Chapter 801

801.58 Annotation Sub. (7) creates an unqualified right to substitution when further trial court proceedings are necessary after remand from an appellate court. State ex rel. Oman v. Hunkins, 120 Wis. 2d 86, 352 N.W.2d 220 (Ct. App. 1984).

801.58 Annotation “Further proceedings” under sub. (7) and s. 808.08 (3) have the same definition. State ex rel. Ondrasek v. Circuit Court, 133 Wis. 2d 177, 394 N.W.2d 912 (Ct. App. 1986).

801.58 Annotation If parties are united in interest and plead together and one presents its views in a preliminary contested matter, all united parties are barred from moving for substitution. State ex rel. Carkel, Inc. v. Circuit Court, 141 Wis. 2d 257, 414 N.W.2d 640 (1987). See also DeWitt Ross & Stevens, S.C. v. Galaxy Gaming & Racing Ltd. Partnership, 2003 WI App 190, 267 Wis. 2d 233, 670 N.W.2d 74, 02-0359.

801.58 Annotation Affirmed on other grounds. 2004 WI 92, 273 Wis. 2d 577, 682 N.W.2d 839, 02-0359.

801.58 Annotation When the trial court is ordered to clarify its ruling in a divorce matter on remand, the Bacon, 34 Wis. 594 (1874)-Bahr, 80 Wis. 2d 72 (1977), rule applies, and no substitution under sub. (7) is permitted. State ex rel. Parrish v. Circuit Court, 148 Wis. 2d 700, 436 N.W.2d 608 (1989).

801.58 Annotation Because an ex parte restraining order is not issued in the context of a contested proceeding, a substitution request may be granted subsequent to the entry of an order and prior to a hearing on the merits. Threlfall v. Town of Muscoda, 152 Wis. 2d 308, 448 N.W.2d 274 (Ct. App. 1989).

801.58 Annotation A request for substitution is not allowed when a recommitment hearing under s. 51.20 (13) (g) 3. is before the same judge who conducted the original commitment proceeding. State ex rel. Serocki v. Circuit Court, 163 Wis. 2d 152, 471 N.W.2d 49 (1991).

801.58 Annotation The requirement of sub. (1) that substitution requests be filed preceding the hearing of any “preliminary contested matters” applies to requests filed under sub. (5). A motion to compel discovery constitutes a “preliminary contested matter.” State ex rel. Sielen v. Circuit Court, 176 Wis. 2d 101, 499 N.W.2d 657 (1993).

801.58 Annotation A nonsummary contempt motion is a part of the underlying action from which it arises, and the time allowed for requesting judicial substitution runs from the commencement of the action not from receipt of notice of the contempt proceeding. State ex rel. James L.J. v. Circuit Court, 200 Wis. 2d 496, 546 N.W.2d 460 (1996), 94-2043.

801.58 Annotation The court of appeals is authorized to exercise its supervisory authority over a chief judge who is ruling on a substitution request. State ex rel. James L.J. v. Circuit Court, 200 Wis. 2d 496, 546 N.W.2d 460 (1996), 94-2043.

801.58 Annotation The right to judicial substitution applies to ch. 980 proceedings. State v. Brown, 215 Wis. 2d 716, 573 N.W.2d 884 (Ct. App. 1997), 96-1211.

801.58 Annotation When a judge normally presides in one county but is assigned by substitution to a case filed in another county, the filing and entry for appeal purposes occur when the document comes into the possession of the clerk of court in the county in which the case is commenced. State v. Williams, 230 Wis. 2d 50, 601 N.W.2d 838 (Ct. App. 1999), 98-3338.

801.58 Annotation The only time a chief judge may become involved in the substitution process under sub. (2) is if a circuit court denies a substitution request for not being timely or properly filed. State ex rel. J.H. Findorff & Son, Inc. v. Circuit Court, 2000 WI 30, 233 Wis. 2d 428, 608 N.W.2d 679, 97-3452.

