Antonio S. Davis v. Circuit Court for Dane County

2024 WI 14

• Court: Wisconsin Supreme Court
• Decided: March 26, 2024
• Docket: 2022AP001999-W
• Status: Published

Opinion

2024 WI 14

SUPREME COURT OF WISCONSIN CASE NO.: 2022AP1999-W

COMPLETE TITLE: State of Wisconsin ex rel. Antonio S. Davis, Petitioner, v. Circuit Court for Dane County, Honorable Ellen K. Berz and State of Wisconsin, Respondents.

REVIEW OF A DECISION OF THE COURT OF APPEALS

OPINION FILED: March 26, 2024 SUBMITTED ON BRIEFS: ORAL ARGUMENT: October 9, 2023

SOURCE OF APPEAL: COURT: Circuit COUNTY: Dane JUDGE: Ellen K. Berz

JUSTICES: PROTASIEWICZ, J., delivered the majority opinion of the Court, in which ANN WALSH BRADLEY, DALLET, and KAROFSKY, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a concurring opinion. HAGEDORN, J., filed a concurring opinion. ZIEGLER, C.J., filed a dissenting opinion.

ATTORNEYS:

For the petitioner, there were briefs filed by Kelsey Loshaw, assistant state public defender. There was an oral argument by Kelsey Loshaw, assistant state public defender.

For the respondents, there was a brief filed by Jennifer L. Vandermeuse, assistant attorney general, with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Jennifer L. Vandermeuse, assistant attorney general, and Abigail C.S. Potts, assistant attorney general. An amicus curiae brief was filed by Ellen Henak, Robert R. Henak, and Henak Law Office, S.C., Milwaukee, on behalf of Wisconsin Association of Criminal Defense Lawyers.

An amicus curiae brief was filed by Kelli S. Thompson, Faun M. Moses, and Office of the State Public Defender, Madison, on behalf of Wisconsin State Public Defender.

2 2024 WI 14 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2022AP1999-W (L.C. No. 2022CM1737)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin ex rel. Antonio S. Davis,

Petitioner,

v. FILED Circuit Court for Dane County, Honorable Ellen MAR 26, 2024 K. Berz and State of Wisconsin, Samuel A. Christensen Clerk of Supreme Court Respondents.

PROTASIEWICZ, J., delivered the majority opinion of the Court, in which ANN WALSH BRADLEY, DALLET, and KAROFSKY, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a concurring opinion. HAGEDORN, J., filed a concurring opinion. ZIEGLER, C.J., filed a dissenting opinion.

REVIEW of a decision of the Court of Appeals. Affirmed and

cause remanded.

¶1 JANET C. PROTASIEWICZ, J. The State charged Antonio

Davis with misdemeanor battery and disorderly conduct. Before

the State Public Defender (SPD) could appoint counsel for Davis,

a court commissioner conducted a combined initial appearance and

arraignment, entered a not guilty plea on Davis's behalf, and No. 2022AP1999-W

scheduled further proceedings before Judge Ellen K. Berz.

Sixty-five days later, the SPD appointed counsel for Davis. Six

days later, Davis filed a request for substitution of judge.

The circuit court denied the request as untimely.

¶2 Davis filed a petition for supervisory writ arguing

that the circuit court had a plain duty to treat his request for

substitution of judge as timely. The court of appeals denied

the petition,1 and we review that denial here.

¶3 Under Wis. Stat. § 971.20(4) (2021-22),2 a defendant

must request substitution "before making any motions to the

trial court and before arraignment." In Dane County, where

Davis's case is pending, a local rule purportedly extends that

deadline in misdemeanor cases to "20 days after the initial

appearance."3

Davis v. Cir. Ct. for Dane Cnty., No. 2022AP1999-W, 1

unpublished slip op. (Wis. Ct. App. Dec. 13, 2022).

The full text of Wis. Stat. § 971.20(4) is: "Substitution 2

of trial judge originally assigned. A written request for the substitution of a different judge for the judge originally assigned to the trial of the action may be filed with the clerk before making any motions to the trial court and before arraignment."

All subsequent references to the Wisconsin Statutes are to the 2021-22 version.

See Dane County Local Rule 208, which reads: 3 "In all [Criminal Traffic] and [Criminal Misdemeanor] cases the defendant shall have 20 days after the initial appearance to file a request for substitution of the assigned judge."

2 No. 2022AP1999-W

¶4 Here, Davis made his request after both of those

deadlines had expired. He argues that the circuit court should

have nevertheless treated his request for substitution of judge

as timely based on the "government-created obstacle" exception

outlined in State v. Zimbal, 2017 WI 59, ¶¶40-47, 375

Wis. 2d 643, 896 N.W.2d 327. Alternatively, he argues that the

circuit court should have treated his request as timely based on

the doctrine of equitable tolling.

¶5 This case presents us with two questions:

¶6 First, did Davis forfeit the issues he brings to this

court? Specifically, did he forfeit the "government-created

obstacle" issue by changing his identified obstacle between his

petition for review and initial brief? And did he forfeit the

equitable tolling issue by failing to raise it below?

¶7 Second, is Davis entitled to a supervisory writ

directing the circuit court to treat his request for

substitution of judge as timely?

¶8 We answer the questions presented as follows:

¶9 First, assuming without deciding that Davis forfeited

the issues that he now presents to this court, we exercise our

discretion to address them. Doing so allows us to clarify the

procedure for appealing a circuit court order denying a request

for substitution of judge as untimely.

3 No. 2022AP1999-W

¶10 Second, Davis is not entitled to a supervisory writ.

We conclude that the circuit court did not have a plain duty to

treat Davis's request as timely under Wis. Stat. § 971.20(4),

Dane County Local Rule 208, a government-created obstacle

exception, or a theory of equitable tolling.

¶11 We also take this opportunity to clarify that a

petition for supervisory writ is not the preferred vehicle for

appellate review of a judge's ruling on the timeliness of a

request for substitution of judge that was filed after

arraignment.

¶12 Accordingly, we affirm the court of appeals.

I. BACKGROUND

¶13 We do not have a complete record of the circuit court

proceedings concerning Davis's initial appearance, arraignment,

and request for substitution of judge. Indeed, while our rules

contemplate a full record and creation of a transcript for

appeals, they do not require such a record for supervisory writ

actions.4

¶14 Here, the record shows that Antonio Davis was arrested

on August 16, 2022, and he applied for representation through

Compare 4 Wis. Stat. §§ (Rule) 809.11(4) (mandating transcript requests for appeals), and (Rule) 809.15(1)(a) (listing components of a full record on appeal), with (Rule) 809.51 (not requiring such a record for supervisory writ actions).

4 No. 2022AP1999-W

the SPD the next day. Two weeks later, on August 30, 2022, the

State filed a complaint5 charging Davis with misdemeanor battery

and disorderly conduct, and Davis made his first court

appearance.

¶15 At the August 30, 2022 appearance, a Dane County court

commissioner held both an initial appearance and an arraignment.

Notably, a court6 is not required to hold both proceedings at the

same appearance. Our statutes set out requirements for an

initial appearance——a defendant's first court appearance after

arrest——and for an arraignment——where a defendant enters a plea.7

While Wis. Stat. § 971.05 allows arraignments to be held in "the

court which conducted the initial appearance," our statutes do

not require that the initial appearance and arraignment happen

at the same appearance.8

5 The complaint did not identify Davis's judge.

These proceedings may occur in front of a judge or a 6

commissioner.

See Wis. Stat. §§ 970.01-02 (setting out procedures for an 7

initial appearance, including delivery of the complaint and informing defendants of the charges against them and of their rights); 971.05 (setting out procedures for an arraignment, including entry of a plea).

In felony cases——not at issue here——a court cannot hold 8

arraignment until after a preliminary examination or waiver of preliminary examination. See Wis. Stat. §§ 971.02; 971.05. And a defendant has a right to counsel at the preliminary examination. State v. O'Brien, 2014 WI 54, ¶40, 354 Wis. 2d 753, 850 N.W.2d 8. Thus, a defendant in a felony case who seeks appointed counsel will typically have counsel prior to arraignment. 5 No. 2022AP1999-W

¶16 At the time of Davis's combined initial appearance and

arraignment, the SPD had not yet appointed counsel. So, Davis

received limited-scope representation from an SPD attorney who

was assigned to argue bail and receive the complaint. We do not

have a transcript of this court appearance, but we know the

court commissioner entered a not guilty plea on Davis's behalf

and scheduled further proceedings before Judge Ellen K. Berz.

