State v. Adamski

384 Wis.2d 270

921 N.W.2d 15 (Table)

2018 WI App 62

STATE of Wisconsin, Plaintiff-Respondent,

v.Paul A. ADAMSKI, Defendant-Appellant.^†

Appeal No. 2016AP1642

Court of Appeals of Wisconsin.

DATED AND FILED August 7, 2018

PER CURIAM.

¶ 1 Paul Adamski, pro se, appeals an order denying his postconviction motions seeking a new trial.¹ In numerous circuit court filings, Adamski essentially made four arguments in support of his requests for postconviction relief: (1) the presiding judge was biased against Adamski because the judge had a financial interest in the outcome of the case; (2) the judge had an obligation to disclose to Adamski his outside income and its sources, and he failed to do so; (3) the judge failed to recuse himself for bias during the postconviction proceedings; and (4) the court erred by denying Adamski an evidentiary hearing on his postconviction motions. We reject Adamski's arguments and affirm.

BACKGROUND

¶ 2 In 2008, Adamski was charged with one count each of first-degree sexual assault of a child, child enticement, and incest, and three counts of third-degree sexual assault of a child. Judge Mark McGinnis presided over Adamski's case.

¶ 3 Following a jury trial, Adamski was convicted of repeated sexual assault of a child, child enticement and incest; and two counts of third-degree sexual assault of a child. The circuit court sentenced Adamski to forty-five years' initial confinement and twenty-five years' extended supervision. Adamski's counsel filed a no-merit report with this court. We summarily affirmed Adamski's conviction on direct appeal, finding no arguable merit to any issue that might be raised on appeal. State v. Adamski , No. 2010AP2190, unpublished slip op. (WI App Dec. 12, 2012).

¶ 4 Adamski subsequently filed a postconviction motion in which he argued his conviction should be reversed and he was entitled to a new trial because Judge McGinnis was disqualified from presiding in his criminal case due to a financial interest in the matter. Adamski then filed a motion asking Judge McGinnis to recuse himself from handling his postconviction motions, and Adamski began filing briefs, supplements, and other documents he contended supported his request. Specifically, he stated Judge McGinnis received money for teaching the Appleton police and received money from the Wisconsin Department of Corrections (DOC) under a lease of a commercial building that Judge McGinnis owned. Over the course of the next three years, Adamski filed a series of letters, motions, briefs, supplements, affidavits and exhibits in support of his bias claim and recusal request.

¶ 5 Adamski's motions were predicated on the following facts. Judge McGinnis was elected to the Outagamie County Circuit Court in 2005. He had been involved in teaching law-related matters since 1996. He taught judges as a member of the faculties of the Wisconsin Judicial College and the National Judicial College, and he has taught at colleges and law schools. He also participated in a law enforcement educational program called Legal Update. The Legal Update classes Judge McGinnis taught were "about developments in cases and statutes ... an update of the law for [Appleton Police Department (APD) employees]." From 2007 through 2011, while a circuit court judge, Judge McGinnis was paid a total of $18,450 by the APD to conduct forty-one half-day Legal Update sessions for law enforcement. Between 2009 and 2014, Judge McGinnis was paid $150,000 to teach at the Fox Valley Technical College.

¶ 6 Prior to becoming a judge, in 2004, Judge McGinnis purchased a commercial building. The building was leased to the DOC in late 2007 or early 2008. The lease provided that the DOC would pay Judge McGinnis $2.7 million over a period of fifteen years.

¶ 7 In an August 2016 oral decision, the circuit court denied all of Adamski's postconviction motions without a hearing. Adamski now appeals.

DISCUSSION

¶ 8 A judge "shall disqualify himself or herself from any civil or criminal action or proceeding" when he or she "has a significant financial or personal interest in the outcome of the matter." WIS. STAT. § 757.19(2)(f) (2015-16).² The interest must be direct, real and certain, not indirect, incidental or remote. Goodman v. Wisconsin Elec. Power Co. , 248 Wis. 52, 58, 20 N.W.2d 553 (1945). There must be such a substantial interest in the result as to make it likely that the judge has a real bias in the matter. Id. Failure of a judge to recuse himself when he has a significant financial interest in the case is a structural error requiring automatic reversal. State v. Carprue , 2004 WI 111, ¶ 59, 274 Wis. 2d 656, 683 N.W.2d 31.

¶ 9 We presume a judge acted fairly, impartially, and without prejudice. State v. Herrmann , 2015 WI 84, ¶ 3, 364 Wis. 2d 336, 867 N.W.2d 772. A party may rebut that presumption by showing: (1) that there are objective facts demonstrating the judge in fact treated a party unfairly; or (2) that the appearance of bias reveals a great risk of actual bias. Id. , ¶¶ 27, 46. "[T]he 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." State v. Gudgeon , 2006 WI App 143, ¶ 24, 295 Wis. 2d 189, 720 N.W.2d 114.

