State Ex Rel. Akavickas v. Marathon County

77 Wis. 2d 297 (1977)

252 N.W.2d 386

STATE EX REL. AKAVICKAS, Petitioner, v. COUNTY COURT OF MARATHON COUNTY, Respondent. STATE EX REL. NILLES, Petitioner, v. COUNTY COURT OF MARATHON COUNTY, Respondent. STATE EX REL. WILLIAMS, Petitioner, v. COUNTY COURT OF MARATHON COUNTY, Respondent. STATE EX REL. KUNDINGER, Petitioner, v. COUNTY COURT OF MARATHON COUNTY, Respondent.

Supreme Court of Wisconsin.

Submitted March 15, 1977.

Decided April 22, 1977.

For petitioner Akavickas: Clinton A. Boone of Wausau.

For respondent Marathon County Court: Hon. Joseph Kucirek of Wausau.

For petitioner Nilles: James A. Simmons, city attorney of Wausau.

For respondent Marathon County Court: Hon. Joseph Kucirek of Wausau.

For petitioner Williams: Jerome P. Tlusty and Krueger, Thums, Tlusty & Hittner all of Schofield.

*298 For respondent Marathon County Court: Hon. Joseph Kucirek of Wausau.

For petitioner Kundinger: D. Michael Hoerl of Marshfield.

For respondent Marathon County Court: Hon. Joseph Kucirek of Wausau.

PER CURIAM.

Orders having been issued on February 25, 1977, and on February 28, 1977, requiring the respondent to show cause why writs of prohibition should not issue, and the parties having filed memoranda thereon, and this Court being duly advised in the premises:

IT IS ORDERED that the action be resolved pursuant to the rationale of the Court's decision in Baldwin v. State, 62 Wis. 2d 521, 215 N.W.2d 541 (1974), wherein it was stated that:

"A strict construction of Sec. 971.20, Stats.,[1] would deny in many cases the constitutional right to a fair trial because a defendant is unable at the time of arraignment to know what judge is to try his case." Id. at 530.

[1]

The above quote from the Baldwin case indicates that a defendant has an opportunity to request a substitution of judge for a reasonable period of time after he learns specifically which judge will be assigned to his case. Applying that rationale to the case sub judice, the four defendants are entitled to a reasonable time after assignment to a particular judge becomes known to them in which to request a substitution of such judge.

*299 [2]

Sec. 345.315(1) provides that a substitution request be filed not later than seven days after the return date of the citation. This period should thus be applied to allow seven days after defendants learn of which judge will be hearing their case in which to request a substitution of judge.

IT IS ORDERED that a writ of prohibition issue directing the County Court of Marathon County, the Honorable Joseph Kucirek, presiding, to promptly request assignment of another judge to the proceedings in the four above-captioned traffic regulation cases.

[1] Sec. 971.20 controlled in Baldwin because that case was a criminal prosecution. Sec. 345.315(1) controls the instant case which is a traffic regulation matter. Nonetheless, the rationale underlying the substitution of a judge is the same in both cases the constitutional right to a fair trial. Accordingly, what was said in Baldwin applies to the case at bar.