¶17 On the day of his combined initial appearance and

arraignment, Davis received two documents identifying his judge:

a bail bond form, which noted that his case was assigned to

"Trial Judge – Br 11," and a Notice of Hearing, which identified

his judge as "Ellen K Berz."

¶18 Sixty-five days after Davis's combined initial

appearance and arraignment, on November 3, 2022, the SPD

appointed counsel.9 Six days later, on November 9, 2022, Davis

filed a request for substitution of judge. Davis argued that

the request should be considered timely, citing Wis. Stat.

§ 971.20(4), Dane County Local Rule 208, and a series of cases

from this court and the court of appeals. The circuit court

nevertheless denied Davis's request as untimely.

9By chance, the appointed counsel was the same attorney who provided limited-scope representation for Davis at his combined initial appearance and arraignment.

6 No. 2022AP1999-W

¶19 Davis filed a petition for supervisory writ in the

court of appeals. He argued that a government-created

obstacle10——the SPD's inability to appoint counsel before the

statutory deadline for filing a request for substitution——

prevented him from timely filing. So, he argued, the circuit

court had a plain duty to treat his request for substitution as

timely. The court of appeals denied the writ.

¶20 Davis petitioned this court for review. In his

petition for review, he again argued that the SPD's inability to

appoint counsel was a government-created obstacle. He also

raised an alternative theory: that the circuit court should

have applied equitable tolling. We granted his petition. In

his briefing, Davis argued that the government-created obstacle

was the court's sua sponte arraignment before Davis had notice

of his judge and before appointment of counsel.

II. ANALYSIS

A. Forfeiture

¶21 The respondents ask us to dismiss this appeal because

Davis forfeited the issues raised in his initial brief. First,

respondents argue that Davis is procedurally barred from

10 See State v. Zimbal, 2017 WI 59, ¶40, 375 Wis. 2d 643, 896 N.W.2d 327 (allowing an "exception to the rule of strict adherence" to substitution-request deadlines when "a government- created obstacle prevents a defendant from complying with the statutory deadline").

7 No. 2022AP1999-W

bringing his government-created obstacle argument. They argue

that Davis's identified government-created obstacle changed

between his petition for review and brief. They compare Davis's

petition for review, which identified one government-created

obstacle——"the SPD's inability to appoint counsel before the

deadline for requesting a substitution"——with Davis's brief,

where he said the obstacle was "the court['s] sua sponte ent[ry

of] a plea" before Davis was appointed counsel and before he

knew his assigned judge. Second, the respondents argue that

Davis forfeited his equitable tolling argument because he failed

to raise it in any lower court.

¶22 But forfeiture "is a rule of judicial administration,"

and courts "may disregard a forfeiture and address the merits of

an unpreserved issue in an appropriate case." State v.

Counihan, 2020 WI 12, ¶27, 390 Wis. 2d 172, 938 N.W.2d 530.

Assuming, without deciding, that Davis is procedurally barred

from making these arguments, we exercise our discretion to

address them in order to clarify the procedure for challenging a

circuit court's order denying a request for substitution of

judge as untimely. See State v. Wilson, 2017 WI 63, ¶51 n.7,

376 Wis. 2d 92, 896 N.W.2d 682 (opting to address an "important

issue" despite alleged forfeiture).

¶23 With regard to Davis's government-created obstacle

argument, we address the version of the argument that Davis

8 No. 2022AP1999-W

presents in his briefing——namely, that the government-created

obstacle was the timing of Davis's arraignment. See State v.

Wilson, 2015 WI 48, ¶86 n.15, 362 Wis. 2d 193, 864 N.W.2d 52

("[I]t is within our discretion to review any substantial and

compelling issue which the case presents." (quoting Univest

Corp. v. Gen. Split Corp., 148 Wis. 2d 29, 32, 435 N.W.2d 234

(1989))).

B. Timeliness of Requests for Substitution

¶24 This court and the court of appeals have said that a

defendant should seek review of a judge's ruling on the form and

timeliness of a request for substitution "preferably" by

bringing a petition for supervisory writ. Clark v. State, 92

Wis. 2d 617, 631, 286 N.W.2d 344 (1979); State ex rel. Tessmer

v. Cir. Ct. for Racine Cnty., 123 Wis. 2d 439, 441, 367

N.W.2d 235 (Ct. App. 1985) ("A petition for a supervisory writ

is the preferable route for review of the trial court's ruling

on the form and timeliness of a request for substitution of

judge.").

¶25 A supervisory writ is "an extraordinary and drastic

remedy" which serves a "narrow function." State ex rel. Kalal

v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶¶17, 24, 271

Wis. 2d 633, 681 N.W.2d 110 (quoted source omitted). A party

seeking a supervisory writ must show that: (1) an appeal is an

inadequate remedy; (2) grave hardship or irreparable harm will

9 No. 2022AP1999-W

result; (3) the trial court had a plain duty to act and violated

that duty; and (4) the petitioner requested relief promptly.

State ex rel. DNR v. Wis. Ct. App., Dist. IV, 2018 WI 25, ¶9,

380 Wis. 2d 354, 909 N.W.2d 114 (citing Kalal, 271 Wis. 2d 633,

¶17).

¶26 This case hinges on the third requirement——plain duty.

A circuit court has a plain duty when its "responsibility to act

[is] imperative." Kalal, 271 Wis. 2d 633, ¶22 (quoted source

omitted). The court's duty must be "clear and unequivocal."

Id. (quoted source omitted). As such, courts grant supervisory

writs only for "non-discretionary" duties. See id., ¶24.

¶27 We are sympathetic to the fact that Davis did not have

the full assistance of counsel at the time of arraignment

despite his efforts to seek SPD representation. Further, we are

mindful of the stresses to the criminal justice system caused by

heavy caseloads and delays in SPD appointments.

¶28 Nonetheless, we hold that the circuit court did not

have a plain duty to treat Davis's request for substitution of

judge as timely. And we take this opportunity to clarify the

preferred route for reviewing a circuit court's ruling on the

timeliness of a request for substitution that was filed after

10 No. 2022AP1999-W

1. Government-Created Obstacle

¶29 In Wisconsin, a criminal defendant has "a right

to . . . one substitution of a judge." Wis. Stat. § 971.20(2).

The defendant must request substitution of judge "before making

any motions to the trial court and before arraignment."

§ 971.20(4). In an attempt to extend this deadline, Dane County

courts created a rule allowing misdemeanor defendants "20 days

after the initial appearance to file a request for

substitution." See Dane County Local Rule 208.

¶30 Here, all parties agree that Davis filed his request

after the deadlines in the statute and local rule expired.11

Davis argues that his request should nevertheless be considered

timely under our precedent.

¶31 We have said that a request for substitution may

sometimes be treated as timely, even if it is untimely under

Wis. Stat. § 971.20(4). See Zimbal, 375 Wis. 2d 643, ¶¶40-47

(identifying "exception[s] to the rule of strict adherence" to

statutory substitution-request deadlines). In particular, we

have said that an untimely request may be considered timely when

"a government-created obstacle" prevents a defendant from

Since there is no dispute that the request was filed 11

after both deadlines had expired, we need not decide here whether the local rule may extend the time for filing a substitution request beyond that provided by Wis. Stat. § 971.20(4).

11 No. 2022AP1999-W

meeting the statutory deadline. Id., ¶40. One such government-

created obstacle comes from the "Baldwin-Tessmer-Tinti

arraignment cases." Id., ¶41 (citing State ex rel. Tinti v.

Cir. Ct. for Waukesha Cnty., 159 Wis. 2d 783, 790, 464

N.W.2d 853 (Ct. App. 1990); Tessmer, 123 Wis. 2d at 443; Baldwin

v. State, 62 Wis. 2d 521, 530-32, 215 N.W.2d 541 (1974)).

¶32 Under Baldwin-Tessmer-Tinti, an untimely request for

substitution may be treated as timely "when a criminal defendant

is arraigned before he receives notice of which judge will hear

his case." Id. In each of the Baldwin-Tessmer-Tinti cases, the

defendant did not know the identity of his judge until after

arraignment. Tinti, 159 Wis. 2d at 790; Tessmer, 123 Wis. 2d at

443; Baldwin, 62 Wis. 2d at 529. Without that information,

those courts concluded that the defendant could not exercise the

right of substitution intelligently. See Tinti, 159 Wis. 2d at

790; Tessmer, 123 Wis. 2d at 443; Baldwin, 62 Wis. 2d at 531;

see also Clark, 92 Wis. 2d 617, 628 ("[T]he key to the statutory

12 No. 2022AP1999-W

right of substitution [is] the defendant's ability to exercise

his right of substitution intelligently.").12

¶33 Here, Davis argues that he faced a similar government-

created obstacle. A court commissioner arraigned him before the

SPD appointed counsel and before he knew his assigned judge.

