State v. Cir. Ct. for Dane Cty.

411 Wis. 2d 123

State of Wisconsin ex rel. Antonio S. Davis, Petitioner,

v.Circuit Court for Dane County, Honorable Ellen K. Berz and State of Wisconsin, Respondents.

Supreme Court

No. 2022AP1999-W. Oral argument October 9, 2023.—Decided March 26, 2024.

2024 WI 14

(Also reported in 4 N.W.3d 273.)

PROTASIEWICZ, J., delivered the majority opinion of the Court, in which Ann Walsh Bradley, Dallet, and Kahoesky, JJ., joined. Rebecca Grassi. Bradley, J., filed a concurring opinion. Hagedorn, J., filed a concurring opinion. Ziegi.hu, C.J., filed a dissenting opinion.

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

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.

¶ 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 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

¶ 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.

¶ 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 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

¶ 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.

¶ 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 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.

[1]

¶ 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 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,...