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Judicial Substitution/Recusal — Waiver: Failure to Seek Chief Judge’s Review

Barbara R.K. v. James G., 2002 WI App 47

Issue: Whether review of a denied request for substitution of judge is waived by failure to seek review of the denial by the local chief judge.


¶9…. The statute then provides: “If the judge named in the substitution request finds that the request was not timely and in proper form, that determination may be reviewed by the chief judge of the judicial administrative district … if the party who made the substitution request files a written request for review with the clerk no later than 10 days after the determination by the judge named in the request.” Wis. Stat. § 801.58(2). Barbara did not avail herself of review by the chief judge.

¶14 We view the chief judge review procedure as analogous to exhaustion of administrative remedies. It is well settled that where a method of review is prescribed by statute and adequate relief may be obtained through the review procedure, the pursuit of administrative relief is a prerequisite to judicial review. Jackson County Iron Co. v. Musolf, 134 Wis. 2d 95, 102, 396 N.W.2d 323 (1986). The exhaustion doctrine promotes judicial efficiency by allowing conflicts to be resolved at the administrative level without resort to litigation.

¶15 Here, Wis. Stat. § 801.58(2) provides an avenue to facilitate review of denials of requests for substitution of judge. That avenue must be pursued in order to preserve the issue on appeal. If Barbara wanted to appeal the denial of her request for substitution, she was required to seek review by the chief judge. Since she did not, she has waived her right to appeal.

This is a civil case. The criminal statute, § 971.20 is worded differently, but at least arguably “it is the defendant’s obligation to promptly seek review (of a denied substitution request), either by the chief judge of the administrative district or via a writ of prohibition.” State ex rel. Nowak v. Circuit Court, 169 Wis.2d 395, 397, 485 N.W.2d 419 (Ct. App. 1992). A subsequent case suggests that a substitution issue may be preserved merely by going to trial, i.e., without seeking pretrial review. State v. Damaske, 212 Wis.2d 169, 186-87, 567 N.W.2d 905 (Ct. App. 1997).


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