State v. Tavodess Matthews, 2019AP2142, 5/12/20, District 1 (recommended for publication); case activity (including briefs).

Section 801.58(1) states that if a party to a civil action files a judicial substitution request “preceding the hearing of any preliminary contested matter” and not later than 60 days after service of the summons and complaint then the request must be granted.  A “preliminary contested matter” refers to a “substantive issue” going to”the merits of the case.” The court of appeals holds that a motion to adjourn a probable cause hearing  in a Chapter 980 case fits that bill.

Defense counsel moved to adjourn the probable cause hearing because they hadn’t had enough time to meet with Matthews. They notified the State, which told its witness there was no need to appear. When the circuit court called the case, defense counsel moved to adjourn, and the State objected.

The court of appeals held that the case was set for a probable cause hearing not a motion to adjourn. The motion to adjourn implicated the “merits” because the trial court could have denied it and forced defense counsel to proceed. That would have implicated “the merits. ” Opinion, ¶19.

The court of appeals also held that “the phrase ‘preliminary contested matters’ does not require that the trial court rule on a substantive issue.” Opinion, ¶20 (citing DeWitt, Ross & Stevens v. Galaxy Gaming and Racing Ltd. Partnership, 2003 WI App 190, ¶¶33-38, 267 Wis. 2d 233, 670 N.W.2d 74, aff’d in part, rev’d in part on other grounds, 2004 WI 92, 273 Wis. 2d 577, 682 N.W.2d 839.

That’s not really what Dewitt held. It held that a hearing on a motion for a protective order “addressed a substantive issue that affected the presentation of the case.” Id., ¶38. If the motion were successful it would affect the scope discovery, the evidence, and the presentation of the case.

In any event, State ex rel. Sielen v. Circuit Court for Milwaukee County, 176 Wis. 2d 101, 113, 499 N.W.2d 657 (1993) says: “the dispositive question is whether the hearing concerned a substantive issue which went to the merits of the case.” Sielen held that a hearing on motion to compel discovery fits that description.

We detect of whiff of SCOW bait. The curt of appeals took this case on it’s pretty clear what really drove the court of appeals’ decision:

¶24 Matthews argues that the trial “court simply adjourned the hearing[.]” However, as previously stated before ruling on the request to adjourn the probable cause hearing, the trial court “expressed … [its] disappointment that [the hearing was] unable to go forward”, further stating that it was “a waste of the [c]ourt’s time. It’s a waste of the parties’ time. It’s a waste of the family members’ time. Mr. Matthews has been brought all the way down here for this hearing, and we’re not able to do it.” The trial court also suggested that, out of respect for others, trial counsel could have made an earlier request for adjournment.

The court of appeals cited no authority to suggest that a circuit court may defy 801.58(1)’s mandate when it is irritated with the party requesting substitution.