We are disturbed by Reddin’s presumption to give, and Judge Murray’s acquiescence to receive, Reddin’s ex parte advice about the scope of Hipp’s ability to have issued subpoenas for the production of his witnesses at the John Doe hearing, and we remind the bench and the bar of SCR 60.04(1)(g) (“A judge may not initiate, permit, engage in or consider ex parte communications concerning a pending or impending action or proceeding” other than in carefully delineated circumstances.), and SCR 20:3.5 (“A lawyer shall not: … (b) communicate ex parte with [a judge] except as permitted by law or for scheduling purposes if permitted by the court.”). See also State v. Washington, 83 Wis. 2d 808, 824–825, 266 N.W.2d 597, 605 (1978). The Rules of Professional Conduct were amended, effective July 1, 2007, by S. Ct. Order 04-07, 2007 WI 4. Supreme Court Rule 20:3.5(b) is unchanged. The new Rules of Professional Conduct may be accessed at: http://www.legis.state.wi.us/rsb/scr/5200.pdf.

¶15 Hipp also seeks an order removing Judge Murray as his John Doe judge, and Reddin from further participation. We have no doubt but that Judge Murray will on remand fulfill his responsibilities as an impartial magistrate. See State v. Washington, 83 Wis. 2d 808, 824, 266 N.W.2d 597, 605 (1978). [5] We express no opinion whether Hipp may, on remand, seek relief under either Wis. Stat. §§ 801.58(7) or 971.20(7), the substitution-of-judge statutes in civil and criminal cases, as that issue has not been presented or briefed. We also decline to interfere with the authority of the Milwaukee County district attorney to assign his deputies and assistants as he sees fit. See Wis. Stat. § 978.03(1) & (3).

¶35      … (A)bsent a pervasive and perverse animus, which Rodriguez does not allege, a judge may assess a case and potential arguments based on what he or she knows from the case in the course of the judge’s judicial responsibilities. See Liteky v. United States, 510 U.S. 540, 555 (1994) (“[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.”). The trial court did not err in declining to recuse itself from consideration of Rodriguez’s postconviction motion.

¶10      A biased tribunal, like the lack of counsel, constitutes a “structural error.” See id. at 8; Franklin v. McCaughtry, 398 F.3d 955, 961 (7th Cir. 2005); State v. Carprue, 2004 WI 111, ¶59, 274 Wis. 2d 656, 683 N.W.2d 31. …

¶11      Our supreme court has also on occasion iterated the importance of an impartial tribunal. Guthrie v. WERC, 111 Wis. 2d 447, 331 N.W.2d 331 (1983) … stated, “It is, of course, undisputable that a minimal rudiment of due process is a fair and impartial decisionmaker.” Id. at 454 (emphasis added). “A ‘fair trial in a fair tribunal is a basic requirement of due process.’” Id. at 454 (citation omitted). 

¶12      The court echoed these thoughts in Marris v. City of Cedarburg, 176 Wis. 2d 14, 498 N.W.2d 842 (1993). … It explained that, “Since biases may distort judgment, impartial decision-makers are needed to ensure both sound fact-finding and rational decision-making as well as to ensure public confidence in the decision-making process.” Id. at 25-26. …

¶21      The second component, the objective test, asks whether a reasonable person could question the judge’s impartiality. Franklin, 398 F.3d at 960; Walberg, 109 Wis. 2d at 106-07 (looks to whether partiality can “reasonably be questioned”). Actual bias on the part of the decision maker certainly meets this objective test. In re Murchison, 349 U.S. 133, 136 (1955); Franklin, 398 F.3d at 960-61. Sometimes, however, the appearance of partiality can also offend due process ….

¶22      We have reviewed numerous cases, both state and federal, that discuss these two aspects of objective bias. Initially, we had a difficult time discerning from them whether actual bias was necessary or merely sufficient. …

¶23      Further examination, however, reveals that this divergent case law can be harmonized. …

¶24      … In short, the appearance of bias offends constitutional due process principles whenever a reasonable person—taking into consideration human psychological tendencies and weaknesses—concludes that the average judge could not be trusted to “hold the balance nice, clear and true” under all the circumstances.

