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SCOW to review meaning of “preliminary contested matter” under civil judicial substitution statute

State v. Tavodess Matthews, 2018AP2142, petition to review a published court of appeals decision granted 8/26/20; case activity (including briefs)

Issue presented:

Is an adjourned probable cause hearing under ch. 980 a “preliminary contested matter” that terminates litigants’ opportunity to request judicial substitution?

Because this is a ch. 980 sexually violent person commitment case, it is governed in part—including on judicial substitution—by the rules of civil procedure. As we explained in our post on the court of appeals decision, § 801.58(1) requires a party to file for substitution before there’s been a hearing on a “preliminary contested matter.” The trial court denied Matthews’s request for substitution because he had moved to adjourn his probable cause hearing, in response to which the state made a pro forma objection (pro forma—or perhaps even disingenuous—because the prosecutor told the witness not to show up, anticipating the defense adjournment request). The court of appeals came to the rather dubious conclusion that this little probable cause hearing pas de deux was a full-blown balletic “preliminary contested matter” because the trial court could have denied the adjournment.

A prior supreme court case on this topic says that a preliminary contested matter has to concern a substantive issue going to the merits of the case. State ex rel. Sielen v. Circuit Court for Milwaukee County, 176 Wis. 2d 101, 113, 499 N.W.2d 657 (1993).  Given an adjournment request seems well removed from this standard, the decision in this case will presumably amplify or modify that test, so beyond being important to ch. 980 practice, it could affect general civil practice, too. Or they could adopt a sui generis test for ch. 980 cases. And it wouldn’t be the first time, either.

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