March 28, 2024 – An interlocutory appeal or an appeal from a final judgment or order is the preferable way to challenge a denial of a request to substitute a judge, the Wisconsin Supreme Court has ruled.
In Antonio Davis v. Circuit Court for Dane County, 2024 WI 14 (March 26, 2024), the Supreme Court also held (4-2-1) that a defendant was not entitled a substitution of his trial judge where the request was made 71 days after his arraignment.
Justice Janet Protasiewicz wrote the majority opinion, joined by Justice Ann Walsh Bradley, Justice Rebecca Dallet, and Justice Jill Karofsky.
Justice Rebeca Grassl Bradley and Justice Brian Hagedorn each filed a concurrence. Chief Justice Annette Ziegler dissented.
Arrest and Initial Appearance
The police arrested Antonio Davis in Dane County on Aug. 16, 2022. He applied for representation by a State Public Defender (SPD) the next day.
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.
On Aug. 30, 2022, the Dane County District Attorney charged Davis with misdemeanor battery and disorderly conduct. Later that day, Davis made an initial appearance and arraignment before a court commissioner.
SPD hadn’t yet appointed a public defender for Davis, so he was represented at the initial appearance/arraignment by an SPD assigned to argue bail and receive the complaint.
At the initial appearance/arraignment, the court commissioner entered a not guilty plea for Davis.
Request for Substitution
The SPD finally assigned a lawyer to Davis on Nov. 3, 2022.
On Nov. 9, 2022, Davis filed a request for substitution of judge. The circuit court concluded that Davis’s request was untimely and denied it.
Davis then filed a petition for a supervisory writ with the Wisconsin Court of Appeals.
He argued that it was an obstacle created by the government that prevented him from filing a timely request for substitution of a judge and the circuit court therefore had a plain duty to treat his request as timely.
The Court of Appeals denied Davis’s petition. Davis appealed to the Supreme Court.
Court Disregards Forfeiture
The State argued that Davis forfeited the government-created obstacle issue because he’d identified one government-created obstacle in his petition and a different one in his brief to the Supreme Court.
But Justice Protasiewicz noted that the forfeiture is a rule of judicial discretion that courts may disregard where appropriate.
“We exercise our discretion to address [the arguments] in order to clarify the procedure for challenging a circuit court’s order denying a request for substitution of judge as untimely,” Protasiewicz wrote.
Justice Protasiewicz noted that the Supreme Court chose to address the government-created obstacle that Davis mentioned in the brief – the timing of the arraignment.
Late Substitution Can Still Be Timely
Protasiewicz acknowledged that Davis filed his request for substitution after the deadlines established by Wis. Stat. section 971.20(4).
However, she explained that under Supreme Court case law, a court may treat as timely a request for substitution that misses the deadlines in section 971.20(4) if a defendant is arraigned before learning which judge will hear the case.
“Without that information … courts have concluded that the defendant could not exercise the right of substitution intelligently,” Justice Protasiewicz wrote.
But Protasiewicz pointed out the record of proceedings below was not complete, and it was unclear whether Davis knew which judge would preside over his trial before his plea was entered.
“We have no transcript, and there has been no evidentiary hearing at this point,” Justice Protasiewicz wrote.
“All we know is that Davis received two relevant documents on the day of his arraignment. … We do not know if Davis received these documents before or after his arraignment.”
Delay Was Too Long
Protasiewicz pointed out that even if Davis didn’t know the assigned judge before his arraignment, his request for substitution came 71 days after the initial appearance/arraignment.
“None of the [relevant cases] say a request would be timely under such a delay,” Justice Protasiewicz wrote.
That Davis was unrepresented during 65 of those 71 days was immaterial, Protasiewicz concluded.
“It may be the case that a circuit court should consider a defendant’s lack of representation when assessing the timeliness of a request for substitution,” Justice Protasiewicz wrote.
“But we cannot say that the circuit court here had a plain duty to do so, because no law requires it.”
Interlocutory Appeal Preferable
Protasiewicz noted that the Supreme Court has in the past held that a petition for supervisory writ is the preferable method for challenging the denial of a request to substitute a judge.
But, Justice Protasiewicz wrote, an appellate court considering a petition for a supervisory writ under such circumstances “may decide a case based on the existence of a plain duty rather than address the substantive issue.”
As a result, Protasiewicz concluded, a petitioner seeking to challenge the denial of a request to substitute a judge should file a petition for interlocutory appeal or an appeal from a final judgment or order.
R. Bradley Concurrence
Justice R. Bradley agreed that the circuit court had no plain duty to grant Davis’s substitution request.
But she argued that the Supreme Court erred by holding in previous cases that a court may, under certain circumstances, treat as timely a request for substitution that misses the deadlines in section 971.20(4).
R. Bradley argued that the Supreme Court had erred in those cases by not interpreting section 971.20(4) to ascertain its objective meaning.
“The current version of 971.20(4) does not authorize this court to create an ever-evolving common law of judicial substitution,” R. Bradley wrote.
Hagedorn Concurrence
Justice Hagedorn argued that the majority erred by exercising its discretion to ignore Davis’s forfeiture.
“When we allow litigants to present a wholly different case to us than they did below, we put ourselves in the awkward position of ‘telling a lower court it was wrong when it was never presented with the opportunity to be right,’” Hagedorn wrote.
Ziegler Dissent
Chief Justice Ziegler argued in her dissent that the Supreme Court should have dismissed Davis’s petition for review as improvidently granted.
“The majority may begin to consider portion of Davis’s newly developed issue, but it does not definitively answer it, and that was not the issue for which review was granted,” Ziegler wrote.
