2024 WI 14

SUPREME COURT OF WISCONSIN

CASE NO.: 2022AP1999-W

COMPLETE TITLE: State of Wisconsin ex rel. Antonio S. Davis,

 Petitioner,

 v.

Circuit Court for Dane County, Honorable Ellen 

K. Berz and 

State of Wisconsin,

 Respondents.

REVIEW OF A DECISION OF THE COURT OF APPEALS

OPINION FILED: March 26, 2024 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: October 9, 2023 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Dane 

JUDGE: Ellen K. Berz 

JUSTICES:

PROTASIEWICZ, J., delivered the majority opinion of the Court, 

in which ANN WALSH BRADLEY, DALLET, and KAROFSKY, JJ., joined. 

REBECCA GRASSL BRADLEY, J., filed a concurring opinion. 

HAGEDORN, J., filed a concurring opinion. ZIEGLER, C.J., filed 

a dissenting opinion.

ATTORNEYS:

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.
2

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.
2024 WI 14

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2022AP1999-W

(L.C. No. 2022CM1737)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin ex rel. Antonio S. Davis,

 Petitioner,

 v.

Circuit Court for Dane County, Honorable Ellen 

K. Berz and State of Wisconsin,

 Respondents.

FILED

MAR 26, 2024

Samuel A. Christensen

Clerk of Supreme Court

PROTASIEWICZ, J., delivered the majority opinion of the Court, in 

which ANN WALSH BRADLEY, DALLET, and KAROFSKY, JJ., joined. 

REBECCA GRASSL BRADLEY, J., filed a concurring opinion. 

HAGEDORN, J., filed a concurring opinion. ZIEGLER, C.J., filed a 

dissenting opinion.

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

cause remanded.

¶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 
No. 2022AP1999-W 

2

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

 

1 Davis v. Cir. Ct. for Dane Cnty., No. 2022AP1999-W, 

unpublished slip op. (Wis. Ct. App. Dec. 13, 2022).

2 The full text of Wis. Stat. § 971.20(4) is: "Substitution 

of trial judge originally assigned. A written request for the 

substitution of a different judge for the judge originally 

assigned to the trial of the action may be filed with the clerk 

before making any motions to the trial court and before 

arraignment."

All subsequent references to the Wisconsin Statutes are to 

the 2021-22 version.

3 See Dane County Local Rule 208, which reads: "In all 

[Criminal Traffic] and [Criminal Misdemeanor] cases the 

defendant shall have 20 days after the initial appearance to 

file a request for substitution of the assigned judge."
No. 2022AP1999-W 

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.
No. 2022AP1999-W 

4

¶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 

 

4 Compare Wis. Stat. §§ (Rule) 809.11(4) (mandating 

transcript requests for appeals), and (Rule) 809.15(1)(a) 

(listing components of a full record on appeal), with (Rule) 

809.51 (not requiring such a record for supervisory writ 

actions).
No. 2022AP1999-W 

5

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

 

5 The complaint did not identify Davis's judge.

6 These proceedings may occur in front of a judge or a 

commissioner.

7 See Wis. Stat. §§ 970.01-02 (setting out procedures for an 

initial appearance, including delivery of the complaint and 

informing defendants of the charges against them and of their 

rights); 971.05 (setting out procedures for an arraignment, 

including entry of a plea).

8 In felony cases——not at issue here——a court cannot hold 

arraignment until after a preliminary examination or waiver of 

preliminary examination. See Wis. Stat. §§ 971.02; 971.05. And 

a defendant has a right to counsel at the preliminary 

examination. State v. O'Brien, 2014 WI 54, ¶40, 354 

Wis. 2d 753, 850 N.W.2d 8. Thus, a defendant in a felony case 

who seeks appointed counsel will typically have counsel prior to 

arraignment.
No. 2022AP1999-W 

6

¶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.

 

9 By chance, the appointed counsel was the same attorney who 

provided limited-scope representation for Davis at his combined 

initial appearance and arraignment.
No. 2022AP1999-W 

7

¶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 

 

10 See State v. Zimbal, 2017 WI 59, ¶40, 375 Wis. 2d 643, 

896 N.W.2d 327 (allowing an "exception to the rule of strict 

adherence" to substitution-request deadlines when "a governmentcreated obstacle prevents a defendant from complying with the 

statutory deadline").
No. 2022AP1999-W 

8

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.

¶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 
No. 2022AP1999-W 

9

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, 631, 286 N.W.2d 344 (1979); State ex rel. Tessmer 

v. Cir. Ct. for Racine Cnty., 123 Wis. 2d 439, 441, 367 

N.W.2d 235 (Ct. App. 1985) ("A petition for a supervisory writ 

is the preferable route for review of the trial court's ruling 

on the form and timeliness of a request for substitution of 

judge.").

¶25 A supervisory writ is "an extraordinary and drastic 

remedy" which serves a "narrow function." State ex rel. Kalal 

v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶¶17, 24, 271 

Wis. 2d 633, 681 N.W.2d 110 (quoted source omitted). A party 

seeking a supervisory writ must show that: (1) an appeal is an 

inadequate remedy; (2) grave hardship or irreparable harm will 
No. 2022AP1999-W 

10

result; (3) the trial court had a plain duty to act and violated 

that duty; and (4) the petitioner requested relief promptly. 

State ex rel. DNR v. Wis. Ct. App., Dist. IV, 2018 WI 25, ¶9, 

380 Wis. 2d 354, 909 N.W.2d 114 (citing Kalal, 271 Wis. 2d 633, 

¶17).

¶26 This case hinges on the third requirement——plain duty. 

A circuit court has a plain duty when its "responsibility to act 

[is] imperative." Kalal, 271 Wis. 2d 633, ¶22 (quoted source 

omitted). The court's duty must be "clear and unequivocal." 

Id. (quoted source omitted). As such, courts grant supervisory 

writs only for "non-discretionary" duties. See id., ¶24.

¶27 We are sympathetic to the fact that Davis did not have 

the full assistance of counsel at the time of arraignment 

despite his efforts to seek SPD representation. Further, we are 

mindful of the stresses to the criminal justice system caused by 

heavy caseloads and delays in SPD appointments.

¶28 Nonetheless, we hold that the circuit court did not 

have a plain duty to treat Davis's request for substitution of 

judge as timely. And we take this opportunity to clarify the 

preferred route for reviewing a circuit court's ruling on the 

timeliness of a request for substitution that was filed after 

arraignment.
No. 2022AP1999-W 

11

1. Government-Created Obstacle

¶29 In Wisconsin, a criminal defendant has "a right 

to . . . one substitution of a judge." Wis. Stat. § 971.20(2). 

The defendant must request substitution of judge "before making 

any motions to the trial court and before arraignment." 

§ 971.20(4). In an attempt to extend this deadline, Dane County 

courts created a rule allowing misdemeanor defendants "20 days 

after the initial appearance to file a request for 

substitution." See Dane County Local Rule 208.

¶30 Here, all parties agree that Davis filed his request 

after the deadlines in the statute and local rule expired.11 

Davis argues that his request should nevertheless be considered 

timely under our precedent.

¶31 We have said that a request for substitution may 

sometimes be treated as timely, even if it is untimely under 

Wis. Stat. § 971.20(4). See Zimbal, 375 Wis. 2d 643, ¶¶40-47 

(identifying "exception[s] to the rule of strict adherence" to 

statutory substitution-request deadlines). In particular, we 

have said that an untimely request may be considered timely when 

"a government-created obstacle" prevents a defendant from 

 

11 Since there is no dispute that the request was filed 

after both deadlines had expired, we need not decide here 

whether the local rule may extend the time for filing a 

substitution request beyond that provided by Wis. Stat. 

