What’s Good for the Goose . . .

Earlier this week, a panel of the U.S. Court of Appeals for the Seventh Circuit issued its decision in In Re Sherwin-Williams Co. The court upheld Judge Lynn Adelman’s decision not to recuse himself from a case pending before him in the Eastern District of Wisconsin, Burton v. American Cyandamid, et al

Sherwin-Williams is currently before Adelman as a defendant in a personal injury action involving lead paint, heard in diversity jurisdiction. S-W believed “his impartiality might reasonably be questioned” (the relevant legal standard) because he had written an article defending the Wisconsin Supreme Court’s controversial lead paint decision in Thomas v. Mallett, 2005 WI 129.  (The article is Adelman & Fite, Exercising Judicial Power: A Response to the Wisconsin Supreme Court’s Critics, 91 Marq. L. Rev. 425 (2007)). In the article, Adelman defended the Court’s 04-05 term generally and praised Thomas particularly as a “positive development” which ensured that “the doors of the courthouse remain open.” Id. at 446. 

Based on this characterization, S-W sought his recusal in this case. 

Judge Adelman rejected the motion, stating that “the fact that a judge has expressed views on a legal subject is not a ground for disqualification.” (Burton Order at 6.) He quoted a Ninth Circuit decision stating that a “judge’s view on legal issues may not serve as the basis for a motion to disqualify.” Id. The Seventh Circuit panel, in a per curiam opinion, upheld his decision.

The panel said that S-W argued that “a reasonable person would suspect that Judge Adelman has an unusual interest in assisting [lead paint] plaintiffs — i.e., that he has an ax to grind” (7). The Court dismissed this argument, saying that “judges may speak, write, and participate in other activities concerning the legal issues of the day” (Id.).

This discussion is interesting when juxtaposed next to the murky matter of State v. Allen, pending in the Wisconsin Supreme Court (2007AP000795). Counsel for Allen contended that Justice Michael Gableman must recuse himself from that criminal case, and by implication all criminal cases, because a reasonable person would suspect that Justice Gableman has an unusual interest in assisting law enforcement, an ax to grind against criminal defendants.

This is based on various statements he made during the 2008 campaign when he publicly criticized the court’s decisions, particularly from the 2004-05 term. A number of “Allen motions” were filed in other cases, urged on by the State Public Defender’s Office.

Just as Judge Adelman should not recuse himself from all lead paint cases because he publicly defended the court’s 04-05 lead paint case, so Justice Gableman should not recuse himself from all criminal cases because he publicly criticized the court’s 04-05 criminal cases.

This Post Has 5 Comments

  1. Jeffrey J. Szczewski

    The concern is not that Justice Gableman “publicly criticized the court’s 04-05 criminal cases”. It’s that he mocked constitutional rights as “loopholes” and bragged about how he “has committed his life to locking up criminals”.

  2. Edward Fallone

    These types of recusal arguments mystify me. Similar arguments have been made in favor of requiring the recusal of Judge Posner and Justice Scalia. Litigants do not have a right to a judge who comes to the legal questions before them as a blank slate, only a right to a judge who comes to the factual questions as a blank slate.

    Given the weakness of the recusal argument here, I wonder about the strategy of the defendants. Obviously they felt that even a slim chance of obtaining Judge Adelman’s recusal outweighed the risk of antagonizing him.

    When I was a litigator, I felt that my time was better spent educating my judge about our case rather than trying to substitute a judge who might have a predisposition to favor my side. Perhaps I would feel differently if I were in state court, but at the federal level I have more faith that the judge will give my arguments a fair hearing.

  3. Richard M. Esenberg

    Justice Scalia’s taxonomy of bias in Republican Party v. White is helpful here. This is bias in his second sense, commitment to a particular legal position. Professor Fallone (and Justice Scalia)are correct in recognizing that this is not bias at all. What the defendant in Allen tried to do is argue that the Gableman ads reflected bias in the first sense of White (i.e., bias for or against a particular litigant, conceived of as the “class of criminal defendants”) or in its third sense (an unwillingness to keep an open mind). These are conceptually distinct although I don’t think the evidence for either was sufficient to warrant recusal.

  4. Robert Henak


    Thanks for setting Daniel straight. You are absolutely correct that the Allen motions were based on then Judge Gableman’s asserted bias for a particular class of litigant (law enforcement) and against another (those accused of crimes), exactly the type of bias that the Supreme Court has deemed constitutionally objectionable. You are wrong in suggesting that they also were based on the Scalia’s third category of bias, but I’ll forgive you for that.

    Sherman-Williams’ argument, on the other hand, was based on the judge’s view of the law, a theory of bias the Supreme Court rejected in White. Other than the fact that both cases involve recusal motions, therefore, the bases for recusal in the two cases are not rationally comparable.

    Of course, S-W’s argument was especially silly because, as noted by the Seventh Circuit, it was based on Judge Adelman’s agreement with a decision that, given the legal status of the S-W case, he was required to follow whether he agreed with it or not.

    1. Richard M. Esenberg

      Rob, I’ll allow you to characterize your own argument and am always in need of forgiveness. But I think that it is relatively easy to read (or at least recast) the claim as an assertion of bias in White’s third sense. In fact, I argue in the Wake Forest case that “tough on crime” campaigning can lead to recusal only if it can be seen in that way. I suspect that you disagree.

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