*1 Wisconsin, Plaintiff-Appellant, State
v. Defendant-Appellant, Michael B. Holmes, Respondent. Honorable Robert O. Weisel, No. 81-1669-CR.] [Case Petitioner, Darian Hudson, ex rel. State County Honor Court, Milwaukee Circuit Branch Ralph Fine, County presiding, able Adam Milwaukee Division, Court, Felony Clerk of Circuit Criminal Respondents, Wisconsin, Intervenor-Respondent.
State No.
[Case 81-1774-W.] Supreme Court 81-1669-CR, Argued Nos. December 81-1774-W. 1981.— February 2, Decided 1982.
(Also reported 703.) in 315 N.W.2d *2 argued by plaintiff For J. cause was David Becker, on Bronson La with whom the briefs was C. general. Follette, attorney No. 81-1669-CR.] [Case argument For the defendant there was brief and oral by Spring Valley. Brent Hammarback J. No. [Case 81-1669-CR.] respondent
For the there was a David L. brief Wal- ther, Sundguist Hailing John and Walther & of Mil- waukee, argument and oral L. David Walther. [Case No. 81-1669-CR.] *3 Mitby,
Amicus curiae brief was filed John C. Steven J. Brynelson, Herrick, Schooler Gehl & Bucaida of Madison, Litigation for State Bar of Wisconsin Section of the Bar State of Wisconsin. No. 81- [Case 1669-CR.]
For petitioner argument there awas brief and oral by Harvey Goldstein of Milwaukee. No. 81-1774- [Case W.]
For respondent, Ralph Fine, Honorable Adam there awas Snndquist brief L. Walther, David John Walther Hailing & of Milwaukee, argument and oral by David L. Walther. No. [Case 81-1774-W.]
For intervenor-respondent argued by the cause was Farwell, Daniel S. attorney assistant general, with whom on the brief was Bronson Follette, gen- La attorney C. eral. No. [Case 81-1774-W.]
SHIRLEY S. ABRAHAMSON, J. Each defendant request filed for judge timely in a man- ner proper and in pursuant form 971.20, to sec. Stats. request Each circuit court denied the on
1979-80. legislative ground that sec. 971.20 is an unconstitutional functioning with the interference branch in violation of the Constitution. Wisconsin permits a defendant to file a statement
Sec. 971.20 requests that “the a substitution for the Hon. defendant judge.” 971.20(5), . . . The Sec. Stats. 1979-80. give request for substitution need no reason for requested grounds substitution and no for substitution proved. request need be When the is for substitution proper timely filed in manner, form and in a the cir- judge authority cuit it whom is addressed loses to act in the case.1 Sec. 971.20 creates what is often called 1979-80, provides Sec. Stats. as follows: judge. (1) “971.20 Substitution of or the defendant defend- attorney may ant’s request with the clerk a written a sub- file for judge assigned stitution a new to the trial request signed by ease. The shall be the defendant or the defend- attorney personally ant’s making any and shall be made before mo- arraignment. assigned tion or before If a new is to the trial case, request of a days for substitution must be made within 10 receipt assignment, provided of notice of that if the notice of as- signment days prior trial, request less received than 10 receipt substitution must be made within 24 hours of of the notice provided if notification is received less than 24 hours prior trial, proceed only upon stipulation the action shall to trial parties assigned may preside that the at the trial of the action. “(2) Upon filing request proper and within form *4 proper judge the request time the authority named in the has no to except act in the case appearance, conduct the initial further ac- pleas cept guilty, of not Except provided and set bail. as in subs. (7) (8), judge may no more than one any be substituted in ac- tion. “(3) procedure (1), addition to the request under sub. a judge may the substitution of a by also be made the at defendant preliminary except request examination that the must be filed appearance days at initial or at preliminary least 5 before the examination permits. unless the court otherwise right substitution, peremptory a we shall some- times refer to sec. 971.20 a substitution statute.2 section, “(4) judge a When substituted under this clerk request assignment judge s.
circuit of another under shall court 751.03. “(5) request (1) may following in the in sub. form: “STATE OF WISCONSIN. “.County.
“.Court “State of Wisconsin
“vs. “.(Defendants requests “Pursuant to s. 971.20 the defendant a substitution for judge the Hon.as in the above entitled action. “Dated. “.(Signed by personally) defendant “(6) Upon filing agreement by signed of an the defendant proceeding, attorney, by in a prosecuting criminal action or original judge for which a substitution of a new has been made, judge, proceeding the new or the criminal action pertinent original judge. records shall be transferred back to the “(7) preliminary If the who heard the is the examination assigned case, same who is to the trial of defendant attorney may request or (1) with- defendant’s file a under sub. days preliminary in 7 after the at examination or the time arraignment, first, right whichever occurs and still retain the request one additional under sub. “(8) upon appeal judgment upon If an from a or order or appellate writ of error the court orders a new trial or reverses or judgment pro- modifies or order in manner such further ceedings necessary, in the trial court are the de- the defendant or attorney may request days (1) fendant’s file a under within 20 sub. entry judgment appellate after the or decision of the request ap- prior whether or not another was filed to the time the peal (Emphasis added.) writ error taken.” was Dictionary, p. (1968), Black’s Law Bevised Fourth Edition (1968), “Imperative; peremptory: absolute; defines conclu sive; positive; admitting question, delay, not or reconsideration. decisive; Positive; final; admitting any not Self- alternative. determined; arbitrary; requiring any to be cause shown.” phrase peremptory pro- We use the describe cedure, 971.20, whereby per- like that created substitution is *5 present
The which the issue of the uncon two cases stitutionality of sec. 971.20 have come to this court procedural Holmes, different routes. In State v. Case Holmes, 81-1669-CR, defendant, No. Michael B. charged operating with vehicle while motor under the intoxicant, request influence an filed a for substitu pursuant tion to secs. 971.20 and 1979-8 Stats. Weisel, county, 0.3 circuit The court for Polk Robert O. judge, against request circuit whom the had substitution hearing filed, upon been set a its own motion for the purpose considering constitutionality of the stat governing judges.4 By utes substitution of memorandum August 21, 1980, dated the circuit court for decision Polk county governing declared that all statutes sub Separation stitution of “violate the of Powers request Doctrine” and denied the defendant’s for sub stitution. Both petitioned the state and the defendant appeals the court appeal for leave to this non-final granted appeals order. The court petition appeal, 808.03(2), leave to 1979-80, sec. Stats. certified the matter pursuant to this court to sec. 808.05 (Rule) 809.61, sec. Stats. 1979-80. On October accepted this court the certification.
In State ex rel. Darian Hudson County v. Milwaukee Courts, Circuit 81-1774-W, Case No. defendant, request upon mitted any to substitute which does not set forth al- legation why requested require proof any why substitution is nor granted- procedure be should Such a should dis- tinguished pre-1969 required from Wisconsin’s law which an affi- alleging prejudice part davit on judge, although no proof statement allegation of factual basis and no were re- quired. Although courts and commentators have used the word “peremptory” types statutes, to describe both of substitution we use substitution to refer to statutes such as sec. 971.20. parties agree applicable now sec. 346.315 case at bar. 4 There are other substitution statutes similar to sec. 971.20 (criminal proceedings) (traffic proceedings). and sec. 345.316 See (civil (small proceedings); proceed 801.58 sec. sec. 799.205 claims ings) ; (juvenile proceedings), 48.29 Stats. 1979-80. *6 request Hudson, charged burglary, filed with Darían 971.20, pursuant for sec. Stats. 1979-80. to county, Ralph Milwaukee Adam The circuit for request Fine, judge, against the had been circuit whom parties filed, constitution- ordered briefs from on the the ality September statute, upon of the own motion. On its briefing 18, 1981, period, prior expiration to the of the appeals petitioned the to exercise defendant the court supervisory jurisdiction over the court. de- circuit sought ordering Judge prohibition fendant a writ of taking any Fine to refrain from further action in the 809.51, (Rule) matter. the Sec. 1979-80. At Stats. petitioned bypass same the time defendant court to this appeals (Rule) the pursuant court of to sec. 808.05 and sec. 809.60, filing petition Stats. 1979-80. Defendant’s stayed bypass taking to appeals the court of from under petition supervisory submission defendant’s writ. (Rule) 6, 809.60(3), Sec. Stats. 1979-80. On October 1981, granted agreed this court petition bypass the to to petition decide defendant’s supervisory writ. The granted court also the state’s motion to intervene. interim, by the September memorandum decision dated 24, 1981, the county circuit court for Milwaukee declared that sec. 971.20 is “a massive and intrusion unwarranted upon and with interference the circuit court’s constitu- tionally jurisdiction vested repugnant itself. As such it is VII, to Article sec. .”5 [Wis. Const.] 5 By an judges order dated October to all trial directed record, attorney general courts of public and the state de fender, court, pursuant superintending this to its and administra powers, VII, 3(1), tive Art. Constitution, required Wisconsin pending disposition that cases, timely prop instant all erly requests filed for substitution of should be determined constitutionality without 971.20(1), consideration of sec. Stats. 1979-80. Both the defendant and the assert state see. 971.20 is constitutional. appointed represent This court counsel to judges. the circuit below, we conclude that forth reasons set
For the sponte power raise sua have the to circuit courts constitutionality 1979- of sec. Stats. issue of bar exer- in the cases at the circuit courts manner. fur- power proper in a fair and We this cised fair was enacted to foster conclude that sec. 971.20 ther ensure fair trial trial and that substitution of subject system aspect which trial is an legisla- legislative regulation. Any such to reasonable is, however, subject regulation court’s au- tive integrity judicial system thority preserve integrity separa- preserve and to doctrine of *7 beyond powers. proven Because it has not been tion of materially impairs a reasonable doubt that sec. 971.20 practically juris- the circuit court’s defeats exercise of functioning ju- power proper diction and or the of the 1979-80, system, 971.20, dicial we hold that sec. Stats. separation powers. does not violate the doctrine of I. reaching constitutionality
Before the issue of the challenge we must consider the defendants’ authority to the circuit courts’ to raise the issue the constitutionality sponte. of sec. sua 971.20 challenge predicated
The defendants’
is
on the oft-
constitutionality
stated rule that the
of a statute can be
only by party
rights
raised
directly affected,
whose
are
party
personal
who has a
controversy.
stake in the
Wirth
Ehly,
2d
448-49,
Wis.