§ 971.20(4).
No. 2022AP1999-W 

12

meeting the statutory deadline. Id., ¶40. One such governmentcreated obstacle comes from the "Baldwin-Tessmer-Tinti

arraignment cases." Id., ¶41 (citing State ex rel. Tinti v. 

Cir. Ct. for Waukesha Cnty., 159 Wis. 2d 783, 790, 464 

N.W.2d 853 (Ct. App. 1990); Tessmer, 123 Wis. 2d at 443; Baldwin 

v. State, 62 Wis. 2d 521, 530-32, 215 N.W.2d 541 (1974)).

¶32 Under Baldwin-Tessmer-Tinti, an untimely request for 

substitution may be treated as timely "when a criminal defendant 

is arraigned before he receives notice of which judge will hear 

his case." Id. In each of the Baldwin-Tessmer-Tinti cases, the 

defendant did not know the identity of his judge until after 

arraignment. Tinti, 159 Wis. 2d at 790; Tessmer, 123 Wis. 2d at 

443; Baldwin, 62 Wis. 2d at 529. Without that information, 

those courts concluded that the defendant could not exercise the 

right of substitution intelligently. See Tinti, 159 Wis. 2d at 

790; Tessmer, 123 Wis. 2d at 443; Baldwin, 62 Wis. 2d at 531; 

see also Clark, 92 Wis. 2d 617, 628 ("[T]he key to the statutory 
No. 2022AP1999-W 

13

right of substitution [is] the defendant's ability to exercise 

his right of substitution intelligently.").12

¶33 Here, Davis argues that he faced a similar governmentcreated obstacle. A court commissioner arraigned him before the 

SPD appointed counsel and before he knew his assigned judge. 

Thus, Davis says, under Baldwin-Tessmer-Tinti the circuit court 

had a plain duty to treat his request for substitution as 

timely.13 We disagree for two reasons.

¶34 First, although Davis asserts that he did not know his 

assigned judge until after he entered his plea, the record is 

unclear. We have no transcript, and there has been no 

evidentiary hearing on this point. All we know is that Davis 

 

12 Justice Rebecca Grassl Bradley's concurrence advocates 

for "overrul[ing] Baldwin." See Justice Rebecca Grassl 

Bradley's concurrence, ¶47. No party has asked us to overrule 

Baldwin, and "[w]e do not step out of our neutral role to 

develop or construct arguments for parties; it is up to them to 

make their case." Doe 1 v. Madison Metro. Sch. Dist., 2022 WI 

65, ¶35, 403 Wis. 2d 369, 976 N.W.2d 584 (quoting Serv. Emps. 

Int'l Union, Loc. 1 v. Vos, 2020 WI 67, ¶24, 393 Wis. 2d 38, 946 

N.W.2d 35).

13 Davis also argues that the court had a plain duty to 

treat the request as timely because it had a general duty to 

apply the law to the facts. We have said that such a command is 

too vague and malleable to create a plain duty. See State ex 

rel. Two Unnamed Petitioners v. Peterson, 2015 WI 85, ¶81, 363 

Wis. 2d 1, 866 N.W.2d 165 ("The obligation of a judge to 

correctly find facts and apply the law is not the type of plain 

legal duty contemplated by the supervisory writ procedure, 'as 

it would extend supervisory jurisdiction to a virtually 

unlimited range of decisions . . . .'" (quoting State ex rel. 

Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶24, 271 Wis. 2d 

633, 681 N.W.2d 110)).
No. 2022AP1999-W 

14

received two relevant documents on the day of his arraignment: 

a notice of hearing which named Judge Berz and a bail bond form 

which identified the assigned judicial branch. We do not know 

if Davis received these documents before or after his 

arraignment. And we do not know whether the court commissioner 

told Davis who his assigned judge would be during the 

arraignment. Without evidence that Davis knew his assigned 

judge only after arraignment, the obstacle from the BaldwinTessmer-Tinti cases does not exist here. See Zimbal, 375 

Wis. 2d 643, ¶41 (identifying the obstacle).

¶35 Second, even if we accept Davis's assertion that he 

did not know his assigned judge before arraignment, the court 

did not have a plain duty to treat his request as timely under 

our precedent. Davis made his request 71 days after his 

combined initial appearance and arraignment. None of the 

Baldwin-Tessmer-Tinti cases say a request would be timely under 

such a delay. See Tinti, 159 Wis. 2d at 791 (deciding a request 

was timely when it was filed four days after arraignment); 

Tessmer, 123 Wis. 2d at 444 (seven days).14

 

14 Likewise, our decision in Baldwin does not suggest that a 

request filed 71 days after arraignment is timely. There, we 

found Baldwin's request untimely. Baldwin v. State, 62 

Wis. 2d 521, 532-33, 215 N.W.2d 541 (1974). Moreover, we 

suggested Baldwin's request would have been timely under 

deadlines specific to Milwaukee County's calendaring system. 

See id. at 530.
No. 2022AP1999-W 

15

¶36 We recognize that Davis was unrepresented during the 

first 65 days of the 71-day delay, but this does not change our 

conclusion that there was no plain duty. We have never held 

that a circuit court must consider whether a defendant is 

represented when assessing the timeliness of a request for 

substitution.15 It may be the case that a circuit court should 

consider a defendant's lack of representation when assessing the 

timeliness of a request for substitution. But we cannot say 

that the circuit court here had a plain duty to do so, because 

no law requires it. See Kalal, 271 Wis. 2d 633, ¶25 ("[A] 

plain, clear, non-discretionary, and imperative duty" is 

"necessary for a supervisory writ.").

¶37 We conclude that under these facts and our precedent, 

the circuit court had no plain duty to treat the request for 

substitution as timely because of a government-created obstacle.

2. Equitable Tolling

¶38 Davis also argues that his request for substitution 

should have been treated as timely based on the equitable 

tolling doctrine. We conclude that the circuit court did not 

 

15 Even in Zimbal, where we "restart[ed]" the statutory 

clock after assignment of counsel, we did so "[u]nder the unique 

facts of [that] case," which included the circuit court telling 

the defendant to wait to file a request for substitution of 

judge. See Zimbal, 375 Wis. 2d 643, ¶52. That unique factual 

situation is not present here.
No. 2022AP1999-W 

16

have a plain duty to treat the request as timely under a theory 

of equitable tolling.

¶39 Equitable tolling is a remedy that courts use to toll 

statutory deadlines when justice requires. See State ex rel. 

Griffin v. Smith, 2004 WI 36, ¶¶36-37, 270 Wis. 2d 235, 677 

N.W.2d 259 (listing examples of when our courts have tolled 

deadlines due to "equitable considerations"). Courts may invoke 

equitable tolling when a party misses a deadline due to factors 

outside the party's control. See id., ¶37. For instance, we 

have said equitable tolling applies in the context of a pro se 

prisoner who properly deposits a court document in an outgoing 

prison mail system, but misses a filing deadline due to prison 

mail processing times. See State ex rel. Nichols v. Litscher, 

2001 WI 119, ¶32, 247 Wis. 2d 1013, 635 N.W.2d 292.

¶40 Here, the circuit court did not have a plain duty to 

equitably toll the substitution-request deadline for two 

reasons. First, no court has said that equitable tolling 

applies to Davis's situation. Davis cites the concurrence in 

Zimbal as authority that equitable tolling should apply to his 

request. See Zimbal, 375 Wis. 2d 643, ¶¶54-73 (Roggensack, J., 

concurring). But that concurring opinion is not binding 

precedent. And even if it were, the concurrence argued for 

tolling in the context of a judge directing a defendant to wait 

to file a request for substitution——a circumstance that is not 
No. 2022AP1999-W 

17

present here. See id., ¶72. Thus, it is not a clear and 

unequivocal mandate. See Kalal, 271 Wis. 2d 633, ¶22 ("A plain 

duty 'must be clear and unequivocal.'" (quoted source omitted)).