Thus, Davis says, under Baldwin-Tessmer-Tinti the circuit court

had a plain duty to treat his request for substitution as

timely.13 We disagree for two reasons.

¶34 First, although Davis asserts that he did not know his

assigned judge until after he entered his plea, the record is

unclear. We have no transcript, and there has been no

evidentiary hearing on this point. All we know is that Davis

Justice Rebecca Grassl Bradley's concurrence advocates 12

for "overrul[ing] Baldwin." See Justice Rebecca Grassl Bradley's concurrence, ¶47. No party has asked us to overrule Baldwin, and "[w]e do not step out of our neutral role to develop or construct arguments for parties; it is up to them to make their case." Doe 1 v. Madison Metro. Sch. Dist., 2022 WI 65, ¶35, 403 Wis. 2d 369, 976 N.W.2d 584 (quoting Serv. Emps. Int'l Union, Loc. 1 v. Vos, 2020 WI 67, ¶24, 393 Wis. 2d 38, 946 N.W.2d 35).

Davis also argues that the court had a plain duty to 13

treat the request as timely because it had a general duty to apply the law to the facts. We have said that such a command is too vague and malleable to create a plain duty. See State ex rel. Two Unnamed Petitioners v. Peterson, 2015 WI 85, ¶81, 363 Wis. 2d 1, 866 N.W.2d 165 ("The obligation of a judge to correctly find facts and apply the law is not the type of plain legal duty contemplated by the supervisory writ procedure, 'as it would extend supervisory jurisdiction to a virtually unlimited range of decisions . . . .'" (quoting State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶24, 271 Wis. 2d 633, 681 N.W.2d 110)).

13 No. 2022AP1999-W

received two relevant documents on the day of his arraignment:

a notice of hearing which named Judge Berz and a bail bond form

which identified the assigned judicial branch. We do not know

if Davis received these documents before or after his

arraignment. And we do not know whether the court commissioner

told Davis who his assigned judge would be during the

arraignment. Without evidence that Davis knew his assigned

judge only after arraignment, the obstacle from the Baldwin-

Tessmer-Tinti cases does not exist here. See Zimbal, 375

Wis. 2d 643, ¶41 (identifying the obstacle).

¶35 Second, even if we accept Davis's assertion that he

did not know his assigned judge before arraignment, the court

did not have a plain duty to treat his request as timely under

our precedent. Davis made his request 71 days after his

combined initial appearance and arraignment. None of the

Baldwin-Tessmer-Tinti cases say a request would be timely under

such a delay. See Tinti, 159 Wis. 2d at 791 (deciding a request

was timely when it was filed four days after arraignment);

Tessmer, 123 Wis. 2d at 444 (seven days).14

Likewise, our decision in Baldwin does not suggest that a 14

request filed 71 days after arraignment is timely. There, we found Baldwin's request untimely. Baldwin v. State, 62 Wis. 2d 521, 532-33, 215 N.W.2d 541 (1974). Moreover, we suggested Baldwin's request would have been timely under deadlines specific to Milwaukee County's calendaring system. See id. at 530.

14 No. 2022AP1999-W

¶36 We recognize that Davis was unrepresented during the

first 65 days of the 71-day delay, but this does not change our

conclusion that there was no plain duty. We have never held

that a circuit court must consider whether a defendant is

represented when assessing the timeliness of a request for

substitution.15 It may be the case that a circuit court should

consider a defendant's lack of representation when assessing the

timeliness of a request for substitution. But we cannot say

that the circuit court here had a plain duty to do so, because

no law requires it. See Kalal, 271 Wis. 2d 633, ¶25 ("[A]

plain, clear, non-discretionary, and imperative duty" is

"necessary for a supervisory writ.").

¶37 We conclude that under these facts and our precedent,

the circuit court had no plain duty to treat the request for

substitution as timely because of a government-created obstacle.

2. Equitable Tolling

¶38 Davis also argues that his request for substitution

should have been treated as timely based on the equitable

tolling doctrine. We conclude that the circuit court did not

Even in Zimbal, where we "restart[ed]" the statutory 15

clock after assignment of counsel, we did so "[u]nder the unique facts of [that] case," which included the circuit court telling the defendant to wait to file a request for substitution of judge. See Zimbal, 375 Wis. 2d 643, ¶52. That unique factual situation is not present here.

15 No. 2022AP1999-W

have a plain duty to treat the request as timely under a theory

of equitable tolling.

¶39 Equitable tolling is a remedy that courts use to toll

statutory deadlines when justice requires. See State ex rel.

Griffin v. Smith, 2004 WI 36, ¶¶36-37, 270 Wis. 2d 235, 677

N.W.2d 259 (listing examples of when our courts have tolled

deadlines due to "equitable considerations"). Courts may invoke

equitable tolling when a party misses a deadline due to factors

outside the party's control. See id., ¶37. For instance, we

have said equitable tolling applies in the context of a pro se

prisoner who properly deposits a court document in an outgoing

prison mail system, but misses a filing deadline due to prison

mail processing times. See State ex rel. Nichols v. Litscher,

2001 WI 119, ¶32, 247 Wis. 2d 1013, 635 N.W.2d 292.

¶40 Here, the circuit court did not have a plain duty to

equitably toll the substitution-request deadline for two

reasons. First, no court has said that equitable tolling

applies to Davis's situation. Davis cites the concurrence in

Zimbal as authority that equitable tolling should apply to his

request. See Zimbal, 375 Wis. 2d 643, ¶¶54-73 (Roggensack, J.,

concurring). But that concurring opinion is not binding

precedent. And even if it were, the concurrence argued for

tolling in the context of a judge directing a defendant to wait

to file a request for substitution——a circumstance that is not

16 No. 2022AP1999-W

present here. See id., ¶72. Thus, it is not a clear and

unequivocal mandate. See Kalal, 271 Wis. 2d 633, ¶22 ("A plain

duty 'must be clear and unequivocal.'" (quoted source omitted)).

¶41 Second, Davis seeks application of an equitable

doctrine——a poor fit with the concept of a plain duty.

Equitable tolling inherently requires a case-by-case exercise of

discretion. See Williams v. Kaerek Builders, Inc., 212

Wis. 2d 150, 162, 568 N.W.2d 313 (Ct. App. 1997) ("The decision

to provide an equitable remedy rests within the circuit court's

discretion."). Short of a judicial mandate to apply equitable

tolling in a specific situation, a circuit court will never have

a plain duty to apply a discretionary remedy. Without such a

duty, the failure to exercise discretion in a particular way

cannot support the issuance of a supervisory writ. See Kalal,

271 Wis. 2d 633, ¶24 (holding that supervisory writs are for

"non-discretionary duties"). In short, the circuit court here

had no plain duty to apply equitable tolling.

3. Procedure for Appellate Review

¶42 In the past, we have said a petitioner should seek

review of a judge's ruling on the form and timeliness of a

request for substitution "preferably" by bringing a petition for

supervisory writ. Clark, 92 Wis. 2d at 631; see also Tessmer,

123 Wis. 2d at 441 (suggesting petitions for supervisory writ

are the "preferable route" for review).

17 No. 2022AP1999-W

¶43 But our analysis here illustrates why a supervisory

writ can be a poor vehicle for reviewing a circuit court's

decision to deny a request for substitution that was filed after

arraignment. Davis's claims fail in this supervisory writ

posture due to factors that could undermine review for future

petitioners. To start, in a supervisory writ posture, appellate

courts may decide a case based on the existence of a plain duty

rather than address the substantive issue. Indeed, we have done

so here. Similarly, appellate courts may be reluctant to find a

plain duty when doing so requires mandating application of an

equitable doctrine. See Kalal, 271 Wis. 2d 633, ¶25 ("[A]

"necessary for a supervisory writ."). Last, we are more likely

to have incomplete records under a supervisory writ posture.16

¶44 We clarify that a petition for supervisory writ is not

the preferred vehicle for appellate review of a judge's ruling

on the timeliness of a request for substitution of judge that

was filed after arraignment. In that situation, a petitioner

should file a petition for interlocutory appeal or an appeal

from a final judgment or order, not a petition for supervisory

writ.

