State v. Harrell

546 N.W.2d 115, 199 Wis. 2d 654, 1996 Wisc. LEXIS 28
CourtWisconsin Supreme Court
DecidedMarch 28, 1996
Docket94-1655-CR
StatusPublished
Cited by35 cases

This text of 546 N.W.2d 115 (State v. Harrell) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Harrell, 546 N.W.2d 115, 199 Wis. 2d 654, 1996 Wisc. LEXIS 28 (Wis. 1996).

Opinions

DONALD W. STEINMETZ, J.

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 — prohibiting a judge from hearing a case when a close relative is "counsel thereto" [657]*657for either party — or Wis. Stat. § 757.19(2)(g),2 —prohibiting a judge from hearing a case when the judge determines he or she cannot retain his or her impartiality. We hold that neither Wis. Stat. § 757.19(2)(a) nor Wis. Stat. § 757.19(2)(g) requires a judge to disqualify himself or herself in such a situation as long as his or her spouse did not participate in, or help prepare, the case.

Crystal Parker (a/k/a Crystal Harrell) was charged with two counts of retail theft in violation of Wis. Stat. § 943.50(lm) and (4)(a).3 Since Parker was on parole for a 1991 felony retail theft conviction in Dane County, she was charged as a repeat offender under Wis. Stat. § 939.62(l)(a).4 She entered a plea of no contest to [658]*658count 1 and guilty to count 2 of the complaint in Dane County Circuit Court, Judge Robert A. DeChambeau.

Parker then moved to vacate the conviction and disqualify the judge based on Judge DeChambeau's marriage to Gretchen Hayward, an Assistant District Attorney in the Dane County District Attorney's office. Judge DeChambeau denied Parker's motion for relief without a hearing and Parker appealed. The court of appeals certified the appeal to this court pursuant to Wis. Stat. § 809.61.

Wisconsin Statutes § 757.19(2) provides seven situations where it is mandatory that judges disqualify themselves from a case. In State v. American TV & Appliance, 151 Wis. 2d 175, 182, 443 N.W.2d 662 (1989), we found that this subsection contains 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. As to the objective situations, "the very existence of [such a] relationship creates a disqualification by law." Id. Whether the general subjective situation exists and requires disqualification, however, is based upon the judge's own determination of whether he or she may remain impartial. See id. Parker challenges Judge DeChambeau's decision on both grounds: she asserts that his spouse's position violated one of the objective situations and that it should not have been possible for [659]*659him to have subjectively determined that he could remain impartial.

In order to determine the merit of Parker's claims, this court must interpret both Wis. Stat. § 757.19(2)(a) and (2)(g). Statutory interpretation is a question of law which we review de novo. See Rolo v. Goers, 174 Wis. 2d 709, 715, 497 N.W.2d 724, 726 (1993). The ultimate goal of statutory interpretation is to ascertain the intent of the legislature. See id. The first step of this process is to look at the language of the statute itself. See In Interest of Jamie L., 172 Wis. 2d 218, 225, 493 N.W.2d 56, 59 (1992). If the statute is ambiguous, this court must look beyond the statute's language and examine the scope, history, context, subject matter and purpose of the statute. See Rolo, 174 Wis. 2d at 715.

Parker's first argument is based upon one of the objective situations, specifically, disqualification based upon consanguinity. See Wis. Stat. § 757.19(2)(a). Subsection (2)(a) requires disqualification when "a judge is related to any party or counsel thereto . . . within the 3rd degree of kinship." Id. Parker asserts that the language "counsel thereto" must include any member of the law firm representing a party to the suit. In the context of a government prosecutor, Parker's interpretation would include all members of the government office which was trying the case.

Parker's reading of the statute, however, is too broad. The only practical interpretation of the language "counsel thereto" as it applies to government attorneys is to restrict its scope to only the attorney of record and any other attorneys who appear or participate in the case.5 It certainly does not include every [660]*660government attorney who happens to be employed in the same county office or governmental department.

Although the language "counsel thereto" is clearly ambiguous,6 and the legislative history not particularly helpful,7 there is significant persuasive authority which supports this position.8 First, the commentary to [661]*661Canon 3E(1)(d)(ii) (1990)9 of the ABA Model Code of Judicial Conduct, which contains similar, though not identical, language states, "[t]he fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not of itself disqualify the judge." ABA Model Code of Judicial Conduct Canon 3E(1)(d)(ii) cmt. (1990). The State Bar of Wisconsin has endorsed this reading of the ABA Code of Judicial Conduct concluding that "when a relative's associate appears as counsel the judge may not have to disqualify him I herself" State Bar of Wisconsin Standing Comm, on Professional Ethics, Memorandum Opinion 12/76-A (1990) (emphasis added).

Second, at least one state court has come to the same conclusion. The Michigan Court of Appeals interpreted a similar statute, which required disqualification if there was a relationship between the judge and "any of the attorneys or counselors for any party," to only include "the prosecuting attorney [who] appears personally . . .." People v. Dycus, 246 N.W.2d 326, 327 (Mich. App. 1976). The court specifically found [662]*662that the fact that a judge was related to an attorney who worked in the prosecutor's office in no way raised any "taint, or suspected taint, of bias or prejudice" in the judge in question. Id.

Finally, the special characteristics of government attorneys make it unlikely that a judge's relationship with one would affect his or her impartiality.

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Bluebook (online)
546 N.W.2d 115, 199 Wis. 2d 654, 1996 Wisc. LEXIS 28, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-harrell-wis-1996.