Monday, January 25, 2010

Substitution of Judge

By John DiMotto


In my last post, I discussed the procedure to remove a judge via recusal. Removal via recusal is dependent on the existence of a statutory impediment (757.19) or a statement by the individual judge that he/she does not believe he/she should be the adjudicator for the case for reasons certain. However, in Wisconsin every party has the right, for any reason or no reason, to have a judge assigned to the case removed via substitution.


In every type of case, a party may, if done in a timely manner, file a motion to substitute for a new judge. The right to substitute exists in every type of case and there are statutes which provide for the specific procedure.


48.29 - Children in Need of Protection or Services (CHIPS) case and Termination of Parental Rights (TPR) cases.

938.29 - Juvenile Delinquency cases.

971.20 - Criminal cases.

801.58 - Civil, Probate and Family cases.


I believe the theory behind Wisconsin's Substitution of Judge law is to give litigants one opportunity to have a judge removed from the case if the litigant just does not want the judge regardless of whether they have a good reason or not.


Most states require a litigant to file an Affidavit of Prejudice if a litigant wants a judge removed from the case. In other words, the litigant must have a good reason that the judge cannot be fair. However, the judge has the right to respond to the allegation and has the final word.


The Wisconsin Substitution Rule has been the subject of widespread criticism by people who think the rule allows judge shopping. However, efforts to repeal the law have been unsuccessful. In essence, the Wisconsin legislature has decided that litigants may seek one substitution if the litigant follows the statutory procedures for substitution.


In my experience, the use of a motion to substitute is usually based on a litigant's perception, rightly or wrongly, that a judge is too tough. Some judges are the subject to many, many substitutions and others almost none.


In the final analysis, litigants have something to say, in the first instance, as to who the judge will be on their case.

24 comments:

  1. I don't know if you are following it, John, but the ABA Judicial Disqualification Project report is due out in March 2010. A Milwaukee native, Prof. Charlie Geyh from IU Law School, is the reporter for the ABA panel that is studying various ways of getting at the substitution issue.

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  2. as per my question yesterday on your other post about john doe hearings, have I found my answer here? thanks.

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  3. What if a conflict of interest is discovered late in the grounds phase of a TPR action? Is it still possible to request substitution of a judge?

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    1. Once the time for filing a substitution has expired a substitution cannot be filed. A conflict of interest could result in a judge recusing himself or herself but that is very fact intensive and is a decision left solely within the discretion of the trial judge.

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    2. Thank you for your answer.
      What is the time limit to request substitution?
      So it is within the law for the judge to chose not to recuse himself? That's so unfair. He practiced law with the opposing attorney as recently as two years ago. Once we found out, that seemed to explain why the opposing attorney was granted almost every objection and motion. We lost the TPR and are planning to appeal, but we saw the judge's failure to recuse himself as a major argument from which the other inequities of the case flowed. Should we even bother to appeal?

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    3. 48.29 sets forth that the request for substitution in a TPR case must be made before or during the plea hearing. If while the case is pending, the case is reassigned to a new judge then, under 801.58, a party has 10 days from the notice of new judge reassignment to request a substitution of the new judge if the trial is more than 10 days out, or within 24 hours if the trial is less than 10 days out and if the notice is within 24 hours of the trial date the trial can only go forward upon stipulation of all parties. However, a party can file a substitution only once in an action. With respect to your case, you should consult with your attorney.

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  4. Thank you for this information. What constitutes "notice" under 801.58. Is an indication on Ccap enough or does a formal letter need be sent to the parties? Thank you in advance.

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  5. To clarify my question, what would happen in the scenario there were rotations?

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  6. Judges usually advise the parties who appeared in front of them about the rotation which then sets in motion the timeframe in which a substitution must be filed against the new judge also the court clerk or clerks office usually sends out a written notice as well

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  7. I have a strange scenario to ask you about Judge DiMotto. Plaintiff filed a TRO against Defendant in a county where neither person resides nor the alleged incidences in the TRO occurred. The original Judge in that county granted the TRO. Defendant filed for "Substitution of Judge" before the hearing and it was granted. Original Judge was replaced by a Court Commissioner - who decided that a "change of venue" was appropriate in a different county where Plaintiff in fact resides and alleged incidences occurred. Now, Plaintiff has filed for "Substitution of Judge" AND the Original Judge (who was requested to be substituted by Defendant previously) has been re-assigned to this case. Is that proper procedure and is that legal?? I'm baffled. Currently awaiting to hear back from the Clerk of Court on this matter. My understanding is - that once a particular Judge is "substituted" in a particular case - they can NOT be re-assigned to that particular case? Or is there some Catch 22 because there was a change of venue? Thank you in advance Judge DiMotto.

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    1. Once a substitution has been filed and granted that judge is precluded from having the case resigned to him or her.