It is true neither “party” in these cases and therefore is a “standing” judge has nor the circuit the circuit court question. But the pose doctrine the constitutional issue standing applicable to case at bar. The is not “standing” to at not the circuit court’s in the case is bar sponte, but rather a constitutional issue sua raise litigation. during proper role the circuit court apparently There are theories two inconsistent theory (or proper appellate) role of court. the trial One litigants lawsuit control course of the is questions presented to and determine the nature of the theory The that the have courts. other courts responsibility the law to decide cases accordance with responsibility be and this is not altered or diminished identify parties, cause counsel fail to an issue.6 That the courts, ques not the should determine nature of outgrowth adversary presented tions natural is a system heavy of most workload courts. courts, litigants case, are familiar most with the especially courts, trial do the time do not have or staff to original every research case discover issues parties. raised That a court should raise issues *8 sponte outgrowth sua is natural func the court’s justice theory parties. Although tion do between the practice against raising w sponte militate a court’s legal issues, recognized may it well sua that courts 6 Libby See, Co., 602, v. Central Trust 599, Wisconsin 182 Wis. Courtroom, (1924); 109, 121, In re 206 134 197 N.W. 148 Wis. Meyer Garthwaite, v. (1912) ; 571, N.W. 490 92 Wis. N.W. 704 66 (1896). Sponte Appeal, Tate, Sua on Judges’ 9 Trial Consideration J. Cf. Sponte Review, (1970); Appellate Vestal, Sua Consideration in 68 (1959). 27 Ford. L. Rev. 477 40
sponte
legal
parties.
not raised
consider
issues
See, e.g.,
Keller,
ex
Bar v.
16
2d
State
rel. State
Wis.
(1962).
380, 114
796, 116
141
N.W.2d
N.W.2d
Courts of course
reluctant
to consider
should be
required by
constitutionality
the case.
of statutes unless
Laufenberg
Examining Board, 87 Wis.
v. Cosmetology
175, 187,
(1979).
2d
Furthermore, because sec. 971.20 affects the circuit
judicial system
court’s role in the
state,
the cir-
bringing
cuit
question
courts
into
validity
sponte
statute sua
ais
valid exercise of what this court
has
described
powers
inherent and incidental
a circuit court. A circuit court
power
has “inherent
protect
against any
itself
unreasonably
action that would
powers
materially
curtail
its
impair
efficiency
its
....
Circuit courts
power necessary
have the incidental
preserve
the full and free
exercise of their
functions,
may,
and to that end
appropriate
cases,
parte
ex
make
orders
formally
without
instituting an
action to secure the desired
relief.”
Re
Room,
Court
(1912).
Wis.
Any objection to the raising circuit court’s the issue sponte grounds sua on the impropriety theoretical *9 usurping or the function of counsel court’s of the circuit adversary system theoret- interfering or with the litigants elimi- is diminished ical unfairness to litigants giving notice the circuit court’s nated argue opportunity to an the issue and its consideration of any bar, was In at before decision the cases the issue. question rendered, of con- posed the each circuit court op- gave parties an stitutionality parties to the legal arguments Each portunity present to on issue. constitutionality carefully circuit court considered memorandum decision the statute and issued written legal precedents carefully and which which reviewed the legal forth the rationale for the decision. set summary, conclude that circuit courts have we power constitutionality of a stat- to raise and decide the though posed by parties ute even the issue was that the circuit courts in the instant cases exercised power proper manner. turn now a fair and We constitutionality challenge merits to the of sec. 971.20.
II. appeal The sole issue on this is whether sec. 1979-80, appli Stats. the substitution of statute cases, cable criminal state violates the constitution. presumption constitutionality A attends sec. 971.20 every legislative enactment, as well as the burden proving beyond a statute unconstitutional a reasonable upon party attacking County .doubt rests the statute. Portage Steinpreis, 2d 312 N.W. Wis. of 2d 731
(1981).7 constitutionality law, need issue of one and this not defer the determination of court. the circuit *10 courts unconstitutional The circuit declared 971.20 separation powers Al- of doctrine. as violative of the though separation powers ex- principle is not of of constitution, pressly implicit in it is stated the Wisconsin vesting legislative, ju- provisions in executive govern- separate powers in branches of state dicial three provisions pertinent constitutional are ment. The state as follows: legislative power in “The shall be vested a senate and assembly.” IV, 1, Art. Sec. Const. Wis. governor power vested in a “The executive shall be . . V, . .” Sec. Art. Wis. Const. judicial power “The of this state be shall vested system consisting supreme court, court unified of one appeals, general a court of trial such courts of legislature uniform jurisdiction by may statewide as the create municipal legisla-
law and a court if authorized . . VII, ture . .” Sec. Art. Wis. Const. supreme superintending “The court shall have authority 3(1), administrative over all courts.” Sec. VII, Art. Wis. Const. justice supreme chief “The court shall judicial system administrative head and shall authority pursuant exercise this pro- administrative adopted by supreme cedures justice court. chief assign may any judge aof court of record to aid proper disposition any business except record supreme 4(3), VII, court.” Sec. Art. Wis. Const. The Wisconsin constitution separate creates co three government, ordinate branches no branch subordinate other, arrogate no branch to to itself control over except the other provided by as is constitution, no branch power to exercise the committed the con stitution to another. however, This recognized, court has that the constitution does not legislative, define executive judicial power and that it possible is neither nor practicable classify “to accurately gov all the various belongs power say this powers and to ernmental belongs power department exclusively to one Case, Integration Bar exclusively to another.” “great are There 8, 45, 11 N.W.2d Wis. power”8 “twilight zone[s]”9 borderlands —“vast — ambiguous territory”'10 it is which dif stretches —in of one branch the functions ficult to determine where separa begin. The doctrine of end and those of another strict, complete, ab powers does not demand tion of *11 the three solute, of functions between scientific division separation government. powers The of doc of branches shared, than com principle of rather states the trine gov pletely separated powers. The envisions a doctrine sharing powers. separated certain ernment of branches Conta, 679, 709-711, ex rel. Kleczka v. 82 2d State Wis. ; Layton Art 3, (1978) School & n. 264 539 N.W.2d of 324, 347-48, Design WERC, 2d 262 82 N.W.2d Wis. 503-4, 501, Case, (1978); Rules 204 Court Wis. 218 of Revisor, Appointment (1931); In re 236 717 N.W. of 597, 592, (1910). 124 670 For a discus 141 N.W. Wis. Wisconsin, separation powers the doctrine of of in sion of Separation Resh, see Powers —Control Currie & of of Leg. Lawyers, 7; Courts and Dec. 1974 Bar Bull. Wis. Supreme Bureau, the The Powers Ref. Wisconsin of 76-RB-1, 1976). (Res. Jan. Matter Court Bull. See also Salary Director, 232, Juvenile 2d 87 552 P.2d Wash. of of 163, (1976). 166-172
Regulation
of
the
of substitution
falls within
ambiguous territory
vast
of
in
above described
stretches
branches, namely
judicial
which the
functions
two
the
8
Appointment
592,
Revisor,
re
141
are to integrity maintained but of the courts be fairness operation courts be conducted also that suspicion of un- such a as will avoid even manner fairness. express,
It in- is well established that this court has herent, implied judicial power. incidental Judicial power beyond adjudicate power particu- extends controversy regulate encompasses power lar adjudication. matters related to The nature con- grant judicial power stitutional has been described this follows: “. . people by . when the means of the constitution courts, they judicial established powers became with all endowed carry essential to out the functions dele gated to them. ... But the constitution makes no at tempt catalogue granted. powers pow . .. These ers are incidental, implied, known as powers, or inherent all of which terms powers are used to describe those necessarily which must depart be used various government ments of they may efficiently in order that *12 perform the imposed upon functions people.” them the Cannon, State 401, v. 402, 199 (1929), Wis. 226 385 N.W.
