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Judicial Substitution – Delinquency, § 938.29(1)(m) – Review by Chief Judge

State of Wisconsin ex rel. Mateo D.O. v. Circuit Court, 2005 WI App 85
For Mateo D.O.: Colleen Bradley, SPD, Oshkosh Trial

Issue/Holding: The chief judge has authority to review denial of a substitution request in a delinquency proceeding, under §§ 938.29(1)(m) and 801.58(2). (Because § 801.58(2) is the more specific provision, it “applies when the juvenile’s request for substitution is denied,” ¶9; it plainly provides for “review[] by the chief judge of the judicial administrative district.”)

¶10. Our conclusion that the chief judge has authority to review the denial of the juvenile’s request for substitution is consistent with our holding in Barbara R.K. v. James G., 2002 WI App 47, 250 Wis. 2d 667, 641 N.W.2d 175. There we held that “Wis. Stat. § 801.58(2) provides an avenue to facilitate review of denials of requests for substitution of judge.” Id., ¶15. We recognized that review by the chief judge promotes judicial economy and efficiency. Id., ¶11. The failure to obtain review by the chief judge is akin to the failure to exhaust administrative remedies and constitutes waiver of the right for appellate review. Id., ¶¶14-15. The goal of judicial efficiency in a juvenile proceeding requires that the chief judge review the denial of a substitution request before the issue is brought to this court.

The implication is clear: though the review provision is couched in the permissive “may,” it is mandatory in effect (“requires that the chief judge review”). If you don’t seek review by the chief judge you’ve almost certainly waived the issue.

Issue/Holding: Judicial substitution request may be signed by counsel on behalf of the juvenile, who need not sign the request him or herself. ¶¶11-14.

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