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The case: State v. Tavodess Matthews
Majority: Justice Rebecca Dallet (16 pages) for a unanimous court.
Section 801.58(1) entitles a party in a civil case to substitute the assigned circuit court judge if, among other things, that party files a written substitution request before "the hearing of any preliminary contested matters." Matthews filed his substitution request after the circuit court granted his motion to adjourn a scheduled probable cause hearing under Wis. Stat. ch. 980. We hold that Matthews' substitution request was timely because his motion to adjourn is not a "preliminary contested matter" per that phrase's accepted legal meaning and the circuit court heard no other such matter before Matthews filed his request.
This case arises from the early stages of proceedings to commit Matthews as a sexually violent person under Wis. Stat. ch. 980....the circuit court must "hold a hearing to determine whether there is probable cause to believe that the person named in the petition is a sexually violent person...." Matthews' attorneys met with him for the first time on the morning of the probable cause hearing. That same morning, Matthews' attorneys told the State they intended to ask the circuit court to adjourn the hearing because they needed more time to prepare. As a result, the State told its sole witness not to appear.
At the outset of the probable cause hearing, the circuit court acknowledged that the parties were "not going forward with the hearing." Matthews' counsel requested additional time to prepare, noting that Matthews had no objection to rescheduling the hearing outside of the 10-day window required under (state law). The State objected to the adjournment "for the record," but admitted that it was "in a somewhat difficult position" as it had let go of its witness for the day. Despite its "disappointment," the circuit court agreed to reschedule the hearing so long as Matthews waived his statutory right to a probable cause determination within 10 days of his scheduled release. Matthews did so, and the circuit court rescheduled the hearing...
¶The morning of the rescheduled hearing, Matthews' counsel filed a written request...to substitute the circuit court judge. (The law) provides that a party in a civil action, such as a ch. 980 commitment proceeding, may request to substitute the circuit court judge before "the hearing of any preliminary contested matters" but "not later than 60 days after the summons and complaint are filed." \ Matthews argued that his motion was timely because he filed it only 33 days after the State filed its ch. 980 petition and, since the circuit court had not actually commenced the probable cause hearing, it had not yet heard a "contested matter." The circuit court disagreed, finding Matthews' request untimely because the State's objection to Matthews' motion to adjourn rendered the matter "contested."
The circuit court also noted that it had made the "substantive decision" to accept Matthews' time-limit waiver, so it was too late for Matthews to request a substitution. Upon review, Chief Judge Maxine A. White of the Milwaukee County Circuit Court agreed with the circuit court's determination, explaining that Matthews' time waiver constituted a preliminary contested matter.
The court of appeals accepted Matthews' interlocutory appeal and affirmed the circuit court's ruling....
Our focus here is specifically on the phrase "the hearing of any preliminary contested matters," which both parties recognize as the crux of the case....
First, that "preliminary contested matters" has a specific legal meaning, which the legislature explicitly adopted....And second, that there is no "hearing of" a preliminary contested matter until a court actually hears such a matter....
The phrase "preliminary contested matters" has a specific legal meaning referring to pretrial issues that go to the ultimate merits of the case. The roots of this meaning can be traced to the court's interpretation of a mid-nineteenth century change-of-venue statute. That statute provided that when a party requested a change of venue because of the presiding judge's "prejudice," the judge had no discretion to deny the request.
Our survey of the case law revealed that, in the judicial substitution context, a preliminary contested matter is more than just a preliminary issue over which the parties disagree (or, literally, "contest"). Rather, the phrase carries a particular common law meaning referring to a substantive pretrial matter that relates to the "ultimate issues" of the case....
Wisconsin courts have interpreted "preliminary contested matters" consistent with its accepted legal meaning. Pretrial motions that directly implicate the merits of a case, such as a motion to dismiss for failure to state a claim and a motion to compel discovery, are preliminary contested matters....
Conversely, this court, as well as the court of appeals, has held that procedural issues that have no direct effect on the merits of a case are not preliminary contested matters....
The bottom line is that whether a party has timely filed its judicial substitution request turns on what issues a circuit court has already heard. It is irrelevant whether a judge schedules to hear a preliminary contested matter or whether a party actually contests a preliminary issue. Accordingly, we hold that a party's substitution request is timely if it is made before a judge in fact hears a substantive issue that goes to the ultimate merits of the case.
Turning to the facts in this case, we conclude that the circuit court heard no preliminary contested matter prior to Matthews' filing his judicial substitution request. By the time Matthews filed his request on August 29, the circuit court had addressed only his motion to adjourn the August 15 hearing....The circuit court's decision to grant the motion had no effect on the ultimate merits of whether Matthews is a subject for commitment....
We therefore reverse the court of appeals and remand the cause for further proceedings.
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