quoted 517, approval with 508, in In re Kading, 70 Wis. 2d 409, 235 63, N.W.2d 238 N.W.2d 239 297 N.W.2d (1975). grants Thus the constitution supreme the power to adopt necessary measures for the due of administration justice state, in including the assuring litigants a fair trial, and protect to judicial the system courts and the against any action that unreasonably would curtail powers or materially impair efficacy or courts judicial system. Such power, properly used, is essential to strong maintenance of independent judici- and ary, necessary component system of government. our of
45 judicial power this past, in of its In the the exercise budget, regulated the court administra- court has court’s tion, bar, procedure, appointed practice and has public expense, judicial of at code counsel has created a judges.11 disciplined ethics and has 1 1 Admin., Dept. 311, 2d 316- ex rel. Moran v. 103 Wis. State of 508, 517, 317, (1981); Kading, 235 In re 70 Wis. 2d 307 N.W .2d 658 409, 63, (1975); N.W.2d 297 Code N.W.2d 238 N.W.2d 239 Judi of Ethics, 873, 252, 254, cial 565 36 153 155 N.W .2d Wis. 2d N.W.2d 500, Bar, Integration 523, (1967); re 25 In Wis. 249 N.W.2d of Case, 40-41, (1946); Integration 8, 11 527-28 Bar 244 Wis. of Cannon, 604, 699, (1943); re 586 N.W.2d 12 N.W.2d 151 ALR ; Cannon, 374, 392-94, (1932) v. 199 206 Wis. N.W. 441 State 240 534, 401, 402, (1929); Cannon, Wis. 536, 385 State 196 Wis. 226 N.W. v. Room, 121, (1928); 109, 148 221 N.W. In re Wis. 603 Court City Carpenter, 288, (1912); v. 134 302, 490 Janesville 77 Wis. N.W. of Court, Supreme (1890); Wis. 46 N.W. In re Janitor 35 128 410, Carpenter County (1859). (1874); Dane, v. 274 419 9 Wis. urge to amend 971.- Counsel for the circuit this court sec. pursuant 751.12, 20 brief of the attor- Stats. 1979-80. The sec. ney general question is a substantive raises sec. 971.20 whether subject rule-making power statute, under this sec. court’s only is sec. 971.20 751.12. The issue before court whether this separation powers doc- unconstitutional as violation of the modify may should, may, sec. trine. this court and if it Whether pursuant statutory rule-making power, 971.20 its presently 1979-80, question the court. Stats. is not a before are For statutes a discussion of whether “procedural” constitution in of the Alaskan “substantive” terms authority provision vesting supreme to “make al court with the practice promulgate governing procedure in civil rules courts,” State, 552 P.2d criminal cases in all see Gieffels Bernhardt, Flying, (Alaska 1976); Inc. v. 451 P.2d Channel Judges (Alaska Note, Peremptory Challenge 1969); Courts, Alaska L Rev 293-4 6 UCLA-Alaska Congress Flexibility Martin, Inherent Power: See also Judicial Evidence, Tex. L. Rev. Into Federal Rules Did Not Write Legislative Amsterdam, (1980); Over Judicial & Control Levin Revision, Rule-Making: U. L. Pa. A Problem Constitutional (1958); Comment, Power: Determin An Inevitable Clash Rev. Proper Legislature ing Administration Role *13 (1977). Justice, 387 22 S.D. L. Rev. 46
Although
separation
powers
prohibits
doctrine
legislature
acting
spheres
in certain
which are
from
courts,
exclusively
power the doctrine
within the
legislature
necessarily prohibit
exer-
not
from
does
legislative
making
cising
public policy
powers in
its
areas
may
way
gov-
judicial
affect the
some
branch of
Integration
8, 52,
Case,
ernment.
Bar
244 Wis.
11
(1948),
604
we
N.W.2d
stated:
legislature
power
no
“While
has
constitutional
to
compel
or,
acts,
particular
the court to
if it
act
to act in a
way
discharge
may
function,
in the
it
propriety,
nevertheless
power
with
exercise
its
discharge
duty,
upon
of its
declare itself
questions relating
general
to
welfare ....
The
court,
of the
exemplified during
history
as has been
the entire
respect
and,
already
state will
such declaration
as
adopt
indicated,
they
them
far
so
do
embarrass
impair
the court or
its constitutional
functions.”
legislature,
duty
The
to
promote
obedience
its
to
public interest, may enact
laws to assure fair
trial.
In re Cannon,
374, 381,
206 Wis.
Cf.
N.W.
legislature may
The
enact
pro-
statutes which
vide
assuring litigants
the means for
their constitutional
right
have their cases
judge,
heard
an unbiased
legislature
and the
may, to
public
effectuate
policy
maintaining
judicial system
a fair
public
con-
system,
fidence in
grant
litigants
rights
broader
challenge
granted
than are
under the constitution
litigants
so that
are assured
actuality
both the
ap-
pearance of a fair trial.12
right
Judge
an unbiased
exists under
the federal
(Fourteenth Amendment)
(Art. I,
8)
and state
constitutional
guarantees
process
of due
but the
boundaries
the constitutional
right are not well
Knoblock,
defined. State
44 Wis. 2d
134-
(1969);
N.W.2d
ex
State
rel.
Bowman,
Mitchell v.
5, 6-7,
Wis. 2d
(1972);
47 courts other state conclude, as have therefore We of question, that substitution this considered which have system is judicial which aspect trial an of is legis- any legislative regulation such subject and that to authority to regulation subject to this court’s lative system pre- judicial and to preserve integrity separation of integrity of of doctrine serve 460, Rptr. Superior Court, powers. Solberg v. 137 Cal. 1148, (1977). 561 P.2d 1154 legislative
Indeed, on the sub- enactments Wisconsin pre-state- ject prejudice judge a can be traced to of years. Territory of Wisconsin hood See Statutes 10-12, (1839), p. Laws of Wisconsin sec. 197. See also (State) 11, 1848, p. 22. over Concerned uncertainty prejudice response bias and to the judicial disqualification,13 of the common law rules of many century legislatures adopted 19th statutes state regulating disqualification judges and judges. prejudice” procedure in
The first “affidavit of Wis- substituting judge appears consin in the context 521, 530, (1974); Tumey 510, Ohio, v. 215 541 273 U.S. 523 N.W.2d (1927); Murchison, (1955); Mayberry 133, In re v. 349 U.S. 136 Pennsylvania, (1971); Village 455, 400 v. Mon U.S. 465 Ward roeville, 57, (1972). Further, 9, 409 61-62 sec. Art. I of U.S. every provides person “ought Wisconsin obtain constitution to justice being purchase it, completely freely, obliged and without delay, conformably denial, promptly and without without provision laws.” A has been similar Minnesota constitutional right judge. construed to include the to trial before an unbiased Payne (1946). Lee, 269, 259, 262, 222 24 Minn. N.W.2d 264 law, disqualified hearing a At common from was kinship pecuniary interest, matter for limited reasons —direct parties, previous participation one of the in the matter. State Houser, (1904); ex rel. Cook v. Wis. N.W. 964 Report, Disqualification Judges Prejudice or Bias —Common Evolution, Status, Oregon Experience, Law and The Current Or. L. Rev. 315-32 change of venue statute the Revised Statutes of
1849,14and reads as follows: providing In addition to substitution of the on motion legislature party, prohibited the Wisconsin has from hearing determining proceeding an action or certain under cir *15 1977, disqualifying judge Prom cumstances. until the law the acting substantially from in 87, a case remained Ch. the same. sec. 20, 1849, Stats., provided Rev. as follows: judge any “In case the of the circuit court shall be interested in pending aqted court, cause or in such causes or shall have as attor- ney, parties thereto, solicitor or counsel for either of the the said judge power shall not have to hear and determine such cause or causes, except by parties thereto; upon motion, consent judge change the adjoining said shall a order of venue to an cir- cuit, judge the of said circuit shall hear and determine said cause or causes.” Bowers, 76, 126 74, (1910). See McIntosh v. 143 Wis. N.W. 548 256.19, 1975, similarly provided: Sec. Stats. Judges disqualified, judge “256.19 any any when. In case of any court of record proceeding shall be in interested action or in attorney such or court shall or have acted as counsel for either of parties judge power the thereto such shall not have hear to and de- proceeding any therein, termine such action or or to make order ex- cept parties with the consent of the thereto.” By 135, 8, legislature ch. sec. of Laws dealt with has disqualification judge comprehensive of in a more manner. See Stats. 1979-80. The disqualification of Code Judicial Ethics a with of deals judge as follows: judge “SCR 60.03 Conflict of interest. A shall his not exercise respect any or by her duties with which matter in a near relative marriage party, or appears blood is a has an interest or as a coun- judge participate any A shall sel. in matter in which he or she significant previous- a has financial interest or in which he or she ly acted as counsel. “COMMENT major rule covers of “This those conflicts interest which should automatically disqualify judge. many will There be lesser situa judge’s propriety may tions in which the own sense of indicate that disqualify may he or or There she himself also be even herself. in lesser situations which will determine full dis any . . . which party civil “. . cause . If either state, may any of record in this shall pending be court county trial in the will not receive he fair fear pending, on account that which is such cause may apply prejudiced party or . . . such interested vacation, any judge in time, in term or by setting application, petition, cause forth of praying change accompanied an venue, af- stated; verifying petition fidavit facts judge, applica- such court tion reasonable notice of having given opposite party, or his at- been to the allegations, torney, shall, if satisfied of the truth of the change county award a the causes venue to some where complained Sec. (Emphasis supplied.) . do not . exist . ch. Rev. Stats. 1849. require proof statute was in 1853 to construed prejudice, falsity actual the truth or was to which Hungerford determined or court. Cushing, (*397), (*403-405) 292Wis. 297-299 legislature effectively Hunger- 1853 the overturned by amending proof the 1849 to eliminate statute ford prejudice
or determination factual or of the legal prejudice. provided basis of The 1853 law that where an provided by “affidavit” was made as the 1849 statute, duty “it judge shall be the or court application which such change is made to award such of venue.” 1853, 51, Laws of ch. 1. sec. also See Laws of 1853, 75, 1, extending ch. sec. prejudice the affidavit of to criminal cases. statutory procedure for automatic substitu- judge
tion filing of a on the of preju- an affidavit of dice remained the law of years. this state for over 100 Immediately prior to 971.20, the 1969 enactment of sec. adequate.” closure to counsel 60.03, See SCR of Code Judicial Ethics, 252, 259, 36 Wis. 2d 873, 153 N.W.2d 155 N.W.2d Rule See also American Bar Conduct, Association Canons of Judicial Canon 3. 1979-80, 956.03, governed Stats. Stats. the substitution of in criminal required cases and the filing prejudice,15 an stating of affidavit of that the Prejudice Change judge. (1) “956.03 of venue or judge; of judge judge presiding If the has acted as attor another called. ney pending action, for a defendant or for in the state the or aif moves, provided actions, in the manner in civil defendant for change prejudice judge, venue on account the the another of of judge provided try shall be called in the manner civil actions in action, except county the containing that in courts 3 or more branches the be case shall to the clerk referred who in ac shall assign cordance with rules said court the case to another proceedings. branch of that court for trial or other The time of may making such motion be for extended cause but not more than days. felony days In cases the motion shall be within made arraignment after his and before the case is for trial. called misdemeanor, ordinance and traffic forfeiture cases time for arraignment such motion shall be at at time defendant jury only demands a trial if one is demanded. In either case one prejudice any such motion shall be allowed and the affidavit of such misdemeanor or ordinance case shall not name more than one (Emphasis county judge.” supplied.) The substitution of statute in civil actions to which (sec. above) criminal statute 956.03 made reference was sec. provided Stats. which as follows: changed judge’s prejudice; calling judge. for “261.08 Venue other (1) Upon application any party, affidavit, who his files good to, believe, he has reason and does that he cannot have a fair prejudice judge, him, naming trial on account request justice supreme shall the chief court or other justice designated to call some other to attend and hold court during purpose exercising juris- the current or next term for the proceedings applications diction all actions and in which change place of trial have been made for such And reason. judge may while so attendance said make all orders and hear all applications may brought hearing. and motions on If purpose, other no can hold court for such *17 at either of such terms, place changing an order of trial shall be entered on the day event, however, of the next first term. no shall a against prejudice whom an affidavit of has been filed allowed to judge.” (Emphasis supplied.) choose the successor
51
to,
believe,
good
party
he can
“has
reason
and does
that
prejudice
a fair trial on account of the
not have
allegation
effect,
more,
simple
judge.”
