Case 2023AP000422 State's Response to Petition for Leave to Appeal a No...

Filed 05-24-2023 Page 1 of 10

FILED
05-24-2023
CLERK OF WISCONSIN

STATE OF WISCONSIN COURT OF APPEALS

COURT OF APPEALS

DISTRICT III
____________

Case No. 2023AP422-CRLV

STATE OF WISCONSIN,

Plaintiff-Respondent,

v.

KENNETH A. HUDSON,

Defendant-Petitioner.

STATE’S RESPONSE TO PETITION FOR LEAVE TO

APPEAL A NON-FINAL ORDER ENTERED IN THE
OUTAGAMIE COUNTY CIRCUIT COURT, THE
HONORABLE JAMES A. MORRISON, PRESIDING

INTRODUCTION

Plaintiff-Respondent State of Wisconsin, by its

undersigned counsel and pursuant to Wis. Stat. § (Rule)
809.50(2), opposes defendant-petitioner Kenneth A. Hudson’s
petition for leave to appeal two non-final orders of the
Outagamie County Circuit Court dated March 2, 2023, and
March 16, 2023, respectively, in case number 2000CF403.
The first order disqualified Hudson’s newest attorney,
Michael Balskus, from participating in the case based on
Attorney Balskus’s prior involvement in the case as an
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Assistant District Attorney. The second order denied a motion

for judicial recusal.
This Court should deny Hudson’s petition because he
has failed to show that granting an interlocutory appeal in
this case is warranted under Wis. Stat. §§ 808.03(2) and
(Rule) 809.50, including the requirement that he demonstrate
a substantial likelihood of success on appeal.

BACKGROUND1

The instant petition is the latest in a long line of

postconviction proceedings following Hudson’s conviction of
first-degree intentional homicide, attempted kidnapping,
attempted first-degree intentional homicide, and first-degree
recklessly endangering safety in April of 2001. See generally
Wisconsin Circuit Court Access, Outagamie County Case
Number 2000CF403 State of Wisconsin vs.
Kenneth A. Hudson, available at https://wcca.wicourts.gov/
caseDetail.html?caseNo=2000CF000403&countyNo=44&ind
ex=0&mode=details (hereinafter “CCAP”). The current set of
proceedings began in October of 2022 when Attorney Balskus
filed a notice of retainer in the circuit court. (Pet. 8.) The State
moved to disqualify Attorney Balskus from representing
Hudson in the matter because Attorney Balskus had

1 At this juncture, no record has been prepared in this case.

On April 25, this Court ordered Hudson to provide copies of the
circuit court’s orders that were subject to the petition and with a
copy of the November 9, 2022, transcript related to Attorney
Balskus’s disqualification. Hudson filed copies of the orders, but no
transcripts. The orders, for their part, offer only the reasoning
placed on the record at hearings on November 9, 2022, and
February 24, 2023; no separate written explanation of the court’s
decisions is provided. Therefore, for purposes of responding to
Hudson’s petition, the State relies on certain facts set out in the
petition. The State does not concede any factual disputes that may
arise, however.

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previously been an Assistant District Attorney in Outagamie

County and had been involved in the case. (Pet. 8–9.)

ARGUMENT

An interlocutory appeal is not warranted.

Only final orders are appealable as of right. Wis. Stat.

