State ex rel. Tarney v. McCormack, 79-1786-W

• Decision Date: 25 November 1980
• Docket Number: No. 79-1786-W,79-1786-W
• Citation: 298 N.W.2d 552,99 Wis.2d 220
• Parties: STATE ex rel. Anne J. TARNEY, Petitioner, v. Francis X. McCORMACK, Milwaukee County Circuit Court Clerk, Edward S. Vakos, Milwaukee County Circuit Court Calendar Clerk, Honorable John F. Foley, ChiefJudge of the Milwaukee County Circuit Court, Family Division, Branch 7, Honorable Christ T.Seraphim, Milwaukee County Circuit Court, Family Division, Branch 11 andRichard Tarney, Respondents.
• Court: Wisconsin Supreme Court

Page 552

298 N.W.2d 552

99 Wis.2d 220

STATE ex rel. Anne J. TARNEY, Petitioner, v. Francis X. McCORMACK, Milwaukee County Circuit Court Clerk, Edward S. Vakos, Milwaukee County Circuit Court Calendar

Clerk, Honorable John F. Foley, ChiefJudge of the Milwaukee

County Circuit Court, Family Division, Branch 7, Honorable

Christ T.Seraphim, Milwaukee County Circuit Court, Family

Division, Branch 11 andRichard Tarney, Respondents.

No. 79-1786-W.

Supreme Court of Wisconsin.

Argued Sept. 30, 1980.

Decided Nov. 25, 1980.

Robert E. Cook of Cook & Franke, S. C., Milwaukee, for petitioner.

Milton Padway of Padway & Padway, Milwaukee, for respondent Richard Tarney.

F. Joseph Sensenbrenner, Jr., Asst. Atty. Gen., for other respondents.

ABRAHAMSON, Justice.

This is a review of the court of appeals' denial of a petition for issuance of a supervisory writ ¹ to compel the appropriate officials of the circuit courts for Milwaukee county to honor petitioner's request for substitution of a judge pursuant to sec. 801.58, Stats. We reverse the order and grant the petition.

Anne Tarney, the petitioner requesting substitution of a judge, asserts that the respondents, namely Francis X. McCormack, the clerk of circuit court for Milwaukee county, Edward S. Vakos, calendar clerk of circuit court for Milwaukee county, Judge Christ Seraphim, circuit judge assigned to the Tarney case, and Judge John F. Foley, chief judge of the family division of the circuit court for Milwaukee county unlawfully failed to honor her request for substitution. The respondents argue that the petition be denied on two grounds: First, sec. 801.58, Stats., allowing substitution of a judge, does not apply to a proceeding to modify a divorce judgment providing alimony and support payments; and second, petitioner's request for substitution was not filed timely.

The procedure for filing a request for a substitution of the judge assigned to the case in a civil action or proceeding is set forth in sec. 801.58, Stats. Sec. 801.58(1), Stats., requires that a written request must be filed preceding the hearing of any preliminary contested matter and within a time period specified in sec. 801.58, Stats. The statutory provisions relevant to the instant case are as follows:

"801.58 Substitution of judge. (1) Any party to a civil action or proceeding may file a written request, signed personally or by his or her attorney, with the clerk of courts for a substitution of a new judge for the judge assigned to the case. The written request shall be filed preceding the hearing of any preliminary contested matters and, if by the plaintiff, not later than 60 days after the summons and complaint are filed or, if by any other party, not later than 60 days after service of a summons and complaint upon that party. If a new judge is assigned to the trial of a case, a request for substitution must be made within 10 days of receipt of notice of assignment, provided that if the notice of assignment is received less than 10 days prior to trial, the request for substitution must be made within 24 hours prior to trial, the action shall proceed to trial only upon stipulation of the parties that the assigned judge may preside at the trial of the action. Upon filing the written request, the filing party shall forthwith mail a copy thereof to all parties to the action and to the named judge.

"(2) After the written request has been filed, the named judge shall have no further jurisdiction in the action or proceeding except that the judge shall determine if the request is correct as to form and timely filed. If the request is correct as to form and timely filed, the named judge shall be disqualified and shall promptly request assignment of another judge under s. 751.03. The newly assigned judge shall proceed under s. 802.10(1)."