¶41 Second, Davis seeks application of an equitable 

doctrine——a poor fit with the concept of a plain duty. 

Equitable tolling inherently requires a case-by-case exercise of 

discretion. See Williams v. Kaerek Builders, Inc., 212 

Wis. 2d 150, 162, 568 N.W.2d 313 (Ct. App. 1997) ("The decision 

to provide an equitable remedy rests within the circuit court's 

discretion."). Short of a judicial mandate to apply equitable 

tolling in a specific situation, a circuit court will never have 

a plain duty to apply a discretionary remedy. Without such a 

duty, the failure to exercise discretion in a particular way 

cannot support the issuance of a supervisory writ. See Kalal,

271 Wis. 2d 633, ¶24 (holding that supervisory writs are for 

"non-discretionary duties"). In short, the circuit court here 

had no plain duty to apply equitable tolling.

3. Procedure for Appellate Review

¶42 In the past, we have said a petitioner 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, 92 Wis. 2d at 631; see also Tessmer, 

123 Wis. 2d at 441 (suggesting petitions for supervisory writ 

are the "preferable route" for review).
No. 2022AP1999-W 

18

¶43 But our analysis here illustrates why a supervisory 

writ can be a poor vehicle for reviewing a circuit court's 

decision to deny a request for substitution that was filed after 

arraignment. Davis's claims fail in this supervisory writ 

posture due to factors that could undermine review for future 

petitioners. To start, in a supervisory writ posture, appellate 

courts may decide a case based on the existence of a plain duty 

rather than address the substantive issue. Indeed, we have done 

so here. Similarly, appellate courts may be reluctant to find a 

plain duty when doing so requires mandating application of an 

equitable doctrine. See Kalal, 271 Wis. 2d 633, ¶25 ("[A] 

plain, clear, non-discretionary, and imperative duty" is 

"necessary for a supervisory writ."). Last, we are more likely 

to have incomplete records under a supervisory writ posture.16

¶44 We 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. In that situation, a petitioner 

should file a petition for interlocutory appeal or an appeal 

from a final judgment or order, not a petition for supervisory 

writ.

III. CONCLUSION

 

16 See supra note 4.
No. 2022AP1999-W 

19

¶45 In sum, the circuit court had no plain duty to treat 

Davis's request for substitution of judge as timely, and the 

court of appeals correctly denied the petition for supervisory 

writ.

By the Court.—The decision of the court of appeals is 

affirmed, and the cause is remanded to the circuit court for 

further proceeding consistent with this opinion.
No. 2022AP1999-W.rgb

1

¶46 REBECCA GRASSL BRADLEY, J. (concurring). Presented 

with a simple question, this court should provide a simple 

answer. Davis asks whether the circuit court violated a plain 

duty when it denied his request to substitute the judge 

originally assigned to his case. It did not. Wisconsin Stat. 

§ 971.20(4) requires a defendant who wishes to substitute the 

judge originally assigned to his trial to file a substitution 

request "before arraignment." Davis filed his substitution 

request 71 days after his arraignment. The circuit court does 

not have a plain duty to accept an untimely substitution 

request. Although this court comes to the right conclusion, it 

does nothing to address the errors this court made interpreting 

§ 971.20 in Baldwin v. State, 62 Wis. 2d 521, 215 N.W.2d 541 

(1974).1 

 

1 Justice Brian Hagedorn correctly observes that Davis 

forfeited all the arguments he made before this court. He also 

correctly notes that the majority's reason for reaching the 

merits is nonsense——the majority does not need to reach the 

merits to address the court's preferred method of receiving 

claims like Davis's. Because the majority needlessly addresses 

the merits and applies prior cases that are unsound in 

principle, I also address the merits, applying the statute's 

text.

The majority opts to apply Baldwin and its progeny because 

"[n]o party has asked us to overrule Baldwin." Majority op., 

¶32 n.12. The majority forgets that "[l]itigants do not dictate 

the decisions of this court; the law does. As proclaimed over 

160 years ago, '[w]e sit here to decide the law as we find it, 

and not as the parties or others may have supposed it to be.'" 

St. Augustine Sch. v. Taylor, 2021 WI 70, ¶102, 398 Wis. 2d 92, 

961 N.W.2d 635 (Rebecca Grassl Bradley, J., dissenting) (second 

alteration in original) (quoting Ross v. Bd. of Outagamie Cnty. 

Supervisors, 12 Wis. 26, 44 (1860) (Dixon, C.J., dissenting)). 
No. 2022AP1999-W.rgb

2

¶47 In Baldwin, this court improperly rewrote Wis. Stat. 

§ 971.20. The Baldwin decision gives a defendant a "reasonable 

time" to exercise his substitution right after he discovers the 

identity of the judge, even if the statutory deadline has 

already lapsed. Baldwin has repeatedly led courts to ignore the 

text of § 971.20. E.g., State ex rel. Tinti v. Cir. Ct. for 

Waukesha Cnty., Branch 2, 159 Wis. 2d 783, 464 N.W.2d 853 (Ct. 

App. 1990). Instead of applying Baldwin, as the majority does, 

I would overrule Baldwin and simply apply the statute's text. 

I. BACKGROUND

¶48 Officers arrested Davis for two offenses, and the 

state charged him with misdemeanor disorderly conduct and 

misdemeanor battery. At Davis's initial appearance, the court 

entered a plea of not guilty on his behalf. Seventy-one days 

after his initial appearance, Davis filed a request to 

substitute the judge originally assigned to his trial, Judge

Ellen K. Berz, who denied the request as untimely.

¶49 Davis petitioned the court of appeals for a 

supervisory writ directing the circuit court to grant Davis's 

request for judicial substitution. The court of appeals denied 

the petition. This court correctly affirms the court of 

appeals, but misguidedly applies Baldwin's erroneous 

interpretation of Wis. Stat. § 971.20. 

II. DISCUSSION

A. Methodology

¶50 In Kalal this court "confirmed textualism is the 

correct methodology for statutory interpretation," "binding" all 
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courts in Wisconsin to adhere to it when interpreting statutes. 

Sanders v. State of Wis. Claims Bd., 2023 WI 60, ¶13, 408 Wis. 

2d 370, 992 N.W.2d 126 (lead opinion). As explained in Kalal, 

the goal of statutory interpretation is to determine a statute's 

objective meaning, focusing primarily on the words of the 

statute. State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 

WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. This court has 

held time and time again that if the meaning of a statute is 

plain, our interpretive inquiry ends. E.g., id., ¶45; Wis. 

Carry, Inc. v. City of Madison, 2017 WI 19, ¶18, 373 Wis. 2d 

543, 892 N.W.2d 233 (calling this rule the "the bedrock of the 

judiciary's methodology"). "Statutory language is given its 

common, ordinary, and accepted meaning, except that technical or 

specially-defined words or phrases are given their technical or 

special definitional meaning." Kalal, 271 Wis. 2d 633, ¶45 

(citations omitted). A text's scope, context, and purpose "are 

perfectly relevant to a plain-meaning interpretation of an 

unambiguous statute as long as" they are "ascertainable from" 

the statute's text and structure. Id., ¶48. 

¶51 This court's adherence to textualism is grounded in 

and fundamental to the rule of law and democratic governance. 

Textualism is the only method of statutory interpretation that 

properly respects the legislature's authority to make policy 

choices. "[T]he object of interpretation is to enforce a 

decision that is attributable to the legislature." See John F. 