§ 808.03(1). “The final judgment-final order rule is designed
to prohibit piecemeal disposal of litigation and thus plays an
important role in the movement of cases through the judicial
system.” State ex rel. A.E. v. Circuit Court for Green Lake
County, 94 Wis. 2d 98, 101, 288 N.W.2d 125 (1980). For this
reason, “interlocutory appeals are undesirable, especially in
criminal prosecutions, because they cause delays which are
inimical to an effective criminal justice system.” Id. at 102. As
Michael S. Heffernan stated in Appellate Practice and
Procedure in Wisconsin § 9.5 (7th ed. 2016), the policy
disfavoring interlocutory appeals also recognizes courts’
heavy caseloads.
The criteria for obtaining permission to pursue an
interlocutory appeal are therefore strict and limiting. Under
Wis. Stat. § (Rule) 809.50(1)(c), an appellate court will grant
a petition for leave to appeal a non-final order only if it would
protect the petitioner from substantial or irreparable injury,
materially advance termination of the litigation or clarify
further proceedings therein, or clarify an issue of general
importance in the administration of justice. These same
criteria are codified in Wis. Stat. § 808.03(2).
The burden is on the petitioner to show that
interlocutory review is necessary under one or more statutory
criteria. See State v. Borowski, 164 Wis. 2d 730, 735, 476
N.W.2d 316 (Ct. App. 1991). “The defendant must also show a
substantial likelihood of success on the merits.” State v. Webb,
160 Wis. 2d 622, 632, 467 N.W.2d 108 (1991). That criterion,

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not enumerated in the statutes, may be the most important,

because if a defendant has no substantial likelihood of success
on appeal, none of the statutory criteria can be satisfied. See
id.

A. The issues presented do not warrant an

interlocutory appeal because the petition
does not show a substantial likelihood of
success on the merits.

1. Hudson does not have a constitutional

right to counsel for collateral attacks
on his conviction.

In the first issue presented in Hudson’s petition,

Hudson claims that the circuit court’s order disqualifying
Attorney Balskus from representing him for the filing of a
postconviction motion pursuant to Wis. Stat. § 974.06 violates
his right to counsel under the United States and Wisconsin
Constitutions.2 (Pet. 2.) He is wrong; an order disqualifying
counsel in a collateral attack cannot violate the right to
counsel because there is no right to counsel when mounting a
collateral attack, such as an attack via Wis. Stat. § 974.06, on
a conviction. See, e.g., Brecht v. Abrahamson, 507 U.S. 619,
634–35 (1993); Pennsylvania v. Finley, 481 U.S. 551, 555–56
(1987); Johnson v. Avery, 393 U.S. 483, 488 (1969); Douglas v.
California, 372 U.S. 353, 355 (1963); State ex rel. Warren v.
Schwarz, 219 Wis. 2d 615, 648–49, 579 N.W.2d 698 (1998).
Hudson nevertheless asserts that he has a
Constitutional right to counsel of his choosing for his pursuit
of yet another postconviction motion. (Pet. 13.) Perhaps
thinking the assertion is self-evident, he offers no case law

2 Elsewhere in the petition, Hudson references his “due

process rights.” (Pet. 11.) Hudson does not appear to develop any
argument on that point, however, so the State understands the
petition to raise only the right-to-counsel issue.

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that would establish such a right in a Wis. Stat. § 974.06

proceeding. Instead, he offers only the concurrence in State v.
Jones, 2010 WI 72, ¶ 67, 326 Wis. 2d 380, 797 N.W.2d 378, in
which Justice Ann Walsh Bradley noted that a defendant who
can show he was denied counsel of his choice need not show
deficient performance and prejudice resulting from the
representation of his attorney. But Jones involved the right to
counsel at trial; it said nothing about the right to counsel in a
collateral attack. Id. ¶¶ 7–22. In other words, while
improperly prohibiting a defendant from retaining counsel of
his choice may violate the right to counsel where that right
exists, it does not follow that disqualification of retained
counsel both creates and violates a right that does not
otherwise exist.
Hudson similarly cites Wheat v. United States, 486 U.S.
153, 164 (1988), for his proposition related to counsel of
choice. (Pet. 14.) Like Jones, however, Wheat also involved a
question of counsel of the defendant’s choice at trial. Wheat,
486 U.S. at 155–57. Moreover, the Court in Wheat concluded
that the defendant’s right to counsel was not violated by the
denial of a substitution request because while a trial court
“must recognize a presumption in favor of petitioner’s counsel
of choice,” such a presumption “may be overcome not only by
a demonstration of actual conflict but by a showing of a
serious potential for conflict. The evaluation of the facts and
circumstances of each case under this standard must be left
primarily to the informed judgment of the trial court.” Id. At
164 (emphasis added).
Hudson does not frame his petition as raising the
disqualification of Attorney Balskus as a separate, non-
constitutional issue. Nevertheless, to the extent that such an
issue might be raised, the petition does not demonstrate a
likelihood of success on the merits of that claim, either.
“Circuit courts possess ‘broad discretion’ in determining
whether an attorney should be disqualified in a given case

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and ‘the scope of [appellate] review is limited accordingly.’”