¶ 10 On a claim of judicial bias, appellate courts must evaluate the existence of bias in both a subjective and an objective light. See State v. McBride , 18 Wis. 2d 409, 415, 523 N.W.2d 106 (Ct. App. 1994). The subjective component is based on the judge's own determination of whether he or she will be able to act impartially. Id. A judge satisfies the subjective recusal test by determining that he or she is impartial. Herrmann , 364 Wis. 2d 336, ¶ 144 n.12 (Ziegler, J., concurring). Objective bias exists when objective facts demonstrate that the judge was actually biased. McBride , 187 Wis. 2d at 416. This means "the defendant must show that the ‘trial judge in fact treated him [or her] unfairly.’ " Id. (quoting State v. Rochelt , 165 Wis. 2d 373, 381, 477 N.W.2d 659 (Ct. App. 1991) ). In addition, "the appearance of bias violates due process when there is ‘a great risk of actual bias.’ " Herrmann , 364 Wis. 2d 336, ¶ 40. There is an appearance of bias when a reasonable person could conclude that the average judge with ordinary human tendencies and weaknesses could not be trusted to remain neutral under the circumstances. Id. , ¶ 32; State v. Goodson , 2009 WI App 107, ¶ 9, 320 Wis. 2d 166, 173, 771 N.W.2d 385 ; Gudgeon , 295 Wis. 2d 189, ¶ 24.

¶ 11 Whether a judge was objectively impartial is a question of law that is reviewed independently on appeal. See Herrmann , 364 Wis. 2d 336, ¶ 23. Whether a judge was a neutral and detached magistrate is a question of constitutional fact which we review de novo and without deference to the circuit court's ruling. State v. Neuaone , 2005 WI App 124, ¶ 16, 284 Wis. 2d 473, 700 N.W.2d 298.

A. Judicial bias—pretrial and trial proceedings

¶ 12 Adamski cites Caperton v. A.T. Massey Coal Co. , 556 U.S. 868 (2009), to argue that Judge McGinnis was required to recuse himself from presiding over this case because he took payments from party litigants (the DOC and the APD—parties, he asserts, that were interested in the outcome of this case) during the time he presided over the matter. Adamski argues these payments, together with ongoing payments from teaching other law enforcement agencies, provided evidence of a significant financial interest in the case and caused undue influence over Judge McGinnis's decision-making. In other words, Adamski contends there was evidence of actual bias.

¶ 13 We conclude Adamski fails to rebut the presumption that Judge McGinnis acted fairly, impartially, and without prejudice. Adamski fails to show that Judge McGinnis had any actual or apparent financial interest in the outcome of Adamski's case.

¶ 14 As an initial matter, neither the APD nor the DOC was a party to this case.³ Unlike the judge at issue in Caperton , Judge McGinnis did not receive any money from any party to the litigation over which he presided. A party is one by or against whom a lawsuit is brought. State v. Barfell , 2010 WI App 61, ¶ 8 n.4, 324 Wis. 2d 374, 782 N.W.2d 437. Under this definition, police officers and police departments—who do not bring criminal lawsuits—are not parties to such actions. Czajkowski v. City of Chicago , 810 F. Supp. 1428, 1431, 1433 (N.D. Ill. 1993) ; State v. Benedict , 148 A.3d 1044, 1051 (Conn. 2016) ; Gentile v. Bauder , 718 So.2d 781, 783 (Fla. 1998). Neither is the Department of Corrections.

¶ 15 Adamski cites Brown v. Vance , 637 F.2d 272, 282 (5th Cir. 1981), to support his argument that the DOC and the APD were "parties in interest in the outcome" of his trial. However, Brown does not hold that police officers, police departments, or departments of corrections are parties in criminal cases. Id. Rather, the Brown court merely stated that "[t]estimony of law enforcement officers and experts in police science supports the plaintiffs' assertion that law enforcement officers have an interest in the outcome of criminal cases in which they participate. Arresting officers naturally seek convictions." Id. (emphasis added). But many other people have an interest in the outcome of criminal cases, including victims, friends and family of the victims, witnesses, and support groups; nevertheless, those interests do not make such individuals parties to an action as recognized in the law.

¶ 16 We also conclude there is no appearance of bias based upon Judge McGinnis's instruction of law enforcement. Judge McGinnis was paid to teach police officers regarding updates in the law. It is not likely that the average judge, with ordinary human tendencies and weaknesses, would feel influenced to make decisions the police department would want because of an agreement to educate...