Manning & Matthew C. Stephenson, Legislation and Regulation 22 

(1st ed. 2010). The people never gave this court "the power to 
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second-guess the legislature's policy choices[,] [and] 

[j]udicial deference to the policy choices enacted into law by 

the legislature requires that statutory interpretation focus 

primarily on the language of the statute." Sanders, 408 Wis. 2d 

370, ¶48 (internal quotation marks and citations omitted). 

"While textualism cannot prevent the incursion of policy 

preferences into legal analysis[,] . . . without textualism, 

such encroachment is certain." Wis. Jud. Comm'n v. Woldt, 2021 

WI 73, ¶92, 398 Wis. 2d 482, 961 N.W.2d 854 (Rebecca Grassl 

Bradley, J., concurring in part, dissenting in part); see Kalal, 

271 Wis. 2d 633, ¶49 n.8 (A "methodology . . . that calls for 

consultation of extrinsic, non-textual sources of interpretation 

in every case, regardless of whether the language of the statute 

is clear[,] . . . subordinates the statutory text and renders 

the analysis more vulnerable to subjectivity."). "[D]iscovering 

the meaning of a statute is not just a worthy endeavor, but also 

an exhaustive recitation of the judiciary's authority when 

interpreting a statute." Wis. Carry, 373 Wis. 2d 543, ¶20 n.15. 

Applying our longstanding interpretive methodology to Wis. Stat. 

§ 971.20 illustrates how Baldwin rewrote the statute, 

impermissibly altering the policy determinations made by the 

legislature. 

B. Wis. Stat. § 971.20

¶52 The legislature enacted Wis. Stat. § 971.20 in 1969. 

See § 63, ch. 255, Laws of 1969. Although the legislature has 

modified § 971.20 over the years, the words of the statute 

pertinent to this decision have remained the same. In its 
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original iteration, Wis. Stat. § 971.20(1) (1969-70) provided 

that a "defendant may file . . . for a substitution of a new 

judge for the judge assigned to the trial of that case. Such 

request shall . . . be made before making any motion or before

arraignment."2 Notably, the statute required the request to be 

filed "before arraignment" regardless of whether the judge was 

the judge originally assigned to the trial. Over time, the 

legislature added new deadlines for filing a substitution 

request. For example, Wis. Stat. § 971.20(1) (1975-76) allowed 

a defendant to substitute the judge assigned to his trial if the 

request was filed "before making any motion or before 

arraignment." If a new judge was assigned to his trial, the 

defendant could file his request "any time before making any 

motion before such new judge or before commencement of any 

proceeding before such new judge." § 971.20(1). 

¶53 With § 3, ch. 137, Laws of 1981, the legislature 

repealed and recreated Wis. Stat. § 971.20. Obtaining a 

substitution of the judge originally assigned to a trial is 

currently governed by § 971.20(4). The legislature has not 

altered § 971.20(4) since its creation. Although Baldwin

interpreted Wis. Stat. § 971.20(1) (1971-72), Baldwin has

bearing on this court's interpretation and application of 

§ 971.20(4) because courts have applied its reasoning to 

 

2 The statute also provided, "a request for the substitution 

of a judge may also be made by the defendant at the preliminary

examination except that the request must be filed at the initial 

appearance or at least 5 days before the preliminary examination 

unless the court otherwise permits." Wis. Stat. § 971.20(3) 

(1969-70). 
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§ 971.20(4), as well as other subsections of § 971.20. State ex 

rel. Tessmer v. Cir. Ct. Branch III, In & For Racine Cnty., 123 

Wis. 2d 439, 367 N.W.2d 235 (Ct. App. 1985); Tinti, 159 Wis. 2d 

783; State v. Zimbal, 2017 WI 59, 375 Wis. 2d 643, 896 N.W.2d 

327. 

¶54 Wisconsin Stat. § 971.20(4) creates a simple rule for 

a defendant who wants to substitute the judge originally 

assigned to his trial: "A written request for the substitution 

of a different judge for the judge originally assigned to the 

trial of the action may be filed with the clerk before making 

any motions to the trial court and before arraignment."3 

Unsurprisingly, dictionaries define "before" to mean "previous 

to" or "earlier than." Before, Random House Dictionary of the 

English Language 134 (1st unabridged ed. 1966). Wisconsin Stat. 

§ 971.05 provides that an arraignment has four elements: (1) 

the arraignment occurs in open court; (2) if the defendant 

appears to not have counsel, "the court shall advise the 

defendant of the defendant's right to counsel"; (3) the 

defendant shall be read the information or complaint unless the 

 

3 The original iteration of Wis. Stat. § 971.20 required a 

defendant to file the substitution request "before making any 

motion or before arraignment." Wis. Stat. § 971.20(1) (1969-

70) (emphasis added). Since 1981, the statute has allowed for 

the substitution of the judge originally assigned to a 

defendant's trial if requested "before making any motions to the 

trial court and before arraignment." Wis. Stat. § 971.20(4) 

(1981-82) (emphasis added). It doesn't appear that changing the 

"or" to an "and" makes any interpretive difference because 

courts interpreted the "or" as an "and" in the prior iterations 

of the statute. Clark v. State, 92 Wis. 2d 617, 626, 286 N.W.2d 

344 (1979). 
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defendant waives such a reading; and (4) the defendant makes his 

plea unless the defendant has filed a motion that requires a 

determination before the entry of a plea. Under the current 

iteration of the § 971.20(4), a defendant must file a 

substitution request before the statutorily defined arraignment 

occurs. The statute provides no other means to substitute the 

judge originally assigned to the trial; indeed, the statute 

declares, "The right of substitution shall be exercised as 

provided in this section." § 971.20(2). In short, the current 

version of § 971.20(4) does not authorize this court to create 

an ever-evolving common law of judicial substitution; it 

provides an easy-to-apply rule: A defendant must file a 

substitution request before making any motions to the circuit

court and before arraignment or the request must be denied. 

¶55 Applying the plain language of Wis. Stat. § 971.20(4), 

the circuit court properly denied Davis's substitution request. 

Because Davis filed his request 71 days after his arraignment, 

his request was untimely. See State v. Beaty, 57 Wis. 2d 531, 

542, 205 N.W.2d 11 (1973). A circuit court does not have a

plain duty to accept untimely substitution requests. See State 

v. Bell, 62 Wis. 2d 534, 536, 215 N.W.2d 535 (1974) (citations 

omitted) (holding a circuit court properly denied a substitution 

request because it was filed after the statutory deadline); 

Kalal, 271 Wis. 2d 633, ¶¶22-24 (defining what constitutes a 

plain duty). This case should end there; no further analysis is 

required. Because of Baldwin, however, the majority opinion 

does not end there——despite the clarity of the statutory text. 
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¶56 The Baldwin court rewrote Wis. Stat. § 971.20 under 

the veneer of statutory interpretation. The Baldwin court held 

a defendant must have a "reasonable time" to exercise the

statutory right to substitution after the defendant learns the 

identity of the judge assigned to his trial. Baldwin, 62 Wis. 

2d at 530-33. To afford the defendant a reasonable time to 

exercise the statutory right, the court gave an "enlarged 

definition" to the word "arraignment," unsupported by the text 

of the statute. Id. at 532. Courts have applied Baldwin's 

tortured analysis of § 971.20 without critical thought. This 

court should overturn Baldwin and return to applying the plain 

meaning of § 971.20. 

C. The Baldwin Decision

¶57 In Baldwin, the defendant filed his substitution 

request on the date of his trial. The court in Baldwin was 

asked whether the defendant's substitution request, under Wis. 

Stat. § 971.20(1) (1971-72), was timely. Id. at 526-28. At the 

time, Milwaukee County used calendaring judges for arraignments. 

