801.54(2m) (2m) Tribal child support programs. The circuit court may, on its own motion or the motion of any party, after notice to the parties of their right to object, transfer a post-judgment child support, custody or placement provision of an action in which the state is a real party in interest pursuant to s. 767.205 (2) to a tribal court located in Wisconsin that is receiving funding from the federal government to operate a child support program under Title IV-D of the federal Social Security Act (42 U.S.C. 654 et al.). The circuit court must first make a threshold determination that concurrent jurisdiction exists. If concurrent jurisdiction is found to exist, the transfer will occur unless a party objects in a timely manner. Upon the filing of a timely objection to the transfer the circuit court shall conduct a hearing on the record considering all the relevant factors set forth in sub. (2).

801.54(3) (3) Stay of proceeding in circuit court. When a circuit court transfers an action to tribal court under this rule, the circuit court shall enter an order to stay further proceedings on the action in circuit court. Jurisdiction of the circuit 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.

801.54(4) (4) Appeals. The decision of a circuit court to transfer an action to tribal court may be appealed as a matter of right under s. 808.03 (1).

801.54(5) (5) Effect of transfer. When a circuit court orders the transfer of an action to tribal court under this rule, the circuit court shall retain the circuit court filing fee and shall transmit to the tribal court a copy of all circuit court records in the action.

801.54(6) (6) Powers, rights and obligations unaffected. Nothing in this rule is intended to alter, diminish, or expand the jurisdiction of the circuit courts or any tribal court, the sovereignty of the state or any federally recognized American Indian tribe or band, or the rights or obligations of parties under state, tribal, or federal law.

801.54 History History: Sup. Ct. Order No. 07-11, 2008 WI 114, 307 Wis. 2d xvii; Sup. Ct. Order No. 07-11A, 2009 WI 63, 307 Wis. 2d xxi.

801.54 Note NOTE: Sup. Ct. Order No. 07-11 states: “The following Comment to Wis. Stat. s. 801.54 is not adopted, but will be published and may be consulted for guidance in interpreting and applying the statute:”

801.54 Note Comment, 2008: The purpose of this rule is to enable circuit courts to transfer civil actions to tribal courts in Wisconsin as efficiently as possible where appropriate. In considering the factors under sub. (2), the circuit court shall give particular weight to the constitutional rights of the litigants and their rights to assert all available claims and defenses.

801.54 Annotation A court that is considering transferring a case to a tribal court under the tribal transfer statute must conduct a two-part analysis. It must make a clear record of its findings and conclusions regarding concurrent jurisdiction, as well as an analysis of all of the rule’s relevant factors on the facts presented. Kroner v. Oneida Seven Generations Corp., 2012 WI 88, 342 Wis. 2d 626, 819 N.W.2d 264, 10-2533.

801.56 801.56 Change of venue if judge disqualified by interest. When the judge is a party or interested in any action in the judge’s court or is related to or has been of counsel for either party, the court or the presiding judge thereof shall, upon application of either party, and may without such application, change the place of trial or call in another judge as provided in s. 801.58. The fact that the judge is a taxpayer does not disqualify the judge.

801.56 History History: Sup. Ct. Order, 67 Wis. 2d 585, 757, 777 (1975); 1975 c. 218; Stats. 1975 s. 801.56.

801.58 801.58 Substitution of judge.

801.58(1) (1) Any party to a civil action or proceeding may file a written request, signed personally or by his or her attorney, with the clerk of courts for a substitution of a new judge for the judge assigned to the case. The written request shall be filed preceding the hearing of any preliminary contested matters and, if by the plaintiff, not later than 60 days after the summons and complaint are filed or, if by any other party, not later than 60 days after service of a summons and complaint upon that party. If a new judge is assigned to the trial of a case, a request for substitution must be made within 10 days of receipt of notice of assignment, provided that if the notice of assignment is received less than 10 days prior to trial, the request for substitution must be made within 24 hours of receipt of the notice and provided that if notification is received less than 24 hours prior to trial, the action shall proceed to trial only upon stipulation of the parties that the assigned judge may preside at the trial of the action. Upon filing the written request, the filing party shall forthwith serve a copy thereof on all parties to the action and in the manner provided in s. 801.18 (6) (a) or (c).

801.58(2) (2) When the clerk receives 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 the request is found to be timely and in proper form, the judge named in the request has no further jurisdiction and the clerk shall request the assignment of another judge under s. 751.03. If the judge named in the substitution request finds that the request was not timely and in proper form, that determination may be reviewed by the chief judge of the judicial administrative district, or by the chief judge of an adjoining judicial administrative district if the judge named in the request is the chief judge, if the party who made the substitution request files a written request for review with the clerk no later than 10 days after the determination by the judge named in the request. If no determination is made by the judge named in the request within 7 days, the clerk shall refer the matter to the chief judge of the judicial administrative district or to the chief judge of an adjoining judicial administrative district, if the judge named in the request is the chief judge, for determination of whether the request was made timely and in proper form and reassignment as necessary. The newly assigned judge shall proceed under s. 802.10 (1).

