Supreme Court Digest

By Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

Editor's Note: Each case summarized in the Supreme Court Digest includes its new public domain citation.

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Remands - Substitutions - Supervisory Writs - Chief Judge's Review

State ex rel. J. H. Findorff & Son Inc., 2000 WI 30 (filed 6 April 2000)

In an earlier action the court of appeals reversed and remanded a circuit court decision against the petitioner relating to a breach of contract. On remand, the petitioner requested a judicial substitution, the trial judge granted the request, but the chief judge later denied the request on review. The petitioner then asked the court of appeals to issue a supervisory writ of mandamus, which it refused to do because the "original directives on remand required 'specific action,' and therefore, the right of substitution did not attach."

The supreme court, in a decision written by Justice Crooks, reversed. The original directives on remand called for "'further proceedings' that required the circuit court to exercise its discretion," not merely discharge a ministerial duty. The supreme court also held "that the chief judge was without authority to review and reverse the circuit court judge's decision" granting the substitution request. Wisconsin statutes and court rules provide that a chief judge may only review orders denying substitution, not those granting the request.

Chief Justice Abrahamson, joined by Justice Bradley, concurred but wrote separately to strongly suggest that the supreme court and the court of appeals expressly address the right to substitution in any decision mandating a remand.

Justices Wilcox and Bradley (also joined by the Chief Justice) each filed separate concurring opinions. Justice Wilcox expressed concern about the scope of the phrase "specific action" and whether the court's decision will result in "more liberal substitution of judges in civil actions on remand" (¶ 39). Justice Bradley concluded that "the majority misconstrues and misapplies prior cases, and precludes the circuit court from exercising even a scintilla of discretion" (¶ 49).

PR - Statutory Notice - Testimony Required

Waukesha County v. Steven H., 2000 WI 28 (filed 24 March 2000)

A circuit court terminated the parental rights of Steven H. to his daughter Brittany. The court of appeals reversed because some of the orders removing Brittany from her home failed to include the written notice required by section 48.356(2) of the Wisconsin Statutes (1997-98).

The supreme court, in a decision written by Chief Justice Abrahamson, reversed. Two issues were before the court. First, did sections 48.356(2) and 48.415(2) "require each and every order placing a child outside his or her home contain the written notice prescribed by sec. 48.356(2) in order for the termination of parental rights to proceed?" The court held that the statutes do not require that "each and every order removing a child from his or her home contain the written notice prescribed by sec. 48.356(2)." Rather, the statutes "require that the last order specified in sec. 48.356(2) placing a child outside the home, which must be issued at least six months before the filing of the petition to terminate parental rights, must contain the written notice required by sec. 48.356(2)." This construction ensures timely notice and "does not vitiate a termination of parental rights proceeding when one or more previous orders fails to contain the statutorily prescribed written notice." The court cautioned, however, that "the better practice" is to include the statutorily required written notice in all orders to which the statute applies.

Second, the circuit court violated section 48.356(2) when it failed to hear testimony in support of the petition's allegations. Nevertheless, the supreme court reviewed the entire record and concluded that under the totality of the circumstances Steven H. was not prejudiced by the error. Among the factors considered was that Steven H. voluntarily and knowingly waived his right to contest the fact-finding hearing and the testimony by one of his attorneys that Steven H. understood the facts alleged in the petition. The statutes nevertheless require the court to hear testimony in support of the petition's allegations.

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