Wis. Stat. § 757.19
Disqualification of judge
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757.19(1)(1) In this section, “judge” includes the supreme court justices, court of appeals judges, circuit court judges and municipal judges.
757.19(2)(2) Any judge shall disqualify himself or herself from any civil or criminal action or proceeding when one of the following situations occurs:
757.19(2)(a)(a) When a judge is related to any party or counsel thereto or their spouses within the 3rd degree of kinship.
757.19(2)(b)(b) When a judge is a party or a material witness, except that a judge need not disqualify himself or herself if the judge determines that any pleading purporting to make him or her a party is false, sham or frivolous.
757.19(2)(c)(c) When a judge previously acted as counsel to any party in the same action or proceeding.
757.19(2)(d)(d) When a judge prepared as counsel any legal instrument or paper whose validity or construction is at issue.
757.19(2)(e)(e) When a judge of an appellate court previously handled the action or proceeding while judge of an inferior court.
757.19(2)(f)(f) When a judge has a significant financial or personal interest in the outcome of the matter. Such interest does not occur solely by the judge being a member of a political or taxing body that is a party.
757.19(2)(g)(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.
757.19(3)(3) Any disqualification that may occur under sub. (2) may be waived by agreement of all parties and the judge after full and complete disclosure on the record of the factors creating such disqualification.
757.19(4)(4) Any disqualification under sub. (2) in a civil or criminal action or proceeding must occur, unless waived under sub. (3), when the factors creating such disqualification first become known to the judge.
757.19(5)(5) When a judge is disqualified, the judge shall file in writing the reasons and the assignment of another judge shall be requested under s. 751.03.
757.19(6)(6) In addition to other remedies, an alleged violation under this section or abuse of the disqualification procedure shall be referred to the judicial commission.
757.19 HistoryHistory: 1977 c. 135; 1977 c. 187 s. 96; 1977 c. 447, 449; Stats. 1977 s. 757.19; 1979 c. 175 s. 53; 1979 c. 221; 1985 a. 332.
757.19 NoteJudicial Council Note, 1977: Section 256.19 [757.19] has been repealed and recreated to more comprehensively set out the procedure in Wisconsin for a judge to disqualify himself or herself. The new provisions apply to courts of record and municipal courts and define those situations in which a judge should in the interest of justice disqualify himself or herself from hearing a matter. Subsection (2) (g) is a catch-all provision to be used in those situations where a particular set of circumstances dictates that a judge disqualify himself or herself.
757.19 NoteThe new judge disqualification section contains provisions for assuring that a disqualification is timely made and also provides for waiver of a statutory disqualification upon agreement of all interested parties and the judge. Alleged violations of this section will be brought to the attention of the judicial commission for appropriate review. [Bill 74-S]
757.19 AnnotationA judge who represented the defendant as counsel in another phase of a criminal matter had no power to act as judge in hearing a related postconviction motion and should have, sua sponte, disqualified himself. Rainey v. State, 65 Wis. 2d 374, 222 N.W.2d 620 (1974).
757.19 AnnotationAlthough the judge was apparently biased against defense counsel, the judge’s refusal to recuse himself was harmless error under the facts of the case. State v. Walberg, 109 Wis. 2d 96, 325 N.W.2d 687 (1982).
757.19 AnnotationUnder sub. (2) (g), the self-disqualification decision is subjective, and review is limited to determining whether the judge concluded disqualification was necessary. State v. American TV & Appliance of Madison, Inc., 151 Wis. 2d 175, 443 N.W.2d 662 (1989).
757.19 AnnotationThat a judge’s spouse was employed in the office of the district attorney, but had no connection to a particular case, did not require the judge’s disqualification. State v. Harrell, 199 Wis. 2d 654, 546 N.W.2d 115 (1996), 94-1655.
757.19 AnnotationThe fact that a trial judge “witnesses” the actions of the jurors, witnesses, lawyers, and parties does not transform the judge into a “material witness” under sub. (2) (b). State v. Hampton, 217 Wis. 2d 614, 579 N.W.2d 260 (Ct. App. 1998), 95-0152.
757.19 AnnotationIn this case, the motion to vacate a supreme court decision on the grounds that a participating justice was disqualified, filed 1,300 days after the decision was issued and 600 days after the facts on which the motion was based became known, was untimely and frivolous. Jackson v. Benson, 2002 WI 14, 249 Wis. 2d 681, 639 N.W.2d 545, 97-0270.
757.19 AnnotationSub. (2) (g) does not require disqualification when a person other than a judge objectively believes that there is an appearance that the judge is unable to act in an impartial manner. Sharpley v. Sharpley, 2002 WI App 201, 257 Wis. 2d 152, 653 N.W.2d 124, 01-2167.
