Law review article not grounds for recusal

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Judge Lynn Adelman has fired the latest salvo in the judicial recusal wars, denying a motion requesting that he not preside over a case because of a law review article he had written on the case’s governing precedents.

The underlying action is a personal injury case alleging injury to a minor from exposure to white lead carbonate pigment. The case was removed to federal court and one of the defendants, Sherwin-Williams Co., asked Judge Adelman to disqualify himself.

The law review article in question is entitled, Exercising Judicial Power, A Response to the Wisconsin Supreme Court’s Critics, 91 Marq.L.R. 425 (2007), and was co-authored by Adelman with a former law clerk, Shelley Fite.

The article was, as its title suggests, a response to several articles critical of five opinions the Wisconsin Supreme Court issued during the waning days of its 2004-05 term.

Among the cases discussed in the several articles was Thomas v. Mallet, 2005 WI 129, 285 Wis.2d 236, 701 N.W.2d 523. In Thomas, the Supreme Court held that plaintiffs allegedly injured by their contact with lead paint could attempt to establish liability under the risk contribution theory.

Under that theory, a plaintiff need not establish that a specific manufacturer produced the product that injured him.

The Adelman/Fite article contained the following comment on the case: “In Thomas, the court examined a case in which each of the defendants manufactured a product that (the court assumed, for summary judgment purposes) injured a wholly innocent plaintiff. The facts raised the possibility that the innocent plaintiff would be left with no compensation from the industry that actually harmed him. Thus, in … Thomas, the court ensured that the doors of the courthouse remained open.”

Adelman concluded that he need not recuse himself, despite the article, because it did not mention the present case, nor did it take a position on any issue raised in the case.

After reviewing a litany of general principles governing judicial recusal, Adelman relied heavily on Canon 4(A) of the Code of Judicial Conduct.

The Canon specifically authorizes judges to write on legal issues and participate in legal scholarship.

While Canon 3(a)(6) instructs judges to avoid public comment on the merits of a pending or impending action, Adelman noted, the ban does not apply “to a scholarly presentation made for purposes of legal education.”

Applying the canons to the motion at issue, Adelman gave five reasons why recusal was not required.

1. The article does not mention the present case;
2. The article takes no position on any issue raised in the present case;
3. The article takes no position on the merits of Thomas;
4. Even if the article did take a position on Thomas, a judge’s view of the law is not a basis for disqualification; and
5. Even if the article did take a position on Thomas, any judge hearing the case would be required to follow precedent, regardless of his views of the case.

Adelman elaborated, “even if a judge’s view of the law could be a basis for disqualification and a well-informed observer could reasonably conclude that I held a view of Thomas, no well-informed observer could reasonably conclude that such view might affect my resolution of the present case. This is so because the present case is a diversity case, and to the extent that Thomas might be applicable, I would be obliged to apply it regardless of my view of it.”

Adelman then distinguished two cases in which a judge either wrote a letter to a newspaper or appeared on a television program to discuss a pending case.

“I neither appeared on television nor granted a newspaper interview,” Adelman wrote. “I co-authored a law review article, an act of judicial scholarship strongly encouraged by the Code of Judicial Conduct.”