¶26      The appearance of partiality, however, remains problematic. We must resolve this case based on what a reasonable person would conclude from reading the court’s notation, id. at 960, not what a reasonable trial judge, a reasonable appellate judge, or even a reasonable legal practitioner would conclude. The court here used strong language. “ I want his probation extended.” (Emphasis added.) “Want” signifies a personal desire on the court’s part. Of additional significance, this expressed desire refers not to an extension hearing—at which to decide the merits of extension versus a civil judgment—but to the extension itself, an ultimate outcome. Neutral and disinterested tribunals do not “want” any particular outcome. Moreover, a reasonable person familiar with human nature knows that average individuals sitting as judges would probably follow their inclination to rule consistent with rather than against their personal desires. The ordinary reasonable person would discern a great risk that the trial court in this case had already made up its mind to extend probation long before the extension hearing took place. Further, nothing in the transcript of the extension hearing would dispel these concerns. We therefore agree with Gudgeon that the extension hearing violated his due process right to an impartial tribunal.

Judicial disqualification under § 757.19(2)(g), Stats., concerns not an outsider's objective determination, but rather the judge's subjective determination. See State v. American TV & Appliance, 151 Wis.2d 175, 182, 443 N.W.2d 662, 665 (1989). It mandates a judge's disqualification "only when that judge makes a determination that, in fact or in appearance, he or she cannot act in an impartial manner." Id. at 183, 443 N.W.2d at 665 (emphasis added). Disqualification is not required in a situation where "one other than the judge objectively believes there is an appearance that the judge is unable to act in an impartial manner ...." Id. (emphasis added). ...

... It is apparent that Judge Kennedy considered whether there was any bias or prejudice in his sentencing decision that would require him to recuse himself from considering the postconviction motions relating to the sentencing.⁴ He concluded that he could be impartial. As outlined above, this is all that § 757.19(2)(g), Stats., requires.

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⁴ A former California supreme court justice used the following metaphor to describe the dilemma of deciding controversial cases while facing reelection. He said it was like "finding a crocodile in your bathtub when you go in to shave in the morning. You know it's there, and you try not to think about it, but it's hard to think about much else while you're shaving." Gerald F. Uelmen, Crocodiles in the Bathtub: Maintaining the Independence of State Supreme Courts in an Era of Judicial Politicization, 72 Notre Dame L. Rev. 1133, 1133 (1977).
The article also notes that while a judge will never admit that his or her vote was influenced by public pressure, "It takes a truly sensitive judge to even engage in the soul searching inquiry into the impact of the crocodiles in the bathtub upon his or her decisionmaking process." Id. at 1142. We are convinced that the record reveals that Judge Kennedy engaged in this kind of personal inquiry when his sentencing decision was questioned.

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" for 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.

… First, … the Supreme Court has decided that both actual bias and the appearance of bias violate due process principles. … Second, where there is a structural error, such as judicial bias, harmless error analysis is irrelevant.

Although Parker encourages us to provide an objective standard of review for the initial subjective decision by a judge not to disqualify himself or herself, we decline to do so. Wisconsin Statute § 757.19(2)(g) is clearly drafted so as to place the determination of partiality solely upon the judge. See American TV, 151 Wis. 2d at 182-83. In fact, the legislature specifically included six other objectively determinable situations in subsection (2) which require withdrawal. These are the six situations on which it chose to focus. It is not this court's role under subsection (2)(g) to expand this list by requiring a judge to recuse himself or herself in all situations where an objective basis of impropriety may exist. If the general prohbition in (2)(g) were read so broadly, the six specific situations enumerated in the statute would become superfluous.

