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COURT OF APPEALS DECISION DATED AND RELEASED January 15, 1997 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-2124-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
GREGORY A. GIBBS,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Walworth County:
ROBERT J. KENNEDY, Judge. Affirmed.
SNYDER, P.J. Gregory A. Gibbs (hereinafter, Gibbs) appeals
from a judgment of conviction finding him guilty of marijuana possession
contrary to §§ 161.41(3r)[1]
and 939.05(1), Stats. On appeal, Gibbs contends that the judge who
authorized the search warrant was not a neutral and detached magistrate, as
required by the United States and Wisconsin Constitutions, and therefore the
evidence obtained as a result of the search should be suppressed. We disagree with Gibbs's contention that
under § 757.19(2)(g), Stats.,
there was an “appearance of impropriety” and consequently affirm.
Judge Michael S. Gibbs
signed a search warrant for the police to search property occupied by Gibbs and
his wife June. The search warrant was
for the police to locate marijuana and paraphernalia related to the possession
of marijuana. As a result of the
search, Gibbs and his wife were charged with possession of THC and possession
of drug paraphernalia.[2] After entering a plea of not guilty, Gibbs
filed a motion to suppress the evidence obtained by the search based on his
belief that Judge Gibbs could not act as a “neutral and detached
magistrate.” See State v.
DeSmidt, 155 Wis.2d 119, 131, 454 N.W.2d 780, 785 (1990); see also
Wis. Const., art. I, § 11.
Gibbs based his claim
that Judge Gibbs was not neutral and detached on the fact that “some time in
either '82 or early '83” when Judge Gibbs was a practicing attorney, he had
represented June on controlled substance charges. At that time, Gibbs met with then Attorney Michael Gibbs about
the charges issued against June. Gibbs
testified that those discussions included his own past use of marijuana and
that he discussed with Attorney Gibbs a request by the police to assist their
investigation.
On several occasions
after that, Gibbs saw Attorney Gibbs in social situations. Gibbs testified that Attorney Gibbs knew who
he was and that they had discussed the fact that they had the same last name. However, Gibbs was not related to Attorney
Gibbs, and except for the one time when Attorney Gibbs represented June, he did
no other legal work for the Gibbses.
After Judge Robert J.
Kennedy denied Gibbs's motion to suppress, Gibbs pled guilty pursuant to a plea
agreement. Gibbs now renews his
argument that because of Attorney Gibbs's previous representation of his wife
and their subsequent social contacts, there was an appearance of impropriety
when Judge Gibbs signed the search warrant.
Therefore, he reasons, Judge Gibbs was not a neutral and detached
magistrate and on that basis Gibbs now appeals.
Whether Judge Gibbs was
a neutral and detached magistrate as required by the United States and
Wisconsin Constitutions is a question of constitutional fact which we review de
novo. See State v.
McBride, 187 Wis.2d 409, 414, 523 N.W.2d 106, 109 (Ct. App. 1994), cert.
denied, 115 S. Ct. 1796 (1995).
There is a presumption that a judge is free of bias and prejudice. Id. Furthermore, to overcome this presumption, the party asserting
judicial bias must show by a preponderance of the evidence that the judge is
prejudiced or biased. Id.
at 415, 523 N.W.2d at 109.
Section 757.19(2), Stats., provides that “any judge shall
disqualify himself or herself from any ... proceeding when one of the following
situations occurs ....” The list which
follows includes “six fact-specific situations, the existence of which can be
determined objectively, and one general subjective situation which is based
solely upon the judge's state of mind.”
State v. Harrell, 199 Wis.2d 654, 658, 546 N.W.2d 115, 116‑17
(1996). None of the six fact-specific
situations are applicable to this case.[3] We consider then the subjective situation:
(g) When a judge determines that, for any
reason, he or she cannot, or it appears he or she cannot, act in an impartial
manner.
Section
757.19(2)(g). Gibbs claims that based
on the above language, Judge Gibbs was required to recuse himself because of an
appearance of impropriety.
However, in making our
determination of whether Judge Gibbs should have disqualified himself, we must
evaluate the existence of both subjective and objective bias. See McBride, 187 Wis.2d
at 415, 523 N.W.2d at 110. The
subjective component refers to the judge's own determination of whether he or
she will be able to act impartially. See
id. If Judge Gibbs
himself thought he was biased, he was required to disqualify himself from
hearing the application for the search warrant. See id.; see also § 757.19(2)(g), Stats.
