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“Email volunteer system” for assigning substitute judge isn’t unlawful

Petitioner v. Robert D. Evans, 2018 WI App 53; case activity (including briefs)

Evans, the respondent in a domestic abuse injunction proceeding, filed a substitution request on the day of the injunction hearing. To find a substitute judge in cases where substitution is requested so close to the hearing, the clerk uses an “email volunteer system”: An email is sent out to all the other judges to see if anyone is available to take over the case, and the first judge who is gets the case. (¶¶2-4). The court of appeals finds nothing prohibiting this method of assigning a substitute judge.

Domestic abuse injunction proceedings are civil, so the civil substitution statute, § 801.58, applies. Subsection (2) of that statute in turn provides that if a substitution request is timely and in proper form, the clerk shall assign another judge under § 751.03. Nothing in § 751.o3 bars an email volunteer system like the one used in this case:

¶11     The plain language of Wis. Stat. § 751.03(3) authorizes a chief judge to “assign any circuit judge within the district to serve in any circuit court within the district.” (Emphasis added.) Nothing in this grant of authority says anything about a method, process, or mechanism by which the chief judge may assign a case, let alone the method by which the chief judge must assign a case. Faced with such statutory silence as to the method by which a chief judge is to make substitution assignments, we interpret Wis. Stat. § 751.03(3) to permit chief judges to develop and adopt methods for assigning substitute judges that do not involve personal involvement of the chief judge in each assignment.² Evans offers no authority to the contrary.

² We observe that Evans neither makes an argument, nor points to any evidence indicating, that the email volunteer system was not adopted by the chief judge as a method for assigning substitute judges here.

While § 751.03(5) specifically says the assignment of a substitute judge “may be requested or ordered by telephone to minimize disruption of court calendars and inconvenience to parties and witnesses” (emphasis added), that doesn’t mean only telephones (and not email) can be used in time sensitive situations, like substitution requests filed on the day of an injunction hearing. (¶12).

Evans also argues the email volunteer system violates SCR 70.23(4), which says the chief judge may direct assignment of judges in cases of substitution (among other situations) “by lot under a tab system.” The court of appeals says it has no authority to review this claim:

¶16     …[I]t is plainly within the chief judge’s administrative duties under the supreme court rules to assign “judges within each judicial administrative district” and to maintain “a system for and effective management of case flow through the judicial administrative district.” SCR 70.19(3)(a)-(b); see also SCR ch. 70, Judicial Council Committee’s Note (“The following rules, called the rules of judicial administration, govern court administration ….”). In Schoenhofen v. WDOT, 231 Wis. 2d 508, 519, 521-23, 605 N.W.2d 249 (Ct. App. 1999), this court highlighted the distinction between a judge’s administrative and judicial actions, and explained that only the latter is subject to appellate review. In that case, we ruled that, “[b]ecause an appeal to the court of appeals is defined as a review of a ‘judgment or order of a circuit court,’ this court does not have the power of appellate review over decisions of a circuit judge acting in a non-judicial capacity.” (Quoting Wis. Stat. § 808.01(1)) (emphasis added). Thus, under Schoenhofen, we lack the authority to review Evans’s challenge to the chief judge’s non-judicial adoption of the email volunteer system and use of that system.

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