In sum, Wis. Stat. § 757.19(2)(g) leaves the responsibility of withdrawal to the integrity of the individual judge or justice. To imply that the judges or justices of this state are not able to make such a determination honestly, openly and fairly is a great disservice to the quality men and women who serve this state in a judicial capacity.

¶19. We agree with the State that a judge's non-pecuniary interest, as well as a pecuniary interest, may require recusal on due process grounds, see Aetna Life Insurance Co. v. LaVoie, 475 U.S. 813, 829 (1986) (Brennan, J. concurring); and the type of interest that requires recusal cannot be defined with precision. In re Murchison, 349 U.S. 133, 136 (1955). However, in the context of applying federal rules requiring recusal for bias, federal courts have made clear that a judge's prior adverse rulings or expressions of the judge's views of the law are not sufficient to demonstrate a "personal" bias that requires recusal. See, e.g., Oliver v. Michigan State Bd. of Educ., 508 F.2d 178, 180 (6th Cir 1974); City of Cleveland v. Cleveland Elec. Illuminating Co., 503 F. Supp 368, 373-74 (N.D. Ohio 1980); Person v. General Motors Corp., 730 F. Supp. 516, 518-19 (S.D.N.Y. 1990). Our reasoning is similarly grounded: Judge Johnston's legal position on the permissibility of the challenged procedure and his conviction of the wisdom of the procedure, however firmly held, are not a bias that indicates he is unable to be a neutral and detached judge in this case. Moreover, we do not see how Judge Johnston's "stake" in the outcome of the issue affects his ability to be neutral in this case. The outcome will be determined by this court or the supreme court, and Judge Johnston has made it clear he will follow any order or decision of this court or the supreme court as the law requires him to do.

¶60 If Judge Schellinger were actually biased, the question would be whether she should have presided at all. In this case, Carprue can do no more than allege that Judge Schellinger harbored general bias in favor of the State in criminal prosecutions based upon her actions. He presents no basis to conclude that Judge Schellinger had any direct stake in the outcome of the proceeding. "[O]nly in the most extreme cases would disqualification based on general allegations of prejudice or bias be constitutionally required." Kywanda F., 200 Wis. 2d at 36 (emphasis added) …. 

¶61 Our legislature, in keeping with this principle, has established seven statutory situations that require judicial disqualification. Wis. Stat. § 757.19(2). The only statutory ground requiring disqualification that might apply under these facts is one that requires disqualification if a judge determines that he or she cannot, or it appears he or she cannot, act impartially in a case. Wis. Stat. § 757.19(2)(g). …

¶62 "The reviewing court must objectively decide if the judge went through the required exercise of making a subjective determination." Id. at 664. By instructing the jury that it was to disregard any impression that it might have regarding whether she believed the defendant was guilty or not guilty, we can infer that Judge Schellinger did consider the matter of bias. See supra note 5. In any event, because Carprue's claim rests upon an allegation of general bias, the record would not have contained a more thorough record of Judge Schellinger's subjective thought process unless the defendant had objected. In the absence of any objection, we assume that, by presiding, Judge Schellinger believed that she could act in an impartial manner.

¶10. Our conclusion that the chief judge has authority to review the denial of the juvenile's request for substitution is consistent with our holding in Barbara R.K. v. James G., 2002 WI App 47, 250 Wis. 2d 667, 641 N.W.2d 175. There we held that "Wis. Stat. § 801.58(2) provides an avenue to facilitate review of denials of requests for substitution of judge." Id., ¶15. We recognized that review by the chief judge promotes judicial economy and efficiency. Id., ¶11. The failure to obtain review by the chief judge is akin to the failure to exhaust administrative remedies and constitutes waiver of the right for appellate review. Id., ¶¶14-15. The goal of judicial efficiency in a juvenile proceeding requires that the chief judge review the denial of a substitution request before the issue is brought to this court.

