Issue (composed by On Point)
Did the circuit court’s violation of Harrison’s right to substitution under § 971.20 deprive the circuit court of jurisdiction over the case and render the judgment void, or can the violation be deemed to be harmless error?
As the substitution statute makes clear, once a timely substitution request has been made and approved, “the judge whose substitution has been requested has no authority to act further in the action except to conduct the initial appearance, accept pleas and set bail,” § 971.20(9), unless the defendant or defense counsel, the prosecutor, the substituted judge, and the substituting judge all sign and file an agreement to transfer the matter back to the substituted judge, § 971.20(11). Harrison filed a timely substitution request before his preliminary hearing and a new judge was assigned to the case. Through an apparent oversight, however, the original judge presided over all of the proceedings after the preliminary hearing, including Harrison’s trial, sentencing, and postconviction motion, without any signed agreement having been filed or another transfer order having been entered, and even though Harrison twice thereafter made it known he didn’t want the original judge presiding in the case.
The state conceded Harrison’s substitution right was violated, but argued the violation was harmless because Harrison received a fundamentally fair trial. The court of appeals summarily rejected the state’s claim, concluding that there is no authority for applying the harmless error doctrine in this situation and the case law suggests that when the substitution statute says a judge lacks the “authority to act,” it means the court can no longer exercise jurisdiction over the matter and any judgment or order rendered by that judge is void for lack of jurisdiction, citing State ex rel. Warrington v. Circuit Court for Shawano County, 100 Wis. 2d 726, 731, 303 N.W.2d 590 (1981), and Kett v. Community Credit Plan, Inc., 222 Wis. 2d 117, 129, 586 N.W.2d 68 (Ct. App. 1998). (State v. Damaske, 212 Wis. 2d 169, 188-89, 567 N.W.2d 905 (Ct. App. 1997), described § 971.20(9) as a limitation on the judge’s competency to act, not on his or her jurisdiction, but that nuance shouldn’t matter: Loss 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.))
Though this case presents what we hope is an unusual set of facts, the decision will be important nonetheless. Allowing a substituted judge to reenter a case and preside over subsequent proceedings “would vitiate the substitution of judge statute by effectively nullifying the defendant’s right to substitute a judge.” State v. Austin, 171 Wis. 2d 251, 256, 490 N.W.2d 780 (Ct. App. 1992), quoting State v. Smith, 106 Wis. 2d 17, 20-21, 315 N.W.2d 343 (1982). Applying harmless error analysis when a substituted judge has in fact reentered the case would also effectively vitiate the right and would, as Austin put it, “condone carelessness”—if not worse—”among lawyers and courts. It is the responsibility of both lawyers and courts to check on previous substitutions as a matter of course.” 171 Wis. 2d at 257.