801.58 Annotation If a circuit court may exercise discretion in discharging its duties on remand, the court must engage in “further proceedings” under sub. (7), entitling the parties to the right of substitution. If the remand requires a specific action that requires no exercise of discretion by the trial court, no substitution is allowed. State ex rel. J.H. Findorff & Son, Inc. v. Circuit Court, 2000 WI 30, 233 Wis. 2d 428, 608 N.W.2d 679, 97-3452.

801.58 Annotation Review by the chief judge under sub. (2) is a prerequisite to appeal a denial of a request for substitution. A chief judge may review a denial only if a timely request for review is made. Barbara R.K. v. James G., 2002 WI App 47, 250 Wis. 2d 667, 641 N.W.2d 175, 01-1219.

801.58 Annotation Because two insurance companies’ policies for the same insured were in effect on different dates and provided different types of coverages, they would not be similarly affected by the court’s determination of when damages occurred. As determination of the dates would eliminate the possibility of coverage by one company and raise the possibility of coverage by the other, the two companies were not united in interest under sub. (3) although they shared some interests in the case. State ex rel. Cincinnati Insurance Co. v. Circuit Court, 2003 WI 57, 262 Wis. 2d 99, 663 N.W.2d 275, 02-2756.

801.58 Annotation For a motion hearing to be a “preliminary contested matter” for purposes of sub. (1), the dispositive question is whether the hearing concerned a substantive issue that went to the merits of the case. A hearing on a motion that depositions be suspended sought to narrow the scope of discovery and thus addressed a substantive issue that affected the presentation of the case. DeWitt Ross & Stevens, S.C. v. Galaxy Gaming & Racing Ltd. Partnership, 2003 WI App 190, 267 Wis. 2d 233, 670 N.W.2d 74, 02-0359.

801.58 Annotation Affirmed on other grounds. 2004 WI 92, 273 Wis. 2d 577, 682 N.W.2d 839, 02-0359.

801.58 Annotation Although sub. (7) limits substitution to appeals and writs of error, and a petition for a supervisory writ is neither an appeal nor a writ of error, sub. (7) creates an unqualified right to substitution when further trial court proceedings are necessary after remand from an appellate court. Because the supreme court’s supervisory writ reversed orders of the circuit court and remanded the matter to the circuit court for further proceedings, either party was permitted to seek a substitution of judge. State ex rel. Universal Processing Services of Wisconsin, LLC v. Circuit Court, 2017 WI 26, 374 Wis. 2d 26, 892 N.W.2d 267, 16-0923.

801.58 Annotation Nothing in the grant of authority under s. 751.03 (3) says anything about a method, process, or mechanism by which a chief judge may assign a case, let alone the method by which the chief judge must assign a case. Thus, s. 751.03 (3) permits a chief judge to develop and adopt methods for assigning substitute judges that do not involve personal involvement of the chief judge in each assignment. In this case, a substitute judge was assigned by using an email volunteer system, under which an email was sent to the other judges and the first responding available judge was assigned to the case. The email volunteer system used to assign a substitute judge did not violate this section or s. 751.03 (3). Petitioner v. Evans, 2018 WI App 53, 383 Wis. 2d 669, 917 N.W.2d 218, 17-2297.

801.58 Annotation Under sub. (1), a party timely files a judicial substitution request if, prior to that filing, the circuit court has heard no preliminary contested matter. The phrase “preliminary contested matter” has an accepted legal meaning that refers to a substantive issue that goes to the ultimate merits of the case. State v. Matthews, 2021 WI 42, 397 Wis. 2d 1, 959 N.W.2d 640, 18-2142.

801.58 Annotation The civil peremptory substitution statute: Is Wisconsin too liberal? Seaburg. WBB Jan. 1986.

801.59 801.59 Assigned judge. In any case where another judge has been assigned under s. 751.03 to hear a particular action or proceeding, the clerk of circuit court shall forthwith notify all parties to the action or proceeding, by mail or telephone, noting in the case file the time notice was sent or given and, if notice is given by telephone, the person with whom he or she spoke. If a written request for a substitution of a new judge is filed with regard to an assigned judge, it shall be filed within 7 days after notice of the assignment has been received. A copy of the written request shall be mailed forthwith to all parties and to the named judge.