that
A
without
judge.16 It
sufficient
was
obtain
allegation alone,
proof
prejudice
was
without
existed,
permitted
judge,
fact
substitution of the
allegation imputed prejudice.
because
Bachmann v.
436,
City Milwaukee,
435,
2
(1879).
47 Wis.
N.W. 543
judges
pre-
Counsel for the circuit
concede that
relating
1969 Wisconsin statutes
to substitution
They
are constitutional enactments.
cite numer-
jurisdictions
upheld
ous cases from other
which have
falling
prejudice
similar affidavit of
statutes as
within
legislature’s
power
constitutional
reason-
to enact
impartial
able laws to assure fair and
trials.17
16
complying
timely filed,
Once an affidavit
with the statute was
jurisdiction
anything
the trial
no
but make a
to do
“ha[d]
proper
calling
order of removal and initiate
in another
action
Co.,
judge.”
Dutcher v. Phoenix Insurance
599,
591,
155
37 Wis. 2d
Luedtke,
Luedtke
(1968).
567,
v.
N.W.2d 609
See also
29
Wis. 2d
Reid,
569,
(1966);
521, 524,
Schwanke v.
139
553
N.W.2d
16 Wis. 2d
Winter,
v.
240,
Woods
(1962);
247,
The crux judges peremptory for the circuit is that the sub- counsel significantly law different from the affidavit stitution validating arguments prejudice statute that prejudice support statute not the affidavit of do validity of Counsel substitution statute. arguments striking judges posit for two the circuit for First, argue down sec. Stats. 1979-80: counsel designed that sec. 971.20 is to assure fair and im- partial judicial proceedings and therefore statute general upholding fall does not within the rule sub- legislative power stitution statutes as a valid exercise of argue Second, to assure fair trial. counsel that sec. substantially impairs practically 971.20 defeats the jurisdiction power exercise the circuit courts’ functioning proper judicial system. We shall argument consider each in turn.
I—I I—II
judges
Counsel for the circuit
contend that sec. 971.20
not,
does
precursors,
contrast
regulate
its
sub-
stitution of
purposes
trial
for
assuring litigants
They
legislative
fair trial.18
assert
that
purpose
give
of sec.
attorneys
971.20 is to
defense
a tactical ad-
vantage,
i.e., an opportunity
any
to strike a
reason
argue
whatsoever. Counsel further
this
legislative purpose
justify legislative
cannot
interference
functioning
with the
system
of the court
and accord-
Prejudice
davit Bias or
Disqualify
Judge, A.L.R.
Sufficient
(1927) ; Note, Disqualification
Judges
Prejudice or Bias
Law, Evolution,
—Common
Oregon
Current
Experi
Status and the
ence,
311, 349,
(1969).
48 Or. L. Rev.
n. 209
legislative
purpose
This
has
said
for the affi
prejudice
preserve
davit of
person’s
statute
right
was to
“a
to a
State,
fair trial.”
Meverden v.
Wis.
Every
appellate court which
state
has considered
*19
peremptory
has invalidated the stat-
substitution statute
ute,20 reasoning,
judges,
circuit
as do counsel for the
legislature
allowing
whim, caprice,
the
in
the
or
lawyer
litigant
power
uncontrolled
of a
or
to determine
power
judge
of a
to hear a case
an un-
has created
warranted
unlawful
with
interference
the constitu-
orderly processes
tional and
of the courts. Counsel for
judges urge
reasoning
adopt
the circuit
us to
set
Oregon
distinguishing
Supreme
forth
in
Court
19Judge
971.20(1)
re
Weisel also noted in Holmes that sec.
pugnant
VII,
7,
provides
to Art.
sec. which
that circuit
qualified
“shall be chosen
electors” of each
circuit.
Judge
971.20(1) may operate
Weisel concluded that sec.
to disen
by permitting
franchise the electors
their
criminal defendants and
prevent
attorneys
duly
lawfully
hearing
as
elected
from
signed
permits
criminal cases. The statute
the “Bar” to “make
particular
any
particular
sure that a
never
case or a
hears
any
long
judge.”
kind of case or
as
he
criminal case
sits as
Holmes,
p.
Memorandum Decision at
8.
argument
people
persuasive.
We do not find this
When the
elect
they
judge,
presumed
are
to know that
in accordance with
legislative
legis-
representatives
enactments of their
elected
lature,
judge may
permitted
a liti-
not
to sit on a case where
gant properly
Having
right
elected
exercises his
to substitution.
judge subject
qualification
jurisdiction,
judge’s
to that
on the
they
are not
from a
“disenfranchised” when the
is removed
by operation
case
ex rel. Knox v.
substitution statute. State
Shelby
Court,
57,
Superior
554,
Co.
Ind.
59-60
259
290 N.E.2d
(1972).
20
Goldman,
6,
(1978);
ex
Johnson v.
P.2d 929
State
94 Nev.
(1955);
Vandenberg,
326,
rel. Bushman v.
203 Or.
the reason affidavit of statute is [the constitutional and the is substitution statute Vandenberg, State v. not].” 203 Or. 280 P.2d (Emphasis original.)21 *20 Supreme The California Court re concluded that a statute quiring prejudice an peremptory affidavit of would be valid but a not, reasoning substitution statute would as follows: “Nothing bias, is prejudice, in the said new about section inter- est, any recognized ground or disqualification. other for by respondent “It by is not appearing contended the or those disqualification his causes, behalf that for other such as interest or relationship amply provided apart is not from But 170.5. section earnestly good it is present contended that reasons are often which prevent judge trying particular they should a from a case but that proper subject proof are either not the of averment and or are not susceptible proof. incompetence, irascibility, of Mental arbitrari- discourtesy ness, counsel, litigants, witnesses, to and other temperamental obliquity, suggested good removing are as cause cause, nigh from the trial of a but are said to be well im- proof possible legally disqualify of sufficient to and that therefore peremptory challenge only way meeting the the of is the situation. regrettable sufficiently grave jus- It is that causes such seemed to tify legislation. this put litigant power “But to in the of a hands uncontrolled to dis- lodge reason, admittedly without reason or for an undisclosed an qualified judge only from the trial of a case in which forsooth the by we persuaded these because decisions areWe misconception they on a of that are based conclude The purpose substitution statutes. legislative objective same of sec. as 971.20 statutes, namely, prejudice of of the earlier affidavit right permitting parties to ensure the to a fair trial gives prejudiced appear- to who is or strike being legislature prejudiced. ance of In sec. 971.20 merely adopted procedure an alternative to the affidavit prejudice accomplish goal. its language 971.20,
While
unlike
its
that of
precursor
prejudice statutes,
affidavit of
is silent as
bias, prejudice,
any
ground
justifica-
interest or
other
as
seeking
tion for
aof
and is
as
silent
objective
assuring
trial,
legislative
a fair
history of sec. 971.20 demonstrates that
the enactment
perceived
changing
was not
purpose
effect
then-existing
prejudice
affidavit of
The
statute.
prefatory
note
the Judicial Council to ch.