III. CONCLUSION

16 See supra note 4.

18 No. 2022AP1999-W

¶45 In sum, the circuit court had no plain duty to treat

Davis's request for substitution of judge as timely, and the

court of appeals correctly denied the petition for supervisory

By the Court.—The decision of the court of appeals is

affirmed, and the cause is remanded to the circuit court for

further proceeding consistent with this opinion.

19 No. 2022AP1999-W.rgb

¶46 REBECCA GRASSL BRADLEY, J. (concurring). Presented

with a simple question, this court should provide a simple

answer. Davis asks whether the circuit court violated a plain

duty when it denied his request to substitute the judge

originally assigned to his case. It did not. Wisconsin Stat.

§ 971.20(4) requires a defendant who wishes to substitute the

judge originally assigned to his trial to file a substitution

request "before arraignment." Davis filed his substitution

request 71 days after his arraignment. The circuit court does

not have a plain duty to accept an untimely substitution

request. Although this court comes to the right conclusion, it

does nothing to address the errors this court made interpreting

§ 971.20 in Baldwin v. State, 62 Wis. 2d 521, 215 N.W.2d 541

(1974).1

Justice Brian Hagedorn correctly observes that Davis 1

forfeited all the arguments he made before this court. He also correctly notes that the majority's reason for reaching the merits is nonsense——the majority does not need to reach the merits to address the court's preferred method of receiving claims like Davis's. Because the majority needlessly addresses the merits and applies prior cases that are unsound in principle, I also address the merits, applying the statute's text.

The majority opts to apply Baldwin and its progeny because "[n]o party has asked us to overrule Baldwin." Majority op., ¶32 n.12. The majority forgets that "[l]itigants do not dictate the decisions of this court; the law does. As proclaimed over 160 years ago, '[w]e sit here to decide the law as we find it, and not as the parties or others may have supposed it to be.'" St. Augustine Sch. v. Taylor, 2021 WI 70, ¶102, 398 Wis. 2d 92, 961 N.W.2d 635 (Rebecca Grassl Bradley, J., dissenting) (second alteration in original) (quoting Ross v. Bd. of Outagamie Cnty. Supervisors, 12 Wis. 26, 44 (1860) (Dixon, C.J., dissenting)).

1 No. 2022AP1999-W.rgb

¶47 In Baldwin, this court improperly rewrote Wis. Stat.

§ 971.20. The Baldwin decision gives a defendant a "reasonable

time" to exercise his substitution right after he discovers the

identity of the judge, even if the statutory deadline has

already lapsed. Baldwin has repeatedly led courts to ignore the

text of § 971.20. E.g., State ex rel. Tinti v. Cir. Ct. for

Waukesha Cnty., Branch 2, 159 Wis. 2d 783, 464 N.W.2d 853 (Ct.

App. 1990). Instead of applying Baldwin, as the majority does,

I would overrule Baldwin and simply apply the statute's text.

¶48 Officers arrested Davis for two offenses, and the

state charged him with misdemeanor disorderly conduct and

misdemeanor battery. At Davis's initial appearance, the court

entered a plea of not guilty on his behalf. Seventy-one days

after his initial appearance, Davis filed a request to

substitute the judge originally assigned to his trial, Judge

Ellen K. Berz, who denied the request as untimely.

¶49 Davis petitioned the court of appeals for a supervisory writ directing the circuit court to grant Davis's

request for judicial substitution. The court of appeals denied

the petition. This court correctly affirms the court of

appeals, but misguidedly applies Baldwin's erroneous

interpretation of Wis. Stat. § 971.20.

II. DISCUSSION

A. Methodology

¶50 In Kalal this court "confirmed textualism is the correct methodology for statutory interpretation," "binding" all

2 No. 2022AP1999-W.rgb

courts in Wisconsin to adhere to it when interpreting statutes.

Sanders v. State of Wis. Claims Bd., 2023 WI 60, ¶13, 408 Wis.

2d 370, 992 N.W.2d 126 (lead opinion). As explained in Kalal,

the goal of statutory interpretation is to determine a statute's

objective meaning, focusing primarily on the words of the

statute. State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004

WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. This court has

held time and time again that if the meaning of a statute is

plain, our interpretive inquiry ends. E.g., id., ¶45; Wis.

Carry, Inc. v. City of Madison, 2017 WI 19, ¶18, 373 Wis. 2d

543, 892 N.W.2d 233 (calling this rule the "the bedrock of the

judiciary's methodology"). "Statutory language is given its

common, ordinary, and accepted meaning, except that technical or

specially-defined words or phrases are given their technical or

special definitional meaning." Kalal, 271 Wis. 2d 633, ¶45

(citations omitted). A text's scope, context, and purpose "are

perfectly relevant to a plain-meaning interpretation of an

unambiguous statute as long as" they are "ascertainable from" the statute's text and structure. Id., ¶48.

¶51 This court's adherence to textualism is grounded in

and fundamental to the rule of law and democratic governance.

Textualism is the only method of statutory interpretation that

properly respects the legislature's authority to make policy

choices. "[T]he object of interpretation is to enforce a

decision that is attributable to the legislature." See John F.

Manning & Matthew C. Stephenson, Legislation and Regulation 22 (1st ed. 2010). The people never gave this court "the power to

3 No. 2022AP1999-W.rgb

second-guess the legislature's policy choices[,] [and]

[j]udicial deference to the policy choices enacted into law by

the legislature requires that statutory interpretation focus

primarily on the language of the statute." Sanders, 408 Wis. 2d

370, ¶48 (internal quotation marks and citations omitted).

"While textualism cannot prevent the incursion of policy

preferences into legal analysis[,] . . . without textualism,

such encroachment is certain." Wis. Jud. Comm'n v. Woldt, 2021

WI 73, ¶92, 398 Wis. 2d 482, 961 N.W.2d 854 (Rebecca Grassl

Bradley, J., concurring in part, dissenting in part); see Kalal,

271 Wis. 2d 633, ¶49 n.8 (A "methodology . . . that calls for

consultation of extrinsic, non-textual sources of interpretation

in every case, regardless of whether the language of the statute

is clear[,] . . . subordinates the statutory text and renders

the analysis more vulnerable to subjectivity."). "[D]iscovering

the meaning of a statute is not just a worthy endeavor, but also

an exhaustive recitation of the judiciary's authority when

interpreting a statute." Wis. Carry, 373 Wis. 2d 543, ¶20 n.15. Applying our longstanding interpretive methodology to Wis. Stat.

§ 971.20 illustrates how Baldwin rewrote the statute,

impermissibly altering the policy determinations made by the

legislature.

B. Wis. Stat. § 971.20

¶52 The legislature enacted Wis. Stat. § 971.20 in 1969.

See § 63, ch. 255, Laws of 1969. Although the legislature has

modified § 971.20 over the years, the words of the statute pertinent to this decision have remained the same. In its

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original iteration, Wis. Stat. § 971.20(1) (1969-70) provided

that a "defendant may file . . . for a substitution of a new

judge for the judge assigned to the trial of that case. Such

request shall . . . be made before making any motion or before

arraignment."2 Notably, the statute required the request to be

filed "before arraignment" regardless of whether the judge was

the judge originally assigned to the trial. Over time, the

legislature added new deadlines for filing a substitution

request. For example, Wis. Stat. § 971.20(1) (1975-76) allowed

a defendant to substitute the judge assigned to his trial if the

request was filed "before making any motion or before

arraignment." If a new judge was assigned to his trial, the

defendant could file his request "any time before making any

motion before such new judge or before commencement of any

proceeding before such new judge." § 971.20(1).

¶53 With § 3, ch. 137, Laws of 1981, the legislature

repealed and recreated Wis. Stat. § 971.20. Obtaining a

substitution of the judge originally assigned to a trial is currently governed by § 971.20(4). The legislature has not

altered § 971.20(4) since its creation. Although Baldwin

interpreted Wis. Stat. § 971.20(1) (1971-72), Baldwin has

bearing on this court's interpretation and application of

§ 971.20(4) because courts have applied its reasoning to

2 The statute also provided, "a request for the substitution of a judge may also be made by the defendant at the preliminary examination except that the request must be filed at the initial appearance or at least 5 days before the preliminary examination unless the court otherwise permits." Wis. Stat. § 971.20(3) (1969-70).