Section 757.19(2)(g), Stats., requires a judge's
disqualification only when the judge makes a determination that he or she
cannot act in an impartial manner. State
v. American TV & Appliance, 151 Wis.2d 175, 183, 443 N.W.2d 662,
665 (1989). It does not require
disqualification where one other than the judge believes that the judge's
impartiality can reasonably be questioned.
Id. The
determination of a judge's actual or apparent inability to act impartially is
left solely to the discretion of the judge.
See id.
Furthermore, a challenge to the judge's decision on disqualification
under § 757.19(2)(g) is subject to our objective review of whether Judge Gibbs
made this subjective determination. See
Harrell, 199 Wis.2d at 664, 546 N.W.2d at 119.
Since Judge Gibbs did
not disqualify himself, we can presume that he believed that he was capable of
acting in an impartial manner.[4] Therefore, any inquiry into the subjective
propriety of Judge Gibbs acting on the application for a search warrant is at
an end. See McBride,
187 Wis.2d at 415, 523 N.W.2d at 110.
We next examine whether there are any objective facts demonstrating
bias. Id. at 416, 523
N.W.2d at 110.
In applying the
objective test, it is necessary that Gibbs show that Judge Gibbs treated him
unfairly. See id. A mere showing of an appearance of
partiality or impropriety, or suggesting that the circumstances might lead one
to speculate that the judge was biased, is not sufficient. Id. In the instant case, Gibbs has presented the court with two
facts: (1) that more than ten years
earlier, Judge Gibbs, while still an attorney, had represented his wife; and (2)
that he and Judge Gibbs had met socially on several occasions in the ensuing
years. There is nothing in the record
to suggest that Judge Gibbs acted unfairly.
In response to questioning on cross-examination, Gibbs admitted that he
had no reason to believe that Judge Gibbs had any actual bias against him. Rather, Gibbs's argument is that “this is
the situation where the suggestion of impropriety is on a par with actual
impropriety.”
Our review of the case
law, however, persuades us that this is not the standard in Wisconsin.[5] Based on our review of the case law, we
conclude that unless a judge determines that his or her own sense of propriety
requires recusal, the statutory guidelines do not call for recusal merely
because a party suggests an appearance of impropriety. Cf. Sturdevant v. State,
49 Wis.2d 142, 145-46, 181 N.W.2d 523, 525 (1970).
Gibbs also argues that
the evidence seized when the search warrant was executed should be suppressed
because the warrant was not issued by a neutral and detached magistrate. Because of our conclusion that there is no
evidence that Judge Gibbs acted improperly in authorizing the search warrant,
it is not necessary to address the suppression argument. See State ex rel. Wis. Envt'l
Decade v. Joint Comm., 73 Wis.2d 234, 236, 243 N.W.2d 497, 498 (1976)
(a reviewing court will usually decline to address moot issues).
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[3]
The six fact-specific situations enumerated in § 757.19(2), Stats., are:
(a) When a judge is related to any party or counsel thereto or
their spouses within the 3rd degree of kinship.
(b) When a judge is a party or a material witness ....
(c) When a judge previously acted as counsel to any party in the
same action or proceeding.
(d) When a judge prepared as counsel any legal instrument or paper
whose validity or construction is at issue.
(e) When a judge of an appellate court previously handled the
action or proceeding while judge of an inferior court.
(f) When a judge has a significant financial or personal interest in the outcome of the matter.
[4] Gibbs argues that under this analysis, there is no review of whether Judge Gibbs considered his ability to act impartially because the issuance of a search warrant is an ex parte action. As such, a defendant is unaware of the court's action and therefore unable to raise the issue. However, we conclude that since Gibbs has not claimed that the warrant was issued without probable cause, this negates any contention that Judge Gibbs acted improperly or unfairly in authorizing the search warrant. See State v. McBride, 187 Wis.2d 409, 417, 523 N.W.2d 106, 110 (Ct. App. 1994), cert. denied, 115 S. Ct. 1796 (1995).
[5] While Gibbs contends that “[o]ther jurisdictions have held that previous representation in a same or similar case constitutes an appearance of impropriety and [a situation where] a judge should recuse or disqualify himself,” the development of the law in this state provides us with a clear standard. We therefore do not further consider Gibbs's authority to the contrary.