WI Court of Appeals urged to consider judicial bias issue.

Byline: David Ziemer

The Wisconsin Court of Appeals on June 14 urged the Supreme Court to hold that judicial bias is a structural error excepted from the bar against collateral attacks.

In 2000, Justin D. Gudgeon was convicted for operating a vehicle without the owner's consent. The judgment of conviction called for restitution of $8,425 to the victim.

In 2002, Gudgeon's probation agent sent a letter to the court, noting that Gudgeon's condition time was about to expire, but that, because of other charges, he was in custody and did not have the option of work release. The agent indicated that Gudgeon might not be available for supervision if convicted on pending charges from out of state and noted that he still owed $7,835 in restitution.

Accordingly, the agent proposed reducing the court obligations to a civil judgment, rather than simply extending his supervision.

In reply, Walworth County Circuit Court Judge Michael S. Gibbs handwrote at the bottom of the letter, 'No - I want his probation extended' and sent copies to the probation agent, the district attorney, and Gudgeon's last attorney of record.

An extension hearing was held, and the court extended the supervision for two years. Gudgeon did not appeal.

In May 2003, his probation was revoked, and he was sentenced. Gudgeon did not appeal the revocation or sentence either.

Instead, he brought a motion for post-conviction relief, citing the handwritten note, and claiming his due process rights were violated during the extension proceedings because the presiding judge was not a neutral magistrate.

Reserve Judge John A. Fiorenza denied the motion, and Gudgeon appealed. The court of appeals reversed and remanded in a decision by Judge Richard S. Brown.

Judicial Bias

The court began by considering the scope of its own authority, noting that collateral challenges are generally barred. Exceptions exist, such as where a defendant was denied counsel in a prior conviction used for sentence enhancement. State v. Hahn, 2000 WI 118, 238 Wis.2d 889, 618 N.W.2d 528.

However, the court declined to extend the exception in Hahn to claims of judicial bias, stating, 'We cannot use Hahn to decide whether to absolve Gudgeon of his collateral attack problem for the simple reason that we are an error-correcting court and it is for our supreme court, as our judicial administration policymaking body, to make that decision.'

Nevertheless, the court urged the Supreme Court to extend Hahn to claims of judicial...