State ex rel. James L.J. v. Circuit Court for Walworth County

• Decision Date: 19 April 1996
• Docket Number: No. 94-2043-W,94-2043-W
• Citation: 200 Wis.2d 496,546 N.W.2d 460
• Parties: STATE of Wisconsin ex rel. JAMES L.J., Petitioner, v. CIRCUIT COURT FOR WALWORTH COUNTY, the Honorable James L. Carlson, Presiding, the Honorable Stephen A. Simanek, Chief Judge, Diane J. and Walworth County Child Support Agency, Respondents.
• Court: Wisconsin Supreme Court

Page 460

546 N.W.2d 460

200 Wis.2d 496

STATE of Wisconsin ex rel. JAMES L.J., Petitioner, v. CIRCUIT COURT FOR WALWORTH COUNTY, the Honorable James L.

Carlson, Presiding, the Honorable Stephen A.

Simanek, Chief Judge, Diane J. and

Walworth County Child Support

Agency, Respondents.

No. 94-2043-W.

Supreme Court of Wisconsin.

Argued Feb. 1, 1996.

Decided April 19, 1996.

Circuit Court, Walworth County, James L. Carlson, Judge.

For the petitioner there were briefs and oral argument by Thomas M. Barrett, Brookfield.

For the respondent, Walworth County Child Support Agency, there was a brief and oral argument by counsel, Gary Rehfeldt, Elkhorn.

For all other respondents the cause was argued by James H. McDermott, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General.

SHIRLEY S. ABRAHAMSON, Justice.

This case is before us on certification, Wis.Stat. § (Rule) 809.61 (1993-94), ¹ of a petition for a supervisory writ. The petition was brought by James L.J. (petitioner) directing James L. Carlson, judge for the circuit court of Walworth County, and Stephen A. Simanek, chief judge of the Second Judicial Administrative District, to honor the petitioner's request for substitution of judge pursuant to Wis.Stat. § 801.58(1). We deny the writ and affirm the chief judge's denial of substitution.

This case presents two issues. The first issue is whether the court of appeals has jurisdiction to hear a petition for a supervisory writ relating to a chief judge's ruling on a substitution request. If we determine that the court of appeals has jurisdiction to review a chief judge's ruling on a substitution request, the second issue is whether, as a matter of law, the substitution request in this case should have been denied because it was not timely.

We conclude that the court of appeals has jurisdiction to hear a petition for a supervisory writ relating to a chief judge's ruling on a substitution request. The court of appeals has jurisdiction over "all actions and proceedings in the courts in the district." Wis. Const. art. VII, § 5(3); Wis.Stat. § 752.02. The substitution request in this case arises in a nonsummary contempt proceeding ² pending in a circuit court in the district. Accordingly, the court of appeals with jurisdiction over a contempt proceeding has jurisdiction over a substitution request arising in that proceeding.

We also conclude that because the nonsummary contempt proceeding initiated against the petitioner is attached to and derived from the previously initiated action against the petitioner, the petitioner's substitution request was untimely. We therefore affirm the denial of the petitioner's request for substitution and remand the cause to the circuit court for further proceedings consistent with this opinion.

I.

The procedural facts giving rise to this case are not in dispute. The petitioner's request for substitution arose from a contempt petition filed on May 19, 1994, by the Walworth County Child Support Agency ³ alleging that the petitioner was in arrears on payment of child support and requesting that the circuit court find the petitioner in remedial contempt. The original action from which the support order arose was a paternity action; Judge Carlson had been assigned to the paternity action on April 2, 1990.

Judge Carlson denied the petitioner's substitution request on the ground that it was not timely. The petitioner sought review of the denial of the substitution request by Chief Judge Simanek pursuant to Wis.Stat. § 801.58(2). ⁴ Chief Judge Simanek affirmed Judge Carlson's order, and the petitioner filed a petition for a supervisory writ in the court of appeals.

II.

The first question we address is whether the court of appeals has jurisdiction to hear the petitioner's request for a supervisory writ. The nature and scope of the court of appeals' appellate, supervisory and original jurisdiction are set forth in the constitution and the statutes.