5 No. 2022AP1999-W.rgb

§ 971.20(4), as well as other subsections of § 971.20. State ex

rel. Tessmer v. Cir. Ct. Branch III, In & For Racine Cnty., 123

Wis. 2d 439, 367 N.W.2d 235 (Ct. App. 1985); Tinti, 159 Wis. 2d

783; State v. Zimbal, 2017 WI 59, 375 Wis. 2d 643, 896 N.W.2d

327.

¶54 Wisconsin Stat. § 971.20(4) creates a simple rule for

a defendant who wants to substitute the judge originally

assigned to his trial: "A written request for the substitution

of a different judge for the judge originally assigned to the

trial of the action may be filed with the clerk before making

any motions to the trial court and before arraignment."3

Unsurprisingly, dictionaries define "before" to mean "previous

to" or "earlier than." Before, Random House Dictionary of the

English Language 134 (1st unabridged ed. 1966). Wisconsin Stat.

§ 971.05 provides that an arraignment has four elements: (1)

the arraignment occurs in open court; (2) if the defendant

appears to not have counsel, "the court shall advise the

defendant of the defendant's right to counsel"; (3) the defendant shall be read the information or complaint unless the

The original iteration of Wis. Stat. § 971.20 required a 3

defendant to file the substitution request "before making any motion or before arraignment." Wis. Stat. § 971.20(1) (1969- 70) (emphasis added). Since 1981, the statute has allowed for the substitution of the judge originally assigned to a defendant's trial if requested "before making any motions to the trial court and before arraignment." Wis. Stat. § 971.20(4) (1981-82) (emphasis added). It doesn't appear that changing the "or" to an "and" makes any interpretive difference because courts interpreted the "or" as an "and" in the prior iterations of the statute. Clark v. State, 92 Wis. 2d 617, 626, 286 N.W.2d 344 (1979).

6 No. 2022AP1999-W.rgb

defendant waives such a reading; and (4) the defendant makes his

plea unless the defendant has filed a motion that requires a

determination before the entry of a plea. Under the current

iteration of the § 971.20(4), a defendant must file a

substitution request before the statutorily defined arraignment

occurs. The statute provides no other means to substitute the

judge originally assigned to the trial; indeed, the statute

declares, "The right of substitution shall be exercised as

provided in this section." § 971.20(2). In short, the current

version of § 971.20(4) does not authorize this court to create

an ever-evolving common law of judicial substitution; it

provides an easy-to-apply rule: A defendant must file a

substitution request before making any motions to the circuit

court and before arraignment or the request must be denied.

¶55 Applying the plain language of Wis. Stat. § 971.20(4),

the circuit court properly denied Davis's substitution request.

Because Davis filed his request 71 days after his arraignment,

his request was untimely. See State v. Beaty, 57 Wis. 2d 531, 542, 205 N.W.2d 11 (1973). A circuit court does not have a

plain duty to accept untimely substitution requests. See State

v. Bell, 62 Wis. 2d 534, 536, 215 N.W.2d 535 (1974) (citations

omitted) (holding a circuit court properly denied a substitution

request because it was filed after the statutory deadline);

Kalal, 271 Wis. 2d 633, ¶¶22-24 (defining what constitutes a

plain duty). This case should end there; no further analysis is

required. Because of Baldwin, however, the majority opinion does not end there——despite the clarity of the statutory text.

7 No. 2022AP1999-W.rgb

¶56 The Baldwin court rewrote Wis. Stat. § 971.20 under

the veneer of statutory interpretation. The Baldwin court held

a defendant must have a "reasonable time" to exercise the

statutory right to substitution after the defendant learns the

identity of the judge assigned to his trial. Baldwin, 62 Wis.

2d at 530-33. To afford the defendant a reasonable time to

exercise the statutory right, the court gave an "enlarged

definition" to the word "arraignment," unsupported by the text

of the statute. Id. at 532. Courts have applied Baldwin's

tortured analysis of § 971.20 without critical thought. This

court should overturn Baldwin and return to applying the plain

meaning of § 971.20.

C. The Baldwin Decision

¶57 In Baldwin, the defendant filed his substitution

request on the date of his trial. The court in Baldwin was

asked whether the defendant's substitution request, under Wis.

Stat. § 971.20(1) (1971-72), was timely. Id. at 526-28. At the

time, Milwaukee County used calendaring judges for arraignments. If a guilty plea were entered at the arraignment, the case would

conclude; if a not guilty plea were entered, the court would

assign the case to a judge, who might not be the calendaring

judge presiding over the entering of a plea. Id. at 529. In

Baldwin, the defendant was arraigned, after which the judge

originally assigned to the defendant's trial disqualified

himself and a new judge was assigned to the defendant's trial.

Id. at 526-28.

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¶58 The Baldwin court interpreted Wis. Stat. § 971.20(1)

(1971-72), which provided that a "defendant may file with the

clerk a written request for a substitution of a new judge for

the judge assigned to the trial of that case. Such

request . . . shall be made before making any motion or before

arraignment." The Baldwin court acknowledged a plain-meaning

interpretation of the statute "requires that [a substitution]

request be made prior to arraignment." Baldwin, 62 Wis. 2d at

529; see also Clark v. State, 92 Wis. 2d 617, 626, 286 N.W.2d

344 (1979). However, the Baldwin court decided this clear rule

does not "work[] well" when a county's calendaring procedure

prevents a defendant from knowing the identity of the judge

assigned to his trial prior to arraignment. Baldwin, 62 Wis. 2d

at 529. The court also determined the plain meaning of the

statute would violate the right to a fair trial for some

defendants. Id. at 530.

¶59 To fix these perceived infirmities, the court altered

the statute. The court held, "The right to the substitution of a judge must have a reasonable time limit for its exercise."

Id. at 532. Toward that end, the court created an "enlarged

definition of 'arraignment'" to apply under similar

circumstances. Id. "[I]n a calendaring procedure, such as is

used in Milwaukee [C]ounty, the arraignment is only initiated at

the calendaring of the case and the plea of not guilty entered

then is for the purpose of obtaining a judge who will actually

hear the case," and "[t]he arraignment is completed upon the confirmation of the plea of not guilty before the judge to whom

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the case is assigned for trial when he sets the date for trial."

Id. at 530.4

¶60 According to the court, its proffered interpretation

"witnesse[d] and g[ave] effect to the predominant intention of

the legislature" to "'afford a substitution of a new judge

assigned to the trial of that case.'" Id. Like its predecessor

statute, Wis. Stat. § 971.20 (1971-72) was "an expression of the

'legislative intent that a person's right to a fair trial

(should) be observed.'" Id. at 532 (quoting Meverden v. State,

258 Wis. 628, 634, 46 N.W.2d 836 (1951)). According to the

Baldwin court, a plain-meaning interpretation would make "it

impossible to obtain the objective of this section and would

frustrate the objective of this statute." Id. at 530.

Overriding the text with its ostensible "intent," the court

decided to "apply as reasonably as possible [the language of the

statute] to all cases to attain its object." Id. at 532.

Finally, the court discovered "support [for its interpretation]

in the history of the section." Id. at 530. The judicial committee's comments to the statute "reference[d]" the Illinois

and Montana substitution statutes, which set the filing date at

a time when the defendant would know the identity of the judge.

Id. at 530-31.

4The court deemed the defendant's substitution request late even under its expansive interpretation of Wis. Stat. § 971.20(1) (1971-72) because he waited until the day of trial to make his request. Baldwin v. State, 62 Wis. 2d 521, 532-33, 215 N.W.2d 541 (1974).

10 No. 2022AP1999-W.rgb

¶61 Baldwin's policy-driven interpretation of the original

iteration of Wis. Stat. § 971.20 invited courts to ignore the

text of the statute, and the text of other substitution

statutes,5 during the ensuing decades. Over the years, courts

have relied on Baldwin for the proposition that "a defendant

[must have] an opportunity to request a substitution for a

reasonable period of time after he learns specifically which

judge will be assigned to his case." State ex rel. Akavickas v.

Cnty. Ct. of Marathon Cnty., 77 Wis. 2d 297, 298-99, 252 N.W.2d

386 (1977) (per curiam); see also Tessmer, 123 Wis. 2d 443-44;

Tinti, 159 Wis. 2d 789-90. Baldwin convinced courts there may

be "exceptions" to § 971.20(4)'s unambiguous "before

arraignment" requirement, such as if the defendant does not know

the identity of the judge assigned to his trial. See Zimbal,

375 Wis. 2d 643, ¶3 n.2. Baldwin must be overturned.

D. The Interpretive Errors of the Baldwin Court

1. The Right to an Unbiased Judge

¶62 The court in Baldwin erred when it refused to apply the plain meaning of Wis. Stat. § 971.20(1) (1971-72) because

such an application "would deny in many cases the constitutional

right to a fair trial . . . ." Baldwin, 62 Wis. 2d at 530. The

court never cited a single source for its claim that the statute

violates the right to an impartial judge for some defendants.