If a guilty plea were entered at the arraignment, the case would 

conclude; if a not guilty plea were entered, the court would 

assign the case to a judge, who might not be the calendaring 

judge presiding over the entering of a plea. Id. at 529. In 

Baldwin, the defendant was arraigned, after which the judge 

originally assigned to the defendant's trial disqualified 

himself and a new judge was assigned to the defendant's trial. 

Id. at 526-28. 
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¶58 The Baldwin court interpreted Wis. Stat. § 971.20(1) 

(1971-72), which provided that a "defendant may file with the 

clerk a written request for a substitution of a new judge for 

the judge assigned to the trial of that case. Such 

request . . . shall be made before making any motion or before 

arraignment." The Baldwin court acknowledged a plain-meaning 

interpretation of the statute "requires that [a substitution]

request be made prior to arraignment." Baldwin, 62 Wis. 2d at 

529; see also Clark v. State, 92 Wis. 2d 617, 626, 286 N.W.2d 

344 (1979). However, the Baldwin court decided this clear rule 

does not "work[] well" when a county's calendaring procedure 

prevents a defendant from knowing the identity of the judge 

assigned to his trial prior to arraignment. Baldwin, 62 Wis. 2d 

at 529. The court also determined the plain meaning of the 

statute would violate the right to a fair trial for some 

defendants. Id. at 530. 

¶59 To fix these perceived infirmities, the court altered 

the statute. The court held, "The right to the substitution of 

a judge must have a reasonable time limit for its exercise." 

Id. at 532. Toward that end, the court created an "enlarged 

definition of 'arraignment'" to apply under similar 

circumstances. Id. "[I]n a calendaring procedure, such as is 

used in Milwaukee [C]ounty, the arraignment is only initiated at 

the calendaring of the case and the plea of not guilty entered 

then is for the purpose of obtaining a judge who will actually 

hear the case," and "[t]he arraignment is completed upon the 

confirmation of the plea of not guilty before the judge to whom 
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the case is assigned for trial when he sets the date for trial." 

Id. at 530.4 

¶60 According to the court, its proffered interpretation 

"witnesse[d] and g[ave] effect to the predominant intention of 

the legislature" to "'afford a substitution of a new judge 

assigned to the trial of that case.'" Id. Like its predecessor 

statute, Wis. Stat. § 971.20 (1971-72) was "an expression of the 

'legislative intent that a person's right to a fair trial 

(should) be observed.'" Id. at 532 (quoting Meverden v. State, 

258 Wis. 628, 634, 46 N.W.2d 836 (1951)). According to the 

Baldwin court, a plain-meaning interpretation would make "it 

impossible to obtain the objective of this section and would 

frustrate the objective of this statute." Id. at 530. 

Overriding the text with its ostensible "intent," the court 

decided to "apply as reasonably as possible [the language of the 

statute] to all cases to attain its object." Id. at 532. 

Finally, the court discovered "support [for its interpretation] 

in the history of the section." Id. at 530. The judicial 

committee's comments to the statute "reference[d]" the Illinois 

and Montana substitution statutes, which set the filing date at 

a time when the defendant would know the identity of the judge. 

Id. at 530-31. 

 

4 The court deemed the defendant's substitution request late 

even under its expansive interpretation of Wis. Stat. 

§ 971.20(1) (1971-72) because he waited until the day of trial 

to make his request. Baldwin v. State, 62 Wis. 2d 521, 532-33, 

215 N.W.2d 541 (1974). 
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¶61 Baldwin's policy-driven interpretation of the original 

iteration of Wis. Stat. § 971.20 invited courts to ignore the 

text of the statute, and the text of other substitution 

statutes,5 during the ensuing decades. Over the years, courts 

have relied on Baldwin for the proposition that "a defendant 

[must have] an opportunity to request a substitution for a 

reasonable period of time after he learns specifically which 

judge will be assigned to his case." State ex rel. Akavickas v. 

Cnty. Ct. of Marathon Cnty., 77 Wis. 2d 297, 298-99, 252 N.W.2d 

386 (1977) (per curiam); see also Tessmer, 123 Wis. 2d 443-44; 

Tinti, 159 Wis. 2d 789-90. Baldwin convinced courts there may 

be "exceptions" to § 971.20(4)'s unambiguous "before 

arraignment" requirement, such as if the defendant does not know 

the identity of the judge assigned to his trial. See Zimbal, 

375 Wis. 2d 643, ¶3 n.2. Baldwin must be overturned. 

D. The Interpretive Errors of the Baldwin Court

1. The Right to an Unbiased Judge

¶62 The court in Baldwin erred when it refused to apply 

the plain meaning of Wis. Stat. § 971.20(1) (1971-72) because 

such an application "would deny in many cases the constitutional 

right to a fair trial . . . ." Baldwin, 62 Wis. 2d at 530. The 

court never cited a single source for its claim that the statute 

violates the right to an impartial judge for some defendants. 

Nor did the court explain how the right to an unbiased judge 

 

5 State ex rel. Akavickas v. Cnty. Ct. of Marathon Cnty., 77 

Wis. 2d 297, 298-99, 252 N.W.2d 386 (1977) (per curiam) (Wis. 

Stat. § 345.315(1)); State ex rel. Tarney v. McCormack, 99 Wis. 

2d 220, 235, 298 N.W.2d 552 (1980) (Wis. Stat. § 801.58(1)). 
No. 2022AP1999-W.rgb

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would be violated by applying the plain meaning of the statute. 

While every defendant is entitled to a trial before an impartial 

judge, Wis. Const. art. I, § 8; State ex rel. Mitchell v. 

Bowman, 54 Wis. 2d 5, 6-7, 194 N.W.2d 297 (1972) (per curiam), 

the ability to exercise a peremptory judicial substitution is 

unrelated to judicial bias against the defendant. See Mitchell, 

54 Wis. 2d at 6-7. It is similarly unrelated to whether a judge 

has a personal interest in the case's outcome. Tumey v. Ohio, 

273 U.S. 510 (1927). Exercising the statutory right of 

substitution without knowing the identity of the judge assigned 

to the trial does not make it any more or less likely that 

"there is 'a serious risk of actual bias . . . .'" Miller v. 

Carroll, 2020 WI 56, ¶24, 392 Wis. 2d 49, 944 N.W.2d 542 

(quoting Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 884 

(2009)). The unavailability of peremptory judicial substitution 

does not deprive a defendant of his right to an impartial judge.

¶63 There is "no constitutional right to the peremptory

substitution of a judge." State ex rel. Garibay v. Cir. Ct. for 

Kenosha Cnty., 2002 WI App 164, ¶9, 256 Wis. 2d 438, 647 N.W.2d 

455 (citing State v. Holmes, 106 Wis. 2d 31, 46, 315 N.W.2d 703 

(1982)). The legislature provided the statutory right of 

substitution to protect the right to an unbiased judge. Holmes, 

106 Wis. 2d at 38, 46-47, 55. The statutory right to 

substitution serves as a prophylactic protection of the 

constitutional right to an unbiased judge and does not embody 

the right itself. See id. at 46; Zimbal, 375 Wis. 2d 643, ¶74 

(Ziegler, J., concurring). The statutory right of substitution 
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is a "matter of legislative grace, not constitutional mandate. 

As such, the legislature may limit or qualify that right" as it 

sees fit. Garibay, 256 Wis. 2d 438, ¶9. 

¶64 Even if applying the plain meaning of the statute 

would violate due process when the defendant doesn't know the 

identity of the assigned judge prior to arraignment, the Baldwin

court erred by impermissibly rewriting the statute. State v. 

