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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN GREEN BAY DIVISION UNITED STATES OF AMERICA, Plaintiff, v. MENOMINEE TRIBAL ENTERPRISES, MARSHALL PECORE, and CONRAD WANIGER, Defendants. No. 07-C-316

ORDER

On December 4, 2009, counsel for Defendants Pecore and Waniger filed a letter asking that this Court set a briefing schedule for their motion for fees and laying the groundwork for such a motion. (Dkt. # 359.) Almost half of the seven-page letter, however, set forth counsel's concern about this Court's impartiality regarding that motion. Upon review of the letter, I decided to construe it as a formal motion for recusal and directed further briefing on the motion. Counsel has now responded and indicated that he was not seeking recusal but merely asking the Court to "examine any potential biases against the defendants or their lawyers with respect to deciding future litigation in this case." (Dkt. # 368 at 2.) The purpose of the original letter was to "raise questions" about my impartiality in light of what counsel views as a pattern of "deferential rulings" in favor of the government in this action. In counsel's words, the letter was an attempt to explain why, if I ultimately rule against the defendants on their motion for fees, such a decision might appear less than impartial. "[D]efense counsel merely wanted to give the Court a chance to reflect on the question of bias." (Id. at 5.)

I construed the original letter as a motion for recusal because there is no other category in which to place it while still assuming good faith. I am unaware of any procedure, precedent or other instance of counsel filing a letter with the judge presiding over his case in which he cautions the judge to be impartial in the manner counsel has done. Judges do not need to be reminded to fulfill their constitutional duties and live up to their ethical obligations. If the letter was not a request for recusal, then what was it? A threat? Was it a warning that if I do not rule in his clients' favor, counsel will file an ethics complaint? Or was it an attempt to get a "make up call" to balance out the alleged pattern of rulings I made in favor of the government? If the letter was not a request for recusal, it was an improper effort to influence the presiding judge to rule favorably on the expected motion or else face an argument of bias. And that is why I construed it (and continue to construe it) not in those terms but as a formal request for recusal

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