State v. Holmes

Citation315 N.W.2d 703,106 Wis.2d 31
Decision Date02 February 1982
Docket Number81-1774-W,Docket Nos. 81-1669-C
PartiesSTATE of Wisconsin, Plaintiff-Appellant, v. Michael B. HOLMES, Defendant-Appellant, Honorable Robert O. Weisel, Respondent. STATE ex rel. Darian HUDSON, Petitioner, v. MILWAUKEE COUNTY CIRCUIT COURTS, Br. 34, Honorable Ralph Adam Fine, Presiding, Milwaukee County Clerk of Circuit Court, Criminal Felony Division, Respondents, State of Wisconsin, Intervenor-Respondent.
CourtUnited States State Supreme Court of Wisconsin

David J. Becker, Asst. Atty. Gen. (argued), Bronson C. La Follette, Atty. Gen., on brief for plaintiff in case no. 81-1669-CR.

Bernt J. Hammarback, Spring Valley, for defendant in case no. 81-1669-CR.

David L. Walther (argued), John Sundquist and Walther & Halling, Milwaukee, on brief for respondent in case no. 81-1669-CR.

John C. Mitby, Steven J. Schooler and Brynelson, Herrick, Gehl & Bucaida, Madison, for State Bar of Wisconsin and the Litigation Section of the State Bar of Wisconsin.

Harvey Goldstein, Milwaukee, for petitioner in case no. 81-1774-W.

David L. Walther (argued), John Sundquist and Walther & Halling, Milwaukee, on brief for respondent, Honorable Ralph Adam Fine.

Daniel S. Farwell, Asst. Atty. Gen. (argued), Bronson C. La Follette, Atty. Gen., on brief for intervenor-respondent State of Wis.

ABRAHAMSON, Justice.

Each defendant filed a request for substitution of judge in a timely manner and in proper form pursuant to sec. 971.20, Stats. 1979-80. Each circuit court denied the request on the ground that sec. 971.20 is an unconstitutional legislative interference with the functioning of the judicial branch in violation of the Wisconsin Constitution.

Sec. 971.20 permits a defendant to file a statement that "the defendant requests a substitution for the Hon. ... as judge." Sec. 971.20(5), Stats. 1979-80. The request for substitution need give no reason for the requested substitution and no grounds for substitution need be proved. When the request for substitution is filed in proper form and in a timely manner, the circuit judge to whom it is addressed loses authority to act in the case. 1 Sec. 971.20 creates what is often called a peremptory right to substitution, and we shall sometimes refer to sec. 971.20 as a peremptory substitution statute. 2

The two cases which present the issue of the unconstitutionality of sec. 971.20 have come to this court by different procedural routes. In State v. Holmes, Case No. 81-1669-CR, the defendant, Michael B. Holmes, charged with operating a motor vehicle while under the influence of an intoxicant, filed a request for substitution pursuant to secs. 971.20 and 345.315, Stats. 1979-80. 3 The circuit court for Polk county, Robert O. Weisel, circuit judge, against whom the substitution request had been filed, set a hearing upon its own motion for the purpose of considering the constitutionality of the statutes governing substitution of judges. 4 By memorandum decision dated August 21, 1980, the circuit court for Polk county declared that all statutes governing substitution of judges "violate the Separation of Powers Doctrine" and denied the defendant's request for substitution. Both the state and the defendant petitioned the court of appeals for leave to appeal this non-final order. The court of appeals granted the petition for leave to appeal, sec. 808.03(2), Stats. 1979-80, and certified the matter to this court pursuant to sec. 808.05 and sec. (Rule) 809.61, Stats. 1979-80. On October 6, 1981, this court accepted the certification.

In State ex rel. Darian Hudson v. Milwaukee County Circuit Courts, Case No. 81-1774-W, the defendant, Darian Hudson, charged with burglary, filed a request for substitution pursuant to sec. 971.20, Stats. 1979-80. The circuit court for Milwaukee county, Ralph Adam Fine, circuit judge, against whom the request had been filed, ordered briefs from the parties on the constitutionality of the statute, upon its own motion. On September 18, 1981, prior to the expiration of the briefing period, the defendant petitioned the court of appeals to exercise supervisory jurisdiction over the circuit court. The defendant sought a writ of prohibition ordering Judge Fine to refrain from taking any further action in the matter. Sec. (Rule) 809.51, Stats. 1979-80. At the same time the defendant petitioned this court to bypass the court of appeals pursuant to sec. 808.05, sec. (Rule) 809.60, Stats. 1979-80. Defendant's filing of a petition to bypass stayed the court of appeals from taking under submission defendant's petition for a supervisory writ. Sec. (Rule) 809.60(3), Stats. 1979-80. On October 6, 1981, this court granted the petition to bypass and agreed to decide defendant's petition for supervisory writ. The court also granted the state's motion to intervene. In the interim, by memorandum decision dated September 24, 1981, the circuit court for Milwaukee county declared that sec. 971.20 is "a massive and unwarranted intrusion upon and interference with the circuit court's constitutionally vested jurisdiction itself. As such it is repugnant to Article VII, sec. 2 (Wis.Const.)." 5