Zarnke, 224 Wis. 2d 116, 140, 589 N.W.2d 370 (1999) (internal 

quotation marks omitted) (quoting United States v. X–Citement 

Video, 513 U.S. 64, 86 (1994) (Scalia, J., dissenting)) 

("[A]lthough this Court will often strain to construe 

legislation so as to save it against constitutional attack, it 

must not and will not carry this to the point 

of . . . judicially rewriting it."). Under the constitutionaldoubt canon, if a statute raises serious constitutional 

questions, a court should interpret the statute to avoid those 

constitutional questions. State v. Hager, 2018 WI 40, ¶31, 381 

Wis. 2d 74, 911 N.W.2d 17. "[I]t is a cardinal rule that courts 

should avoid interpreting a statute in a way that would render 

it unconstitutional when a reasonable interpretation exists that 

would render the legislation constitutional." State v. Hamdan, 

2003 WI 113, ¶27 n.9, 264 Wis. 2d 433, 665 N.W.2d 785 (citation 

omitted). Critically, the court can apply only reasonable or 

plausible interpretations to the text under these rules of 

interpretation. Id.; Hager, 381 Wis. 2d 74, ¶31. This court 

can avoid questions of unconstitutionality only if the statute 

is ambiguous. Fleming v. Amateur Athletic Union of U.S., Inc., 
No. 2022AP1999-W.rgb

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2023 WI 40, ¶31 n.10, 407 Wis. 2d 273, 990 N.W.2d 244 (citations 

omitted). It isn't. 

¶65 The Baldwin court did not supply a reasonable or 

plausible interpretation of Wis. Stat. § 971.20(1) (1971-72); it 

supplied a contrived, textually unsupportable interpretation. 

The Baldwin court assigned the word "arraignment" different 

meanings depending on the facts of a particular case, lending 

the word a chameleon-like character. Baldwin, 62 Wis. 2d at 

530, 532 (providing an "enlarged definition of 'arraignment'" 

only when "a calendaring procedure, such as is used in Milwaukee 

[C]ounty," is used). Not only is it confounding that the court 

gave "arraignment" different meanings depending on the facts of 

the case, the Baldwin court's "enlarged definition" of 

arraignment conflicts with the statutory definition. Compare

id. at 530, with Wis. Stat. § 971.05 (1971-72). 

¶66 Baldwin turned the statute's clear rule (file "before 

arraignment") into a vague standard (file within a "reasonable 

time") without any explanation or textual support. The words of 

Wis. Stat. § 971.20, taken collectively or individually, do not 

give a defendant a "reasonable time" to file a substitution 

request after learning the identity of the judge assigned to his 

case. The Baldwin court added words to the text of the statute 

because it felt the legislature's rule didn't "work[] well." 

Baldwin, 62 Wis. 2d at 529. "One of the maxims of statutory 

construction is that courts should not add words to a statute to 

give it a certain meaning." Fond Du Lac Cnty. v. Town of 
No. 2022AP1999-W.rgb

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Rosendale, 149 Wis. 2d 326, 334, 440 N.W.2d 818 (Ct. App. 1989)

(citation omitted). 

2. Legislative Intent and Statutory Purpose

¶67 The Baldwin court justified its interpretation of Wis. 

Stat. § 971.20(1) (1971-72) on the ground it gave effect to the 

legislature's "intent" while a plain-meaning interpretation of 

the statute frustrated the objective of the statute. Baldwin, 

61 Wis. 2d at 530. Statutory interpretation is not a quest to 

effectuate the legislature's intent; its goal is to ascertain 

the objective meaning of a statute and apply that meaning in the 

case at hand. "This court has long disavowed reliance on socalled 'legislative intent,' the search for which leads to pure 

judicial activism." Cobb v. King, 2022 WI 59, ¶44, 403 Wis. 2d 

198, 976 N.W.2d 410 (Rebecca Grassl Bradley, J., dissenting) 

(citing Townsend v. ChartSwap, LLC, 2021 WI 86, ¶24, 399 Wis. 2d 

599, 967 N.W.2d 21); accord Kalal, 271 Wis. 2d 633, ¶¶43-44. 

Although the objectives of a statute are valid considerations in 

a plain-meaning analysis to the extent they can be ascertained 

from the words of the statute, Kalal, 271 Wis. 2d 633, ¶48, 

statutory "purpose[s] cannot produce an interpretation that the 

statute's language rules out of bounds." Stephen Breyer, Making 

Our Democracy Work: A Judge's View 98 (2010). A statute's 

manifest objectives may help a court choose between "textually 

permissible interpretation[s]." see Antonin Scalia & Bryan A. 

Garner, Reading Law: The Interpretation of Legal Texts 63 

(2012). But a statute's objectives cannot give "a word [or] 

sentence . . . a meaning that it cannot bear." Id. at 31; State 
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v. Hinkle, 2019 WI 96, ¶28, 389 Wis. 2d 1, 935 N.W.2d 271

(quoting Scalia & Garner, supra, at 57). After all, "no 

legislation pursues its purposes at all costs." Rodriguez v. 

United States, 480 U.S. 522, 525-26 (1987) (per curiam). The 

Baldwin court violated these fundamental rules of interpretation 

by adding words to a statute and stretching the existing words 

of the statute past their breaking point. 

3. The History of Wis. Stat. § 971.20

¶68 Contrary to the claims of the Baldwin court, the 

"history of [Wis. Stat. § 971.20]" does not "support" its 

interpretation of the statute. Baldwin, 62 Wis. 2d at 530. 

Although the judicial committee's note to the statute did 

"reference" the Illinois and Montana judicial substitution 

statutes, id., the Baldwin court misused that reference to 

support its conclusion. The reference to the Illinois and 

Montana substitution statutes was made in the context of 

changing the terminology used to describe the right to judicial 

substitution; the new statute would not use the term "affidavit 

of prejudice," which the prior substitution statute, Wis. Stat. 

§ 956.03(1) (1967-68), used: 

Note: This is new terminology replacing present s. 

956.03 (1). 'Affidavit of Prejudice' has normally not 

meant prejudice since most defendants have no 

knowledge of the judge and have filed the affidavit 

solely for tactical purposes usually on an attorney's 

advice. This terminology is felt to be more accurate. 

(See Ill. Rev. Code Chap. 38, s. 114-5, Mont. Rev. 

Code 95-1709.)

Note, § 63, ch. 255, Laws of 1969. Despite the fact the 

reference made to the Illinois and Montana statutes was about 
No. 2022AP1999-W.rgb

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terminology, the court cited the Illinois and Montana statutes 

as support for the claim that a defendant needs to know the 

identity of the judge assigned to his trial prior to the 

substitution deadline. 

¶69 Not only did the court in Baldwin deceptively misuse 

the judicial committee's note, the statutory history of Wis. 

Stat. § 971.20 reveals the legislature denied the court any 

authority to provide exceptions to the statute's deadline. 

"Unlike legislative history, prior versions of statutory 

provisions were enacted law; as such, statutory history 

constitutes an intrinsic source that 'is part of the context in 

which we interpret the words used in a statute.'" Brey v. State 

Farm Mut. Auto. Ins. Co., 2022 WI 7, ¶20, 400 Wis. 2d 417, 970 

N.W.2d 1 (quoting Richards v. Badger Mut. Ins. Co., 2008 WI 52, 

¶22, 309 Wis. 2d 541, 749 N.W.2d 581). Prior to the creation of 

§ 971.20, Wis. Stat. § 956.03 (1967-68) gave defendants the 

right of substitution. Section 956.03(1) provided that in 

felony cases, the request needed to be made "within 20 days 

after [the defendant's] arraignment and before the case is 

called for trial." For misdemeanors, the request needed to be 

made "at arraignment or at the time the defendant demands a jury 

trial if one is demanded." § 956.03(1). Importantly, the 

statute had an exception——the deadline could be "extended for 

cause but not more than 10 days." § 956.03(1). The enactment 

of § 971.20 eliminated the "for cause" exception. See Wis. 

