Requesting a judicial substitution after the original trial judge is identified but not yet officially assigned is allowed under the law, the Court of Appeals said in a decision Wednesday.
The decision by the three-member District II Court of Appeals panel reversed a ruling by Kenosha County Judge Jason Rossell.
The legislature's decision to structure the language of the substitution statute "in a manner consistent with the obvious — that a defendant would not seek to substitute on a trial judge unless the identity of that judge is known," is very different than the state's assertion that a substitution request filed before the official assignment of the trial judge at bindover has " 'no legal effect,' " Appellate Judge Mark Gundrum wrote for the three-judge panel.
(Ironically, state Supreme Court Justice Rebecca Grassl Bradley recently argued that some defendants should be required to file a substitution request before knowing the identity of the original trial judge.)
Gundrum was joined in the decision by Appellate Judges Lisa Neubauer and Shelley Grogan.
Maria Larson and Gerald Campion were charged in 2023 with first-degree reckless homicide, as parties to a crime. The file stamps on the criminal complaint and on the state's discovery demand both included the words, "Honorable Angelina Gabriele" and "Branch 6."
Shortly before the start of a scheduled July 12 preliminary examination, Larson filed a request for substitution, which defendants in criminal cases are allowed to do. At the hearing, during which Larson waived the "preliminary" part, the court commissioner acknowledged the substitution request and the clerk announced the new judge was Circuit Judge Anthony Milisauskas, Gundrum wrote.
Five days later, Gabriele denied Larson's judicial substitution request on the ground of "co-defendant case." Campion, however, had died, so there no longer was a co-defendant.
Larson's attorney, Mark Richards, sought review of the denial but the Rossell, the chief judge, found that "a judge becomes the trial judge at bindover." ...
"The chief judge ruled that Larson’s substitution request was untimely because it was filed 'prior to the bindover and assignment of the case to Judge Gabriele,' ” Gundrum wrote.
The state Supreme Court has ruled that there is no trial court until after a bindover, Gundrum wrote, and that a judge acting before then is not acting as the trial court.
"From the above, the state asserts the chief judge correctly denied Larson’s request to substitute on Judge Gabriele as the request 'was premature and of no legal effect,' " Gundrum said.
However, the panel said, "We ... observe that nothing in (the law) precludes the filing of a written request for judicial substitution prior to bindover, even though the 'trial' judge is not technically assigned until that time."
The Supreme Court's decision "does not create an additional — unstated — requirement ... that a request for judicial substitution must be filed after that assignment is made."
The only timing restrictions in the statute are that the substitution may be filed "before making any motions to the trial court and before arraignment.”
"It is undisputed that Larson met that requirement when she filed her written request before the start of the July 12 hearing," Gundrum wrote.
The Legislature could easily have included language in the law requiring a substitution request to be made after the original judge is formally assigned, he said.
"It did not, however, do so, and we will not accept the State’s invitation to essentially write into the statute preclusive language the legislature did not choose to add," he said.
Richards continued to represent Larson on appeal; the state was represented by Assistant Attorney General John Kellis.
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