Laws
which created sec.
it
makes
clear
change
the 1969 revision was a
in terminology
pro-
objection
might
real
to him
he
impartial
be that
would be fair and
in the
trial
the case would be to characterize the statute not as
regulation
weapon
but
aas
concealed
to be used to the manifest
proper
j'udicial
detriment of the
department.
conduct of the
well-recognized
legislative regulations
limitations on
mat-
such
jurisdictions,
ters in other
federal,
both state and
were available
when section 170.5
arbitrary
was
enacted.
none of them is the
administering
remedy adopted
enacting
method of
the stat-
approved
ute
attack
under
or countenanced.
It must
therefore be
*21
an
held to be
unwarranted and unlawful
interference with the con-
orderly processes
stitutional
courts.” Austin v. Lam-
bert,
849, 851-853,
(1938).
2d
Cal.
77 P.2d
cedure, in substance not a pose. follows: The Note states as changing present practical effect of the “While not provides law, the ‘sub- prejudice for affidavit of stitution of a the bill request judge’ upon of the de- the written prejudice are fendant. not It that most affidavits is felt truly present practice and it is realistic more are, they really request an- to call them what particular other to hear the case.” There is however another Council Judicial Note 971.20, appears Annot., sec. which 42A Stats. Wis. (West p. 1971), upon at which counsel judges rely argue purpose the circuit of sec. give advantage, 971.20 is to defense tactical counsel not to assure fair trials. This Judicial Council’s Note sec. 971.20 comments as follows: terminology “This replacing is new form- [sec. 971.20] er 956.03(1). Prejudice’ normally s. ‘Affidavit of has prejudice not meant since no most defendants have knowledge of the and have filed the affidavit solely purposes usually for tactical attorney’s on an ad- terminology vice. This is felt to be more accurate.” judges have, Counsel for the circuit and not without justification, some focused on the use phrase purposes” “tactical used the Judicial Council. phrase purposes,” however, “tactical must be read the context of both pur- Notes and in the context of the pose of practice under the former affidavit preju- dice statutes.
It is clear above-quoted from the Notes of the Judicial Council prior and from our cases that affidavit prejudice statutes had problems created for counsel and judicial system. Because did counsel not have to set giving forth the good facts rise to reason for the de- fendant to believe “that he can not have a fair on trial prejudice account of the judge” no because
57 sufficiency premises of the court reviewed the of factual affidavits, developing no law was in this the state guide filing lawyers propriety of the as to the affidavits. filing lawyers affidavits, precisely In the not know did judge” “prejudice what constituted under justify which a statute would belief that the client could phrase “prejudice not have “fair trial”. The of judge” prejudice of the affidavit statute could interpreted in the traditional narrow sense personal had a direct and or substantial financial phrase connection with the matter. Or the in- could be terpreted broadly many encompass types more of con- judge may may nections the have with the matter that actually prejudice judge may give appearance or party may get impartial fair and hear- ing.22 22 Project As the American Bar Association on Standards commented, requiring Criminal Justice “Some recusation situations obvious, involving relationships are consanguinity such as those of affinity . . . More subtle more difficult are of resolution
those cases in which the connection between the and other participants Relating is remote and tenuous.” Standards commentary Judge Function Trial to sec. 1.7 Cir entitled Requiring Recusation, p. cumstances 35 prejudice grounds For of discussion as for recusal and substi procedures judges, tution and of the various for substitution of see Pollak, (1952) Public Utilities v. Comm’n 343 U.S. 467 (Frankfurter, J., guiding “The consideration is that adminis justice reasonably appear tration of should to be disinterested Berger fact”); States, well as be so in v. United 255 22 U.S. (1921); Warner, Supp. (W.D. 1973); Deal v. F. 174 Mo. Mc 369 Laughlin Transportation v. Co., (D Supp. Venore 244 F. 802 Mass. 1965); Wiedemann, Wiedemann 228 Minn. 36 N.W.2d (1949); 812 Standards, American Bar Association The Function Judge, (1972); Frank, Disqualification The Trial see. 1.7 Judges: Support Bayh Bill, Contemp. 35 Law & Problems (1970); Frank, Disqualification Judges, 56 Yale L. J. (1947) Getto, Peremptory ; Disqualification Judge, Trial Litigation (1975); Orfield, Judges, Recusation Federal Report, (1968); Disqualification Judges L. Buffalo Rev. 799 *23 perspective,
When viewed from this historical purposes” words “tactical used in the Judicial Council Note do not take on the connotations attributed to them judges. counsel for the circuit court The words purposes” “tactical interpretation allude to the broad “prejudice Although judge.” of the Judicial may inartfully drafted, Council Notes be it is clear legislative give adopting intent in 971.20 to was opportunity object the defendant an to a whose fairness the defendant lacks confidence. Just as disqualification judge perceived prejudiced of a to be promotes appearance trial, of a fair the substitution judge perceived of arbitrary, incompetent, a to be iras cible, counsel, witnesses, discourteous to defendant, or unfavorably disposed attorney defendant, to the tried, may or the promote issues appearance of conclude, fair trial. We prior cases, as we did in objective substitution statute pre-1969 and of prejudice affidavit of law preserve same: right the defendant’s to a fair trial Prejudice or Evolution, Status, Bias — Common Law Current Oregon Experience, The Note, Peremp (1969); 48 Or. L. 311 Rev. tory Challenges Judges: Experience, The Arizona 1973 Law and of Disqualification 95, 101; Judges Note, Soc. Order Federal of for Bias Under 28 U.S.C. Section and Revised 455, Section 144 45 Ford (1976); Note, Disqualification Judges ham L. Rev. 139 and Jus of Courts, tices in the Federal (1973); Note, 86 Harv. L. Rev. 736 Disqualification Judges Courts, Bias in the Federal 79 Harv. of for Disqualification (1966); Judge Note, L. Rev. 1435 on the of Bias, Ground Note, (1927); 41 Harv. L. Rev. 78 State Proce of Disqualification Judges Prejudice, dures Bias and 42 for of for (1967); Note, Disqualification L. N.Y.U. Rev. 484 District Federal ges—P Proposals, Jud Hall 7 Seton L. Rev. 612 r oblems (1976); Comment, Disqualification Interest Lower Federal Judges: 455, Court 28 U.S.C. Section (1973); 71 Mich. L. Rev. 538 Comment, Disqualification Judges Preju Federal Bias or dice, (1978); Comment, Disqualifying 46 U. Chi. L. Fed 236 Rev. Judges Cause, eral District Without (1974). 50 Wash. L. Rev. 109
59
orderly
justice.
and to ensure the
administration
Bell,
534, 537,
2d
215
535
State
N.W.2d
Wis.
;
(1974)
State,
Baldwin v.
2d
Wis.
N.W.
Smith,
also State v.
2d 541
See
Wis. 2d
363-64,
(Ct.
1981).
legislature’s
App.
N.W.2d
requirement
preju
of an
elimination of the
affidavit of
merely
change
accomp
in 1969 is
in the method of
dice
lishing
legitimate legislative
assuring
objective of
trial,
change
objective.
fair
not a
acknowledge
gives
We
that sec. 971.20
defendants the
opportunity to invoke the statute for reasons not related
goal
preserving
appearance
to the
fair trial or the
fair
may,
trial. Be that as it
preju-
the affidavit of
*24
subject
dice was also
to abuse.23 That sec. 971.20 can be
fostering
abused does not mean that
the abuse was the
legislative purpose.24
23 In Dutcher
Co.,
591, 599-600,
Phoenix
v.
Insurance
Wis.