Stat. § 971.20 (1969-70). Likewise, the current iteration of 

the statute does not include any exceptions for the statutory 
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deadline. "[A] change in the language of a prior statute 

presumably connotes a change in meaning." Scalia & Garner, 

supra, at 256. The removal of the "for cause" exception to the 

deadline suggests the deadlines in § 971.20 are to be enforced 

as they are written, and this court cannot extend the deadline 

in § 971.20(4) for filing a substitution request past 

arraignment. This court cannot restore what the legislature 

specifically removed from a statute. 

4. Policy

¶70 Buried beneath the Baldwin court's handwringing over 

fair trials, legislative intent, statutory objectives, and 

legislative history lies the obvious truth: The court simply 

disagreed with the policy decisions made by the legislature. 

The court did not think the statute's deadline "works well" in 

all cases. Baldwin, 62 Wis. 2d at 529. The Baldwin court's 

interpretation of Wis. Stat. § 971.20(1) (1971-72) was designed 

to improve what the court regarded as the legislature's 

imperfect work. The Baldwin court "observed what the 

legislature had written, decided it didn't like it, and replaced 

the statutory text with what the court deemed to 

be . . . preferable . . . ." Town of Wilson v. City of 

Sheboygan, 2020 WI 16, ¶73 n.12, 390 Wis. 2d 266, 938 N.W.2d 493

(Rebecca Grassl Bradley, J., concurring). But the court's role 

is not to reweigh the pros and cons of a policy and correct any 

perceived errors in the legislature's judgments, especially when 

it comes to deadlines: "Deadlines are inherently arbitrary; 

fixed dates, however, are often essential to accomplish 
No. 2022AP1999-W.rgb

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necessary results." United States v. Boyle, 469 U.S. 241, 249 

(1985). 

¶71 Courts act beyond their authority by adding words to a 

law, even when they believe their handiwork will make the law 

better accord with justice. "The problem is that although 

properly informed human minds may agree on what a text means, 

human hearts often disagree on what is right." Scalia & Garner, 

supra, at 348. "[I]t is precisely because people differ over

what is sensible and what is desirable that we elect those who 

will write our laws——and expect courts to observe what has been 

written." Id. at 22. That is why "[o]ur unwillingness to 

soften the import of [the legislature's] chosen words even if we 

believe the words lead to a harsh outcome is longstanding." See

Lamie v. U.S. Tr., 540 U.S. 526, 538 (2004); Mannino v. 

Davenport, 99 Wis. 2d 602, 615, 299 N.W.2d 823 (1981). The 

appropriate judicial response to a law that leads to harsh 

results is not to legislate from the bench, but to "take the 

statute as we find it." Anderson v. Wilson, 289 U.S. 20, 27 

(1933). 

¶72 By adding words to Wis. Stat. § 971.20, the Baldwin

court not only violated foundational principles of statutory 

interpretation, it invaded the legislature's constitutionally 

assigned domain, "arrogating to itself the power to make law." 

St. Augustine Sch. v. Taylor, 2021 WI 70, ¶116, 398 Wis. 2d 92, 

961 N.W.2d 635 (Rebecca Grassl Bradley, J., dissenting). The 

court's decision in Baldwin "reflects the philosophy that judges 

should endure whatever interpretive distortions it takes in 
No. 2022AP1999-W.rgb

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order to correct a supposed flaw in the statutory machinery." 

King v. Burwell, 576 U.S. 473, 515 (Scalia, J., dissenting). 

Our constitution counters that dangerous philosophy, enshrining

a separation of powers between the three branches of government. 

The people of Wisconsin gave the legislature——not this court——

"[t]he legislative power." Wis. Const. art. IV, § 1. The 

legislature is the only body in this state with the 

constitutional authority to make and modify laws. See League of 

Women Voters v. Evers, 2019 WI 75, ¶35, 387 Wis. 2d 511, 929 

N.W.2d 209. In contrast, the people gave this court "[t]he 

judicial power of this state." Wis. Const. art. VII, § 2. This 

court does not create laws, nor does it fix laws that fail to 

meet their objectives. State ex rel. Rose v. Superior Ct. of 

Milwaukee Cnty., 105 Wis. 651, 675, 81 N.W. 1046 (1900). 

Instead, this court has a more modest and circumscribed 

constitutional role——interpreting and applying laws as written. 

Gabler v. Crime Victims Rts. Bd., 2017 WI 67, ¶37, 376 Wis. 2d 

147, 897 N.W.2d 384. This court in Baldwin overstepped its 

constitutionally assigned role by rewriting § 971.20 without any 

authority to do so. 

5. Baldwin's Progeny

¶73 Courts applying Baldwin showcase the extent to which 

the Baldwin court usurped the legislature's policy-making role. 

Following Baldwin, the court of appeals held that if a defendant 

does not receive "adequate notice of the assigned judge in 

advance of arraignment, the statute's filing deadlines are 

relaxed in order to allow a defendant to intelligently exercise 
No. 2022AP1999-W.rgb

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the right of substitution." Tinti, 159 Wis. 2d at 789-90 (first 

citing Tessmer, 123 Wis. 2d at 443; and then citing Baldwin, 62 

Wis. 2d at 529). In Zimbal, this court added to Baldwin's 

atextual interpretation of Wis. Stat. § 971.20. The Zimbal

court held § 971.20's deadlines are not to be enforced if a 

circuit court told the defendant the substitution issue would be 

addressed only after trial counsel is appointed. 375 Wis. 2d 

643, ¶40. According to the Zimbal court, this exception to the 

deadlines aligns with Baldwin, Tessmer, and Tinti, which allow 

for an exception to the deadline "when a government-created 

obstacle prevents a defendant from complying with the statutory 

deadline." Id. Under such circumstances, the court proclaimed 

it too "problematic" to apply the statute's actual deadline, 

id., ¶48; instead, the court engaged in a balancing test to 

determine if the defendant filed his substitution request within 

a reasonable time: "We again look to the arraignment cases, 

which have balanced the importance of giving effect to the 

legislative intent expressed in Wis. Stat. § 971.20 and 

preventing a defendant from using a request as a technique to 

disrupt scheduled calendaring or delay a scheduled trial." Id., 

¶50 (citations omitted). Such balancing belongs to the 

legislature, which already balanced those interests in the text 

of § 971.20. The judiciary lacks any authority to reweigh those 

interests and create case-by-case exceptions to statutory

deadlines. See Flynn v. DOA, 216 Wis. 2d 521, 529, 576 N.W.2d 

245 (1998).6 

 

6 The Zimbal court euphemistically stated it would not 

require the defendant to "strict[ly] adhere[]" to the statutory 
No. 2022AP1999-W.rgb

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¶74 The majority follows Zimbal's lead, stating "an 

untimely request may be considered timely when 'a governmentcreated obstacle' prevents a defendant from meeting the 

statutory deadline." Majority op., ¶31 (quoting Zimbal, 375 

Wis. 2d 643, ¶40). But nowhere in Wis. Stat. § 971.20 is there 

any reference to "government-created obstacles." It is a courtcreated criterion at odds with the law's text. Instead of 

applying Baldwin and its progeny, this court should overrule the 

decision. 

III. CONCLUSION

¶75 The majority correctly concludes the circuit court did 

not have a plain duty to accept Davis's tardy substitution 

request. But the majority errs by perpetuating the Baldwin

court's usurpation of legislative power by atextually 

interpreting the judicial substitution statute. "Rather than 

rewriting the law under the pretense of interpreting it," King, 

576 U.S. at 516 (Scalia, J., dissenting), this court should 

leave it to the legislature to fix any infirmities in Wis. Stat. 