The sequence of events in the case at bar is as follows: On July 9, 1975, Anne and Richard Tarney were divorced by judgment entered by Ralph J. Podell, circuit judge for Milwaukee county. On May 2, 1979, Richard Tarney brought an order to show cause before the family court commissioner seeking a modification of the alimony and support provisions of the divorce judgment. Sec. 247.32(1), Stats. The deputy family court commissioner heard the motion on July 26, 1979, and issued his decision on October 25, 1979. Anne J. Tarney, the petitioner in this proceeding, prevailed in the hearing on the motion and was directed by the deputy family court commissioner to prepare an order based upon his decision "for approval by the Family Court Commissioner and signature by the court." As directed, petitioner's counsel submitted a proposed order to the deputy family court commissioner on October 26, 1979. The order was approved by the deputy family court commissioner on November 6, 1979, and was signed by the circuit court by Christ T. Seraphim, circuit judge for Milwaukee county, on November 12, 1979. On November 13, 1979, petitioner's counsel received not only a conformed copy of the signed order adopting the commissioner's decision, but also a copy of a motion and notice of motion by Richard Tarney's counsel dated November 7, 1979. The motion sought a review of the deputy family court commissioner's decision denying reduction of alimony and child support. The motion was scheduled to be heard before Judge Christ T. Seraphim on November 30, 1979.

The procedure followed in the case at bar of a hearing before the family court commissioner and assignment of the proposed order and any motion to a judge without prior notice to counsel of the identity of the judge is apparently the practice in Milwaukee county. The clerk of circuit court for Milwaukee county does not assign a pending family court matter to a particular judge or to a particular branch until a notice of readiness for trial or a notice of motion and motion is filed with the office of the family court commissioner. Upon the filing of one of these notices, the clerk of circuit court assigns the matter to a specified judge or branch of the court, and the name of the judge or the number of the branch of court is inserted on the moving party's papers which are then served on opposing counsel. Thus under the procedures adopted by the circuit court for Milwaukee county, opposing counsel has no way of knowing which judge is assigned to the family court matter until an order is signed or the party's motion papers are served. In the instant case, petitioner's counsel first learned that Judge Christ T. Seraphim was assigned to review the decision of the deputy family court commissioner on November 13, 1979, when counsel received a conformed copy of the order signed by the judge adopting the commissioner's decision. On the same day, November 13, 1979, petitioner's counsel was advised that Judge Seraphim would hear Richard Tarney's motion objecting to the commissioner's decision. On the same day, November 13, 1979, petitioner's counsel filed a request for substitution of judge pursuant to sec. 801.58, Stats., with the clerk of circuit court for Milwaukee county and with the deputy calendar clerk of circuit court for Milwaukee county.

By letter dated November 19, 1979, the calendar clerk of circuit court for Milwaukee county advised petitioner's counsel that "after conferring with Judge John F. Foley, Chief Judge of Family Court (Division of the Milwaukee county circuit court)" it was the position of the clerk's office and Judge Foley that "there is no procedure for filing a substitution of judge in a case that is being brought to court before the motion judge in a family court matter." The clerk refused to file petitioner's request for substitution and returned petitioner's papers to petitioner's counsel.

Petitioner then petitioned the court of appeals for relief pursuant to Rule 809.51, Stats., seeking a supervisory writ to compel "the honoring and implementation of petitioner's Request for Substitution of Judge." ²

The court of appeals, relying on the interpretation of the substitution statutes in Bacon v. Bacon, 34 Wis. 594 (1874); Hopkins v. Hopkins, 40 Wis. 462 (1876); Sang v. Sang, 240 Wis. 288, 3 N.W.2d 340 (1942); Luedtke v. Luedtke, 29 Wis.2d 567, 139 N.W.2d 553 (1966), and Bahr v. Galonski, 80 Wis.2d 72, 257 N.W.2d 869 (1977), denied the petition for a supervisory writ on the ground that sec. 801.58, Stats., does not apply to proceedings to modify a divorce judgment.

Petitioner concedes that the language of sec. 801.58, Stats., neither specifically includes nor specifically excludes family court matters from its purview, that this court in the Bacon to Bahr line of cases construed sec. 801.58, Stats., and its predecessors, as being inapplicable to proceedings to modify a divorce judgment, and that these cases appear to establish the "black letter rule" that there is no statutory right to substitute a judge in a proceeding to modify a divorce judgment. Nevertheless, petitioner argues that this case is distinguishable from the previous cases cited and that the rationale and the policy grounds which underlie the black letter rule are inapplicable to the fact situation in the case at bar. Petitioner concludes that therefore the black letter rule should not be applied in the instant case. Although the court of appeals apparently agreed with petitioner's reasoning, the court of appeals refused to accept petitioner's conclusion. The court of appeals refused to depart from the rule, saying that "while the public policy served by this rule is not promoted by recognition of the rule in Milwaukee county, we believe the long-standing case law must be followed in this case." We conclude that the public policy served by the rule established in the Bacon to Bahr cases is not served by applying the rule to the fact situation presented in the instant case, and consequently we refuse to apply the rule in the instant case.

A review of the Bacon to Bahr line of cases reveals that all five cases posed an almost identical fact...