Burkes v. Hales, 165 Wis. 2d 585, 590, 478 N.W.2d 37 (Ct.
App. 1991) (citation omitted). Here, Hudson plucks choice
exchanges from the November 9, 2022, hearing for inclusion
in his petition, but he has refused to file the full transcript of
the hearing despite multiple invitations by this Court to do
so. Thus, if it considers the reasoning of the circuit court’s
decision at all in review of Hudson’s petition, this Court
should assume, pursuant to its May 10, 2023, order, “that the
missing transcript supports the circuit court’s decisions.” A
decision so supported would not be subject to reversal in this
Court; the petition therefore does not show a substantial
likelihood of success on the merits and does not warrant
interlocutory review.

2. Hudson has not shown that he is

entitled to judicial recusal.

In the second issue presented in Hudson’s petition,

Hudson claims that interlocutory review is necessary to
address the circuit court’s denial of his motion for recusal.
(Pet. 14.) Under Wis. Stat. § 757.19(2)(g), a judge shall
disqualify himself or herself when the “judge determines that,
for any reason, he or she cannot, or it appears he or she
cannot, act in an impartial manner.” A biased judge is
“constitutionally unacceptable.” Withrow v. Larkin, 421 U.S.
35, 47 (1975).
This Court assumes that “a judge has acted fairly,
impartially, and without bias.” State v. Goodson, 2009 WI App
107, ¶ 8, 320 Wis. 2d 166, 771 N.W.2d 385. “To overcome this
presumption, the party asserting judicial bias must show that
the judge is biased or prejudiced by a preponderance of the
evidence.” State v. McBride, 187 Wis. 2d 409, 415, 523 N.W.2d
106 (Ct. App. 1994).
There are two types of judicial bias claims: subjective,
which asks whether the judge has personal doubts about his

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or her own ability to be impartial; and objective, which “asks

whether a reasonable person could question the judge’s
impartiality.” State v. Gudgeon, 2006 WI App 143, ¶ 21, 295
Wis. 2d 189, 720 N.W.2d 114. An appearance of bias is a form
of objective bias. Goodson, 320 Wis. 2d 166, ¶ 9. The
appearance of bias is present when “a reasonable person could
question the court’s impartiality based on the court’s
statements.” Id. “[T]he appearance of bias violates due
process when there is ‘a great risk of actual bias.’” State v.
Herrmann, 2015 WI 84, ¶ 40, 364 Wis. 2d 336, 867 N.W.2d
772 (citation omitted).
Here again, Hudson bases his argument on transcripts
he has not provided to this Court. (Pet. 15–17.) This Court
should assume that the transcripts support Judge Morrison’s
decision not to recuse and denying the petition on that basis
alone.
Moreover, the facts Hudson alleges do not reveal a
“great risk of actual bias.” Herrmann, 364 Wis. 2d 336, ¶ 40
(citation omitted). Hudson points to Judge Morrison referring
to aspects of a previous ruling as “malarkey.” (Pet. 15.)
According to the petition, it was somehow inappropriate for
Judge Morrison to inform the parties that he intended to
adhere to this Court’s previous decisions in this case, claiming
that this shows that Judge Morrison has “prejudged this
case.”3 (Pet. 15–16.) It does not; all it shows is that Judge
Morrison was aware of this Court’s previous decision denying
Hudson relief. Hudson is not entitled to have a judge ignore

3 This Court has handled appeals in this case on at least four

other occasions in case numbers 2003AP2083-CR, 2006AP1953-
CR, 2009AP2584-CR, and 2010AP166-CR. In the most recent
appeal, this Court rejected all of Hudson’s claims resulting from
the denial of his “comprehensive” postconviction motion. See State
v. Hudson, No. 2010AP166-CR, 2011 WL 3274162, at ¶ 31 (Wis. Ct.
App. Aug. 2, 2011).

