Judicial Council Note, 1983: The provisions of the prior statute are revised in new s. 801.51. Motions under s. 801.51 are rarely contested and usually decided on affidavit. As on other nonevidentiary motions, oral argument should, if desired, be heard by 3-way or conference telephone call. Motions under s. 801.52, while requiring a factual foundation, usually are based not on dispute of fact but on balance of equities. Unless good cause to the contrary is advanced, arguments should be heard by 3-way or telephonic conference call. [Bill 324-S]
Discretionary transfer of civil actions to tribal court. 801.54(1)(1)
In a civil action where a circuit court and a court or judicial system of a federally recognized American Indian tribe or band in Wisconsin (“tribal court") have concurrent jurisdiction, this rule authorizes the circuit court, in its discretion, to transfer the action to the tribal court under sub. (2m)
or when transfer is warranted under the factors set forth in sub. (2)
. This rule does not apply to any action in which controlling law grants exclusive jurisdiction to either the circuit court or the tribal court.
(2) Discretionary transfer.
When a civil action is brought in the circuit court of any county of this state, and when, under the laws of the United States, a tribal court has concurrent jurisdiction of the matter in controversy, the circuit court may, on its own motion or the motion of any party and after notice and hearing on the record on the issue of the transfer, cause such action to be transferred to the tribal court. The circuit court must first make a threshold determination that concurrent jurisdiction exists. If concurrent jurisdiction is found to exist, unless all parties stipulate to the transfer, in the exercise of its discretion the circuit court shall consider all relevant factors, including but not limited to:
Whether issues in the action require interpretation of the tribe's laws, including the tribe's constitution, statutes, bylaws, ordinances, resolutions, or case law.
Whether the action involves traditional or cultural matters of the tribe.
Whether the action is one in which the tribe is a party, or whether tribal sovereignty, jurisdiction, or territory is an issue in the action.
The tribal membership status of the parties.
Whether the parties have by contract chosen a forum or the law to be applied in the event of a dispute.
The timing of any motion to transfer, taking into account the parties' and court's expenditure of time and resources, and compliance with any applicable provisions of the circuit court's scheduling orders.
The court in which the action can be decided most expeditiously.
The institutional and administrative interests of each court.
The relative burdens on the parties, including cost, access to and admissibility of evidence, and matters of process, practice, and procedure, including where the action will be heard and decided most promptly.
Any other factors having substantial bearing upon the selection of a convenient, reasonable and fair place of trial.
(2m) Tribal child support programs.
The circuit court may, on its own motion or the motion of any party, after notice to the parties of their right to object, transfer a post-judgment child support, custody or placement provision of an action in which the state is a real party in interest pursuant to s. 767.205 (2)
to a tribal court located in Wisconsin that is receiving funding from the federal government to operate a child support program under Title IV-D of the federal Social Security Act (42 U.S.C. 654
et al.). The circuit court must first make a threshold determination that concurrent jurisdiction exists. If concurrent jurisdiction is found to exist, the transfer will occur unless a party objects in a timely manner. Upon the filing of a timely objection to the transfer the circuit court shall conduct a hearing on the record considering all the relevant factors set forth in sub. (2)
(3) Stay of proceeding in circuit court.
When a circuit court transfers an action to tribal court under this rule, the circuit court shall enter an order to stay further proceedings on the action in circuit court. Jurisdiction of the circuit court continues over the parties to a proceeding in which a stay has been ordered under this section until a period of 5 years has elapsed since the last order affecting the stay was entered in the court. At any time during which jurisdiction of the court continues over the parties to the proceedings, the court may, on motion and notice to the parties, subsequently modify the stay order and take any further action in the proceeding as the interests of justice require. When jurisdiction of the court over the parties and the proceeding terminates by reason of the lapse of 5 years following the last court order in the action, the clerk of the court in which the stay was granted shall without notice enter an order dismissing the action.
The decision of a circuit court to transfer an action to tribal court may be appealed as a matter of right under s. 808.03 (1)
(5) Effect of transfer.
When a circuit court orders the transfer of an action to tribal court under this rule, the circuit court shall retain the circuit court filing fee and shall transmit to the tribal court a copy of all circuit court records in the action.