§ 971.20's text. Section 971.20(4) requires a defendant to file 

a substitution request "before arraignment." Only the 

legislature possesses the authority to change that. Baldwin

should be overruled and its reasoning abandoned. I would 

apply the statute's plain meaning and hold the circuit court 

 

deadline. State v. Zimbal, 2017 WI 59, ¶40, 375 Wis. 2d 643, 

896 N.W.2d 327. Such language disguises the fact that the court 

would not require the defendant to adhere to the statute's 

deadline at all. 
No. 2022AP1999-W.rgb

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properly denied Davis's substitution request because it was 

filed after arraignment. I respectfully concur in the judgment. 
No. 2022AP1999.bh

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¶76 BRIAN HAGEDORN, J. (concurring). In a petition for 

a supervisory writ, the question is whether we should force the 

circuit court to do something it had a plain duty to do. Yet 

before us, the legal theory Davis presents for why the circuit 

court had such a duty is entirely different than the one he 

argued below and in his petition for review. He also adds a 

brand new argument regarding equitable tolling not raised below 

at all. Davis forfeited these arguments, full stop. The best 

course of action would be to hold him to his forfeiture and call 

it a day. 

¶77 The majority disagrees, however, and overlooks the 

forfeiture——ostensibly to clarify the proper procedure for

raising judicial substitution questions. But it doesn't need to 

overlook the forfeiture to address this point. And while I 

agree that a supervisory writ is particularly ill-suited to the 

kind of claims raised here,1 the majority attempts to do more. 

It dives head-first into the merits and seems to blaze at least 

some new legal ground on the forfeited questions. 

¶78 Forfeiture should not be overlooked so easily though; 

it is not just procedural nitpicking. When we allow litigants 

to present a wholly different case to us than they did below, we 

put ourselves in the awkward position of "telling a lower court 

 

1 I'm not sure whether this court should tell parties how 

best to press their claims. In any event, a supervisory writ is 

a poor fit for the claims raised here, as the majority 

emphasizes. 
No. 2022AP1999.bh

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it was wrong when it was never presented with the opportunity to 

be right."2 This is especially so in this request for a 

supervisory writ where we are asked to order the circuit court 

to comply with a legal command that it was never asked to obey 

in the first place. In the end, although well-intentioned, the 

majority says more than it should, and risks confusing the law 

rather than clarifying it. I respectfully concur in the 

judgment.

 

 

2 Tory A. Weigand, Raise or Lose: Appellate Discretion and 

Principled Decision-Making, 17 Suffolk J. Trial & App. Advoc. 

179, 186 (2012) (cleaned up).
No. 2022AP1999-W.akz

1

¶79 ANNETTE KINGSLAND ZIEGLER, C.J. (dissenting). The 

majority answers a question of its own choosing, rather than the 

question presented in the petition for review. The majority 

could, as Justices Rebecca Grassl Bradley and Brian Hagedorn do 

in their respective concurrences, answer questions that meet the 

criteria for this court's review. But the majority chooses 

instead to merely restate prior law. I dissent because this 

case should have been dismissed as improvidently granted. We 

accept cases based on statutory criteria which require that 

there be "real and significant question of federal or state 

constitutional law" or that lead to "develop[ing], clarify[ing], 

or harmon[izing] the law." Wis. Stat. § (Rule) 809.62(1r). 

There is no new law development in the majority opinion. 

Additionally, Davis argues different issues than that presented 

in his petition for review. Because neither the majority nor 

Davis follow the court's order to answer the question presented 

in the petition for review, and the majority opinion develops no 

new law, this case should be dismissed as improvidently granted. 

¶80 This court does not grant every petition for review. 

Wisconsin Stat. § (Rule) 809.62(1r) instructs that when 

exercising our discretion to grant or deny a petition for 

review:

CRITERIA FOR GRANTING REVIEW. Supreme court review is a 

matter of judicial discretion, not of right, and will 

be granted only when special and important reasons are 

presented. The following . . . indicate criteria that 

will be considered:

(a) A real and significant question of federal or state 

constitutional law is presented.
No. 2022AP1999-W.akz

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(b) The petition for review demonstrates a need for the 

supreme court to consider establishing, 

implementing or changing a policy within its 

authority.

(c) A decision by the supreme court will help develop, 

clarify or harmonize the law, and 

1. The case calls for the application of a new 

doctrine rather than merely the application of 

well-settled principles to the factual 

situation; or

2. The question presented is a novel one, the 

resolution of which will have statewide impact; 

or 

3. The question presented is not factual in nature 

but rather is a question of law of the type 

that is likely to recur unless resolved by the 

supreme court.

(d) The court of appeals' decision is in conflict with 

controlling opinions of the United States Supreme 

Court or the supreme court or other court of 

appeals' decisions.

(e) The court of appeals' decision is in accord with 

opinions of the supreme court or the court of 

appeals but due to the passage of time or changing

circumstances, such opinions are ripe for 

reexamination. 

§ (Rule) 809.62(1r). Davis argued that our review was proper 

because he satisfied at least two of those criteria.1

¶81 In granting Davis's petition for review, our order 

stated that "the petition for review is granted and that 

pursuant to Wis. Stat. § (Rule) 809.62(6), the petitioner may 

 

1 Davis argued that the question presented was "a purely 

legal issue that is likely to recur unless the Supreme Court 

grants review and develops the law governing exceptions to the 

deadline for filing requests for substitution of judge." Davis 

also argued that our review was proper "because there was a need 

for the supreme court to consider establishing policy within its 

authority." See Wis. Stat. § (Rule) 809.62(1r)(b), (c).
No. 2022AP1999-W.akz

3

not raise or argue issues not set forth in the petition for 

review unless otherwise ordered by the court".2 Davis v. Cir. 

Ct. for Dane Cnty., No. 2022AP1999-W, unpublished order (Wis. 

Mar. 31, 2023) (granting petition for review). The issue 

presented was

[w]hether the [State Public Defender's] inability to 

appoint counsel before the deadline for requesting a 

substitution of judge expires is a "government created 

obstacle" that interferes with defendant's intelligent 

exercise of his right of substitution[.] 

Alternatively, whether the doctrine of equitable 

tolling tolls the deadline for filing a request for 

substitution of judge until the defendant is appointed 

counsel[.] 

But Davis, in his briefing and at oral argument, argued a 

different issue than the one ordered by the court, namely, 

"[w]hen the court sua sponte entered a plea on behalf of an 

unrepresented defendant awaiting appointment of counsel before 

giving notice of assignment of judge, did that procedure result 

in a government-created obstacle that deems Mr. Davis' request 

for substitution timely?" The majority may begin to consider 

portions of Davis's newly developed issue, but it does not

definitively answer it, and that was not the issue for which 

review was granted.3 Instead, the majority dodges the issue 

 

2 See Wis. Stat. § (Rule) 809.62(6) ("If a petition . . . is 

granted, the petitioner . . . cannot raise or argue issues not 

set forth in the petition . . . .").

3 See, e.g., majority op., ¶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.").
No. 2022AP1999-W.akz

4

presented and proceeds to the merits anyway, merely restating 

existing law. 

¶82 We are not an error-correcting court; we are a lawdeveloping court.4 This case is not law-developing. I would 

dismiss this case as improvidently granted. 

¶83 For the foregoing reasons, I respectfully dissent.

 

4 See State v. Schumacher, 144 Wis. 2d 388, 407-08, 424 

N.W.2d 672 (1988) (noting that the court of appeals is an errorcorrecting court while the supreme court is a law-developing or 

law-declaring court); see also State v. Lee, 197 Wis. 2d 959, 

970, 542 N.W.2d 143 (1996) ("The rules of appellate practice 

applicable to the court of appeals are not always applicable to 

this court, which functions primarily as a law-developing 

court.").
No. 2022AP1999-W.akz

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