801.58(2m) (2m) If, under sub. (2), the judge determines that the request for substitution was made timely and in proper form, any ex parte order granted by the original judge remains in effect according to the terms, except that a temporary restraining order issued under s. 813.12 (3), 813.122 (4), 813.123 (4), or 813.125 (3) by the original judge is extended until the newly assigned judge holds a hearing on the issuance of an injunction. The newly assigned judge shall hear any subsequent motion to modify or vacate any ex parte order granted by the original judge.

801.58(3) (3) Except as provided in sub. (7), no party may file more than one such written request in any one action, nor may any single such request name more than one judge. For purposes of this subsection parties united in interest and pleading together shall be considered as a single party, but the consent of all such parties is not needed for the filing by one of such party of a written request.

801.58(4) (4) Upon the filing of an agreement signed by all parties to a civil action or proceeding, by the original judge for which a substitution of a new judge has been made, and by the new judge, the civil action or proceeding and pertinent records shall be transferred back to the original judge.

801.58(5) (5) In addition to other substitution of judge procedures, in probate matters a party may file a written request specifically stating the issue in a probate proceeding for which a request for substitution of a new judge has been made. The judge shall thereupon be substituted in relation to that issue but after resolution of the issue shall continue with the administration of the estate. If a person wishes to file a written request for substitution of a new judge for the entire proceeding, subs. (1) to (4) shall apply.

801.58(6) (6) 

801.58(6)(a) (a) In probate matters ss. 801.59 to 801.62 apply, except that upon the substitution of any judge, the case shall be referred to the register in probate, who shall request assignment of another judge under s. 751.03 to attend and hold court in such matter.

801.58(6)(b) (b) Ex parte orders, letters, bonds, petitions and affidavits may be presented to the assigned judge, by mail or in person, for signing or approving, wherever the judge may be holding court, who shall execute or approve the same and forthwith transmit the same to the attorney who presented it, for filing with the circuit court of the county where the records and files of the matter are kept.

801.58(7) (7) If upon an appeal from a judgment or order or upon a writ of error the appellate court orders a new trial or reverses or modifies the judgment or order as to any or all of the parties in a manner such that further proceedings in the trial court are necessary, any party may file a request under sub. (1) within 20 days after the filing of the remittitur in the trial court whether or not another request was filed prior to the time the appeal or writ of error was taken.

801.58 History History: 1971 c. 46, 138, 296; Sup. Ct. Order, 67 Wis. 2d 585, 757 (1975); Stats. 1975 s. 801.58; 1977 c. 135 ss. 7, 15, 16; 1977 c. 187 s. 135; Sup. Ct. Order, 82 Wis. 2d ix (1978); 1977 c. 449; 1979 c. 175 ss. 50, 53; 1981 c. 137; 1987 a. 68; 2013 a. 322; Sup. Ct. Order No. 20-07, 2021 WI 37, 397 Wis. 2d xiii.

801.58 Note Judicial Council Note, 1977: Section 801.58 of the statutes has been changed in a number of significant ways. The statute states that a substitution of judge request in a civil action or proceeding is timely only if made before the hearing of a preliminary contested matter, codifying Pure Milk Products Coop. v. NFO, 64 Wis. 2d 241 (1974).

801.58 Note A new provision has been added to allow the parties to a criminal action or proceeding, the prosecuting attorney, and the original and the new judge to agree to have the matter referred back to the original judge. This will aid the administration of justice in those cases where it is advantageous for everyone concerned to have the original judge take back the matter. [Bill 74-S]

801.58 Note Judicial Council Committee’s Note, 1977: Sub. (1) is amended to give a plaintiff 60 days from the time the summons and complaint are filed or a defendant or any added party 60 days after service of a summons and complaint upon them to request a substitution of a new judge, provided no preliminary contested matters have been argued by the requester. The previous time periods for requesting a substitution of judge (i.e., 10 days after the date of notice for a scheduling conference or 10 days after service of a standard scheduling order) are repealed as the use of such a conference or order is no longer mandatory under s. 802.10. [Re Order effective July 1, 1978]

801.58 Note Judicial Council Note, 1981: Sub. (2) has been revised to allow the clerk to refer the substitution request to the chief judge of the judicial administrative district when the judge whose substitution has been requested fails to determine within 7 days whether the request is timely made and in proper form.

801.58 Note Sub. (7) has been amended to clarify that the 20-day time period for filing a substitution request after an appellate remand commences upon the filing of the remittitur in the trial court. Rohl v. State, 97 Wis. 2d 514 (1980). [Bill 163-S]

801.58 Annotation A right can be waived by participation in preliminary motions in which the judge is allowed to receive evidence that of necessity is used and weighed in deciding ultimate issues. Pure Milk Products Cooperative v. National Farmers Organization, 64 Wis. 2d 241, 219 N.W.2d 564 (1974).