State Ex Rel. Julie AB v. CIRCUIT COURT OF SHEBOYGAN

2002 WI App 220, 650 N.W.2d 920, 257 Wis. 2d 285
CourtCourt of Appeals of Wisconsin
DecidedJuly 17, 2002
Docket02-1479-W
StatusPublished

This text of 2002 WI App 220 (State Ex Rel. Julie AB v. CIRCUIT COURT OF SHEBOYGAN) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Ex Rel. Julie AB v. CIRCUIT COURT OF SHEBOYGAN, 2002 WI App 220, 650 N.W.2d 920, 257 Wis. 2d 285 (Wis. Ct. App. 2002).

Opinion

257 Wis.2d 285 (2002)
2002 WI App 220
650 N.W.2d 920

IN RE the TERMINATION OF PARENTAL RIGHTS TO PRESTIN T.B., a Person Under the Age of 18:
STATE of Wisconsin EX REL. JULIE A.B., Petitioner,
v.
CIRCUIT COURT FOR SHEBOYGAN COUNTY, the Honorable John B. Murphy, presiding, Prestin T.B., a child under 18 years of age, and Pat Prigge, Sheboygan County Department of Health and Human Services, Respondents.

No. 02-1479-W.

Court of Appeals of Wisconsin.

Submitted on briefs June 20, 2002.
Decided July 17, 2002.

*288 On behalf of the petitioner, the cause was submitted on the petition of Roberta A. Heckes of Adell.

On behalf of the respondents, the cause was submitted on the brief of Robert J. Wells, district attorney of Sheboygan, and James P. Van Akkeren, assistant district attorney of Sheboygan.

Before Nettesheim, P.J., Brown and Snyder, JJ.

¶ 1. NETTESHEIM, P.J.

This is a termination of parental rights (TPR) case.[1] The issue is whether more than one substitution of judge is allowed in a termination of parental rights proceeding. Julie A.B., the *289 mother of the minor child, filed a substitution of judge request and obtained the assignment of a new judge for the judge originally assigned. Later, the guardian ad litem (GAL) for the minor child filed a substitution request and obtained the assignment of yet another judge. Julie challenged this assignment, contending that WIS. STAT. § 48.29(1), the statute governing judicial substitutions in TPR proceedings, allows but one substitution of judge. The currently assigned judge rejected Julie's challenge.

¶ 2. Julie has petitioned this court for a supervisory writ and temporary relief pursuant to WIS. STAT. RULES 809.51 and 809.52. She requests that we disqualify the currently assigned circuit judge and order that the matter be heard by the previously assigned circuit judge. Like the circuit court, we reject Julie's request. We conclude that WIS. STAT. § 48.29(1) permits more than one party to file a request for a substitution of judge in a TPR proceeding. We therefore deny Julie's petition for a supervisory writ.

Background

¶ 3. The facts are not in dispute.[2] The Sheboygan County Department of Health and Human Services filed a petition seeking the termination of Julie's parental rights to Prestin T.B. pursuant to WIS. STAT. § 48.415(2) on grounds of Prestin's continuing *290 need of protection or services. The case was assigned to Judge Gary Langhoff. Julie filed a timely request for substitution of Judge Langhoff, and the matter was assigned to Judge James Bolgert. Thereafter, Prestin's GAL filed a request for substitution of Judge Bolgert, and the matter was assigned to Judge John B. Murphy.[3] That same day, Julie filed a motion objecting to the GAL's substitution request based on the language of WIS. STAT. § 48.29(1) which provides that "[n]ot more than one such written request [for substitution] may be filed in any one proceeding." Julie argued that "[t]he statute does not indicate that not more than one request per party is permitted, but instead limits the requests to `not more than one.'"

¶ 4. Following a hearing, Judge Murphy issued a written order denying Julie's motion based on a determination that "the proper interpretation of [WIS. STAT. §] 48.29(1) would be to prohibit a single party from filing more than one request for substitution of judge in an action and not limiting the total number of substitutions filed by the parties in an action to one such request."

¶ 5. Julie followed with the instant petition for a supervisory writ and temporary relief. We stayed further proceedings before Judge Murphy pending our opinion.

Discussion

[1-6]

¶ 6. The issue in this case turns upon the interpretation and application of WIS. STAT. § 48.29(1). An issue of statutory interpretation presents a question of *291 law, which we review de novo. State v. Isaac J.R., 220 Wis. 2d 251, 255, 582 N.W.2d 476 (Ct. App. 1998). The aim of statutory construction is to ascertain the intent of the legislature, and our first resort is to the language of the statute itself. Id. If the words of the statute convey the legislative intent, that ends our inquiry. Id. However, if the language of the statute is ambiguous or unclear, the court examines the scope, history, context, subject matter, and object of the statute in order to ascertain the intent of the legislature. Id. at 256. A statute is ambiguous when it is capable of being understood by reasonably well-informed persons in two or more different senses. Id. Whether a statute is ambiguous is a question of law. State v. Peterson, 2001 WI App 220, ¶ 13, 247 Wis. 2d 871, 634 N.W.2d 893.

¶ 7. WISCONSIN STAT. § 48.29(1) governs the substitution of judges in TPR proceedings. It provides in its entirety:

The child, the child's parent, guardian or legal custodian, the expectant mother or the unborn child by the unborn child's guardian ad litem, either before or during the plea hearing, may file a written request with the clerk of the court or other person acting as the clerk for a substitution of the judge assigned to the proceeding. Upon filing the written request, the filing party shall immediately mail or deliver a copy of the request to the judge named in the request. When any person has the right to request a substitution of judge, that person's counsel or guardian ad litem may file the request. Not more than one such written request may be filed in any one proceeding, nor may any single request name more than one judge. This section does not apply to proceedings under s. 48.21 or 48.213.

Sec. 48.29(1).

¶ 8. The parties dispute the meaning of the phrase "[n]ot more than one such written request may *292 be filed in any one proceeding." Julie contends, based on this language, that only one request for substitution may be filed per proceeding. Both the County and Prestin's GAL contend that this language, when read in the context of the entire statute, reflects the legislative intent to provide each party no more than one request for substitution in a single TPR proceeding.

[7, 8]

¶ 9. We begin by concluding that reasonably wellinformed persons could interpret the language of WIS. STAT. § 48.29(1) to support the position of either party. The statute does not explicitly state whether more than one party may request a substitution of judge. As such, we hold that the statute is ambiguous. We therefore turn to the scope, history, context, subject matter, and object of the statute in order to ascertain the intent of the legislature. Isaac J.R., 220 Wis. 2d at 256. For the reasons set forth below, we conclude that the language of § 48.29(1), taken in context and read as a whole, reflects the legislative intent that more than one party may file such a request.[4]

¶ 10. Turning first to the context of WIS. STAT. § 48.29, we observe that a TPR proceeding is generally subject to the rules of civil procedure. Door County DHFS v. Scott S., 230 Wis. 2d 460, 465, 602 N.W.2d 167 (Ct. App. 1999).

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2002 WI App 220 (Court of Appeals of Wisconsin, 2002)

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Bluebook (online)
2002 WI App 220, 650 N.W.2d 920, 257 Wis. 2d 285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-julie-ab-v-circuit-court-of-sheboygan-wisctapp-2002.