For the reasons set forth below, we conclude that the circuit courts have the power to raise sua sponte the issue of the constitutionality of sec. 971.20, Stats. 1979-80, and that the circuit courts in the cases at bar exercised this power in a fair and proper manner. We further conclude that sec. 971.20 was enacted to foster fair trial and that substitution of trial judges to ensure fair trial is an aspect of the judicial system which is subject to reasonable legislative regulation. Any such legislative regulation is, however, subject to the court's authority to preserve the integrity of the judicial system and to preserve the integrity of the doctrine of separation of powers. Because it has not been proven beyond a reasonable doubt that sec. 971.20 materially impairs or practically defeats the circuit court's exercise of jurisdiction and power or the proper functioning of the judicial system, we hold that sec. 971.20, Stats. 1979-80, does not violate the doctrine of separation of powers.

I.

Before reaching the issue of the constitutionality of sec. 971.20, we must consider the defendants' challenge to the circuit courts' authority to raise the issue of the constitutionality of sec. 971.20 sua sponte.

The defendants' challenge is predicated on the oft-stated rule that the constitutionality of a statute can be raised only by a party whose rights are directly affected, a party who has a personal stake in the controversy. Wirth v. Ehly, 93 Wis.2d 433, 448-49, 287 N.W.2d 140 (1980); Mast v. Olsen, 89 Wis.2d 12, 16, 278 N.W.2d 205 (1979). The defendants contend that because a circuit judge has no personal interest in presiding in a specific case, Berger v. United States, 255 U.S. 22, 35, 41 S.Ct. 230, 233, 65 L.Ed. 481 (1921), the judge has no standing to raise the constitutionality of sec. 971.20.

It is true that neither the circuit court nor the circuit judge is a "party" in these cases and therefore neither the circuit court nor the circuit judge has "standing" to pose the constitutional question. But the doctrine of standing is not applicable to the case at bar. The issue in the case at bar is not the circuit court's "standing" to raise a constitutional issue sua sponte, but rather the proper role of the circuit court during litigation.

There are two apparently inconsistent theories of the proper role of the trial (or appellate) court. One theory is that the litigants control the course of the lawsuit and determine the nature of the questions presented to the courts. The other theory is that the courts have the responsibility to decide cases in accordance with the law and this responsibility is not altered or diminished because counsel fail to identify an issue. 6 That the parties, not the courts, should determine the nature of the questions presented is a natural outgrowth of the adversary system and the heavy workload of most courts. The litigants are most familiar with the case, and courts, especially trial courts, do not have the time or staff to do original research in every case to discover issues not raised by the parties. That a court should raise issues sua sponte is the natural outgrowth of the court's function to do justice between the parties. Although theory and practice militate against a court's sua sponte raising legal issues, it is well recognized that courts may sua sponte consider legal issues not raised by the parties. See, e.g., State ex rel. State Bar v. Keller, 16 Wis.2d 377, 380, 114 N.W.2d 796, 116 N.W.2d 141 (1962).

Courts of course should be reluctant to consider the constitutionality of statutes unless required by the case. Laufenberg v. Cosmetology Examining Board, 87 Wis.2d 175, 187, 274 N.W.2d 618 (1979). In the instant cases, however, there is adequate justification for the circuit court's raising the constitutionality of sec. 971.20 sua sponte. This court has said that even where the parties waive the issue, a court "should raise the (constitutional) question itself where it appears necessary to the proper disposition of a case." State ex rel. Joint School District v. Becker, 194 Wis. 464, 468, 215 N.W. 902 (1928). See also Just v. Marinette County, 56 Wis.2d 7, 26, 201 N.W.2d 761 (1972). The constitutionality of sec. 971.20 does affect the proper disposition of the case at bar.

Furthermore, because sec. 971.20 affects the circuit court's role in the judicial system of the state, the circuit courts bringing into question the validity of the statute sua sponte is a valid exercise of what this court has described as the inherent and incidental powers of a circuit court. A circuit court has "inherent power to protect itself against any action that would unreasonably curtail its powers or materially impair its efficiency .... Circuit courts have the incidental power necessary to preserve the full and free...

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