971.20 Substitution of judge.

(1) Definition. In this section, “action" means all proceedings before a court from the filing of a complaint to final disposition at the trial level.

(2) One substitution. In any criminal action, the defendant has a right to only one substitution of a judge, except under sub. (7). The right of substitution shall be exercised as provided in this section.

(3) Substitution of judge assigned to preliminary examination.

(a) In this subsection, “judge" includes a circuit court commissioner who is assigned to conduct the preliminary examination.

(b) A written request for the substitution of a different judge for the judge assigned to preside at the preliminary examination may be filed with the clerk, or with the court at the initial appearance. If filed with the clerk, the request must be filed at least 5 days before the preliminary examination unless the court otherwise permits. Substitution of a judge assigned to a preliminary examination under this subsection exhausts the right to substitution for the duration of the action, except under sub. (7).

(4) Substitution of trial judge originally assigned. A written request for the substitution of a different judge for the judge originally assigned to the trial of the action may be filed with the clerk before making any motions to the trial court and before arraignment.

(5) Substitution of trial judge subsequently assigned. If a new judge is assigned to the trial of an action and the defendant has not exercised the right to substitute an assigned judge, a written request for the substitution of the new judge may be filed with the clerk within 15 days of the clerk's giving actual notice or sending notice of the assignment to the defendant or the defendant's attorney. If the notification occurs within 20 days of the date set for trial, the request shall be filed within 48 hours of the clerk's giving actual notice or sending notice of the assignment. If the notification occurs within 48 hours of the trial or if there has been no notification, the defendant may make an oral or written request for substitution prior to the commencement of the proceedings.

(6) Substitution of judge in multiple defendant actions. In actions involving more than one defendant, the request for substitution shall be made jointly by all defendants. If severance has been granted and the right to substitute has not been exercised prior to the granting of severance, the defendant or defendants in each action may request a substitution under this section.

(7) Substitution of judge following appeal. If an appellate court orders a new trial or sentencing proceeding, a request under this section may be filed within 20 days after the filing of the remittitur by the appellate court, whether or not a request for substitution was made prior to the time the appeal was taken.

(8) Procedures for clerk. Upon receiving a request for substitution, the clerk shall immediately contact the judge whose substitution has been requested for a determination of whether the request was made timely and in proper form. If no determination is made within 7 days, the clerk shall refer the matter to the chief judge for the determination and reassignment of the action as necessary. If the request is determined to be proper, the clerk shall request the assignment of another judge under s. 751.03.

(9) Judge's authority to act. Upon the filing of a request for substitution in proper form and within the proper time, the judge whose substitution has been requested has no authority to act further in the action except to conduct the initial appearance, accept pleas and set bail.

(10) Form of request. A request for substitution of a judge may be made in the following form:

STATE OF WISCONSIN

CIRCUIT COURT

.... County

State of Wisconsin

vs.

....(Defendant)

Pursuant to s. 971.20 the defendant (or defendants) request (s) a substitution for the Hon. .... as judge in the above entitled action.

Dated ...., .... (year)

....(Signature of defendant or defendant's attorney)

(11) Return of action to substituted judge. Upon the filing of an agreement signed by the defendant or defendant's attorney and by the prosecuting attorney, the substituted judge and the substituting judge, the criminal action and all pertinent records shall be transferred back to the substituted judge.

History: 1981 c. 137; 1987 a. 27; 1997 a. 250; 2001 a. 61.

NOTE: See the 1979-80 Statutes for notes and annotations relating to s. 971.20 prior to its repeal and recreation by ch. 137, laws of 1981.

Judicial Council Note, 1981: Section 971.20 has been revised to clarify its objective of allowing defendants in criminal trials one substitution of the assigned judge upon making a timely request. The statute is not to be used for delay nor for “judge shopping," but is to ensure a fair and impartial trial for the defendants. The statute does not govern removal for cause of the assigned judge through an affidavit of prejudice.

When an appellate court remands for the exercise of discretion in ordering restitution, it has not remanded for a sentencing proceeding, and the defendant is not entitled to substitution under sub. (7). State v. Foley, 153 Wis. 2d 748, 451 N.W.2d 796 (Ct. App. 1989).

When an initial appearance is conducted before the judge assigned to hear the matter, strict application of the filing deadline is appropriate. When the intake system does not provide adequate notice of the assigned judge prior to arraignment, deadlines are relaxed to allow the defendant to intelligently exercise the right. Tinti v. Waukesha County Circuit Court, 159 Wis. 2d 783, 464 N.W.2d 853 (Ct. App. 1990).

Once a judge is substituted, that judge may only act in the case as specified in sub. (9). Understandable inadvertent appearance before the substituted judge is not a waiver of the substitution. State v. Austin, 171 Wis. 2d 251, 490 N.W.2d 780 (Ct. App. 1992).

When a case is assigned to a newly appointed judge prior to the appointee's taking the judicial oath, the time limit to request a substitution commences on the date the appointee becomes a judge. Strong v. Dane County Circuit Court, 184 Wis. 2d 223, 416 N.W.2d 451 (Ct. App. 1994).

There is no “trial court" under sub. (4) until after a bindover. A motion to reduce bail prior to the bindover was not a motion to the trial court that prevented filing a request for substitution. Mace v. Green Lake Co. Circuit Court, 193 Wis. 2d 208, 532 N.W.2d 720 (1995).

A defendant who is charged jointly with another defendant may not obtain substitution of a judge under sub. (6) when the codefendant is not yet before the court. Sub. (6) applies in all multiple defendant actions when a codefendant is unavailable to join or refuses to join a substitution request. Garibay v. Circuit Court for Kenosha County, 2002 WI App 164, 256 Wis. 2d 438, 647 N.W.2d 455, 02-0952.

There is no requirement under this section that a judge inform a defendant of the right to substitute a judge or that a judge provide facts bearing on a defendant's exercise of the right. State v. Tappa, 2002 WI App 303, 259 Wis. 2d 402, 655 N.W.2d 223, 02-0247.

When the original judge assigned to a case is later reassigned back to the case, the original judge is not a “new judge" under sub. (5), but remains the judge “originally assigned" under sub. (4). The reassignment does not create a second opportunity to substitute the original judge. State v. Bohannon, 2013 WI App 87, 349 Wis. 2d 368, 835 N.W.2d 262, 12-1691.

When the defendant persisted with his substitution request throughout the proceedings and did not follow the procedure under sub. (11) for abandoning his substitution request, the circuit court erred in presiding over the defendant's trial, sentencing, and postconviction motions. Harmless error analysis did not apply. State v. Harrison, 2015 WI 5, 360 Wis. 2d 246, 858 N.W.2d 372, 13-0298.

Under the unique circumstances in this case, when a defendant followed a circuit court's instruction to defer filing a request for substitution of a judge until after counsel was appointed, strict compliance with the 20-day deadline for filing a request for substitution after remittitur was not warranted. Although the substitution motion was not timely filed under the statute, it was timely filed in this case because the circuit court in essence extended the deadline until after trial counsel was appointed. State v. Zimbal, 2017 WI 59, 375 Wis. 2d 643, 896 N.W.2d 327, 15-1292.

A request for substitution of judge under sub. (7) must be filed in writing with the circuit court. State v. Zimbal, 2017 WI 59, 375 Wis. 2d 643, 896 N.W.2d 327, 15-1292.