(6) Powers, rights and obligations unaffected.
Nothing in this rule is intended to alter, diminish, or expand the jurisdiction of the circuit courts or any tribal court, the sovereignty of the state or any federally recognized American Indian tribe or band, or the rights or obligations of parties under state, tribal, or federal law.
Sup. Ct. Order No. 07-11
, 2008 WI 114, filed 7-31-08, eff. 1-1-09; Sup. Ct. Order No. 07-11A
, 2009 WI 63, 307 Wis. 2d xxi.
Sup. Ct. Order No. 07-11
The following Comment to Wis. Stat. s. 801.54 is not adopted, but will be published and may be consulted for guidance in interpreting and applying the statute:"
Comment, 2008. The purpose of this rule is to enable circuit courts to transfer civil actions to tribal courts in Wisconsin as efficiently as possible where appropriate. In considering the factors under sub. (2), the circuit court shall give particular weight to the constitutional rights of the litigants and their rights to assert all available claims and defenses.
A court that is considering transferring a case to a tribal court under the tribal transfer statute must conduct a two-part analysis. It must make a clear record of its findings and conclusions regarding concurrent jurisdiction, as well as an analysis of all of the rule's relevant factors on the facts presented. Kroner v. Oneida Seven Generations Corporation, 2012 WI 88
, 342 Wis. 2d 626
, 819 N.W.2d 264
Change of venue if judge disqualified by interest.
When the judge is a party or interested in any action in the judge's court or is related to or has been of counsel for either party, the court or the presiding judge thereof shall, upon application of either party, and may without such application, change the place of trial or call in another judge as provided in s. 801.58
. The fact that the judge is a taxpayer does not disqualify the judge.
Sup. Ct. Order, 67 Wis. 2d 585, 757, 777 (1975); 1975 c. 218
; Stats. 1975 s. 801.56.
Substitution of judge. 801.58(1)(1)
Any party to a civil action or proceeding may file a written request, signed personally or by his or her attorney, with the clerk of courts for a substitution of a new judge for the judge assigned to the case. The written request shall be filed preceding the hearing of any preliminary contested matters and, if by the plaintiff, not later than 60 days after the summons and complaint are filed or, if by any other party, not later than 60 days after service of a summons and complaint upon that party. If a new judge is assigned to the trial of a case, a request for substitution must be made within 10 days of receipt of notice of assignment, provided that if the notice of assignment is received less than 10 days prior to trial, the request for substitution must be made within 24 hours of receipt of the notice and provided that if notification is received less than 24 hours prior to trial, the action shall proceed to trial only upon stipulation of the parties that the assigned judge may preside at the trial of the action. Upon filing the written request, the filing party shall forthwith mail a copy thereof to all parties to the action and to the named judge.
When the clerk receives a request for substitution, the clerk shall immediately contact the judge whose substitution has been requested for a determination of whether the request was made timely and in proper form. If the request is found to be timely and in proper form, the judge named in the request has no further jurisdiction and the clerk shall request the assignment of another judge under s. 751.03
. If the judge named in the substitution request finds that the request was not timely and in proper form, that determination may be reviewed by the chief judge of the judicial administrative district, or by the chief judge of an adjoining judicial administrative district if the judge named in the request is the chief judge, if the party who made the substitution request files a written request for review with the clerk no later than 10 days after the determination by the judge named in the request. If no determination is made by the judge named in the request within 7 days, the clerk shall refer the matter to the chief judge of the judicial administrative district or to the chief judge of an adjoining judicial administrative district, if the judge named in the request is the chief judge, for determination of whether the request was made timely and in proper form and reassignment as necessary. The newly assigned judge shall proceed under s. 802.10 (1)
If, under sub. (2)
, the judge determines that the request for substitution was made timely and in proper form, any ex parte order granted by the original judge remains in effect according to the terms, except that a temporary restraining order issued under s. 813.12 (3)
, 813.122 (4)
, 813.123 (4)
, or 813.125 (3)
by the original judge is extended until the newly assigned judge holds a hearing on the issuance of an injunction. The newly assigned judge shall hear any subsequent motion to modify or vacate any ex parte order granted by the original judge.
