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SCOW: Judge shouldn’t have presided over case after being substituted under § 971.20, and error isn’t harmless

State v. Richard Harrison, 2015 WI 5, 1/22/15, affirming a summary disposition of the court of appeals; opinion by Chief Justice Abrahamson; case activity

The supreme court unanimously holds that a circuit judge erred by presiding over Harrison’s trial, sentencing, and postconviction motions after Harrison filed a timely and proper § 971.20 request for substitution of the judge, the request was granted, and a new judge was appointed. The court rejects the state’s claims that Harrison forfeited his right to substitution and that any error was harmless.

Harrison filed a timely substitution request before his preliminary hearing and a new judge was assigned. The original judge handled arraignment, which is permitted under § 971.20(9), but then continued to preside over all the remaining proceedings despite the fact Harrison personally made it known that he didn’t want the original judge presiding and despite the absence of a signed agreement that, under § 971.20(11), would have allowed the original judge to return to the case. (¶¶12-26).

The court finds ample legal and factual grounds to reject the state’s claim that Harrison forfeited his right to substitution. As to legal grounds, there was no compliance with § 971.20(11), the only statutory method for allowing the substituted judge to return to the case. (¶49). Further, under the case law, in particular State v. Austin, 171 Wis. 2d 251, 490 N.W.2d 780 (Ct. App. 1992), a request for substitution of the judge is not forfeited when—as in Harrison’s case—there’s a timely and proper substitution request, the substitution request is granted, and a new judge presides over one of the proceedings in the case. (¶51). As to factual grounds:

¶70  …[T]he defendant in the present case requested on four occasions that Judge Counsell not preside in the instant case or in a different criminal case involving the defendant. The defendant’s initial request for substitution in the instant case was granted; his subsequent requests were acknowledged but not granted. The circuit court judge was, therefore, fully aware of the defendant’s challenge to the judge’s participation in the instant case and another pending criminal case.

¶71  The defendant’s efforts seeking substitution in the instant case were … rebuffed by the defendant’s counsel and the circuit court.

¶72  These facts do not support a conclusion that the defendant forfeited his request for substitution. Indeed, the case law makes it eminently clear that after the defendant’s timely and proper request for substitution of judge was made and granted in the instant case, the defendant did not have to take additional steps to avoid forfeiture of his substitution request.

The court rejects the state’s request to overrule Austin and instead follow State v. Damaske, 212 Wis. 2d 169, 567 N.W.2d 905 (Ct. App. 1997), which the state contends conflicts with Austin. As the court explains, there’s no conflict between the cases: unlike Austin (and this case), Damaske involved a substitution request that was denied as untimely, and no new judge was assigned. (¶¶64-69).

Note, however, that while the court says there’s nothing in § 971.20 that “intimates” a defendant can forfeit or waive the right to substitution without complying with § 971.20(11), the court does not address whether that is “the exclusive method for abandoning a request for substitution,” and so does not decide whether a request for substitution might be forfeited or waived without complying with § 971.20(11). (¶¶50, 73-75). Thus, if you are handling a case where you made a timely and proper request for substitution that was granted, a new judge presided at a hearing, and the substituted judge returned to preside over the case, you’ve done enough under Austin; but it certainly won’t hurt to object to the judge returning. That will forestall a forfeiture argument, and if the substituted judge’s return was indeed an oversight you will correct the problem.

Having decided Harrison didn’t forfeit his substitution request, the court rejects the state’s argument that any error was harmless. The statute declares that a substituted judge “has no authority to act further in the action except to conduct” three enumerated proceedings, § 971.20(9). The court agrees with Harrison and Damaske, 212 Wis. 2d at 188-89, that the phrase “no authority to act” means the judge loses competency to act, and that a lack of competency isn’t subject to harmless error analysis, State ex rel. Jones v. Franklin, 151 Wis. 2d 419, 424–25, 444 N.W.2d 738 (Ct. App.1989); Jefferson County v. Joseph S., 2010 WI App 160, 15, 330 Wis. 2d 737, 795 N.W.2d 450). (¶¶84-87). The court explains:

¶88  Applying a harmless error analysis in the instant case would nullify the defendant’s statutory right to substitution of the judge. As we explained previously, the statute does not require a defendant to provide a reason for the requested substitution or to demonstrate that prejudice would result from the substituted judge’s presiding.

¶89  In a prior iteration of Wis. Stat. § 971.20, the legislature did require an “affidavit of prejudice” to support a defendant’s request for substitution of the judge…. The legislature repealed the affidavit of prejudice requirement to protect both defendants and circuit court judges and to preserve the public’s confidence in a fair, impartial judicial system….

¶90  Thus, by seeking to impose a harmless error analysis in the present case, the State attempts to insert a condition for substitution that the legislature has deliberately refused to impose. The court should not add an element to the substitution statute that the legislature did not enact….

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