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 App. 2014 – Unpublished) 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, 

 v. 

Jesse L. Herrmann, 

 Defendant-Appellant-Petitioner. 

FILED 

JUL 15, 2015 

Diane M. Fremgen 

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seeks review of an unpublished decision of the court of appeals 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1 State v. Herrmann, No. 2013AP197-CR, unpublished slip op.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 

¶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 
No. 2013AP197-CR 

3 

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. 
No. 2013AP197-CR 

4 

¶8 Prior to sentencing, the circuit court ordered a presentence 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 presentence 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. 
No. 2013AP197-CR 

5 

¶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 . . . . 
No. 2013AP197-CR 

6 

 ¶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 selfmedicate, 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
No. 2013AP197-CR 

7 

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 
No. 2013AP197-CR 

8 

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 
No. 2013AP197-CR 

9 

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, 
No. 2013AP197-CR 

10 

¶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. 
No. 2013AP197-CR 

11 

¶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. 
No. 2013AP197-CR 

12 

¶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). 
No. 2013AP197-CR 

13 

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 
No. 2013AP197-CR 

14 

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. 
No. 2013AP197-CR 

15 

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 
No. 2013AP197-CR 

16 

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"). 
No. 2013AP197-CR 

17 

¶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) 
No. 2013AP197-CR 

18 

 

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) 
No. 2013AP197-CR 

19 

¶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). 
No. 2013AP197-CR 

20 

¶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 
No. 2013AP197-CR 

21 

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 
No. 2013AP197-CR 

22 

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 
No. 2013AP197-CR 

23 

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 
No. 2013AP197-CR 

24 

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
No. 2013AP197-CR 

25 

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) 
No. 2013AP197-CR 

26 

¶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. 
No. 2013AP197-CR 

27 

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. 
No. 2013AP197-CR 

28 

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. 
2013AP197-CR.dtp 

1 

¶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 
2013AP197-CR.dtp 

2 

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. 
2013AP197-CR.dtp 

3 

¶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. 
2013AP197-CR.dtp 

4 

¶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: 
2013AP197-CR.dtp 

5 

[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 
2013AP197-CR.dtp 

6 

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. 
2013AP197-CR.dtp 

7 

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).
2013AP197-CR.dtp 

8 

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." 
2013AP197-CR.dtp 

9 

¶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: 
2013AP197-CR.dtp 

10 

 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 
2013AP197-CR.dtp 

11 

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. 
2013AP197-CR.dtp 

12 

¶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 
2013AP197-CR.dtp 

13 

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. 
No. 2013AP197-CR.akz 

1 

¶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 
No. 2013AP197-CR.akz 

2 

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) 
No. 2013AP197-CR.akz 

3 

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.). 
No. 2013AP197-CR.akz 

4 

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 
No. 2013AP197-CR.akz 

5 

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). 
No. 2013AP197-CR.akz 

6 

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)). 
No. 2013AP197-CR.akz 

7 

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
No. 2013AP197-CR.akz 

8 

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) 
No. 2013AP197-CR.akz 

9 

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. 
No. 2013AP197-CR.akz 

10 

¶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 judgeelect 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 
No. 2013AP197-CR.akz 

11 

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 
No. 2013AP197-CR.akz 

12 

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."). 
No. 2013AP197-CR.akz 

13 

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/candidatesearch/readpdf.aspx?DocId=5595. 

8 Justice McGraw's relevant campaign finance filing is 

available at http://apps.sos.wv.gov/elections/candidatesearch/readpdf.aspx?DocId=5627. 
No. 2013AP197-CR.akz 

14 

¶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 threejustice 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. 
No. 2013AP197-CR.akz 

15 

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 
No. 2013AP197-CR.akz 

16 

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. 
No. 2013AP197-CR.akz 

17 

¶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). 
No. 2013AP197-CR.akz 

18 

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). 
No. 2013AP197-CR.akz 

19 

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 postconviction 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 
No. 2013AP197-CR.akz 

20 

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. 
No. 2013AP197-CR.akz 

21 

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. 
No. 2013AP197-CR.akz 

22 

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"). 
No. 2013AP197-CR.akz 

23 

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. 
No. 2013AP197-CR.akz 

24 

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) 
No. 2013AP197-CR.akz 

25 

¶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). 
No. 2013AP197-CR.akz 

26 

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 
No. 2013AP197-CR.akz 

27 

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 nonlitigants 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.). 
No. 2013AP197-CR.akz 

28 

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 YearEnd 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 
No. 2013AP197-CR.akz 

29 

"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 
No. 2013AP197-CR.akz 

30 

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. 
No. 2013AP197-CR.akz 

1