May 10, 2024 – A criminal defendant’s request for judicial substitution was timely even though it was made before the case was bound over, the Wisconsin Court of Appeals (District II) has ruled in State v. Larson, 2023AP1534 (April 24, 2024).

In February 2023, the Kenosha County District Attorney charged Maria Larson and Gerald Campion with first-degree reckless homicide, as parties to a crime.

The file stamp on the front of the criminal complaint listed Branch 6 Judge Angelina Gabriele.

Larson had her initial appearance on Feb. 8, 2023. The district attorney dismissed the case against Campion on Feb. 22, 2023, because Campion had died three days earlier.

The Kenosha County Circuit Court scheduled a preliminary examination of Larson for July 12, 2023.

Request for Substitution

About 90 minutes before the start of the July 12 hearing, Larson electronically filed a request to substitute Judge Gabriele.

During the hearing, the court commissioner found there was probable cause that Larson had committed a felony and said that Larson’s matter would “be bound over to the Honorable Angelina Gabriele.”

When the court commissioner expressed a desire to proceed to arraignment, Larson’s attorney mentioned the request to substitute Judge Gabriele.

The court commissioner said the court had received a copy of the request for substitution, noting the request was timely filed.

The court commissioner then bound the matter over to Judge Anthony Milisauskas, proceeded with the arraignment, and set a pre-trial hearing before Judge Milisauskas for Aug. 30, 2023.

Request Denied

On July 17, 2023, Judge Gabriele denied Larson’s request for judicial substitution because of the co-defendant’s case. Under Wis. Stat. section 971.20(6), a request for substitution in a case with multiple defendants must be made jointly by all defendants.

Larson’s attorney asked the chief judge to review the denial. He explained that the co-defendant, Campion, had been dismissed from the case because he was deceased; he also explained that Larson had filed her request for substitution before the July 12 hearing.

The chief judge acknowledged that section 971.20(6) didn’t apply to Larson’s request.

But he sustained Gabriele’s denial of Larson’s substitution request, on the grounds that the request wasn’t timely under section 971.20(4), because it was filed before the case was bound over and assigned to Judge Gabriele.

The Wisconsin Court of Appeals granted Larson’s petition for an interlocutory review.

Effect of Bindover

On appeal, Larson argued that the chief judge had erred by interpreting section 971.20(4) to require that the request for substitution be filed after the trial judge was officially assigned, in addition to being filed before both the arraignment and the filing of motions with the trial court.

Presiding Judge Mark Gundrum began his opinion for a three-judge panel by explaining that under State ex rel Mace v. Circuit Court for Green Lake County, 193 Wis. 2d 208, 532 N.W.2d 720 (1995), the Wisconsin Supreme Court held that no trial court exists until bindover, and that a judge who takes action on a case before bindover is acting outside his or her capacity as trial judge in the action.

The state argued that the chief judge was right to deny Larson’s request to substitute Judge Gabriele as untimely because it was made before Gabriele had been assigned as the trial judge.

But Gundrum wrote that Mace’s holding that the originally assigned trial judge isn’t officially assigned until bindover “does not create an additional – unstated – requirement that a request for judicial substitution must be filed after an assignment is made.”

“There is only one preclusive timing requirement in section 971.20(4), and that is that a written request for substitution of the trial judge must be filed with the clerk ‘before making any motions to the trial court and before arraignment,’” Judge Gundrum wrote.

Gundrum noted that Larson met that requirement by filing her request for substitution before the start of the July 12 hearing.

Request Was Timely

Judge Gundrum also noted that the circuit court had not acted on Larson’s request for substitution, nor had Larson withdrawn the request, before the start of the July 12 hearing.

“Thus, even though Larson was faced with mere seconds between the bindover assignment of Judge Gabriele as the trial judge and the arraignment, she nonetheless had her written request on file and pending with the court,” Gundrum wrote.

The state argued that a request for substitution made before the identity of the trial judge was officially known was untimely under section 971.20(4).

But Judge Gundrum reasoned that it made sense that the legislature contemplated that a request to submit an assigned trial judge would be made after the judge was assigned, and his or her identity known – otherwise, what name would a defendant put on a request for substitution?

“But the fact the legislature structured the language in a manner consistent with the obvious – that a defendant would not seek to substitute on a trial judge unless the identity of that judge is known – is very different than the legislature stating that a substitution request filed before the assignment of the trial judge – and before the identity of that judge is ‘officially’ known – has no legal effect, as the State asserts,” Gundrum wrote.

Back-end Preclusion Only

Judge Gundrum reasoned that the legislature could have included wording in section 971.20(4) that specified that a request to substitute the originally assigned trial judge must be filed after the original trial judge was assigned and before: 1) making any motions to the trial court; and 2) before arraignment but hadn’t done so.

“The plain language of section 971.20(4) reveals that the legislature only included a back-end preclusion on when a substitution request may be filed; it included no similar front-end preclusion,” Gundrum wrote.

The Court of Appeals remanded the case to the circuit court.​