Section 801.58(1) allows a party to a civil case to request a new judge if, among other things, he files a written substitution request before “the hearing of any preliminary contested matter.” Matthews’ case concerns a substitution request made after the circuit court granted a motion to adjourn a Chapter 980 probable cause hearing regarding sexually violent persons. But since Chapter 980 commitments are civil proceedings, this unanimous SCOW opinion, which reverses a published court of appeals’ opinion, is an important clarification of the law governing all civil cases.
The State filed a Chapter 980 petition, and the circuit court scheduled a probable cause hearing on it. At the outset of the probable cause hearing, Matthews’ attorneys requested an adjournment, and the circuit court granted it. On the morning of the rescheduled hearing, Matthews’ lawyers filed a written request to substitute the judge. the circuit court denied it and the court of appeals affirmed.
This case boiled down to the question of what qualifies as a hearing on a preliminarily contested matter. SCOW held that a hearing on a motion to adjourn is not a hearing on a preliminary contested matter. Opinion, ¶1. It ruled that:
The phrase ‘preliminary contested matters’ has a specific legal meaning referring to pretrial issues that go to the ultimate merits of the case. Opinion, ¶11 (Emphasis supplied).
The roots of this definition can be traced to (a) mid-19th century change-of-venue statutes, (b) the exposition of the phrase in Pure Milk Products Cooperative v. National Farmers Organization, 64 Wis. 2d 241, 219 N.W.2d 564 (1974), and (c) the legislature’s subsequent codification of Pure Milk Products. Opinion, ¶¶11-18.
Examples of motions that implicate the merits of a case and thus qualify as “preliminary contested matters” are a motion to dismiss for failure to state a claim, a motion to compel discovery, and an initial commitment proceeding under Chapter 51. Opinion, ¶16 (citing State ex rel. Carkel, Inc. v. Cir. Ct. for Lincoln Cnty., 141 Wis. 2d 257, 265, 414 N.W.2d 640 (1987)(motion to dismiss); State ex rel. Sielen v. Cir. Ct. for Milwaukee Cnty., 176 Wis. 2d 101, 113-114 499 N.W.2d 657 (1993)(motion to compel discovery); and State ex rel. Serocki v. Cir. Ct. for Clark Cnty., 163 Wis. 2d 152, 159-60, 471 N.W.2d 49 (1991)(initial commitment).
Examples of matters that do not go to the merits of the case so that contested hearings on them do not qualify as ” preliminary contested matters are” a circuit court decision to accept a court commissioner’s proposed alimony modification order, a motion to join parties, and a motion to intervene in a case. Opinion, ¶17. (citing State ex rel. Tarney v. McCormack, 99 Wis. 2d 220, 234, 298 N.W.2d 552 (1980)(alimony modification); and City of La Crosse v. Jiracek Cos., 108 Wis. 2d 684, 688-89, 694-95, 324 N.W.2d 440 (Ct. App. 1982)(motions to join and intervene).
SCOW also addressed the meaning of the word “hearing” in the phrase “hearing of preliminary contested matters.” The State argued that a substitution request must be made before the case is even scheduled for a contested hearing. SCOW disagreed.
A judge cannot “reach” a substantive issue without first “hearing” arguments on that issue. Merely scheduling a hearing about a substantive issue is insufficient. See Eldred v. Becker, 60 Wis. 48, 48, 18 N.W. 720 (1884). Opinion, ¶20.
Note to lawyers researching statutory construction: This opinion includes helpful analysis regarding how courts are to interpret statutes when the legislature adopts a phrase from the common law or amends a statute to incorporate language from a SCOW opinion. Opinion, ¶9.