2d
(1968),
more the affidavit this case was delay. purposes ground for filed of While this is not a for denial of change judge, procedure of a venue or trial it ais which cannot be approved.” 24 There are a number of restraints on the abuse of the affidavit prejudice Already peremptory present of substitution statutes. filing requests sec. 971.20 are limitations as to time for and the requests Solberg Superior of can number which be v. filed. See Court, Rptr. 460, 1148, (1977); 137 Cal. 561 P.2d ex State Armijo, Hannah rel. v. 38 N.M. 28 P.2d See Peremptory Challenges Note, Judges: Experi also ence, The Arizona of 802.05, 1979-80, 1973 Law and Order 101. Soc. Sec. Stats. purposes delay. forestalls use of substitution for of 802.05, 1979-80, applicable by 972.11, Sec. Stats. virtue of sec. 1979-80, actions, including papers to all filed in criminal Stats. request provides under sec. 971.20. 802.05 substitution Sec. as fol signature attorney paper] “The an of lows: constitutes a [on delay.” interposed that . . it is certificate . Beyond practical themselves, the statutes there are considera- prej- limit of 971.20 the affidavit which the abuse sec. and of tions single-judge attorney circuits an will be udice. restrained to request only attorney cause, because that file legislative adopting purpose sec. 971.20 was to
remedy prejudice the of stat- ills caused the affidavit prejudice ute. Because the Wisconsin affidavit of stat- required utes no substantiation of or determination of allegation many thought prejudice, procedure the the unjustly judges impugned integrity the to whom unchallenged the affidavits were addressed and charges judicial prejudice spread and undetermined gave on public the court records picture a distorted judicial impartiality. preferred, would have in- Some legislature require stead that the liti- gant prima showing prejudice make a facie judge (whether the trial whom the affidavit judge) sufficiency is addressed or another to rule on the showing.23 procedure Such a can as be viewed practice single- must judge before that on numerous occasions. In multi-judge circuits, an re- unwarranted substitution quest brings unsatisfactory may the risk that the next be attorney antagonize judges that the ney practices frequently. will attor- before whom the Solberg Superior Court, See 561 P.2d at 1157. Further, as the amicus curiae brief of the Bar of State Wiscon- Litigation sin and the Section of State Bar of make Wisconsin clear, disciplinary against actions are still at- available to used torneys who abuse statute. procedure Some have characterized writers this system, probably way majority the federal but it is not interpret the federal courts the federal statutes. are concerning disqualification There two basic federal statutes *25 judges. first, and substitution provides The 28 U.S.C. judge disqualify a judge shall or himself herself the a when has personal prejudice party party’s bias or toward a or the cause. second, 144, provides procedure by party U.S.C. the which a judge. challenge requires a filing can Section 144 the affi- an davit which states the factual basis for the affiant’s belief that the judge pending before a prejudiced. whom matter is is biased or Wright and Professors Miller state that 144 has sec. not worked well, primarily prejudice narrowly because the term has been con- Procedure, strued. Federal Practice and sec. 3542 345-46 at Additionally, (1975). requirement the affidavit has been also consuming expensive. cumbersome, too time and too too weighing approaches to the merits of the alternative legislature obviously substitution, sec. concluded that lim- of substitutions and which limits the number requesting substitution, a balance is its the time for on right procedure protect commendable to the defendant’s having trial, judge protect or to a fair from his unfairly having impartiality impugned, her avoid having lawyer prejudice file an affidavit of without guidelines affidavit, proper as to the use of the promote public’s preserving the bench’s interest judiciary.26 confidence
strictly interpreted. might They “On its face the statute state contemplate disqualification. seem to automatic It has not been way.” Id., pre-1969 read this at 374. In contrast to the prejudice statute, Wisconsin affidavit of under the federal law (the legally must facts contained within facts stated must be affidavit he sufficient accepted true), judge is the as and the who object passes sufficiency. are, however, of the affidavit on There judge cases which the referred has to in affidavit forwarded along the sufficiency. to the chief district to determine affidavit at Id. 375. Wisconsin who have substitution considered various proposals have come forward with different recommendations. Coffey suggested legislature abandon Justice Wisconsin concept right provide a matter of as disqualification only being for with the motion heard cause other than the named in affidavit. decided Tarney McCormack, 239-40, ex rel. State 2dWis. N.W.2d 552 Judge suggested in Holmes that the follow the fed- Weisel state interpreted requiring rule an affidavit which eral which he specifically belief set forth that form the basis of the must facts sufficiency prejudice exists and a determination that bias hearing by judge than other the one to of the affidavit without Holmes Memorandum Decision the affidavit was addressed. whom at p. 15. require Judge the defendant in the case at Fine in Hudson would specifying grounds substitution. If affidavit bar to file an legally its Judge that the affidavit is sufficient on Fine determines *26 potentially in statute results
While the substitution productive judge’s being expended in hours of a time county away a travel to hear case in another miles higher judicial sys- operate in costs to the state to tem, legislature evidently the ineffi- decided higher ciencies, by per- inconveniences and costs caused emptory acceptable price paid substitution are an to be peremptory for the benefits to be derived from substi- legislature tution. Nonetheless the must understand peremptory example statute is another statutorily imposed expense opera- increased judicial system tion of the over which has no beyond control. These which increased costs are the con- special trol import of this court take on in this era of economy fiscal when this court is asked to decrease the judicial budget expenditures. and to control continuing dispute there is
While about wisdom of generally, substitution laws spe- and of the 971.20,27 cific terms of sec. continuing there is also dis- agreement prudence about the prejudice of affidavit of face, he himself, will recuse himself. If he does not recuse the affi- davit judge. would be referred to the chief Hudson Memorandum p. Decision at 19. See also Warrington Justice Callow’s comments in ex rel. State County, 726, 738, Circuit Court Shawano 100 Wis. 2d N.W.2d 590 pending legislature. There are several bills in the 1981 Senate prepared Council, Bill the Judicial would limit defendant’s right attempt very to substitution in an to resolve some problems the circuit courts have noted. The note to the bill states part: clarify objective “NOTE: 971.20 has been Section revised to its allowing defendants criminal trials one substitution of the as- signed judge upon timely making request. The statute delay ‘judge shopping,’ nor for used but is to ensure a fair and impartial trial for defendants.” pending Other bills on the substitution statute are 1981 Senate 12; 48; Assembly 90; Bill Bill Senate Bill and 1981 As- sembly Bill 218. *27 system In statutes and of federal of substitution.28 any event, recognized peremptory substitution well legitimate objective accomplish a means to assur- of ing fair trials. supreme promulgated
Seven state
courts have
rules
similar to sec. 971.20.29 Several of these courts have
peremptory
protect
said that the
rule
substitution
is to
right
impartial
judge
to a fair trial before an
by
if
peremptory
there are abuses
counsel
sub-
28 August 1979,
approved
the American Bar Association
a
calling
legislation
resolution
for federal
or an amendment to the
provide
peremptory-
Federal Rules of Criminal Procedure to
challenge
specified
judge
of a trial
ABA
under
conditions. See 1
Justice,
6, Special
Standards for Criminal
ch.
Functions of the
6-1.7,
Judge,
pp.
1980).
(2d
Trial
Standard
6-19-6-21
ed.
29 Alaska;
25(d),
Halligan
Rule
Alaska R. Crim. P. See
v.
State,
281,
(Alaska 1981);
State,
624 P.2d
281 n. 2
552
Gieffels
(Alaska 1976).
P.2d 661
10.2,
Arizona: Rule
Arizona
Crim.
R.
P.
40(d)1,
Idaho: Rule
Idaho
Civ. P.
R.
12,
Benjamin
Indiana: Rule
Indiana R. Crim. P. See State ex rel.
County,
v. Criminal Court Marion
264
prosecution fair trial before an and the defendant a impartial judge .... district recognize right disquali “We delays in the trial of creates fication of district It both criminal causes cal and civil cases Montana. judges, endaring scheduling problems for district *28 parties attorneys. the normal and It with the their interferes operation routine district courts. overriding paramount we Nonetheless consideration is the hold that the right any to a fair trial before im partial judge. improvements district consider that We system in present lie the area correction of peremptory disqualifications abuses rather the exercise of right.” than elimination of ex State rel. Greely v. Dist., Dist. Ct. Jud. P.2d 4th (Mont. 1979). Our conclusion that the Wisconsin substi- tution well-recognized statute is a means to a ensure fair by trial is corroborated recommendations of the National Conference of the on Commissioners Uniform State Laws and the American Bar Association Commis- sion on Standards of Judicial Administration. Rule 741 (a) of the Uniform Procedure, Rules Criminal Uniform Laws 741, pp. Annotated Rule (1974), 854-357 allows a defendant judge to obtain upon substitution of a timely demand.30 provides Rule 741 as follows: [Substitution “Rule Judge.] 741. “(a) may On demand. A defendant a obtain substitution of judge before proceeding whom a trial or other is to be conduct- by filing ed therefor, a demand but if trial has commenced before judge may a no may demand be filed as to A defendant him. not file more than one demand in case. a If there are two or more de- fendants, may a demand, defendant not file a if another defendant
Although Relating ABA Standard 2.32 Standards (1976) provides disqualification a Trial Courts for judge upon disqualify cause, judge for motion with the against determining whom a motion filed was whether legally the motion was sufficient on its face with judge resolving by another factual issues raised motion,31 the Commission recommended that considera- demand, bas unless a filed motion for of defendants has severance signed by been denied. The demand shall be the defendant or his counsel, days] and shall be filed at least before the time set [ten days] for commencement of trial and at least [three before any proceeding, may time set for other but it be filed within [one day] after the defendant or ascertains should have ascertained the judge preside proceeding. who is to at the trial or “(b) judge may disquali- On own motion. A on his own motion fy presiding proceeding. himself from over a trial or other “(c) judge may preside For cause. A over trial or other proceeding upon party appears disquali- if motion of a it that he is provided [by by fied for cause law the Code of Con- Judicial duct], disqualify The motion to be shall heard before another regularly sitting designated in the same court or a [the appropriate assigning and, authority], unless otherwise ordered days] cause, for shall be at made least before the [ten days] time set commencement of trial at least before [three any proceeding, may time set other but it made within day] party after the ascertains or have should ascertained the [one *29 judge preside proceeding. to at the or who is trial Designation “(d) judge. Upon filing substitute the aof de- of (a) disqualification mand under subdivision or under subdivision (b) (c) judge case, except take or the shall no further action the prescribe requested by to terms or conditions release if so of to do defendant, appropriate assigning authority] shall [the judge. designate another Disability during “(e) trial. .. . Disability “(f) finding guilty. verdict .” or . . after of provides 2.32 as follows: Standard Disqualification Judges. judge subject A to “2.32 should be grounds disqualification on the set in the for cause forth Code by the Bar Judicial Conduct recommended American Association. against disqualify judge a to for whom motion cause is made A legally may determine authorized to whether it is sufficient on be by face, but issues the motion heard its factual raised should be by judge.” another resolved given pro- adopting peremptory a substitution tion be to explained The Commission cedure similar to 971.20. theory peremptory that a is substitution having party able his case should be to refrain from though by judge who, disqualified cause heard a grounds on set forth in the ABA Code of Judicial grant Conduct, party a believes will not him fair explain The on viewed trial. Commission went to that it concept recognized peremptory as one substitution by implication prejudice” in the “affidavit of laws according which, deeply Commission, to the a evidence enlarging upon may need for party felt which basis a object judge. peremptory to a The substitution is a recognition deeply formal of this felt need a to allow party avoid, to in a manner consonant with the sound work, judge administration aof court’s a in whose fair- understanding party ness or lacks confidence and provide to thus parties additional assurance to the their case will justly. be determined The Commission urged adoption commenting as follows: “. . . given Consideration should adopting pro- be a peremptory challenge cedure for judge. theory of a procedure a such party is that a should able to be having avoid not judge his case who, though a tried he is disqualified cause, party believes cannot af- a ford him fair may trial. a Such belief stem from the
judge’s practices views regarding or type of case in question, judge’s from the inexperience type with the involved, matter previous or from interchanges between judge party and the or his counsel. One or more of these may weigh heavily considerations where the dis- position of the matter range involves a broad of un- reviewable part discretion on the or where the trial of likely a matter long complicated. Although party is not entitled to have his case heard selection, of his he should compelled not be accept in whose understanding fairness or he *30 inter- if that can be avoided without lacks confidence fering court’s work. with administration challenge judge, simi- concept peremptory of a “The recog- respect jurors, is lar with to to established challenge jurisdictions by implication a where nized based on cause is given requiring sub- without effect unjustifiably allegations. practice stantiation impugns lenge its This integrity judge a chal- of the to whom such procedure perverts the of recusal is addressed and Nevertheless, deeply for cause. felt need it evidences may object enlarging for upon party the basis which a challenge judge. procedure peremptory to a If the for judge formally recognized such, provide a additional case it can an parties their measure assurance to the justly jurisdic- Experience will be determined. having challenge peremptory procedure tions indi- that, subject cates proper when limita- controls provide tions it can this assurance without burdensome complications additional tration. or cost adminis- trial court procedure challenge “A judge of a provisions assignment prompt should have of an- replace other challenged. one who has been provisions Such especial importance are of where a chal- lenge requiring has been made in matter immediate judicial action, application temporary such as an for a injunction. having only districts one two judges, adoption peremptory challenge procedures may impractical be unless there are also administrative arrangements whereby replacement can be as- signed from 2.32, Commentary, pp. elsewhere.” Sec. 51-53. acknowledge We that sec. 971.20 can be abused and litigants can lawyers result in delaying judicial pro- ceedings arbitrarily interfering judicial pro- with ceedings. fully later, As sincerity discussed more judges’ the circuit concern that sec. 971.20 will used by the particular bar to isolate a interfere with independence judiciary questioned. is not That the wisdom of sec. being 971.20 is seriously chai-
68 opera-
lenged with the and that there is dissatisfaction pre- of bills is the number tion of sec. 971.20 clear from Although modify legislature 971.20. sented to the sec. legislature may decide that sec. on reconsideration represent the best 971.20 or of terms not some its do right fair to a trial and balance of the defendant’s operation judicial system, can- efficient this court an not conclude that sec. unconstitutional exer- 971.20 is legislative power cise of to ensure fair trials.