Wisconsin Const. art. VII, § 5(3) provides that the court of appeals shall have such appellate jurisdiction as the legislature may provide, but shall have no original jurisdiction other than by prerogative writ. Furthermore, according to the constitution, the court of appeals may issue all writs necessary in aid of its jurisdiction and shall have supervisory authority over all actions and proceedings in the courts in the district. ⁵ Wisconsin Stat. § 752.02 similarly provides that "[t]he court of appeals has supervisory authority over all actions and proceedings in all courts except the supreme court." ⁶

The court of appeals has previously grappled with the issue of whether it has jurisdiction to review the denial of a substitution request on a petition for supervisory writ. ⁷ In State ex rel. Gilboy v. Waukesha Co. Circuit Court, 119 Wis.2d 27, 349 N.W.2d 712 (Ct.App.1984), the court of appeals had concluded that it could not exercise original jurisdiction when a petition for a supervisory writ pertained to a chief judge's denial of a substitution request. Reasoning that under SCR 70.19 ⁸ a chief judge's actions on a substitution request "constitute the discharge of administrative duties as the administrative chief of the judicial district," Gilboy, 119 Wis.2d at 30, 349 N.W.2d 712, the court of appeals in Gilboy concluded that such administrative actions were beyond the scope of the jurisdiction conferred upon the court of appeals under Wis. Const. art. VII, § 5(3) and Wis.Stat. § 752.02. Focusing on language in the constitutional provision and in Wis.Stat. § 752.02 stating that the court of appeals has supervisory jurisdiction over "actions and proceedings" in the courts, the court of appeals reasoned that a chief judge's administrative actions were neither actions nor proceedings as those terms are used in the constitution and the statutes. Id. at 30-31, 349 N.W.2d 712. The court of appeals took the position that because the chief judge is acting in an administrative capacity, the chief judge's decision is reviewable only by this court, which under the constitution "shall have ... administrative authority over all courts." Wis. Const. art. VII, § 3.

In its certification memorandum to the court in the instant case, the court of appeals raises the question of whether Gilboy remains good law. The court of appeals points out that in State ex rel. Swan v. Elections Bd., 133 Wis.2d 87, 394 N.W.2d 732 (1986), this court characterized as "well reasoned" the Gilboy court's conclusion that the court of appeals "has no supervisory jurisdiction over the chief judge of a judicial administrative district acting in his administrative capacity." Swan, 133 Wis.2d at 91, 394 N.W.2d 732.

As the court of appeals points out, however, in the subsequent case of State ex rel. Town of Delavan v. Walworth Co. Circuit Court, 167 Wis.2d 719, 482 N.W.2d 899 (1992), this court stated that "[w]e ... do not review Gilboy today and make no determination as to whether Gilboy is a correct interpretation of the law." Delavan, 167 Wis.2d at 723 n. 4, 482 N.W.2d 899. ⁹

Having now had occasion to review Gilboy, we reject its interpretation of Wis. Const. art. VII, § 5(3) and Wis.Stat. § 752.02.

We conclude that Wis. Const. art. VII, § 5(3) and Wis.Stat. § 752.02 authorize the court of appeals to exercise its supervisory authority over a chief judge who is ruling on a substitution request. The constitution expressly vests the court of appeals with supervisory authority over all actions and proceedings in all courts except the supreme court. The statutes restate this grant of authority. We conclude that a substitution request is inseparable from the underlying action or proceeding in which substitution is requested and therefore the court of appeals has supervisory authority over a chief judge ruling on a substitution request.

The Gilboy court looked only to the chief judge's role in the substitution request, labeled it an administrative function rather than an action or proceeding and concluded that the court of appeals had no authority over administrative actions. The court of appeals failed to consider the context in which the chief judge was acting. The issues of whether a substitution request is timely or whether substitution is available raise questions of law regarding the interpretation of a statutory right. Although the subject of judicial substitution affects the administration of the courts, the exercise of the statutory right to substitution in any particular case raises a question of law rather than a question of court administration. The circuit judge's ruling on a substitution request is thus a judicial decision rendered as part of the underlying action or proceeding. Because the court of appeals has jurisdiction over the underlying proceeding in which a substitution request arises, it should also have jurisdiction over the legal issues raised in the substitution request itself.

Furthermore, interpreting the constitution and statutes to allow the court of appeals to exercise jurisdiction over a petition for a supervisory writ relating to a chief judge's denial of a substitution request represents sound appellate practice. Under our constitutional division of appellate functions, the court of appeals is designed to retain "a close relationship to the circuit court in respect to the superintending control of circuit court functions." Swan, 133 Wis.2d at 93, 394 N.W.2d 732. Hence the court of appeals is better suited to decide these issues and thereby provide a consistent, uniform interpretation of the substitution statutes. ¹⁰

In Gilboy, the court of appeals intimated that before it could exercise appellate review of a chief judge's denial of a substitution request, the aggrieved party had to apply for a writ of mandamus to the circuit judge to compel the judge to perform an act the judge already had refused to perform. Gilboy, 119 Wis.2d at 32-33, 349 N.W.2d 712, (citing State ex rel. Dept. of Agriculture v. Aarons,...