.           Unlike      a
circuit court or the court of appeals, the supreme court serves
a law development purpose; therefore, cases before the supreme
court impact more than parties then before the court.                                      The Rule
of Necessity, which requires that justices sit on a case if
"necessary,"         further          demonstrates          the     heightened         need      for
justices      to    remain       on    a     case    even     when      the    path    of     least




                                                26
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resistance may be to recuse.17   The decision to recuse cannot be
made lightly or out of fear of reprisal.
     ¶155 Thus, Wisconsin Supreme Court justices may weigh and
balance the need for recusal somewhat differently than a trial
court or intermediate appellate court judge.     As a comment in
Wisconsin's Judicial Code aptly explains:

          Involuntary recusal of judges has greater policy
     implications in the supreme court than in the circuit
     court and court of appeals.     Litigants have a broad
     right to substitution of a judge in circuit court.
     When a judge withdraws following the filing of a
     substitution request, a new judge will be assigned.
     When a judge on the court of appeals withdraws from a
     case, a new judge also is assigned. When a justice of
     the supreme court withdraws from a case, however, the
     justice is not replaced.      Thus, the recusal of a
     supreme court justice alters the number of justices
     reviewing a case as well as the composition of the
     court.   These recusals affect the interests of non-
     litigants as well as non-contributors, inasmuch as
     supreme   court   decisions  almost    invariably have
     repercussions beyond the parties.
SCR 60.04(7) cmt.
     ¶156 Similarly, Chief Justice John G. Roberts has explained
that justices on the United States Supreme Court should be more




     17
        "By decisional law, the rule of necessity may override
the rule of recusal." SCR 60.04(4) cmt; see also State ex rel.
Wickham v. Nygaard, 159 Wis. 396, 150 N.W. 513 (1915); State ex
rel. Cook v. Houser, 122 Wis. 534, 100 N.W. 964 (1904). The rule
of   necessity  is   not  without   limitation.    For  example,
"application of the common law Rule of Necessity should not
result in the defendant, potential defendant, and the witnesses
also sitting in final judgment of the case."      In re Judicial
Disciplinary Proceedings Against Prosser, 2012 WI 103, ¶5, 343
Wis. 2d 548, 817 N.W.2d 875 (opinion of Ziegler, J.).


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hesitant    to   grant      recusal   motions   than    federal       district    and
federal circuit court judges:

           Although a Justice's process for considering
      recusal is similar to that of the lower court judges,
      the Justice must consider an important factor that is
      not present in the lower courts.    Lower court judges
      can freely substitute for one another. If an appeals
      court or [a federal] district court judge withdraws
      from a case, there is another federal judge who can
      serve in that recused judge's place. But the Supreme
      Court consists of nine Members who always sit
      together, and if a Justice withdraws from a case, the
      Court must sit without its full membership. A Justice
      accordingly cannot withdraw from a case as a matter of
      convenience or simply to avoid controversy. Rather,
      each Justice has an obligation to the Court to be sure
      of the need to recuse before deciding to withdraw from
      a case.
John G. Roberts, Chief Justice, U.S. Supreme Court, 2011 Year-
End   Report     on   the   Federal     Judiciary,     at   9    (Dec.    31,   2011)

(emphasis      added),      available     at    http://www.supremecourt.gov/
publicinfo/year-end/2011year-endreport.pdf.
                                 II. CONCLUSION
      ¶157 I agree with the lead opinion's conclusion that Jesse
Herrmann has not shown that the sentencing judge, Judge Ramona

A. Gonzalez, was objectively biased in violation of due process.
I write to clarify the due process recusal test. Citing cases
including Caperton, 556 U.S. 868, the lead opinion states that
"[a] defendant may rebut the presumption [that a judge acted
fairly, impartially, and without prejudice] by showing that the
appearance of bias reveals a great risk of actual bias."                         Lead
op., ¶3.    However, due process requires recusal only if a judge
is actually biased or if a "rare" or an "exceptional case" with


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"extreme       facts"       creates    a   "serious      risk        of    actual       bias."
Caperton, 556 U.S. at 883-84, 886-88, 890.
       ¶158 Caperton concludes that objective proof of actual bias
or the probability of a serious risk of actual bias must exist
before    recusal       is    required.        Caperton,       556    U.S.       at    883-84.
Stated otherwise, it is not reasonable to question a judge's
impartiality unless one can prove by objective evidence that
actual bias or the probability of a serious risk of actual bias
exists.    See id. at 884.

       ¶159 The recusal test to be applied is the test explained
by the Supreme Court in Caperton, which requires a "rare" or an
"exceptional case" with "extreme facts" that create a "serious
risk of actual bias."                 Caperton, 556 U.S. at 883-84, 886-88,
890.      If    the   test     were    only    whether    an    appearance            of    bias
existed, and nothing more extreme or exceptional were required,
then this record would support the defendant's contention that
Judge Gonzalez should have recused herself.                     To succeed on a due

process claim, much more is required.
       ¶160 Accordingly, I write to discuss the due process test
of     Caperton.        I    note      that    the     Judicial           Code        and   the
disqualification             statute       provide       for     specific              factual
circumstances under which a judge must recuse, even when that
judge could be completely fair.                    See, e.g., SCR 60.04(4)(a) to
(f); Wis. Stat. § 757.19(2)(a) to (f).                         Caperton makes clear
that a judge need not recuse simply because someone claims that
the judge is partial.            In other words, Caperton concludes that a
reasonable, well-informed person, knowledgeable about judicial

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ethical standards and the justice system and aware of the facts
and circumstances the judge knows or reasonably should know,
would reasonably question the judge's ability to be impartial
because of actual bias or the probability of a serious risk of
actual bias.    Such circumstances are exceedingly rare.
        ¶161 For the foregoing reasons, I respectfully concur.
        ¶162 I am authorized to state that Chief Justice PATIENCE
DRAKE    ROGGENSACK   and   Justice   MICHAEL   J.   GABLEMAN    join   this
concurrence.




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