IV. Although legislature prohibited is doc- separation enacting trine powers from reasonable regulating laws a fair assure trial, appearance trial and the of a fair the doctrine separation significant powers impose does limitations legislature’s on the power. exercise of its Under the doc- separation trine of powers, legislature prohib- unduly burdening ited substantially interfering from judicial with the branch.32 addition,
In
cognizant
we are
the constitution
mandates that
“superintending
this court have
ad-
authority
ministrative
courts,”
3(1)
over all
sec.
4(3),
VII,
Const.,
Art.
legislative
Wis.
en-
unduly
actments which
substantially
do not
burden or
judicial
interfere with the
may
branch
un-
nevertheless
constitutionally interfere with
superintend-
this court’s
ing and
authority.
administrative
Integration
Case,
8,
Bar
49,
244 Wis.
11 N.W.2d
604, 12
(1943),
N.W.2d 699
spelled
this court
out the
32
expression
For a similar
of the constitutional
limitation on
legislative power,
Compensation
see Hustedt
Appeals
v. Workers’
Board,
329,
30
3d
Rptr.
Cal.
801,
(1981);
178 Cal.
Using slightly language, different John F. Jelke *32 Beck, 660, (1932), Co. v. 242 576 Wis. N.W. legislative this court set forth the limitation on the power as follows: jurisdiction “In power Wisconsin is of the court by legislature conferred not act of the but the consti- regulate
tution legislature may itself. While the in the 'public not, judicial power, interest the exercise the it can- guise power under the regulation, that withdraw or so limit and circumscribe it as to the constitu- defeat purpose.” tional Accordingly question the opera- becomes whether the 971.20, including tion of sec. possible defendants’ abuse right of the of substitution purposes unrelated to securing trial, materially fair impairs practically or defeats the circuit jurisdiction court’s exercise of power or proper functioning judicial system of the so as to constitute a separation violation of the doctrine of powers. contends, The state agree, and we that there has been showing, beyond no doubt, a reasonable that Stats., operation so affects judicial of the system. showing
There is no defeats .statute the circuit judicial courts’ exercise of power. Sec. 971.20 leaves judi- intact the circuit court’s power cial to deal case, although with the the substitu- request tion stop particular does circuit from exercising his or her authority particular hear regarding Supreme California Court said
case. As the prejudice statute: California’s affidavit challenged at “. . . The effect of statute here assigned case to the most to remove the individual or deprive court department, but assignment power judge.” Solberg of another to hear such cases Superior Court, at 1161 n. v. P.2d (emphasis original). Bagley, See also P. U’ren 118 Or.
Although impairment practical the test “material or proper functioning judicial system” defeat of the ambiguity, is not without we conclude that it has not proven beyond been per- reasonable doubt emptory materially impairs prac- substitution statute tically functioning proper judicial sys- defeats the tem. The state asks this to take notice of figures supplied by the Office Director of State estimating requests Courts the number of for substitu- 1979-80, tion 902.01(2), filed in 1981. See sec. Stats. 902.01(4), and sec. Stats. 1979-80. While statistics do *33 story, they may light not tell the whole cast some the on impact the substitution judi- of statute has on the system cial in Wisconsin. The Office of the Director of reports January State Courts 1, that between 1981 and 1981, 31, approximately 71,400 March filed, cases were 11,112 60,288 criminal civil, and that 1224 substi- requests tution filed, were matters, 496 in criminal 728 in civil figures matters. On the basis of these quarter, the first 4,900 we estimate that about substitu- requests tion were 286,000 filed in 1981 in a total of case filings. requests Thus probably substitution were filed in 1981 percent in less than of the cases overall in percent less than 5 of the criminal cases. When viewed perspective from the of judges the number of who must replaced, the statistics may indicate that substitutions system. judicial the operation of impact the on have an cases, total percentages of in terms Considered play in a role requests not seem do substitution system of state. Whether judicial this operation impact significant have a requests for substitution they whether significant not known play a role is system judicial materially operation impair provide proved. do These statistics not been has that conclude quantitative from which we can evidence practically materially impair or de- requests substitution system dispose ability feat the presented. cases determined
Nevertheless the circuit courts jus- on the administration 971.20 has adverse effects holding justify beyond doubt, which, tice a reasonable the statute unconstitutional. substitu-
The circuit courts decided
judges
delay
disposition of cases.
tion
causes
in the
9; Hudson memo-
Holmes
decision at
See
memorandum
Although
are no hard sta-
randum decision at 18.
there
delay,
tells us that a. re-
tistical data on
common sense
quest
delay
likely
in the
to cause
substitution
delay
disposition
chances for
of the case and that
greater
multi-judge
single-judge
are
circuits than in
with
circuits.
who deal
The circuit
of this state
requests
daily
perceive
substitu-
on a
basis
requests
delay
major
tion
to be a
our court
source
system.
Planning Corporation for
See Resource
Planning Committee,
State of Wisconsin Judicial
Wis-
Processing Study
(July
Report
consin Case
Final
concurring
1978), p. 478,
Coffey’s
discussed in Justice
opinion
McCormack,
Tarney
ex rel.
2d
State
99 Wis.
238 n.
We note that has *34 delay to the minimum to “the efficient adminis- assure circumscribing calendaring” by the time tration request within which a substitution of the may 534, 537, Bell, be State 2d made. Wis. Smith, 2d State v. N.W.2d 535 See also Wis. 1981). 361, 364, App. (Ct. Whether the N.W.2d outweighed by, delay outweigh, or costs are bene- aspects us ficial the statute is not before in these legislature’s balancing cases. these will be The factors accepted practically the statute defeats the unless exer- op- power materially impairs cise or judicial system. eration of the On the basis of record beyond we before us cannot find reasonable doubt that delay peremptory caused substitution judges great materially impair practically sois as to or justice system. defeat the criminal peremptory circuit courts found that produces inefficiencies and inconveniences and increases disposition state’s costs See Holmes of.cases. 9; memorandum decision at Hudson memorandum deci- sion at 13-14.