Except as provided in sub. (7)
, no party may file more than one such written request in any one action, nor may any single such request name more than one judge. For purposes of this subsection parties united in interest and pleading together shall be considered as a single party, but the consent of all such parties is not needed for the filing by one of such party of a written request.
Upon the filing of an agreement signed by all parties to a civil action or proceeding, by the original judge for which a substitution of a new judge has been made, and by the new judge, the civil action or proceeding and pertinent records shall be transferred back to the original judge.
In addition to other substitution of judge procedures, in probate matters a party may file a written request specifically stating the issue in a probate proceeding for which a request for substitution of a new judge has been made. The judge shall thereupon be substituted in relation to that issue but after resolution of the issue shall continue with the administration of the estate. If a person wishes to file a written request for substitution of a new judge for the entire proceeding, subs. (1)
In probate matters ss. 801.59
apply, except that upon the substitution of any judge, the case shall be referred to the register in probate, who shall request assignment of another judge under s. 751.03
to attend and hold court in such matter.
Ex parte orders, letters, bonds, petitions and affidavits may be presented to the assigned judge, by mail or in person, for signing or approving, wherever the judge may be holding court, who shall execute or approve the same and forthwith transmit the same to the attorney who presented it, for filing with the circuit court of the county where the records and files of the matter are kept.
If upon an appeal from a judgment or order or upon a writ of error the appellate court orders a new trial or reverses or modifies the judgment or order as to any or all of the parties in a manner such that further proceedings in the trial court are necessary, any party may file a request under sub. (1)
within 20 days after the filing of the remittitur in the trial court whether or not another request was filed prior to the time the appeal or writ of error was taken.
History: 1971 c. 46
; Sup. Ct. Order, 67 Wis. 2d 585, 757 (1975); Stats. 1975 s. 801.58; 1977 c. 135
; 1977 c. 187
; Sup. Ct. Order, 82 Wis. 2d ix (1978); 1977 c. 449
; 1979 c. 175
; 1981 c. 137
; 1987 a. 68
; 2013 a. 322
Judicial Council Note, 1977:
Section 801.58 of the statutes has been changed in a number of significant ways. The statute states that a substitution of judge request in a civil action or proceeding is timely only if made before the hearing of a preliminary contested matter, codifying Pure Milk Products Coop. v. NFO, 64 Wis. 2d 241
A new provision has been added to allow the parties to a criminal action or proceeding, the prosecuting attorney, and the original and the new judge to agree to have the matter referred back to the original judge. This will aid the administration of justice in those cases where it is advantageous for everyone concerned to have the original judge take back the matter. [Bill 74-S]
Judicial Council Committee's Note, 1977: Sub. (1) is amended to give a plaintiff 60 days from the time the summons and complaint are filed or a defendant or any added party 60 days after service of a summons and complaint upon them to request a substitution of a new judge, provided no preliminary contested matters have been argued by the requester. The previous time periods for requesting a substitution of judge (i.e., 10 days after the date of notice for a scheduling conference or 10 days after service of a standard scheduling order) are repealed as the use of such a conference or order is no longer mandatory under s. 802.10. [Re Order effective July 1, 1978]
Judicial Council Note, 1981: Sub. (2) has been revised to allow the clerk to refer the substitution request to the chief judge of the judicial administrative district when the judge whose substitution has been requested fails to determine within 7 days whether the request is timely made and in proper form.
Sub. (7) has been amended to clarify that the 20-day time period for filing a substitution request after an appellate remand commences upon the filing of the remittitur in the trial court. Rohl v. State, 97 Wis. 2d 514
(1980). [Bill 163-S]
A right can be waived by participation in preliminary motions in which the judge is allowed to receive evidence that of necessity is used and weighed in deciding ultimate issues. Pure Milk Products Coop. v. NFO, 64 Wis. 2d 241
, 219 N.W.2d 564
rule, which interprets this section to bar substitution in proceedings to modify support or custody orders, applies only to cases in which the judge has been previously involved. State ex rel. Tarney v. McCormack, 99 Wis. 2d 220
, 298 N.W.2d 552
A substitution of judge request may be filed with a deputy clerk. In Matter of Civil Contempt of Kroll, 101 Wis. 2d 296
, 304 N.W.2d 175
(Ct. App. 1981).
