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.