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the existence of that decision when deciding a subsequent

collateral attack.
Hudson further alleges that Judge Morrison received a
letter of recommendation from the trial prosecutor, then-
District Attorney Vincent Biskupic, when applying for an
appointment to the Wisconsin Supreme Court in 2016. (Pet.
17.) He suggests that his current motion alleging
prosecutorial misconduct would require testimony from Judge
Biskupic and would thus require Judge Morrison to weigh the
credibility of a person who recommended him for a seat on
Wisconsin’s high court. Ultimately, Hudson’s allegation is
insufficient to overcome the presumption that Judge Morrison
can act fairly and impartially in his case. Again, Hudson has
to show a “great risk of actual bias.” Herrmann, 364 Wis. 2d
336, ¶ 40 (citation omitted). A seven-year-old
recommendation letter does not meet that standard. Hudson
has not met his burden of showing a substantial likelihood of
success on the merits.

B. Hudson’s petition does not meet any of the

other criteria for granting an interlocutory
appeal.

Hudson cannot satisfy any of the remaining criteria for

an interlocutory appeal, either. First, Hudson cannot show
that an interlocutory appeal is necessary to protect him from
substantial or irreparable injury. As the above analysis
shows, the law is clear that Hudson is not likely to suffer an
irreparable or substantial injury because any eventual appeal
of this issue would be resolved in the State’s favor.
Second, Hudson cannot show that immediate review
will materially advance termination of the litigation or clarify
further proceedings. Because there is no substantial
likelihood of success on appeal, an immediate appeal simply
prolongs the criminal proceedings in this case, which has
already been going on for more than twenty years.

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Third, Hudson cannot show that interlocutory review is

necessary to clarify an issue of general importance in the
administration of justice. The lack of a right to counsel on
collateral attack is well-established, as are the standards for
judicial recusal. To the extent the outcome of an appeal in this
case might turn on the facts presented, this case presents
such a unique factual scenario that it likely would not prove
useful to courts and litigants in other cases. Hudson thus
cannot demonstrate that the administration of justice
requires this Court’s immediate review.

CONCLUSION

The State requests that this Court deny Hudson’s

petition for leave to appeal. However, if this Court decides to
grant the petition, then the State requests the opportunity for
full briefing on the issue.
Dated this 24th day of May 2023.
Respectfully submitted,

JOSHUA L. KAUL
Attorney General of Wisconsin

Electronically signed by:

John A. Blimling
JOHN A. BLIMLING
Assistant Attorney General
State Bar #1088372

Attorneys for Plaintiff-Respondent

Wisconsin Department of Justice

Post Office Box 7857
Madison, Wisconsin 53707-7857
(608) 267-3519
(608) 294-2907 (Fax)
blimlingja@doj.state.wi.us

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CERTIFICATION

I hereby certify that this response conforms to the rules

contained in Wis. Stat. § (Rule) 809.50(4) or Wis. Stat. § (Rule)
809.51(4) for a response setting forth the word count of the
document as provided in sub (1) or (2). The length of this brief
is 2,283 words.
Dated this 24th day of May 2023.
Electronically signed by:

John A. Blimling
JOHN A. BLIMLING
Assistant Attorney General

CERTIFICATE OF EFILE/SERVICE

I certify that in compliance with Wis. Stat. § 801.18(6),

I electronically filed this document with the clerk of court
using the Wisconsin Court of Appeals Electronic Filing
System, which will accomplish electronic notice and service
for all participants who are registered users.
Dated this 24th day of May 2023.
Electronically signed by:

John A. Blimling
JOHN A. BLIMLING
Assistant Attorney General

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