Again, common peremptory sense us that tells sub- inefficiencies, stitution law does cause inconveniences expenses and increased and that these effects will be greater single-judge multi-judge circuits than in cir- cuits. Nevertheless, those cases in which substitution requests being of, have been filed are disposed heard and though even perhaps in efficiently some cases not as conveniently they might or at minimum cost as were there a more procedure. restrictive substitution
Finally, the circuit courts concluded that litigant substitution of allows a to remove a perceives whom he or she handling disposing cases in a manner unfavorable to the interests of the litigant and right that such abuse to a fair trial permits judge (Holmes shopping memorandum decision *35 18) ,33 provides at 9, Hudson decision at memorandum avoiding mechanism for “a with criminal defendants (Hudson tough memo- judges perceived as sentencers” “power to gives control 16), the bar at randum decision 8), and (Holmes at memorandum decision the Court” discipline attempts and reform at innovative undermines system (Holmes decision judicial memorandum 8). at peremptory stat- substitution
These criticisms of the figures These by and statistics. ute cannot be measured of sec. criticisms reflect the subtle effects 971.20: business, disruption orderly conduct of judi- dockets, demoralization and the threat to Judge independence. memorandum de- cial his Weisel eloquently expressed cision in Holmes these concerns follows: jurisdictions “None of the decisions cited other [from
invalidating have statutes] upon that these touched the subtle and unconscious effect upon judge. Perhaps statutes the trial it is because have they by appellate judges. were written these Under judge caring, knowing, perhaps statutes a lives that not any at potential power time the Bar can exercise its literally judge trying force case out of ever another county in in which he has been elected as circuit judge. not, deny you will, it or Like it if the Bar under power. judge these statutes has ... No will admit being by influenced it. No honest with himself deny will that he not is bothered it. we, independent judiciary, “Should as an have to live under that cloud ? There a threat subtle to conform practice. the Bar’s standards of The who deviates from that norm set the local Bar re- is faced with “judge-shopping” judge selection, If means sec. 971.20 does permit judge shopping. simply gives litigant The statute power disqualify judge. litigant The statute does not allow a Note, Peremptory to select the who shall hear the Sub case. Judges: Experience, stitution The Arizona 1973 Law and Soc. Order 104-05. peated requests for substitution. He is then under force, displeasure subtle or at least incurs the from are Court Administrator’s office the Bar. We exposed power every day. help to this It cannot but have stifling- upon procedures, a and effect the innovation of court attempts by problem. the court to solve the *36 judiciary. independence result is the loss of attempts discipline, reform, It at stifles court’s at at efficiency by cooperation which is met not the local from traditionally change, Bar an- which has resisted but tagonism judge. requests subsequent and the of for substitution judge is faced he with situations where can- prevented not fulfill his oath of office because he is doing caprice from so the whim and of counsel.” Memorandum Decision at 8.
This court not expressed is unmindful of the concerns by Judge Weisel. On two recent of occasions members expressed this court potential have concern over the urged of legislature abuse 971.20 have correct the defects in the statute. See State ex rel. War rington v. Circuit Court County, Shawano 100 Wis. 726, 738-89, 2d (1981) (Justice N.W.2d Callow concurring); Tarney State ex rel. McCormack, 99 Wis. 220, 236-40, 2d (1980) (Justice Coffey N.W.2d concurring). there And is reason to believe that legislature is sensitive to the inefficiencies and diffi culties operation which exist in existing sub stitution ready willing modify statutes and is sec. 971.20 to remove such undesirable features as it can goal securing consistent with its both the fact of and appearance proceedings. fairness in
Regardless justice’s of each individual view of the wis- dom of sec. and we are not mind, all of one we are concluding unanimous that the statute does not violate the constitutional separation doctrine of pow- ers. We therefore reverse the order of the circuit court county. for Polk We order that a prohibition writ directing issue the circuit court for county, Milwaukee taking Fine, judge, to refrain from Ralph circuit Adam And above-captioned matter. any in the further action respective courts for circuit to the we remand the causes opinion. with this inconsistent proceedings further not Polk the circuit court for By order Court. —The reversed; direct- county prohibition writ is issued county, Ralph ing Adam for Milwaukee the circuit court taking any Fine, judge, further to refrain from circuit matter; above-captioned causes are and the action in the proceedings respective circuit courts to the remanded opinion. this inconsistent with (concurring). opinion of COFFEY, I in the J. concur proved I it has not been the court because believe 971.20, Stats., beyond so a reasonable doubt that sec. materially impairs the circuit court’s function as to con- separation pow- stitute a violation of doctrine of separately, however, emphasize ers. I write *37 Const, VII, 3(1) specifically in the Wis. art. vests supreme “superintending court the and administrative authority vesting all rationale over courts.” The authority judiciary aptly administrative has been by following summarized one court in the manner. right “The to control its order of and to so business may rights litigants conduct the same that of all properly inherent safeguarded recognized always be in has been courts, authority strip and to them of that necessarily impotent would render them useless as so to leave little place excuse for their in the existence and legislative state, power hands of the branch of the contemplated by control never Atchi Constitution.” son, Topeka 251 P. Ry. 86, Long, and Santa Fe Co. v. 122 Okl. 486, 489 (1926). superintending Because the administrative au- thority over the constitutionally courts has been vested court, legis- this I believe that it is incumbent on the deference restraint when lature to exercise both authority. legislating upon impinge in areas that this legislature Specifically, I should not believe that affecting justice enact laws in this the administration conducting impact to de state without review impact legislation upon termine the will have such system, personal both as to cost and effi ciency. legislature thoroughly studied the im Had the pact (sec. of the substitution statute Stats.) upon system, the entire court as did the Resource Planning Corporation study in a in the summarized Wis Processing Study quoted my Report consin Case Final Tarney concurrence to the ex rel. v. decision of State McCormack, 99 Wis. 2d N.W.2d (1980) (COFFEY, J., concurring), I am convinced that present it would not have enacted the law in its form. majority opinion correctly indicates, As the pow- independent government ers of the branches of our over- lap to such an extent it is sometimes difficult proper ascertain the govern- division of the functions of hand, ment between them. On the other there exist some functions, appropriately which are most reserved to specific government. recog- branch of the This fact was nized in a recent court decision: “However, judicial power, like the executive and legislative powers, possesses constitutional boundaries which can neither possessor exceeded power nor upon intruded one of the other branches.” U.S. Brainer, Supp. 627, 515 F. (D. 1981). Md. The administration of our govern- courts is a function of ment primarily which is responsibility concern and *38 judicial branch. This is because the administra- tion of in the courts both an efficient and fair manner is essential to judicial the fulfillment of the role branch’s in democracy our judiciary the capable itself is most evaluating promulgating such proce- rules and system. court fair and efficient in a result dures as will by the courts Primary administration control an inde- maintenance judiciary to the is essential fact, I seri- judicial impartial branch. pendent and longer au- legislature any has the ously doubt authority and legislation thority to enact such rule-making rests power now responsibility such rule-making power pursuant its supreme Amend- Constitutional in the Wisconsin mandated VII, 3. ment to art. au- must have administrative as this court
Inasmuch court, other system, on the thority over the court policy interfere with hand, reluctant to alter or should be legislative branches. executive decisions made policy are func- previously decisions determined These government primarily the concern that are tions of government and of our responsibility those branches interfering with them judiciary refrain from must problem except where clear of constitutional dimension presented. is autonomy importance administrative
The judiciary independent and effective maintenance of an in a District Court was discussed recent United States opinion quoted below: autonomy significance “The of administrative independence particularly
maintenance of institutional Judiciary, far acute in the case of the which commands tangible than the other fewer resources either of Hamilton). (A. branches. The Federalist No. 78 legislative import avoiding control over the adminis- tration of the function was noted commen- tators Amsterdam: Levin and “ activity spheres ‘There are so fundamental and so necessary court, very to a inherent so its nature as court, that it of within to divest its absolute command meaningless very spheres phrase these is to make judicial power.’ [emphasis original]. *39 Making: A “‘Legislative Rule Over Judicial Control Revision,' Rev. Pa. L. 107 U. Problem Constitutional description expand These writers their suggesting by exclusively judicial that concerns these judicial activity, “. . nei- . there is third realm of a adjective law, ‘proceed- ther nor realm substantive ings functioning aof which are so vital to efficient beyond legislative power. as This the area to be is courts, integrity of minimum of the what functional existence, dignity essential and functions very court as a and fact constitutional from tribunal Any that it is a court.’ into statute which moves so far judicial judge this realm of how affairs as to dictate to judge comport judging he shall or how he shall himself in judging or which seeks to the act of with surround hampering clearly conditions offends constitutional powers separation scheme of the will be held in- valid.” Id. at 31-32. [footnotes omitted]. judge The substitution of statute concerned in the case at bar impact has substantial on the effective effi- cient expanded right administration of the courts. The freely substitute without all fre- cause too quently delay handling creates in the of cases and dis- rupts the overall courts, calendar of the well as as parties, the other their counsel Be- and witnesses. impact cause of the of the substitution of statute on the courts, administration of ap- I believe propriate circumstances under which to allow a substitu- tion of question might ais which appropri- be more ately addressed judiciary legislature only with input substantial from the branch. My criticisms of the liberal judge pro substitution of provided cedures 971.20, Stats., sec. and its civil coun terpart, 801.58, Stats., length my are set out at concurrence Tarney to State ex rel. McCormack, supra at and will not repeated here. I would like to only add that liberal substitution rules add expense considerable operation to the of our courts as causing well significant delay. During this time government are public all where branches *40 demanding austerity government, it I believe fiscal legislature necessary proper evaluate that the judge rules liberal limited benefits of the light significant impact effi- of its as to cost and ciency system. judge in the If the substitution of light, legislature rules are I evaluated in this believe the conclude, have, pro- will I as statute creates ceedings for the substitution of cause without unduly expensive, unnecessary subject that are proven duly abuse where a elected can be substi- responsibilities tuted out of his court at the whim and caprice minority disgruntled litigants. Indeed, of a majority points out, majority states, (41 the vast 50) adopted have not substitution of and, thus, rule in the minori- Wisconsin is distinct ty favoring of states this kind of substitution of rule.