State v. Maria A. Larson, 2023AP1534-CRAC, 4/24/24, District II (recommended for publication); case activity
Larson’s frustrated attempts to request judicial substitution are finally vindicated in this published decision emphasizing a plain text reading of the statute’s straightforward legal requirements.
At its core, this appeal presents a very simple dispute. Larson and her co-defendant were charged with first-degree reckless homicide as parties to the crime. (¶2). Larson received notice, from the criminal complaint, that her case would be assigned to a specific trial judge. (Id.). After her co-defendant passed away following their initial appearance, Larson appeared at the scheduled preliminary hearing. (¶3). Immediately prior to that hearing, her attorney eFiled a request for judicial substitution. (¶4). Larson then waived her right to a preliminary hearing. (Id.). A court commissioner found probable cause and stated the matter would be “bound over” to the judge listed on the complaint. (Id.). Prior to the formal arraignment, counsel reminded the commissioner of the substitution request and Larson confirmed her desire to substitute. (Id.). The commissioner accepted the substitution request as timely and told Larson the matter would be “bound over” to a different judge before proceeding to arraignment. (Id.).
However, the originally assigned trial judge then entered an order denying the substitution request because it was a “co-defendant” case. (¶5). Counsel appealed to the chief judge, explaining that the case was no longer governed by § 971.20(6), as her co-defendant was deceased. (Id.). However, the order was upheld on different grounds. (¶6). According to the chief judge, the request was untimely. (Id.) While indisputably filed “before arraignment” as required by statute, the court concluded that the trial judge did not become the judge until bindover occurred. (Id.). As Larson made her request before bindover–and before the judge in question was officially “assigned”–then, in the court’s view, it was “not filed appropriately or timely.” (Id.)
On appeal, the State defends this reading of the statute by citing, like the chief judge, State ex. rel. Mace v. Circuit Court for Green Lake County .(¶9). There, SCOW “unmistakably held” that there is no trial court until after bindover. (Id). Thus, in the State’s reading, Larson could not move to substitute “the judge originally assigned to the action” (as phrased in the substitution statute) because, at the time she filed that request, there was no judge assigned. (Id.). In its reading, Larson’s request was therefore premature and without legal effect. (¶10).
COA, however, is unpersuaded by these arguments. It holds that Mace does not answer the question at hand, as nothing in that decision can be read to prohibit the “advance” filing of a substitution request. (Id.). COA therefore turns to the plain language of the statute:
There is only one preclusive timing requirement in § 971.20(4), and that is that a written request for substitution of the trial judge must be filed with the clerk “before making any motions to the trial court and before arraignment.” It is undisputed that Larson met that requirement when she filed her written request before the start of the July 12 hearing.
(¶10). Thus, rather than requiring Larson to have waited to lodge her request in the “mere seconds between the bindover” and the assignment of the trial judge, COA endorses the commonsense approach taken by counsel in this case of preemptively filing, and then renewing on the record, a written request for substitution. (¶12). Although the legislature could have written the statute to preclude such preemptive requests, it included only the “back-end preclusion on when a substitution request may be filed; it included no similar front-end preclusion.” (¶14). Thus, even though the State might be correct that a substitution request in a case where the trial judge is truly unknown makes little sense, there is nothing in the statutes which would render such a filing legally inoperable. (¶13).
