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.