801.59 History History: 1971 c. 296; Sup. Ct. Order, 67 Wis. 2d 585, 757 (1975); 1977 c. 187 s. 135; Sup. Ct. Order, 141 Wis. 2d xiii (1987).

801.59 Note Judicial Council Note, 1988: This section is amended by allowing notice of a newly assigned judge to be given to the parties by telephone. Notation of the time of notice is required for purposes of s. 801.58 (1). [Re Order effective Jan. 1, 1988]

801.61 801.61 Proceedings after order for change of venue. When the place of trial is changed all process, pleadings and other papers, and copies of all entries and minutes of the clerk in such action shall be certified and transmitted by such clerk to the clerk of the court to which the trial is changed, with a statement of fees. Such fees shall be paid before transmission by the party procuring such change, except in the case mentioned in s. 801.51, in which case the plaintiff shall pay such fees and the change shall be complete on the making of the order. The change, in other cases, shall be complete on filing the papers transmitted. If such transmission and filing be not made within 20 days from the making of the order to change the place of trial, unless such time be extended, the moving party shall lose the right to the change except in the case mentioned in s. 801.51, and no order for a change for the same cause shall thereafter be made and the moving party shall pay the costs of the application within 10 days after the expiration of said 20 days; but the other party may, within 40 days from the time of making of the order granting the change, pay the clerk fees and have the papers certified and transmitted to the court mentioned in such order.

801.61 History History: Sup. Ct. Order, 67 Wis. 2d 585, 757 (1975), 777; 1975 c. 218, 422; Stats. 1975 s. 801.61; 1983 a. 228 s. 16.

801.62 801.62 Conclusiveness of change of venue; second motion. After trial in the court to which the action has been changed, the proceedings for the change shall be conclusive unless a motion to remand was made before the trial commences. If after the transmission of the papers an order changing the place of trial is reversed or set aside the effect shall be to change the place of trial back. After the transmission of the papers back to the original court on the reversal or setting aside of the order, a party may renew the application for a change of venue within 20 days. The renewed application shall be treated as the original application.

801.62 History History: Sup. Ct. Order, 67 Wis. 2d 585, 757 (1975); 1975 c. 218; Stats. 1975 s. 801.62; 1977 c. 449.

801.63 801.63 Stay of proceeding to permit trial in a foreign forum.

801.63(1) (1) Stay on initiative of parties. If a court of this state, on motion of any party, finds that trial of an action pending before it should as a matter of substantial justice be tried in a forum outside this state, the court may in conformity with sub. (3) enter an order to stay further proceedings on the action in this state. A moving party under this subsection must stipulate consent to suit in the alternative forum and waive right to rely on statutes of limitation which may have run in the alternative forum after commencement of the action in this state. A stay order may be granted although the action could not have been commenced in the alternative forum without consent of the moving party.

801.63(2) (2) Time for filing and hearing motion. The motion to stay the proceedings shall be filed prior to or with the answer unless the motion is to stay proceedings on a cause raised by counterclaim, in which instance the motion shall be filed prior to or with the reply. The issues raised by this motion shall be tried to the court in advance of any issue going to the merits of the action and shall be joined with objections, if any, raised by answer or motion pursuant to s. 802.06 (2). The court shall find separately on each issue so tried and these findings shall be set forth in a single order.

801.63(3) (3) Scope of trial court discretion on motion to stay proceedings. The decision on any timely motion to stay proceedings pursuant to sub. (1) is within the discretion of the court in which the action is pending. In the exercise of that discretion the court may appropriately consider such factors as:

801.63(3)(a) (a) Amenability to personal jurisdiction in this state and in any alternative forum of the parties to the action;

801.63(3)(b) (b) Convenience to the parties and witnesses of trial in this state and in any alternative forum;

801.63(3)(c) (c) Differences in conflict of law rules applicable in this state and in any alternative forum; or

801.63(3)(d) (d) Any other factors having substantial bearing upon the selection of a convenient, reasonable and fair place of trial.

