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Motion to adjourn a probable cause hearing is a “preliminary contested matter” under judicial substitution statute

State v. Tavodess Matthews, 2020 WI App 33; case activity (including briefs).

Section 801.58(1) states that if a party to a civil action files a judicial substitution request “preceding the hearing of any preliminary contested matter” and not later than 60 days after service of the summons and complaint then the request must be granted.  A “preliminary contested matter” refers to a “substantive issue” going to”the merits of the case.” The court of appeals holds that a motion to adjourn a probable cause hearing  in a Chapter 980 case fits that bill.

Matthews’ defense lawyers wanted to postpone his probable cause hearing because they hadn’t had enough time to meet with him They notified the State, which told its witness there was no need to appear. When the circuit court called the case, counsel moved to adjourn, and the State objected.  The court granted the motion, and just before the rescheduled hearing the defense filed a judicial substitution request.

The court of appeals held that the motion to adjourn implicated the “merits” because the trial court could have denied it and forced defense counsel to proceed with the probable cause hearing. That would have implicated “the merits. ” Opinion, ¶19.

The court of appeals also held that “the phrase ‘preliminary contested matters’ does not require that the trial court rule on a substantive issue.” Opinion, ¶20 (citing DeWitt, Ross & Stevens v. Galaxy Gaming and Racing Ltd. Partnership, 2003 WI App 190, ¶¶33-38, 267 Wis. 2d 233, 670 N.W.2d 74, aff’d in part, rev’d in part on other grounds, 2004 WI 92, 273 Wis. 2d 577, 682 N.W.2d 839.

Hmm. Is that what Dewitt said?  It appears to have held that a hearing on a motion for a protective order “addressed a substantive issue that affected the presentation of the case.” Id., ¶38. If the motion were successful it would affect the scope discovery, the evidence, and the presentation of the case.

In any event, State ex rel. Sielen v. Circuit Court for Milwaukee County, 176 Wis. 2d 101, 113, 499 N.W.2d 657 (1993) says: “the dispositive question is whether the hearing concerned a substantive issue which went to the merits of the case.” Sielen held that a hearing on motion to compel discovery fits that description.

We detect an odor of SCOW bait. The court of appeals took this case on interlocutory appeal. And it is pretty clear what really drove this decision by a (panel of three judges who recently left the circuit court bench). Paragraphs 6 and 7 below are the court of appeals’ quotes from the circuit court ruling. Paragraph 24 is part of the court of appeals’ rationale.

¶6 . . . It is rare that this [c]ourt has a couple of hours to dedicate to a case, and we did, and we were all set. And I didn’t hear a word about this until [the prosecutor] reached out this morning right before noon to say that she hadreceived a text from [trial counsel] that said, [“]We’re going to request an adjournment today. We’re not ready to go.[”]

That is a waste of the [c]ourt’s time. It’s a waste of the parties’ time. It’s a waste of the family members’ time. Mr. Matthews has been brought all the way down here for this hearing, and we’re not able to do it.

¶7 Referring to trial counsel, the trial court further stated, I understand that people have vacations and that you were out of town … ; but at least the respect to say we’re back and not ready to go today would have freed a lot of people up, including the witness who was ready to comedown to be at this hearing.

¶24 Matthews argues that the trial “court simply adjourned the hearing[.]” However, as previously stated before ruling on the request to adjourn the probable cause hearing, the trial court “expressed … [its] disappointment that [the hearing was] unable to go forward”, further stating that it was “a waste of the [c]ourt’s time. It’s a waste of the parties’ time. It’s a waste of the family members’ time. Mr. Matthews has been brought all the way down here for this hearing, and we’re not able to do it.” The trial court also suggested that, out of respect for others, trial counsel could have made an earlier request for adjournment.

No mention of any exception to §801.58(1)’s mandate for when the circuit court is irritated with the party requesting substitution.

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