Starke v. Village of Pewaukee, 77-067

• Decision Date: 03 October 1978
• Docket Number: No. 77-067,77-067
• Citation: 270 N.W.2d 219,85 Wis.2d 272
• Parties: Murill STARKE, Plaintiff-Respondent, v. VILLAGE OF PEWAUKEE, a Municipal Corporation, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 219

270 N.W.2d 219

85 Wis.2d 272

Murill STARKE, Plaintiff-Respondent, v. VILLAGE OF PEWAUKEE, a Municipal Corporation, Defendant-Appellant.

No. 77-067.

Supreme Court of Wisconsin.

Argued Sept. 5, 1978.

Decided Oct. 3, 1978.

August E. Fabyan, Village Atty., Hartland, argued and on brief, for defendant-appellant.

Willis B. Swartwout, III, argued, Gary L. Heiber and Swartwout & Heiber, New Berlin, on brief, for plaintiff-respondent.

COFFEY, Justice.

There are 4 issues on appeal.

1. Does a reserve circuit judge temporarily assigned because of the illness of the presiding judge have the authority to review or modify a judgment entered prior to the reserve judge's specific assignment to the particular case?

2. Assuming that the reserve circuit judge had authority to act under the above circumstances, did he properly exercise his discretion in modifying the judgment in this case?

3. If the reserve circuit judge should not have modified the judgment, should the original judgment entered by Judge Gramling be reviewed and affirmed?

4. Is the plaintiff-respondent entitled to back pay from November 29, 1976 to the date of his resignation on July 6, 1978 if the Village Board did not have the power and authority to discharge the respondent?

The appellant village has filed a motion to dismiss based upon the mootness of the issues presented in this case. It should be noted that the granting of a motion to dismiss essentially constitutes an affirmance of the trial court's decision from which the appeal is brought.

"The dismissal of an appeal or error proceeding, as a general rule, vacates the proceeding and leaves the decree of the subordinate court in full force. Dismissal has been said to amount, in effect, to an affirmance. The trial judgment is left undisturbed and may be regarded as res judicata." 5 Am.Jur.2d, Appeal and Error, § 390, p. 345.

Given that the granting of a motion to dismiss would in effect result in affirmance of Judge Raskin's order, a discussion of the issues and merits of this case is inextricably bound to the court's consideration of the motion to dismiss.

The appellant contends that the reserve judge assigned to a case because of the present incapacitation of the presiding judge exceeds his authority in reviewing or modifying a decision or judgment previously rendered by the presiding judge. We do not agree with the appellant's contention.

Judge Raskin was assigned to this case by specific assignment from Chief Justice Beilfuss on May 23, 1977 in the following language:

"It appearing that a judge should be assigned to act in the above entitled matter under Secs. 251.82 and 252.075 because of the inability of the Hon. William Gramling to act due to illness.

IT IS ORDERED that the Hon. Max Raskin be assigned to act in the above entitled matter in the 22nd Judicial Circuit, Branch 1."

Sec. 252.075, Stats. (1975), renumbered 753.075 by the Laws of 1977, ch. 187, sec. 92, effective August 1, 1978, is controlling as to the powers of a reserve judge serving in a circuit court by assignment of the Supreme Court. The statute reads:

"(1) POWERS. Retired supreme court justices and retired circuit judges serving temporarily as circuit or county judges at the request of the chief justice of the supreme court may exercise all jurisdiction of the circuit or county court in which they serve."

The assignment by Chief Justice Beilfuss pursuant to sec. 252.075(1), Stats. (1975), makes it clear that as of May 23, 1977 Judge Raskin in his disposition of this case possessed all of the powers that would have been held by Judge Gramling, but for his illness and the ensuing assignment order.

The analysis of this case requires preliminary consideration be given to the question of whether as of May 13, 1977 did a judgment in fact exist? Whether or not a judgment existed on May 13, 1977 is important in two respects. The first, if a judgment existed on May 13, 1977, by what authority did Judge Raskin modify the judgment? Second, if Judge Raskin's order is vacated or reversed, can Judge Gramling's order be affirmed?

