Now Judges are ABOVE the law???

Divided Supreme Court rules justices can decide the same case at two levels

By: Gilman Halsted, Wisconsin Public Radio, Superior Telegram  

A split ruling Tuesday in a sexual assault case reveals the sharp divide among state Supreme Court Justices about the rules for recusal.

For the past decade, Dimitri Henley has been trying to get a new trial based on new evidence that suggests the victim in the sexual assault he was convicted of may have consented to have sex with him and two other men. In his most recent effort he asked the court to disqualify Justice Patience Roggensack from ruling on the case because she had ruled in the same case as an appeals court judge in 2002. State statute prohibits judges from ruling on the same case in both a lower and a higher court. Keith Findley of the Wisconsin Innocence Project represents Henley.

"We argued that it violates due process to have a system when an individual justice makes their own decision about whether they're biased or impartial and there's no way to review that very personal decision,” he says. “Providing no way to review that essentially elevates an individual justice above the law."

But Justice Roggensack joined the four justice majority this week in ruling that recusal is a personal decision that the other justices cannot interfere with. The court split 4-3 on another recusal issue last year when voting against a rule to require justices to recuse themselves from cases involving people who contributed substantial sums to their election campaigns. Findley called this latest ruling a troubling one.

"It really looks like the majority appears to be tone deaf to the legitimate constitutional concerns and the mounting public concern about this court's ability to act in an impartial and balanced manner,” he says.
Chief Justice Shirley Abrahamson writing for the dissent says Justice Roggensack has violated the ancient maxim that no person should be the judge of their own cause.