An added party may request a substitution within 60 days of service if the added party has not actually participated in preliminary contested matters. City of La Crosse v. Jiracek Cos., Inc. 108 Wis. 2d 684
, 324 N.W.2d 440
(Ct. App. 1982).
The 10-day period for substitution under sub. (1) is triggered by receipt of actual notice that the new judge has been assigned. State ex rel. Laborers Union v. Kenosha Cir. Ct. 112 Wis. 2d 337
, 332 N.W.2d 832
(Ct. App. 1983).
Sub. (7) creates an unqualified right to substitution when further trial court proceedings are necessary after remand from an appellate court. State ex rel. Oman v. Hunkins, 120 Wis. 2d 86
, 352 N.W.2d 220
(Ct. App. 1984).
“Further proceedings" under ss. 801.58 (7) and 808.08 (3) have the same definition. State ex rel. Ondrasek v. Circuit Ct. 133 Wis. 2d 177
, 394 N.W.2d 912
(Ct. App. 1986).
If parties are united in interest and plead together and one presents its views in a preliminary contested matter, all united parties are barred from moving for substitution. Carkel, Inc. v. Lincoln County Circuit Court, 141 Wis. 2d 257
, 414 N.W.2d 640
(1987). See also DeWitt Ross & Stevens v. Galaxy Gaming and Racing, 2003 WI App 190
, 267 Wis. 2d 233
, 670 N.W.2d 74
When the trial court is ordered to clarify its ruling in a divorce matter on remand, the Bacon-Bahr
rule applies and no substitution under sub. (7) is permitted. Parrish v. Kenosha County Circuit Ct. 148 Wis. 2d 700
, 436 N.W.2d 608
Because an ex parte restraining order is not issued in the context of a contested proceeding, a substitution request may be granted subsequent to the entry of an order and prior to a hearing on the merits. Threlfall v. Town of Muscoda, 152 Wis. 2d 308
, 448 N.W.2d 274
(Ct. App. 1989).
A request for substitution is not allowed when a recommitment hearing under s. 51.20 (13) (g) 3. is before the same judge who conducted the original commitment proceeding. Serocki v. Clark County Circuit Court, 163 Wis. 2d 152
, 471 N.W.2d 49
The requirement of sub. (1) that substitution requests be filed preceding the hearing of any “preliminary contested matters" applies to requests filed under sub. (5). A motion to compel discovery constitutes a “preliminary contested matter." State ex rel. Sielen v. Circuit Court for Milwaukee County, 176 Wis. 2d 101
, 499 N.W.2d 651
A nonsummary contempt motion is a part of the underlying action from which it arises, and the time allowed for requesting judicial substitution runs from the commencement of the action not from receipt of notice of the contempt proceeding. James L.J. v. Walworth County Circuit Court, 200 Wis. 2d 496
, 546 N.W.2d 460
The court of appeals is authorized to exercise its supervisory authority over a chief judge who is ruling on a substitution request. James L.J. v. Walworth County Circuit Court, 200 Wis. 2d 496
, 546 N.W.2d 460
When a judge normally presides in one county but is assigned by substitution to a case filed in another county, the filing and entry for appeal purposes occur when the document comes into the possession of the clerk of court in the county in which the case was commenced. State v. Williams, 230 Wis. 2d 50
, 601 N.W.2d 838
(Ct. App. 1999), 98-3338
The only time a chief judge may become involved in the substitution process under sub. (2) is if a circuit court denies a substitution request for not being timely or properly filed. State ex rel. J.H. Findorff v. Circuit Court for Milwaukee County, 2000 WI 30
, 233 Wis. 2d 428
, 608 N.W.2d 679
If a circuit court may exercise discretion in discharging its duties on remand, the court must engage in “further proceedings" under sub. (7), entitling the parties to the right of substitution. If the remand requires a specific action that requires no exercise of discretion by the trial court, no substitution is allowed. State ex rel. J.H. Findorff v. Circuit Court for Milwaukee County, 2000 WI 30
, 233 Wis. 2d 428
, 608 N.W.2d 679
Review by the chief judge under sub. (2) is a prerequisite to appeal a denial of a request for substitution. A chief judge may review a denial only if a timely request for review is made. Paternity of Daniel L.G. 2002 WI App 47
, 250 Wis. 2d 667
, 641 N.W.2d 175
Because two insurance companies' policies for the same insured were in effect on different dates and provided different types of coverages, they would not be similarly affected by the court's determination of when damages occurred. As determination of the dates would eliminate the possibility of coverage by one company and raise the possibility of coverage by the other, the two companies were not united in interest under sub. (3) although they shared some interests in the case. Cincinnati Insurance Company v. Milwaukee County, 2003 WI 57
