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SCOW to decide whether to relax strict application of statutory substitution deadline

State of Wisconsin ex rel. Antonio S. Davis v. Circuit Court for Dane County and Honorable Ellen K. Berz, 2022AP1999-W, PFR granted 03/31/2023;  COA decision affirmed, 2024 WI 14, case activity (including briefs, petition for review, and state’s response)

Davis was arrested and charged with two misdemeanors in Dane County. He applied for an attorney through the State Public Defender a day after his arrest, but made his initial appearance before a court commissioner without appointed trial counsel. That same day, Davis’ case was assigned to Judge Ellen K. Berz. Counsel was appointed to represent Davis 65 days later, and after consultation with his newly appointed counsel, Davis filed a request for substitution. Judge Berz denied the request as “untimely.” The supreme court will now review whether the delayed appointment of counsel provides an exception to the strict adherence to Wis. Stat. § 971.20(4)’s deadline to file a request for substitution. Subsection 971.20(4) provides that “[a] written request for the substitution of a different judge for the judge originally assigned to the trial of the action may be filed with the clerk before making any motions to the trial court and before arraignment.” (Emphasis added). In misdemeanor cases “the arraignment may be in the trial court or the court which conducted the initial appearance.” Wis. Stat. § 971.05. Thus, strict adherence to the statute would have required Davis to have filed a written request for substitution before his initial appearance.

However, prior cases have allowed for an “exception to the rule of strict adherence to the statutory filing deadlines when a criminal defendant is arraigned before he receives notice of which judge will hear his case.” State v. Zimbal, 2017 WI 59, ¶41, 375 Wis. 2d 643, 896 N.W.2d 327. In 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) and 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), the court of appeals held that when a defendant does not know what judge will be assigned to try the case until after the plea is entered or until after the initial appearance, “an exception to the filing deadline should be made to allow for an opportunity to exercise the statutory right to substitution.” Presumably in light of this case law, Dane County Circuit Court’s local rules provide that in criminal traffic and criminal misdemeanor cases, “the defendant shall have 20 days after the initial appearance to file a request for substitution of the assigned judge.” See Rule 208.

In Zimbal, the supreme court addressed a “unique” set of circumstances and again refused to require strict compliance with the statute’s deadlines where an unrepresented defendant was told by the circuit court to “defer filing a request for substitution of a judge until after counsel is appointed.” 375 Wis. 2d 643, ¶3. Zimbal’s outcome was unanimous and three justices concurred, explaining that the statutory deadline should have been “equitably tolled” from the date the circuit court told the defendant to hold off on filing a request for substitution until after trial counsel was appointed. Id., ¶70 (Roggensack, C.J., concurring). All of the relevant case law is based on the principle that the statutory right to substitution protects a defendant’s right to a fair trial and that the statute should not be applied in a manner that prevents a defendant from exercising the right to substitution.

Davis’ case presents the court with an opportunity to apply these principles is a less “unique” circumstance: a defendant shows up in court to face misdemeanor charges without appointed or retained counsel. Depending on the county and local availability of attorneys willing or able to accept an appointment to represent the defendant, the defendant may face a delay in the appointment of counsel. Alternatively, even when a defendant is not indigent, or chooses to retain counsel, it can often take more than 20 days for a defendant to come up with funds to retain private counsel. Statutorily, the deadline to file a request for substitution will have long passed in non-felony cases unless (1) the circuit court adjourns the initial appearance, or (2) the statutory deadline is tolled or otherwise relaxed until counsel is appointed or retained. We’ll wait to see whether the supreme court is willing to again relax the strict statutory deadlines so as to allow defendants to exercise their right to substitution in a timely manner and with the assistance of counsel.

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