Nor did the court explain how the right to an unbiased judge

State ex rel. Akavickas v. Cnty. Ct. of Marathon Cnty., 77 5

Wis. 2d 297, 298-99, 252 N.W.2d 386 (1977) (per curiam) (Wis. Stat. § 345.315(1)); State ex rel. Tarney v. McCormack, 99 Wis. 2d 220, 235, 298 N.W.2d 552 (1980) (Wis. Stat. § 801.58(1)).

11 No. 2022AP1999-W.rgb

would be violated by applying the plain meaning of the statute.

While every defendant is entitled to a trial before an impartial

judge, Wis. Const. art. I, § 8; State ex rel. Mitchell v.

Bowman, 54 Wis. 2d 5, 6-7, 194 N.W.2d 297 (1972) (per curiam),

the ability to exercise a peremptory judicial substitution is

unrelated to judicial bias against the defendant. See Mitchell,

54 Wis. 2d at 6-7. It is similarly unrelated to whether a judge

has a personal interest in the case's outcome. Tumey v. Ohio,

273 U.S. 510 (1927). Exercising the statutory right of

substitution without knowing the identity of the judge assigned

to the trial does not make it any more or less likely that

"there is 'a serious risk of actual bias . . . .'" Miller v.

Carroll, 2020 WI 56, ¶24, 392 Wis. 2d 49, 944 N.W.2d 542

(quoting Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 884

(2009)). The unavailability of peremptory judicial substitution

does not deprive a defendant of his right to an impartial judge.

¶63 There is "no constitutional right to the peremptory

substitution of a judge." State ex rel. Garibay v. Cir. Ct. for Kenosha Cnty., 2002 WI App 164, ¶9, 256 Wis. 2d 438, 647 N.W.2d

455 (citing State v. Holmes, 106 Wis. 2d 31, 46, 315 N.W.2d 703

(1982)). The legislature provided the statutory right of

substitution to protect the right to an unbiased judge. Holmes,

106 Wis. 2d at 38, 46-47, 55. The statutory right to

substitution serves as a prophylactic protection of the

constitutional right to an unbiased judge and does not embody

the right itself. See id. at 46; Zimbal, 375 Wis. 2d 643, ¶74 (Ziegler, J., concurring). The statutory right of substitution

12 No. 2022AP1999-W.rgb

is a "matter of legislative grace, not constitutional mandate.

As such, the legislature may limit or qualify that right" as it

sees fit. Garibay, 256 Wis. 2d 438, ¶9.

¶64 Even if applying the plain meaning of the statute

would violate due process when the defendant doesn't know the

identity of the assigned judge prior to arraignment, the Baldwin

court erred by impermissibly rewriting the statute. State v.

Zarnke, 224 Wis. 2d 116, 140, 589 N.W.2d 370 (1999) (internal

quotation marks omitted) (quoting United States v. X–Citement

Video, 513 U.S. 64, 86 (1994) (Scalia, J., dissenting))

("[A]lthough this Court will often strain to construe

legislation so as to save it against constitutional attack, it

must not and will not carry this to the point

of . . . judicially rewriting it."). Under the constitutional-

doubt canon, if a statute raises serious constitutional

questions, a court should interpret the statute to avoid those

constitutional questions. State v. Hager, 2018 WI 40, ¶31, 381

Wis. 2d 74, 911 N.W.2d 17. "[I]t is a cardinal rule that courts should avoid interpreting a statute in a way that would render

it unconstitutional when a reasonable interpretation exists that

would render the legislation constitutional." State v. Hamdan,

2003 WI 113, ¶27 n.9, 264 Wis. 2d 433, 665 N.W.2d 785 (citation

omitted). Critically, the court can apply only reasonable or

plausible interpretations to the text under these rules of

interpretation. Id.; Hager, 381 Wis. 2d 74, ¶31. This court

can avoid questions of unconstitutionality only if the statute is ambiguous. Fleming v. Amateur Athletic Union of U.S., Inc.,

13 No. 2022AP1999-W.rgb

2023 WI 40, ¶31 n.10, 407 Wis. 2d 273, 990 N.W.2d 244 (citations

omitted). It isn't.

¶65 The Baldwin court did not supply a reasonable or

plausible interpretation of Wis. Stat. § 971.20(1) (1971-72); it

supplied a contrived, textually unsupportable interpretation.

The Baldwin court assigned the word "arraignment" different

meanings depending on the facts of a particular case, lending

the word a chameleon-like character. Baldwin, 62 Wis. 2d at

530, 532 (providing an "enlarged definition of 'arraignment'"

only when "a calendaring procedure, such as is used in Milwaukee

[C]ounty," is used). Not only is it confounding that the court

gave "arraignment" different meanings depending on the facts of

the case, the Baldwin court's "enlarged definition" of

arraignment conflicts with the statutory definition. Compare

id. at 530, with Wis. Stat. § 971.05 (1971-72).

¶66 Baldwin turned the statute's clear rule (file "before

arraignment") into a vague standard (file within a "reasonable

time") without any explanation or textual support. The words of Wis. Stat. § 971.20, taken collectively or individually, do not

give a defendant a "reasonable time" to file a substitution

request after learning the identity of the judge assigned to his

case. The Baldwin court added words to the text of the statute

because it felt the legislature's rule didn't "work[] well."

Baldwin, 62 Wis. 2d at 529. "One of the maxims of statutory

construction is that courts should not add words to a statute to

give it a certain meaning." Fond Du Lac Cnty. v. Town of

14 No. 2022AP1999-W.rgb

Rosendale, 149 Wis. 2d 326, 334, 440 N.W.2d 818 (Ct. App. 1989)

(citation omitted).

2. Legislative Intent and Statutory Purpose

¶67 The Baldwin court justified its interpretation of Wis.

Stat. § 971.20(1) (1971-72) on the ground it gave effect to the

legislature's "intent" while a plain-meaning interpretation of

the statute frustrated the objective of the statute. Baldwin,

61 Wis. 2d at 530. Statutory interpretation is not a quest to

effectuate the legislature's intent; its goal is to ascertain

the objective meaning of a statute and apply that meaning in the

case at hand. "This court has long disavowed reliance on so-

called 'legislative intent,' the search for which leads to pure

judicial activism." Cobb v. King, 2022 WI 59, ¶44, 403 Wis. 2d

198, 976 N.W.2d 410 (Rebecca Grassl Bradley, J., dissenting)

(citing Townsend v. ChartSwap, LLC, 2021 WI 86, ¶24, 399 Wis. 2d

599, 967 N.W.2d 21); accord Kalal, 271 Wis. 2d 633, ¶¶43-44.

Although the objectives of a statute are valid considerations in

a plain-meaning analysis to the extent they can be ascertained from the words of the statute, Kalal, 271 Wis. 2d 633, ¶48,

statutory "purpose[s] cannot produce an interpretation that the

statute's language rules out of bounds." Stephen Breyer, Making

Our Democracy Work: A Judge's View 98 (2010). A statute's

manifest objectives may help a court choose between "textually

permissible interpretation[s]." see Antonin Scalia & Bryan A.

Garner, Reading Law: The Interpretation of Legal Texts 63

(2012). But a statute's objectives cannot give "a word [or] sentence . . . a meaning that it cannot bear." Id. at 31; State

15 No. 2022AP1999-W.rgb

v. Hinkle, 2019 WI 96, ¶28, 389 Wis. 2d 1, 935 N.W.2d 271

(quoting Scalia & Garner, supra, at 57). After all, "no

legislation pursues its purposes at all costs." Rodriguez v.

United States, 480 U.S. 522, 525-26 (1987) (per curiam). The

Baldwin court violated these fundamental rules of interpretation

by adding words to a statute and stretching the existing words

of the statute past their breaking point.

3. The History of Wis. Stat. § 971.20

¶68 Contrary to the claims of the Baldwin court, the

"history of [Wis. Stat. § 971.20]" does not "support" its

interpretation of the statute. Baldwin, 62 Wis. 2d at 530.