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  8. Thank you Judge DiMotto. In fact, the Clerk of Court in this county had to "look up the law" on that matter and agreed that an error had been made. We had to call them - they did not call back. So this case went back to the Court Commissioner who had changed the venue. We were not using a lawyer in this matter. Maybe someone can use this as a "cautionary tale". You are your best advocate for your best interests and rights. Also, it doesn't hurt to check, double check and follow up on other people working on your behalf. You have to remember also - when dealing with a county courthouse - they are handling an ENTIRE county so you are not the only case. Errors do happen. However, be respectful and polite about it and they will certainly be more helpful in correcting any errors - such as in this situation.

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  9. The defendants attorney is also the county Family Court Commissioner. Because he works for the same employer as the judge, I feel the judge is already partial. After almost three years we went to court for the first time and reached a settlement. The defendants did not honor it. It's now set for trial 3-30-15, however , I " know", that I can feel the judge has already taken their side. m

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  10. Judge,

    You mentioned that EVERY party has a right to substitution. However, 48.29, mentions pretty much everyone, EXCEPT the prosecutor. Do you know of any other statutory authority or case law that would provide for the prosecuting attorney to request substitution?

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    1. Prosecutors do not have a right to substitute

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  11. What about the civil statute 801.58 (7), does prosecutor have the right to substitute if they get a remand from an appellate court?

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  12. Judge DiMotto

    My case is a vary odd case to me. It was over custody of my child, and protecting her since she can't protect herself. I'm in a different state, my state wouldn't look at the case because she was not in my state. Once I got out the United States Military. I pushed hard at court because while I was still serving I had tried time in and again to visit my child. I was denied visitation numerous of times, and when I did get the chance to enjoy visitation it was ruined time and time again by the mother. So I changed from my state for court to Wisconsin to fight for custody. I had won custody, and I started my child in speaking and playing with a counselor in my state when I had my child. From my state there has been at least 10 DSS reports filled, since it's out of my state it had to be sent to WI DSS and it was all dropped. I never once made a report it was always the counselor doing. Then I received vary chilling information on my child about abuse, sexual abuse, and also leaving the child unattended for hours. I talked to a cheif of police and so my old attorney who became a Judge, they told me I had every right to denie visitation until we can get into court. I did so then the Judge had told me I had to hand my child over other wise I will be taken into custody. Ever since that moment I was held in contempt in that state. We went to court and he took full custody away from me and gave us both 50/50. Not once was I allowed to bring the evidence forward to show the proof and why I denied in the first place. My state wants to take jurisdiction of this case because they feel that WI is not stepping up and protecting a child. This has been going on for 5 years in the state of Wisconsin. We just found out that this judge has been my childs mother judge for over 10 years, from dui's, assault, Harrassment, domestic violence, and also restraining orders and in every case it's been a slap on the wrists. We have also just recently found out that this Judge was my ex's Mother attorney for 8 years. Is there grounds to remove this Judge and request a new Judge to this case and or how my state can take jurisdiction? Also no one has lived in that county for 3 years. So why is it still held there?

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    1. If a person believes that there may be judicial bias, the person may bring a motion that the judge recuse himself or herself. However, great deference is given to the decision and reasons of the judge on the motion. This is something you should discuss with your attorney. With respect to what State's court has jurisdiction, that is governed by the Uniform Child Custody Jurisdiction Act (UCCJA). In Wisconsin that is Chapter 822 of the Wisconsin Statutes. You should discuss its provisions with your attorney. Every case is different. There are no "canned" answers when it comes to jurisdiction, custody, placement, etc.

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    2. If a person believes that there may be judicial bias, the person may bring a motion that the judge recuse himself or herself. However, great deference is given to the decision and reasons of the judge on the motion. This is something you should discuss with your attorney. With respect to what State's court has jurisdiction, that is governed by the Uniform Child Custody Jurisdiction Act (UCCJA). In Wisconsin that is Chapter 822 of the Wisconsin Statutes. You should discuss its provisions with your attorney. Every case is different. There are no "canned" answers when it comes to jurisdiction, custody, placement, etc.

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  13. Hey, I hope you're still actively checking this! I have already been wrongly convicted of a misdemeanor battery charge and the judge was grossly unfair, making up hypothetical situations during the trial (!) in which he verbally imagined me doing far worse battery crimes than I did. I had to terminate my lawyer for poorly representing me and am pro se.

    Every time I appear in front of the judge for various motions he accuses me of trying to trick him, make him look bad, etc.

    Is there any way to substitute him now? He is clearly biased against me. Post trial motion has not been heard yet...

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    1. Substitution of judge is addressed in Wisconsin statute section 971.20. With respect to your specific circumstances you should consult with an attorney with experience in criminal law.

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