State v. Edward J. Zimbal, 2017 WI 58, 6/14/17, reversing a per curiam court of appeals opinion, case activity (including briefs)
Don’t get too excited about this victory. The majority, by A.W. Bradley, repeatedly notes that Zimbal’s late request for substitution of judge under §971.20(7) is deemed timely due to the “unique facts” of this case. In a concurrence, Ziegler took the unusual step of warning:
[L]itigants should be hesitant to cite this case as authority in future circumstances not identical to what occurred here. Absent these unique facts, an untimely filing would be just that. It need not be intelligently waived. Op. ¶76.
So, SCOW has published a defense win having no precedential value. It’s better than nothing.
Here is SCOW’s decision:
¶2 Zimbal asserts that the court of appeals erred, contending that his substitution request was timely because: (1) prior to having an attorney appointed he made an oral request for substitution in the circuit court and a written request in the court of appeals; (2) the circuit court instructed him that the filing of a motion for substitution should be deferred until after an attorney was appointed; and (3) his trial counsel formalized the substitution request 17 days after being appointed.
¶3 We conclude that under the unique circumstances presented here, when a defendant follows a circuit court’s instruction to defer filing a request for substitution of a judge until after counsel is appointed, that strict compliance with the 20 day deadline for filing a request for substitution after remittitur is not warranted. Although Zimbal’s motion for substitution of judge was not timely filed under the statute, it was timely filed in this case because the circuit court in essence extended the deadline until after his trial counsel was appointed. Zimbal complied with the extended deadline when he filed a motion for substitution of judge within 20 days after his trial counsel was appointed. Accordingly, we reverse the decision of the court of appeals and remand to the circuit court to vacate the judgments of conviction and for a new trial.
All 7 justices agreed in the result of this case, but Roggensack, R.G. Bradley and Kelly would have reached it different way. The majority, following precedent, held that strict adherence to §971.20(4)’s deadline for substitution requests is not necessary where the government creates an obstacle that prevents timely compliance. Op. ¶¶40-48 (citing Baldwin v. State, 62 Wis. 2d 521, 530-532, 215 N.W.2d 541 (1974); State ex rel. Tessmer v. Cir. Ct. Branch III, In & For Racine Cty., 123 Wis. 2d 439, 443, 367 N.W.2d 235 (Ct. App. 1985); State ex rel. Tinti v. Cir. Ct. for Waukesha Cty., Branch 2, 159 Wis. 2d 783, 790, 464 N.W.2d 853 (Ct. App. 1990)). Roggensack argues that rather than relaxing the rule of “strict compliance,” courts should apply the doctrine of equitable tolling to these kinds of cases. Ziegler just wants to stress that litigant’s waiver of the right to substitution need not be “intelligent.”
Take aways: A request for substitution of judge following an appeal must be in writing and filed within 20 days after remittitur, not 20 days after the appointment of trial counsel. And while Justice Ziegler believes that a waiver of this statutory right needed not be made “intelligently,” it is not clear that the other 6 justices agree with her.
Pace Justice Ziegler, the Wisconsin Supreme Court has on multiple cases taken pains to distinguish “waiver” from “forfeiture.” See, e.g., State v. Ndina, 2009 WI 21, ¶ 29, 315 Wis. 2d 653, 670, 761 N.W.2d 612, 620
“Although cases sometimes use the words ‘forfeiture’ and ‘waiver’ interchangeably, the two words embody very different legal concepts. ‘Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.’ United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (quotation marks and citation omitted).”
So an untimely request for substitution of judge could lead to a forfeiture of that right–not a waiver, which usually mandates an on-the-record colloquy with the defendant.