Although the judicial committee's note to the statute did

"reference" the Illinois and Montana judicial substitution

statutes, id., the Baldwin court misused that reference to

support its conclusion. The reference to the Illinois and

Montana substitution statutes was made in the context of

changing the terminology used to describe the right to judicial

substitution; the new statute would not use the term "affidavit of prejudice," which the prior substitution statute, Wis. Stat.

§ 956.03(1) (1967-68), used:

Note: This is new terminology replacing present s. 956.03 (1). 'Affidavit of Prejudice' has normally not meant prejudice since most defendants have no knowledge of the judge and have filed the affidavit solely for tactical purposes usually on an attorney's advice. This terminology is felt to be more accurate. (See Ill. Rev. Code Chap. 38, s. 114-5, Mont. Rev. Code 95-1709.) Note, § 63, ch. 255, Laws of 1969. Despite the fact the reference made to the Illinois and Montana statutes was about

16 No. 2022AP1999-W.rgb

terminology, the court cited the Illinois and Montana statutes

as support for the claim that a defendant needs to know the

identity of the judge assigned to his trial prior to the

substitution deadline.

¶69 Not only did the court in Baldwin deceptively misuse

the judicial committee's note, the statutory history of Wis.

Stat. § 971.20 reveals the legislature denied the court any

authority to provide exceptions to the statute's deadline.

"Unlike legislative history, prior versions of statutory

provisions were enacted law; as such, statutory history

constitutes an intrinsic source that 'is part of the context in

which we interpret the words used in a statute.'" Brey v. State

Farm Mut. Auto. Ins. Co., 2022 WI 7, ¶20, 400 Wis. 2d 417, 970

N.W.2d 1 (quoting Richards v. Badger Mut. Ins. Co., 2008 WI 52,

¶22, 309 Wis. 2d 541, 749 N.W.2d 581). Prior to the creation of

§ 971.20, Wis. Stat. § 956.03 (1967-68) gave defendants the

right of substitution. Section 956.03(1) provided that in

felony cases, the request needed to be made "within 20 days after [the defendant's] arraignment and before the case is

called for trial." For misdemeanors, the request needed to be

made "at arraignment or at the time the defendant demands a jury

trial if one is demanded." § 956.03(1). Importantly, the

statute had an exception——the deadline could be "extended for

cause but not more than 10 days." § 956.03(1). The enactment

of § 971.20 eliminated the "for cause" exception. See Wis.

Stat. § 971.20 (1969-70). Likewise, the current iteration of the statute does not include any exceptions for the statutory

17 No. 2022AP1999-W.rgb

deadline. "[A] change in the language of a prior statute

presumably connotes a change in meaning." Scalia & Garner,

supra, at 256. The removal of the "for cause" exception to the

deadline suggests the deadlines in § 971.20 are to be enforced

as they are written, and this court cannot extend the deadline

in § 971.20(4) for filing a substitution request past

arraignment. This court cannot restore what the legislature

specifically removed from a statute.

4. Policy

¶70 Buried beneath the Baldwin court's handwringing over

fair trials, legislative intent, statutory objectives, and

legislative history lies the obvious truth: The court simply

disagreed with the policy decisions made by the legislature.

The court did not think the statute's deadline "works well" in

all cases. Baldwin, 62 Wis. 2d at 529. The Baldwin court's

interpretation of Wis. Stat. § 971.20(1) (1971-72) was designed

to improve what the court regarded as the legislature's

imperfect work. The Baldwin court "observed what the legislature had written, decided it didn't like it, and replaced

the statutory text with what the court deemed to

be . . . preferable . . . ." Town of Wilson v. City of

Sheboygan, 2020 WI 16, ¶73 n.12, 390 Wis. 2d 266, 938 N.W.2d 493

(Rebecca Grassl Bradley, J., concurring). But the court's role

is not to reweigh the pros and cons of a policy and correct any

perceived errors in the legislature's judgments, especially when

it comes to deadlines: "Deadlines are inherently arbitrary; fixed dates, however, are often essential to accomplish

18 No. 2022AP1999-W.rgb

necessary results." United States v. Boyle, 469 U.S. 241, 249

(1985).

¶71 Courts act beyond their authority by adding words to a

law, even when they believe their handiwork will make the law

better accord with justice. "The problem is that although

properly informed human minds may agree on what a text means,

human hearts often disagree on what is right." Scalia & Garner,

supra, at 348. "[I]t is precisely because people differ over

what is sensible and what is desirable that we elect those who

will write our laws——and expect courts to observe what has been

written." Id. at 22. That is why "[o]ur unwillingness to

soften the import of [the legislature's] chosen words even if we

believe the words lead to a harsh outcome is longstanding." See

Lamie v. U.S. Tr., 540 U.S. 526, 538 (2004); Mannino v.

Davenport, 99 Wis. 2d 602, 615, 299 N.W.2d 823 (1981). The

appropriate judicial response to a law that leads to harsh

results is not to legislate from the bench, but to "take the

statute as we find it." Anderson v. Wilson, 289 U.S. 20, 27 (1933).

¶72 By adding words to Wis. Stat. § 971.20, the Baldwin

court not only violated foundational principles of statutory

interpretation, it invaded the legislature's constitutionally

assigned domain, "arrogating to itself the power to make law."

St. Augustine Sch. v. Taylor, 2021 WI 70, ¶116, 398 Wis. 2d 92,

961 N.W.2d 635 (Rebecca Grassl Bradley, J., dissenting). The

court's decision in Baldwin "reflects the philosophy that judges should endure whatever interpretive distortions it takes in

order to correct a supposed flaw in the statutory machinery."

King v. Burwell, 576 U.S. 473, 515 (Scalia, J., dissenting).

Our constitution counters that dangerous philosophy, enshrining

a separation of powers between the three branches of government.

The people of Wisconsin gave the legislature——not this court——

"[t]he legislative power." Wis. Const. art. IV, § 1. The

legislature is the only body in this state with the

constitutional authority to make and modify laws. See League of

Women Voters v. Evers, 2019 WI 75, ¶35, 387 Wis. 2d 511, 929

N.W.2d 209. In contrast, the people gave this court "[t]he

judicial power of this state." Wis. Const. art. VII, § 2. This

court does not create laws, nor does it fix laws that fail to

meet their objectives. State ex rel. Rose v. Superior Ct. of

Milwaukee Cnty., 105 Wis. 651, 675, 81 N.W. 1046 (1900).

Instead, this court has a more modest and circumscribed

constitutional role——interpreting and applying laws as written.

Gabler v. Crime Victims Rts. Bd., 2017 WI 67, ¶37, 376 Wis. 2d

147, 897 N.W.2d 384. This court in Baldwin overstepped its constitutionally assigned role by rewriting § 971.20 without any

authority to do so.

5. Baldwin's Progeny

¶73 Courts applying Baldwin showcase the extent to which

the Baldwin court usurped the legislature's policy-making role.

Following Baldwin, the court of appeals held that if a defendant

does not receive "adequate notice of the assigned judge in

advance of arraignment, the statute's filing deadlines are relaxed in order to allow a defendant to intelligently exercise

20 No. 2022AP1999-W.rgb

the right of substitution." Tinti, 159 Wis. 2d at 789-90 (first

citing Tessmer, 123 Wis. 2d at 443; and then citing Baldwin, 62

Wis. 2d at 529). In Zimbal, this court added to Baldwin's

atextual interpretation of Wis. Stat. § 971.20. The Zimbal

court held § 971.20's deadlines are not to be enforced if a

circuit court told the defendant the substitution issue would be

addressed only after trial counsel is appointed. 375 Wis. 2d

643, ¶40. According to the Zimbal court, this exception to the

deadlines aligns with Baldwin, Tessmer, and Tinti, which allow

for an exception to the deadline "when a government-created

obstacle prevents a defendant from complying with the statutory

deadline." Id. Under such circumstances, the court proclaimed

it too "problematic" to apply the statute's actual deadline,

id., ¶48; instead, the court engaged in a balancing test to

determine if the defendant filed his substitution request within

a reasonable time: "We again look to the arraignment cases,

which have balanced the importance of giving effect to the

legislative intent expressed in Wis. Stat. § 971.20 and preventing a defendant from using a request as a technique to

disrupt scheduled calendaring or delay a scheduled trial." Id.,

¶50 (citations omitted). Such balancing belongs to the

legislature, which already balanced those interests in the text

of § 971.20. The judiciary lacks any authority to reweigh those

interests and create case-by-case exceptions to statutory

deadlines. See Flynn v. DOA, 216 Wis. 2d 521, 529, 576 N.W.2d

245 (1998).6

6The Zimbal court euphemistically stated it would not require the defendant to "strict[ly] adhere[]" to the statutory 21 No. 2022AP1999-W.rgb

¶74 The majority follows Zimbal's lead, stating "an

untimely request may be considered timely when 'a government-

created obstacle' prevents a defendant from meeting the

statutory deadline." Majority op., ¶31 (quoting Zimbal, 375

Wis. 2d 643, ¶40). But nowhere in Wis. Stat. § 971.20 is there

any reference to "government-created obstacles." It is a court-

created criterion at odds with the law's text. Instead of

applying Baldwin and its progeny, this court should overrule the

decision.