801.63(4) (4) Subsequent modification of order to stay proceedings. Jurisdiction of the court continues over the parties to a proceeding in which a stay has been ordered under this section until a period of 5 years has elapsed since the last order affecting the stay was entered in the court. At any time during which jurisdiction of the court continues over the parties to the proceedings, the court may, on motion and notice to the parties, subsequently modify the stay order and take any further action in the proceeding as the interests of justice require. When jurisdiction of the court over the parties and the proceeding terminates by reason of the lapse of 5 years following the last court order in the action, the clerk of the court in which the stay was granted shall without notice enter an order dismissing the action.

801.63(5) (5) Motions under this section may be heard on the record as prescribed in s. 807.13.

801.63 History History: Sup. Ct. Order, 67 Wis. 2d 585, 612 (1975), 758, 777; 1975 c. 218; Stats. 1975 s. 801.63; Sup. Ct. Order, 141 Wis. 2d xiii (1987); Sup. Ct. Order, 151 Wis. 2d xvii (1989).

801.63 Note Judicial Council Note, 1988: Sub. (5) [created] allows motions for stays under this section to be heard by telephone conference. [Re Order effective Jan. 1, 1988]

801.63 Annotation A motion to stay a Wisconsin action or transfer the case to an Iowa court where an action arising out of the same accident was pending was properly denied when the parties were different and because of Iowa law the plaintiff would lose substantial rights. Littmann v. Littmann, 57 Wis. 2d 238, 203 N.W.2d 901 (1973).

801.63 Annotation A court ordinarily should adjudicate the litigation before it and the plaintiff’s choice of a forum should rarely be disturbed unless the balance is strongly in favor of the defendant. A trial of the cause should be permitted in another state only upon a convincing showing that the trial in Wisconsin is likely to result in a substantial injustice. U.I.P. Corp. v. Lawyers Title Insurance Corp., 65 Wis. 2d 377, 222 N.W.2d 638 (1974).

801.63 Annotation A party seeking a stay must show not only that trial in the forum state will be inconvenient and unjust but also that trial in another forum is both more convenient and just. U.I.P. Corp. v. Lawyers Title Insurance Corp., 82 Wis. 2d 616, 264 N.W.2d 525 (1978).

801.63 Annotation This section does not control inconvenient forum motions in custody proceedings. Mayer v. Mayer, 91 Wis. 2d 342, 283 N.W.2d 591 (Ct. App. 1979).

801.64 801.64 Legislative findings; 2007 Wisconsin Act 1. The legislature finds that providing under 2007 Wisconsin Act 1 for the place of trial in the county where the offender resides is consistent with the legislature’s authority under article I, section 7, of the constitution and with previous acts by the legislature providing for the place of trial in counties other than where the elements of the offense may have occurred. The legislature further finds that allowing defendants charged with violating offenses covered by 2007 Wisconsin Act 1 to request a trial in the county where the offense occurred is consistent with the protections in article I, section 7, of the constitution. The legislature finds that violations of offenses covered by 2007 Wisconsin Act 1 are violations of the public trust that should be adjudicated in the county where the offender resides so the individuals who the defendant interacts with daily, serves, or represents as a public official or candidate and whose trust was violated by the offense will judge the defendant’s guilt or innocence. The legislature further finds that to so provide is consistent with equal protection of the laws under article I, section 1, of the constitution. The legislature finds the venue provision in 2007 Wisconsin Act 1 represents an appropriate balance between the rights of the defendant and the need to prevent and prosecute civil and criminal offenses covered by 2007 Wisconsin Act 1.

801.64 History History: 2007 a. 1.