On May 5, 1977 the respondent filed with the Waukesha Circuit Court a motion for reconsideration of Judge Gramling's decision of December 23, 1976. Judge Raskin, sitting as Branch I of the Waukesha Circuit Court on a general assignment, scheduled a motion for hearing on May 16, 1977. The record does not indicate by what authority Judge Raskin was sitting prior to the specific assignment to this case on May 23 1977, but this court takes judicial notice of its own records and proceedings. ¹

Since Judge Raskin was serving on May 5, 1977 by virtue of a general appointment from the supreme court, his powers were those enumerated in the previously recited statute, sec. 252.075(1), Stats. (1975). Possessing all of the powers of the circuit court, Judge Raskin, on May 5, 1977, had the authority to schedule the motion. The crucial question must be asked: What powers does a presiding judge retain while a reserve judge is sitting by assignment to that court. Neither statutory nor case law shed any light upon this problem. Does a presiding judge retain all the court's powers and jurisdiction while a reserve judge is sitting by assignment; if so, Judge Gramling was empowered to sign the judgment order on May 13, 1977 and a valid judgment existed as of that date. It is the law of Wisconsin that a judgment signed while motions are pending is a mere irregularity and does not render the judgment void. ² But if a presiding judge does not retain the powers of the court while a reserve judge is sitting in temporary replacement, Judge Gramling would not have had the authority to sign the judgment and the judgment order of May 13, 1977 would be void.

We find that sec. 252.075(1), Stats. (1975), and its renumbered counterpart sec. 753.075, Stats., do not affect a presiding judge's powers and jurisdiction. Therefore, Judge Gramling had the authority to sign the judgment on May 13, 1977 despite the assignment to Judge Raskin.

The factual and legal parameters of this case must be clearly defined. This case presents a question of conflicting judicial authority within a single circuit court branch. The conflict of judicial authority was created when two judicial officers were exercising concurrent judicial power over the same circuit branch. The creation of these separate spheres of judicial influence was precipitated by a temporarily disabling illness to the presiding judge and a general assignment of a reserve judge to that circuit branch. Therefore, this case is unlike Alexander v. Sloan, 73 Wis.2d 145, 242 N.W.2d 904 (1976), wherein this court admonished a litigant's post order "forum shopping" between presiding judges and separate branches of the same circuit; such action being taken without a showing as to the unavailability of the original presiding judge. Supra at 149, 242 N.W.2d 904.

As noted, concurrent spheres of judicial power existing between a presiding judge and an assigned reserve judge precipitate the problem arising in this case. Certainly, concurrent spheres of judicial authority in the same branch of a court do not promote the orderly administration of judicial proceedings. Thus, a discussion of applicable case law history is relevant.

In Harrigan v. Gilchrist, 121 Wis. 127, 99 N.W. 909 (1904), a somewhat similar situation was dealt with by the supreme court. Receivership proceedings were begun in 1893 and were not completed prior to the expiration of the trial judge's term of office on January 1, 1898. On the day before leaving office, the trial judge made his order which was subsequently set aside by the successor judge. The court said regarding a challenge made against the successor's authority to act:

"The judge of the court at the time the order of December 30th was vacated, had the same authority to take such action as his predecessor would have had, if the latter's term of office had continued to the time thereof. . . . True, though a judge who comes into power, as here, possesses authority, in a sense, to review decisions of his predecessor, as under the circumstances of this case, such authority should be exercised with great care." Supra at 428, 99 N.W. at 1005.

The preceding was reiterated at page 430, 99 N.W. at page 1005, the court commenting:

"So while we fully recognize the rule contended for by appellant's counsel, it is not one creating an absolute disability of a judge to set aside an order made by his predecessor, where the latter, if in office, might do it."

The distinction between a successor judge granted his own term by the electorate and in this instance, a reserve judge serving by a specific case appointment of the supreme court, is of minimal significance in light of the powers granted to a reserve judge under then sec. 252.075, Stats. (1975).

The question of the authority of a successor judge to rule upon matters pending before the presiding judge was reviewed in State ex rel. Pardeeville Electric Light Co. v. Sachtjen, 245 Wis. 26, 13 N.W.2d 538 (1944). Judge Sachtjen was appointed to fill the vacancy created by the trial judge's death. Prior to his death the trial judge had heard testimony on the plaintiff's challenge to the validity of an acquisition order issued by the public service commission. The transcript of the testimony was remanded to the commission for a report following reconsideration of the testimony. The trial judge died before having heard oral arguments or taken any steps towards a decision. Judge Sachtjen's authority to continue with the case based upon the existing transcript was affirmed by this court. Relying on the authority of Harrigan v. Gilchrist, supra, the court stated:

". . . and when a new judge is appointed and qualifies, he is clothed with all powers and jurisdiction possessed by his predecessor." 245 Wis. at 32, 13 N.W.2d at 541.

The Sachtjen rule was modified to some extent in Cram v. Bach, 1 Wis.2d 378, 83 N.W.2d 877 (1957...