¶75 The majority correctly concludes the circuit court did

not have a plain duty to accept Davis's tardy substitution

request. But the majority errs by perpetuating the Baldwin

court's usurpation of legislative power by atextually

interpreting the judicial substitution statute. "Rather than

rewriting the law under the pretense of interpreting it," King,

576 U.S. at 516 (Scalia, J., dissenting), this court should

leave it to the legislature to fix any infirmities in Wis. Stat. § 971.20's text. Section 971.20(4) requires a defendant to file

a substitution request "before arraignment." Only the

legislature possesses the authority to change that. Baldwin

should be overruled and its reasoning abandoned. I would

apply the statute's plain meaning and hold the circuit court

deadline. State v. Zimbal, 2017 WI 59, ¶40, 375 Wis. 2d 643, 896 N.W.2d 327. Such language disguises the fact that the court would not require the defendant to adhere to the statute's deadline at all.

22 No. 2022AP1999-W.rgb

properly denied Davis's substitution request because it was

filed after arraignment. I respectfully concur in the judgment.

23 No. 2022AP1999.bh

¶76 BRIAN HAGEDORN, J. (concurring). In a petition for

a supervisory writ, the question is whether we should force the

circuit court to do something it had a plain duty to do. Yet

before us, the legal theory Davis presents for why the circuit

court had such a duty is entirely different than the one he

argued below and in his petition for review. He also adds a

brand new argument regarding equitable tolling not raised below

at all. Davis forfeited these arguments, full stop. The best

course of action would be to hold him to his forfeiture and call

it a day.

¶77 The majority disagrees, however, and overlooks the

forfeiture——ostensibly to clarify the proper procedure for

raising judicial substitution questions. But it doesn't need to

overlook the forfeiture to address this point. And while I

agree that a supervisory writ is particularly ill-suited to the

kind of claims raised here,1 the majority attempts to do more.

It dives head-first into the merits and seems to blaze at least

some new legal ground on the forfeited questions.

¶78 Forfeiture should not be overlooked so easily though;

it is not just procedural nitpicking. When we allow litigants

to present a wholly different case to us than they did below, we

put ourselves in the awkward position of "telling a lower court

1 I'm not sure whether this court should tell parties how best to press their claims. In any event, a supervisory writ is a poor fit for the claims raised here, as the majority emphasizes.

1 No. 2022AP1999.bh

it was wrong when it was never presented with the opportunity to

be right."2 This is especially so in this request for a

supervisory writ where we are asked to order the circuit court

to comply with a legal command that it was never asked to obey

in the first place. In the end, although well-intentioned, the

majority says more than it should, and risks confusing the law

rather than clarifying it. I respectfully concur in the

judgment.

2Tory A. Weigand, Raise or Lose: Appellate Discretion and Principled Decision-Making, 17 Suffolk J. Trial & App. Advoc. 179, 186 (2012) (cleaned up).

2 No. 2022AP1999-W.akz

¶79 ANNETTE KINGSLAND ZIEGLER, C.J. (dissenting). The

majority answers a question of its own choosing, rather than the

question presented in the petition for review. The majority

could, as Justices Rebecca Grassl Bradley and Brian Hagedorn do

in their respective concurrences, answer questions that meet the

criteria for this court's review. But the majority chooses

instead to merely restate prior law. I dissent because this

case should have been dismissed as improvidently granted. We

accept cases based on statutory criteria which require that

there be "real and significant question of federal or state

constitutional law" or that lead to "develop[ing], clarify[ing],

or harmon[izing] the law." Wis. Stat. § (Rule) 809.62(1r).

There is no new law development in the majority opinion.

Additionally, Davis argues different issues than that presented

in his petition for review. Because neither the majority nor

Davis follow the court's order to answer the question presented

in the petition for review, and the majority opinion develops no

new law, this case should be dismissed as improvidently granted.

¶80 This court does not grant every petition for review.

Wisconsin Stat. § (Rule) 809.62(1r) instructs that when

exercising our discretion to grant or deny a petition for

review:

CRITERIA FOR GRANTING REVIEW. Supreme court review is a matter of judicial discretion, not of right, and will be granted only when special and important reasons are presented. The following . . . indicate criteria that will be considered:

(a) A real and significant question of federal or state constitutional law is presented. 1 No. 2022AP1999-W.akz

(b) The petition for review demonstrates a need for the supreme court to consider establishing, implementing or changing a policy within its authority.

(c) A decision by the supreme court will help develop, clarify or harmonize the law, and

1. The case calls for the application of a new doctrine rather than merely the application of well-settled principles to the factual situation; or

2. The question presented is a novel one, the resolution of which will have statewide impact; or

3. The question presented is not factual in nature but rather is a question of law of the type that is likely to recur unless resolved by the supreme court.

(d) The court of appeals' decision is in conflict with controlling opinions of the United States Supreme Court or the supreme court or other court of appeals' decisions.

(e) The court of appeals' decision is in accord with opinions of the supreme court or the court of appeals but due to the passage of time or changing circumstances, such opinions are ripe for reexamination. § (Rule) 809.62(1r). Davis argued that our review was proper

because he satisfied at least two of those criteria.1

¶81 In granting Davis's petition for review, our order

stated that "the petition for review is granted and that

pursuant to Wis. Stat. § (Rule) 809.62(6), the petitioner may

1 Davis argued that the question presented was "a purely legal issue that is likely to recur unless the Supreme Court grants review and develops the law governing exceptions to the deadline for filing requests for substitution of judge." Davis also argued that our review was proper "because there was a need for the supreme court to consider establishing policy within its authority." See Wis. Stat. § (Rule) 809.62(1r)(b), (c).

not raise or argue issues not set forth in the petition for

review unless otherwise ordered by the court".2 Davis v. Cir.

Ct. for Dane Cnty., No. 2022AP1999-W, unpublished order (Wis.

Mar. 31, 2023) (granting petition for review). The issue

presented was

[w]hether the [State Public Defender's] inability to appoint counsel before the deadline for requesting a substitution of judge expires is a "government created obstacle" that interferes with defendant's intelligent exercise of his right of substitution[.] Alternatively, whether the doctrine of equitable tolling tolls the deadline for filing a request for substitution of judge until the defendant is appointed counsel[.] But Davis, in his briefing and at oral argument, argued a

different issue than the one ordered by the court, namely,

"[w]hen the court sua sponte entered a plea on behalf of an

unrepresented defendant awaiting appointment of counsel before

giving notice of assignment of judge, did that procedure result

in a government-created obstacle that deems Mr. Davis' request

for substitution timely?" The majority may begin to consider

portions of Davis's newly developed issue, but it does not

definitively answer it, and that was not the issue for which

review was granted.3 Instead, the majority dodges the issue

See Wis. Stat. § (Rule) 809.62(6) ("If a petition . . . is 2

granted, the petitioner . . . cannot raise or argue issues not set forth in the petition . . . .").

See, e.g., majority op., ¶23 ("With regard to Davis's 3

government-created obstacle argument, we address the version of the argument that Davis presents in his briefing——namely, that the government-created obstacle was the timing of Davis's arraignment.").

3 No. 2022AP1999-W.akz

presented and proceeds to the merits anyway, merely restating

existing law.

¶82 We are not an error-correcting court; we are a law-

developing court.4 This case is not law-developing. I would

dismiss this case as improvidently granted.

¶83 For the foregoing reasons, I respectfully dissent.

4 See State v. Schumacher, 144 Wis. 2d 388, 407-08, 424 N.W.2d 672 (1988) (noting that the court of appeals is an error- correcting court while the supreme court is a law-developing or law-declaring court); see also State v. Lee, 197 Wis. 2d 959, 970, 542 N.W.2d 143 (1996) ("The rules of appellate practice applicable to the court of appeals are not always applicable to this court, which functions primarily as a law-developing court.").

4 No. 2022AP1999-W.akz