, 262 Wis. 2d 99
, 663 N.W.2d 275
For a motion hearing to be a “preliminary contested matter" for purposes of sub. (1), the dispositive question is whether the hearing concerned a substantive issue that went to the merits of the case. A hearing on a motion that depositions be suspended sought to narrow the scope of discovery and thus addressed a substantive issue that affected the presentation of the case. DeWitt Ross & Stevens v. Galaxy Gaming and Racing, 2003 WI App 190
, 267 Wis. 2d 233
, 670 N.W.2d 74
Although sub. (7) limits substitution to appeals and writs of error, and a petition for a supervisory writ is neither an appeal nor a writ of error, sub. (7) creates an unqualified right to substitution when further trial court proceedings are necessary after remand from an appellate court. Because the supreme court's supervisory writ reversed orders of the circuit court and remanded the matter to the circuit court for further proceedings either party was permitted to seek a substitution of judge. Universal Processing Services v. Circuit Court of Milwaukee County, 2017 WI 26
, 374 Wis. 2d 26
, 892 N.W.2d 267
Nothing in the grant of authority under s. 751.03 (3) says anything about a method, process, or mechanism by which a chief judge may assign a case, let alone the method by which the chief judge must assign a case. Thus, s. 751.03 (3) permits a chief judge to develop and adopt methods for assigning substitute judges that do not involve personal involvement of the chief judge in each assignment. In this case, a substitute judge was assigned by using an e-mail volunteer system, under which an e-mail was sent to the other judges and the first responding available judge was assigned to the case. The e-mail volunteer system used to assign a substitute judge did not violate s. 751.03 (3) or this section. Petitioner v. Evans, 2018 WI App 53
, 383 Wis. 2d 669
, 917 N.W.2d 218
The civil peremptory substitution statute. Seaburg, WBB January, 1986.
In any case where another judge has been assigned under s. 751.03
to hear a particular action or proceeding, the clerk of circuit court shall forthwith notify all parties to the action or proceeding, by mail or telephone, noting in the case file the time notice was sent or given and, if notice is given by telephone, the person with whom he or she spoke. If a written request for a substitution of a new judge is filed with regard to an assigned judge, it shall be filed within 7 days after notice of the assignment has been received. A copy of the written request shall be mailed forthwith to all parties and to the named judge.
History: 1971 c. 296
; Sup. Ct. Order, 67 Wis. 2d 585, 757 (1975); 1977 c. 187
; Sup. Ct. Order, 141 Wis. 2d xiii (1987).
Judicial Council Note, 1988: This section is amended by allowing notice of a newly assigned judge to be given to the parties by telephone. Notation of the time of notice is required for purposes of s. 801.58 (1). [Re Order effective Jan. 1, 1988]
Proceedings after order for change of venue.
When the place of trial is changed all process, pleadings and other papers, and copies of all entries and minutes of the clerk in such action shall be certified and transmitted by such clerk to the clerk of the court to which the trial is changed, with a statement of fees. Such fees shall be paid before transmission by the party procuring such change, except in the case mentioned in s. 801.51
, in which case the plaintiff shall pay such fees and the change shall be complete on the making of the order. The change, in other cases, shall be complete on filing the papers transmitted. If such transmission and filing be not made within 20 days from the making of the order to change the place of trial, unless such time be extended, the moving party shall lose the right to the change except in the case mentioned in s. 801.51
, and no order for a change for the same cause shall thereafter be made and the moving party shall pay the costs of the application within 10 days after the expiration of said 20 days; but the other party may, within 40 days from the time of making of the order granting the change, pay the clerk fees and have the papers certified and transmitted to the court mentioned in such order.