757.19 AnnotationWhen analyzing a judicial bias claim, there is a rebuttable presumption that the judge is fair, impartial, and capable of ignoring any biasing influences. The test for bias comprises two inquiries, one subjective and one objective, either of which can violate a defendant’s due process right to an impartial judge. Actual bias on the part of the decision maker meets the objective test. The appearance of partiality can also offend due process. Every procedure that would offer a possible temptation to the average person 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. State v. Gudgeon, 2006 WI App 143, 295 Wis. 2d 189, 720 N.W.2d 114, 05-1528.
757.19 AnnotationAbsent a pervasive and perverse animus, a judge may assess a case and potential arguments based on what the judge knows from the case in the course of the judge’s judicial responsibilities. Opinions formed by the judge on the basis of facts introduced or events occurring in the course of current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. State v. Rodriguez, 2006 WI App 163, 295 Wis. 2d 801, 722 N.W.2d 136, 05-1265.
757.19 AnnotationAffirmed on other grounds. 2007 WI App 252, 306 Wis. 2d 129, 743 N.W.2d 460, 05-1265.
757.19 AnnotationA court’s rejection of a plea does not in and of itself become a “personal interest in the outcome of the matter,” and sub. (2) (f) is not implicated. State v. Conger, 2010 WI 56, 325 Wis. 2d 664, 797 N.W.2d 341, 08-0755.
757.19 AnnotationIn this case, when the judge served as both the presiding judge in the drug court program in which the defendant participated and as the sentencing judge in the defendant’s criminal case, the defendant met the defendant’s burden to demonstrate objective judicial bias based on the combined effect of 1) the judge’s comments indicating the judge had determined before the sentencing-after-revocation hearing that the defendant would be sentenced to prison if the defendant did not succeed in drug court; and 2) the judge’s dual role as the presiding judge in the drug court proceedings and as the judge who sentenced the defendant after the revocation of the defendant’s probation. State v. Marcotte, 2020 WI App 28, 392 Wis. 2d 183, 943 N.W.2d 911, 19-0695.
757.19 AnnotationIn lieu of exclusive reliance on a judge’s personal inquiry into the judge’s actual bias, or on appellate review of the judge’s determination respecting actual bias, the due process clause has been implemented by objective standards that do not require proof of actual bias. In defining these standards, the U.S. Supreme 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. Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 129 S. Ct. 2252, 173 L. Ed. 2d 1208 (2009).
757.19 AnnotationThere 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. The inquiry centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect the contribution had on the outcome of the election. Whether campaign contributions were a necessary and sufficient cause of a judge’s victory is not the proper inquiry. 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 the judge not to hold the balance “nice, clear, and true.” Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 129 S. Ct. 2252, 173 L. Ed. 2d 1208 (2009).
757.19 AnnotationUnder the due process clause, there was an impermissible risk of actual bias when the judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case. Williams v. Pennsylvania, 579 U.S. 1, 136 S. Ct. 1899, 195 L. Ed. 2d 132 (2016).
757.19 AnnotationStep One to Recusal Reform: Find an Alternative to the Rule of Necessity. Croy. 2019 WLR 623.
Notes of Decisions
Cited in 71
cases (11 in the last 5 years), 1982–2026 · leading case: State v. Allen
State v. Allen (2010)
“Gableman informed the members of the court that he was withdrawing from participation in the court's consideration of Allen's recusal motions and was withdrawing his separate written opinion.”
State v. Harrell (1996)
“The issue before us is whether, in a case tried by the district attorney's office, a circuit court judge, whose spouse is an assistant district attorney in the same county, is required to disqualify himself or herself under either Wis. Stat. § 757.19 (2)(a) (1993-94), [1]…”
State v. Jesse L. Herrmann (2015)
“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.”
State v. Henley (2009)
“Dimitri Henley (Henley) has moved me to disqualify/recuse myself from continued participation in the above-captioned action, pursuant to Wis. Stat. § 757.19 (2)(e) and (g) (2007-08) 1 and SCR 60.”
Storms v. Action Wisconsin Inc. (2008)
“" Donohoo further asserts that Justice Butler was disqualified by law pursuant to Wis. Stat. § 757.19 (2)(f) [7] because of his substantial financial and personal interest in the outcome of the case and that Justice Butler was also disqualified by law pursuant *486 to Wis.”
State v. Conger (2010)
“Finally, in answer to the questions about required recusal, we conclude that a court's rejection of a plea does not in and of itself become a "personal interest in the outcome of the matter," and Wis. Stat. § 757.19 (2)(f) 3 is not implicated here.”
State v. Pinno (2014)
“" Wis. Stat. § 757.19 (2)(g). This statute "is clearly drafted so as to place the determination of partiality solely upon the judge.”
