Appearance of Impartiality Test For Recusal Requires Examination From The Perspective Of A Reasonable Person Aware Of All Relevant Circumstances
IN RE: SHERWIN-WILLIAMS CO. (June 7, 2010)
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Sherwin-Williams Co. is a defendant in a number of cases pending in federal court in Wisconsin before Judge Adelman (E.D. WI). The plaintiffs in those cases seek recovery against the manufacturers of white lead carbonate pigment for injuries allegedly caused by the ingestion of the pigment. Because none of the plaintiffs can identify the actual manufacturer of the pigment ingested, they rely on the Wisconsin Supreme Court's 2005 decision in Thomas. In Thomas, the Supreme Court adopted the risk contribution exception to traditional negligence theories in the lead pigment context. The Wisconsin Supreme Court was criticized for several of its decisions during the 2005 term, including Thomas. Judge Adelman co-authored a Law Review article that was published in 2007 defending the court's decisions. Although he disclaimed any opinion on the merits of those decisions, he did call Thomas a "positive development." Sherwin-Williams asked Judge Adelman to recuse himself because of the article. He refused. Sherwin-Williams seeks a writ of mandamus.
In their opinion, Judges Kanne, Rovner, and Tinder denied the petition. The Court stated that the test for disqualification of a judge is whether his impartiality might be questioned. The test must be applied from the perspective of a reasonable person who is aware of all surrounding facts and circumstances. Applying that test, the Court concluded that no reasonable reader would believe that the judge formed any opinion on the merits. Even more importantly, however, the Court stated that Judge Adelman's views of the case were irrelevant. As a federal district court sitting in a diversity case, he is obligated to apply Wisconsin law as interpreted by the state’s Supreme Court. A reasonable person would understand that situation and not question his impartiality because of the article.
Michael Rigney practices in the law offices of GVC Ltd. in Chicago. In this blog, he reports on select