Sup. Ct. Order, 67 Wis. 2d 585, 757 (1975), 777; 1975 c. 218
; Stats. 1975 s. 801.61; 1983 a. 228
Conclusiveness of change of venue; second motion.
After trial in the court to which the action has been changed, the proceedings for the change shall be conclusive unless a motion to remand was made before the trial commences. If after the transmission of the papers an order changing the place of trial is reversed or set aside the effect shall be to change the place of trial back. After the transmission of the papers back to the original court on the reversal or setting aside of the order, a party may renew the application for a change of venue within 20 days. The renewed application shall be treated as the original application.
Sup. Ct. Order, 67 Wis. 2d 585, 757 (1975); 1975 c. 218
; Stats. 1975 s. 801.62; 1977 c. 449
Stay of proceeding to permit trial in a foreign forum. 801.63(1)(1)
Stay on initiative of parties.
If a court of this state, on motion of any party, finds that trial of an action pending before it should as a matter of substantial justice be tried in a forum outside this state, the court may in conformity with sub. (3)
enter an order to stay further proceedings on the action in this state. A moving party under this subsection must stipulate consent to suit in the alternative forum and waive right to rely on statutes of limitation which may have run in the alternative forum after commencement of the action in this state. A stay order may be granted although the action could not have been commenced in the alternative forum without consent of the moving party.
(2) Time for filing and hearing motion.
The motion to stay the proceedings shall be filed prior to or with the answer unless the motion is to stay proceedings on a cause raised by counterclaim, in which instance the motion shall be filed prior to or with the reply. The issues raised by this motion shall be tried to the court in advance of any issue going to the merits of the action and shall be joined with objections, if any, raised by answer or motion pursuant to s. 802.06 (2)
. The court shall find separately on each issue so tried and these findings shall be set forth in a single order.
(3) Scope of trial court discretion on motion to stay proceedings.
The decision on any timely motion to stay proceedings pursuant to sub. (1)
is within the discretion of the court in which the action is pending. In the exercise of that discretion the court may appropriately consider such factors as:
Amenability to personal jurisdiction in this state and in any alternative forum of the parties to the action;
Convenience to the parties and witnesses of trial in this state and in any alternative forum;
Differences in conflict of law rules applicable in this state and in any alternative forum; or
Any other factors having substantial bearing upon the selection of a convenient, reasonable and fair place of trial.
(4) Subsequent modification of order to stay proceedings.
Jurisdiction of the court continues over the parties to a proceeding in which a stay has been ordered under this section until a period of 5 years has elapsed since the last order affecting the stay was entered in the court. At any time during which jurisdiction of the court continues over the parties to the proceedings, the court may, on motion and notice to the parties, subsequently modify the stay order and take any further action in the proceeding as the interests of justice require. When jurisdiction of the court over the parties and the proceeding terminates by reason of the lapse of 5 years following the last court order in the action, the clerk of the court in which the stay was granted shall without notice enter an order dismissing the action.
Motions under this section may be heard on the record as prescribed in s. 807.13
Sup. Ct. Order, 67 Wis. 2d 585, 612 (1975), 758, 777; 1975 c. 218
; Stats. 1975 s. 801.63; Sup. Ct. Order, 141 Wis. 2d xiii (1987); Sup. Ct. Order, 151 Wis. 2d xvii (1989).
Judicial Council Note, 1988: Sub. (5) [created] allows motions for stays under this section to be heard by telephone conference. [Re Order effective Jan. 1, 1988]
A motion to stay a Wisconsin action or transfer the case to an Iowa court where an action arising out of the same accident was pending was properly denied when the parties were different and because of Iowa law the plaintiff would lose substantial rights. Littmann v. Littmann, 57 Wis. 2d 238
, 203 N.W.2d 901