How to Substitute a Judge in a Wisconsin Criminal Case

John Scott Swimmer

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DUI / DWI Attorney - Shorewood, WI

Contributor Level 14

Posted over 1 year ago. Applies to Wisconsin, 1 helpful vote

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When Can I Substitute the Judge in My Case

In Wisconsin in almost every type of case, a party may, if done in a timely manner 10 day, file a motion to substitute for a new judge. The right to substitute exists in every type of case and there are statutes which provide for the specific procedure. If the party follows the proper procedure for requesting a substitution of judge, the substitution is peremptory; no affidavit of prejudice or statement of grounds for the substitution is required. If timely made the request must be honored. State ex rel. Tarney v. McCormack, 99 Wis. 2s 220, 236 N.W. 2d 552 (1980).

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Substitution Can be Accomplished in All Criminal Cases

No statutory provisions exempt any particular type of action or proceeding from the substitution procedure under section 801.58, and the following procedure has been applied in a variety of actions. See generally Wisconsin Civil Procedure Before Trial Third Ed.

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Substitution has been applied in a variety of actions, including the following:

Chapter 51 - Commitment and recommitment proceedings. State ex rel. Serocki v. Circuit Court, 163 Wis. 2d 152. 471 N.W. 2d 49 (1991). 48.29 - Children in Need of Protection or Services (CHIPS) case and Termination of Parental Rights (TPR) cases. 938.29 - Juvenile Delinquency cases. 971.20 - Criminal cases. 801.58 - Civil, Probate and Family cases. State ex rel. Sienlen v. Circuit Court, 176 Wis. 2d. 101, 499 N.W.2d 657 (1993) The theory behind Wisconsin's Substitution of Judge law is to give litigants one opportunity to have a judge removed from the case if the litigant just does not want the judge regardless of whether they have a good reason or not.

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Sample Motion

DEMAND FOR JUDICIAL SUBSTITUTION Pursuant to section 971.20 of the Wisconsin Statutes, the defendant, appearing specially by the undersigned attorney and reserving the right to challenge the court's jurisdiction, requests a substitution for the Honorable Richard Nixon as judge in the above-entitled action.

Additional Resources

swimmerlaw.com, Wisconsin Bench Book, State Bar of Wisconsin

Swimmer Law Offices, LLC

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