State v. Henley (2011)
“Crosetto based his motion on the appearance of partiality, citing the due process clauses of the federal *617 and state constitutions, and on Wis. Stat. § 757.19 (2) (1989-90), just as Henley has here.”
State v. American TV & Appliance of Madison, Inc. (1989)
“The Code of Judicial Ethics governs the ethical conduct of judges; it has no effect on their legal qualification or disqualification to act and a judge may be disciplined for conduct that would not have required disqualification under sec. 757.19, Stats. In some instances the…”
St. Croix County Department of Health and Human Services v. Michael D. (2016)
“The grounds for disqualification of a justice are set forth in Wis. Stat. § 757.19 . The decision of a justice to recuse or disqualify himself or herself is that of the justice alone.”
Jackson v. Benson (2002)
“More than two months later ES&G filed a motion to vacate the decision, arguing that Justice Geske was disqualified under Wis. Stat. § 757.19 (2) and (3) from participating in the original decision and asking for the vacation of the decision *693 or, in the alternative, for…”
State v. Lindell (2001)
“2d 687 (1982) (ruling judge's failure to recuse himself contrary to Wis. Stat. § 757.19 constituted harmless error); Rosado v.”
— Wis. Stat. § 757.19(1) — 3 cases
— Wis. Stat. § 757.19(2) — 13 cases
State v. American TV & Appliance of Madison, Inc. (1989)
“The Code of Judicial Ethics governs the ethical conduct of judges; it has no effect on their legal qualification or disqualification to act and a judge may be disciplined for conduct that would not have required disqualification under sec. 757.19, Stats. In some instances the…”
State v. Allen (2010)
“Gableman informed the members of the court that he was withdrawing from participation in the court's consideration of Allen's recusal motions and was withdrawing his separate written opinion.”
State v. Harrell (1996)
“The issue before us is whether, in a case tried by the district attorney's office, a circuit court judge, whose spouse is an assistant district attorney in the same county, is required to disqualify himself or herself under either Wis. Stat. § 757.19 (2)(a) (1993-94), [1]…”
State v. Carviou (1990)
— Wis. Stat. § 757.19(2)(a) — 3 cases
State v. M.E. (2020)
— Wis. Stat. § 757.19(2)(b) — 4 cases
State v. Hampton (1998)
State v. M.E. (2020)
— Wis. Stat. § 757.19(2)(c) — 4 cases
State v. Debra A. E. (1994)
Toliver v. McCaughtry (1995)
State v. Bradley J. Young (2020)
— Wis. Stat. § 757.19(2)(d) — 1 case
— Wis. Stat. § 757.19(2)(e) — 1 case
State v. Henley (2009)
“Dimitri Henley (Henley) has moved me to disqualify/recuse myself from continued participation in the above-captioned action, pursuant to Wis. Stat. § 757.19 (2)(e) and (g) (2007-08) 1 and SCR 60.”
— Wis. Stat. § 757.19(2)(f) — 9 cases
Storms v. Action Wisconsin Inc. (2008)
“" Donohoo further asserts that Justice Butler was disqualified by law pursuant to Wis. Stat. § 757.19 (2)(f) [7] because of his substantial financial and personal interest in the outcome of the case and that Justice Butler was also disqualified by law pursuant *486 to Wis.”
State v. Allen (2010)
“Gableman informed the members of the court that he was withdrawing from participation in the court's consideration of Allen's recusal motions and was withdrawing his separate written opinion.”
State v. Adamski (2018)
— Wis. Stat. § 757.19(2)(g) — 29 cases
State v. Allen (2010)
“Gableman informed the members of the court that he was withdrawing from participation in the court's consideration of Allen's recusal motions and was withdrawing his separate written opinion.”
State v. Harrell (1996)
“The issue before us is whether, in a case tried by the district attorney's office, a circuit court judge, whose spouse is an assistant district attorney in the same county, is required to disqualify himself or herself under either Wis. Stat. § 757.19 (2)(a) (1993-94), [1]…”
State v. Jesse L. Herrmann (2015)
“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.”
Storms v. Action Wisconsin Inc. (2008)
“" Donohoo further asserts that Justice Butler was disqualified by law pursuant to Wis. Stat. § 757.19 (2)(f) [7] because of his substantial financial and personal interest in the outcome of the case and that Justice Butler was also disqualified by law pursuant *486 to Wis.”
State v. Marhal (1992)
— Wis. Stat. § 757.19(2Xg) — 1 case
Adams v. State (2012)
— Wis. Stat. § 757.19(3) — 7 cases
State v. Adamski (2018)
— Wis. Stat. § 757.19(4) — 1 case
— Wis. Stat. § 757.19(5) — 1 case
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