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Monday, June 07, 2010

Ind. Decisions - 7th Circuit rules on petition to compel a Wis. District Judge to recuse himself

In re: Sherwin-Williams Co., is an 8-page, per curiam opinion, on a Petition for Writ of Mandamus from the United States District Court for the Eastern District of Wisconsin. The panel writes:

In this petition for a writ of mandamus, Sherwin-Williams Company asks us to order District Judge Lynn Adelman to recuse himself from presiding over four cases in which it is a defendant. Sherwin- Williams argues that a law review article co-written by Judge Adelman creates an appearance that the judge will decide the case other than on the merits. Judge Adelman denied Sherwin-Williams’s motion for recusal in the district court, and we do the same for the petition for writ of mandamus.

The basis of Sherwin-Williams’s petition is a 2007 article Judge Adelman co-authored in response to criticism of five decisions issued by the Wisconsin Supreme Court in 2005. One of the opinions discussed was Thomas ex rel. Gramling v. Mallett, 701 N.W.2d 523 (Wis. 2005), in which the Wisconsin Supreme Court held that a plaintiff who could prove that he was injured by ingesting white lead carbonate pigments in his home but could not identify the manufacturer of the pigments could nonetheless recover in a suit against pigment manufacturers. Judge Adelman is now presiding under diversity jurisdiction over four cases against manufacturers of white lead carbonate pigments. In each case the plaintiffs seek recovery based on Thomas. Sherwin-Williams is one of the defendants in those cases, and the company asked Judge Adelman to recuse himself from the cases under 28 U.S.C. § 455(a) on the ground that a reasonable person would believe, based on Judge Adelman’s article, that the judge is unable to decide the case impartially. Judge Adelman denied the motion, and Sherwin-Williams renews its arguments in its mandamus petition. * * *

Mandamus is the appropriate vehicle for a challenge to a district judge’s denial of a motion for recusal based on appearance of bias. * * *

Sherwin-Williams contends that a reasonable observer could conclude from Judge Adelman’s article that he believes that Thomas was correctly decided and that he therefore will not consider Sherwin-Williams’s attacks on Thomas fairly. As suggested in our earlier characterization of the article, we do not think that a reasonable person, having actually read the article, would think that Judge Adelman had expressed any view as to the merits in Thomas in arguing that it and the other decisions fell within the Wisconsin high court’s authority. But the bigger failing in this contention is that, as Judge Adelman noted in denying the motion for recusal, his views of Thomas, to the extent he has any, are irrelevant. Because these are diversity cases, Judge Adelman is obligated to follow state law, as interpreted by the state supreme court. State Farm Mut. Auto. Ins. Co. v. Pate, 275 F.3d 666, 669 (7th Cir. 2001) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 80 (1938)). He cannot revisit the holding in Thomas, not even if he were persuaded that Sherwin-Williams’s objections are meritorious. See Rennert v. Great Dane Ltd. P’ship, 543 F.3d 914, 917 (7th Cir. 2008). A reasonable person would understand this and would appreciate that Judge Adelman’s impartiality in these cases is in no way called into question by anything he may have said about the merits of Thomas.

Sherwin-Williams also argues that the mere fact that Judge Adelman published an article that defends, in some fashion, a ruling that was favorable to certain leadpaint plaintiffs would make a reasonable person suspect that Judge Adelman has an unusual interest in assisting such plaintiffs—i.e., that he has an ax to grind. But someone who was aware of the controversy regarding the limits of the Wisconsin Supreme Court’s power and knew that federal judges may speak, write, and participate in other activities concerning the legal issues of the day, see Code of Conduct for United States Judges, Canon 4A(1), would find nothing unseemly about Judge Adelman publishing a law review article on the topic. Sherwin-Williams suggests that this scenario is analogous to cases in which recusal has been ordered because of a district judge’s comments to the media or at conferences, but in each of those decisions the commented-upon-case was pending before the district judge. * * *

Sherwin-Williams has not established that Judge Adelman’s article would make a reasonable, thoughtful, and well-informed observer question his impartiality. Accordingly, the petition for writ of mandamus is DENIED.

Posted by Marcia Oddi on June 7, 2010 10:46 AM
Posted to Ind. (7th Cir.) Decisions