959 N.W.2d 640
Wis.2021Background
- Matter initiated by State under Wis. Stat. ch. 980; circuit court set a probable-cause hearing within 10 days of Matthews' scheduled prison release and appointed counsel.
- Matthews' counsel first met him on the morning of the scheduled hearing and moved to adjourn for additional preparation; the State objected and released its witness for the day.
- The circuit court granted the adjournment conditioned on Matthews waiving his statutory 10-day probable-cause timing right; the parties rescheduled the hearing for August 29.
- On the morning of the rescheduled date, Matthews filed a written judicial-substitution request under Wis. Stat. § 801.58(1), arguing it was filed within 60 days and before any substantive preliminary contested matter was heard.
- The circuit court and Chief Judge Maxine A. White ruled the request untimely, reasoning the adjournment and waiver were a contested preliminary matter; the court of appeals affirmed.
- The Supreme Court reversed, holding "preliminary contested matters" means substantive pretrial issues that affect the ultimate merits and that none had been heard before Matthews filed his substitution request.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a judicial-substitution request under Wis. Stat. § 801.58(1) is timely when filed after a court grants an adjournment of a scheduled probable-cause hearing but before any substantive pretrial issue is heard | Matthews: Timely — filed within statutory period and before the court heard any substantive preliminary contested matter; a motion to adjourn is procedural, not a merits issue | State: Untimely — court had commenced a contested probable-cause hearing; the adjournment and acceptance of the time waiver made the matter "contested" and implicated the merits | The Court held the request was timely; "preliminary contested matters" are substantive pretrial issues going to ultimate merits and there was no hearing of such a matter before the substitution request |
Key Cases Cited
- Pure Milk Prods. Coop. v. Nat'l Farmers Org., 64 Wis.2d 241 (1974) (adopted substantive-issue meaning of "preliminary contested matters" for judge-substitution rules)
- State ex rel. Sielen v. Cir. Ct. for Milwaukee Cnty., 176 Wis.2d 101 (1993) (discusses codification of Pure Milk Products in § 801.58)
- State ex rel. Serocki v. Cir. Ct. for Clark Cnty., 163 Wis.2d 152 (1991) (holding substitution must be requested before court reaches a substantive issue)
- State ex rel. Tarney v. McCormack, 99 Wis.2d 220 (1980) (interpreting "before the judge has heard" preliminary contested matters)
- State ex rel. Carkel, Inc. v. Cir. Ct. for Lincoln Cnty., 141 Wis.2d 257 (1987) (examines policy against ‘‘testing the waters’’ before seeking substitution)
- Eldred v. Becker, 60 Wis. 48 (1884) (historical authority that scheduling a hearing is insufficient; substantive ruling is required for untimeliness)