¶11. The trial court ruled and the County now argues that Terrance's substitution request was untimely because it was not filed before "hearing of any preliminary contested matters" under Wis. Stat. § 801.58. Terrance argues the applicable statute is Wis. Stat. § 48.29, which allows a request "either before or during the plea hearing ...." We agree with Terrance.

¶2. The dispositive issue is whether a defendant who is charged jointly with another defendant may obtain substitution of a judge pursuant to Wis. Stat. § 971.20(6) when the codefendant is not yet before the court. We conclude that the language of § 971.20(6) is plain and unambiguous and applies in a multiple defendant action even when a codefendant is unavailable to either join or refuse to join a substitution request. Accordingly, we deny Garibay's petition for supervisory writ.

(We) conclude that his substitution claim is moot because he does not have a viable ineffective assistance of counsel claim as a matter of law. A matter is moot if a determination is sought that cannot have a practical effect on an existing controversy. ... Mentek failed to exhaust his administrative remedies before seeking certiorari relief and there is no right to statutory or constitutional assistance of counsel on an appeal of a final probation revocation decision. Substituting another branch of the Kenosha County Circuit Court would not have made a difference to Mentek's claim for relief or to the result he obtained.

¶15. A petition for a writ of mandamus or prohibition is an appropriate remedy to redress the denial of judicial substitution. See State ex rel. James L.J. v. Circuit Court for Walworth County, 200 Wis. 2d 496, 498, 546 N.W.2d 460 (1996). The circuit court violated a plain duty in refusing to honor Mateo's request. See State ex rel. Ondrasek v. Circuit Court for Calumet County, 133 Wis. 2d 177, 185, 394 N.W.2d 912 (Ct. App. 1986). We therefore grant the petition for a supervisory writ of mandamus and direct the chief judge and circuit court to honor the request for judicial substitution.

According to the plain meaning of the statute, the only time that a chief judge may become involved in the substitution process under Wis. Stat. § 801.58(2) is if a circuit judge denies a substitution request for not being timely or properly filed. ...

[T]he chief judge was without authority to review and reverse the circuit judge's decision to honor the substitution request.

¶10. Our conclusion that the chief judge has authority to review the denial of the juvenile's request for substitution is consistent with our holding in Barbara R.K. v. James G., 2002 WI App 47, 250 Wis. 2d 667, 641 N.W.2d 175. There we held that "Wis. Stat. § 801.58(2) provides an avenue to facilitate review of denials of requests for substitution of judge." Id., ¶15. We recognized that review by the chief judge promotes judicial economy and efficiency. Id., ¶11. The failure to obtain review by the chief judge is akin to the failure to exhaust administrative remedies and constitutes waiver of the right for appellate review. Id., ¶¶14-15. The goal of judicial efficiency in a juvenile proceeding requires that the chief judge review the denial of a substitution request before the issue is brought to this court.

¶9.... The statute then provides: "If the judge named in the substitution request finds that the request was not timely and in proper form, that determination may be reviewed by the chief judge of the judicial administrative district ... if the party who made the substitution request files a written request for review with the clerk no later than 10 days after the determination by the judge named in the request." Wis. Stat. § 801.58(2). Barbara did not avail herself of review by the chief judge....

¶14 We view the chief judge review procedure as analogous to exhaustion of administrative remedies. It is well settled that where a method of review is prescribed by statute and adequate relief may be obtained through the review procedure, the pursuit of administrative relief is a prerequisite to judicial review. Jackson County Iron Co. v. Musolf, 134 Wis. 2d 95, 102, 396 N.W.2d 323 (1986). The exhaustion doctrine promotes judicial efficiency by allowing conflicts to be resolved at the administrative level without resort to litigation.

¶15 Here, Wis. Stat. § 801.58(2) provides an avenue to facilitate review of denials of requests for substitution of judge. That avenue must be pursued in order to preserve the issue on appeal. If Barbara wanted to appeal the denial of her request for substitution, she was required to seek review by the chief judge. Since she did not, she has waived her right to appeal.