For Immediate Release
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Right of Substitution of Judge on Remand
In the Matter of the Amendment of the Rules of Civil Procedure and
the Rules of Appellate Procedure: Wis. Stat. §§ 801.58(7) and
808.08; Internal Operating Procedures of the Supreme Court and the Court
of Appeals - Right of Substitution of Judge on Remand
Order 00-10
On Aug. 31, 2000, the director of state courts, on the recommendation
of the Committee of Chief Judges and District Court Administrators,
filed a petition seeking the amendment of Wis. Stat. §§
801.58(7) and 808.08 and of the Internal Operating Procedures of the
Supreme Court and of the Court of Appeals to require an appellate court
remanding a case to a lower court to state whether the parties have a
right to request a substitution of judge.
IT IS ORDERED that a public hearing on the petition shall be held in
the Supreme Court Hearing Room, 119 Martin Luther King Jr. Blvd.,
Madison, Wis., on Jan. 16, 2001, at 9:30 a.m.
IT IS FURTHER ORDERED that the court's conference in the matter shall
be held promptly following the public hearing.
IT IS FURTHER ORDERED that notice of the hearing be given by
publication of a copy of this order and of the petition in the official
state newspaper once each week for three consecutive weeks and in an
official publication of the State Bar of Wisconsin not more than 60 days
nor less than 30 days before the hearing.
Dated at Madison, Wis., this 26th day of Sept., 2000.
By the court:
Cornelia G. Clark, Clerk of Court
Petition
The Director of State Courts, on the recommendation of the Committee
of Chief Judges and District Court Administrators, hereby petitions the
court to amend Wis. Stat. § 808.08 and § 801.58(7), pursuant
to the court's authority under § 751.12, and the internal operating
procedures of the Wisconsin Supreme Court and Court of Appeals.
These amendments would direct the appellate courts in remanding a
case to state whether the parties have a right to request a substitution
of judge under the provisions of § 808.08, § 801.58(7), and
case law interpreting those sections. See State ex. Rel J.H. Findorff v.
Milwaukee County, 2000 WI 30, 233 Wis. 2d 428 (April 6, 2000), at 20
n.9, and concurring opinions at 38, 47, and 65.
The committee requests that § 801.58(7) be amended as
follows:
§ 801.58 Substitution of judge.
(7) If upon an appeal from a judgment or order or upon a writ of
error the appellate court orders a new trial or reverses or modifies the
judgment or order as to any or all of the parties in a manner such that
further proceedings in the trial court are necessary, any party may file
a request under sub. (1) within 20 days after the filing of the
remittitur in the trial court whether or not another request was filed
prior to the time the appeal or writ of error was taken. The
appellate court shall determine whether the actions required of the
trial court o remand constitute "further proceedings" within the meaning
of § 808.08(3) and this section, and shall state whether the
parties are entitled to request a substitution of judge on
remand.
The committee requests that § 808.08 be amended to read as
follows:
§ 808.08 Further proceedings in trial
court.
When the record and remittitur are received in the trial court:
(1) If the trial judge is ordered to take specific action, the judge
shall do so as soon as possible.
(2) If a new trial is ordered, the trial court, upon receipt of the
remitted record, shall palce the matter on the trial calendar.
(3) If action or proceedings other than those mentioned in sub. (1)
or (2) is ordered, any party may, within one year after receipt of the
remitted record by the clerk of the trial court, make appropriate motion
for further proceedings. If further proceedings are not so initiated,
the action shall be dismissed except that an extension of the one-year
period may be granted, on notice, by the trial court, if the order for
extension is entered during the one-year period.
(4) The appellate court shall determine whether the actions
required of the trial court on remand constitute "further proceedings"
within the meaning of sub. (3) and § 801.58(7), and shall state
whether the parties are entitled to request a substitution of judge on
remand.
The committee requests that Wisconsin Supreme Court Internal
Operating Procedures, § II.L be amended to create a new §
5:
II.L. Decisional Process. Miscellaneous.
5. Substitution on Remand. When a case is remanded, the Supreme Court
shall determine whether the actions required of the trial court on
remand constitute "further proceedings" within the meaning of §
808.08(3) and § 801.58(7), and shall state whether the parties are
entitled to request a substitution of judge on remand.
The committee requests that Wisconsin Court of Appeals Internal
Operating Procedures, § VI(5) be amended to create a new §
(k):
VI(5). Decisional Process. Opinions.
(j) A decision other than affirmance, or reversal with directions to
render judgment for the appellant, states what court of action is to be
followed in the court below and the rules to be applied therein so far
as they are within the issues decided.
(k) When a case is remanded, the Court of Appeals shall determine
whether the actions required of the trial court on remand constitute
"further proceedings" within the meaning of § 808.08(3) and §
801.58(7), and shall state whether the parties are entitled to request a
substitution of judge on remand.
Respectfully submitted this 31st day of Aug., 2000.
J. Denis Moran, Director of State Courts
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