State v. Tavodess Matthews

2021 WI 42SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP2142
COMPLETE TITLE: In re the commitment of Tavodess Matthews:
State of Wisconsin,
Petitioner-Respondent,
v.
Tavodess Matthews,
Respondent-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 392 Wis. 2d 715 946 N.W.2d 200PDC No:2020 WI App 33 - Published
OPINION FILED: May 14, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 22, 2021
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Maxine A. White
JUSTICES:
DALLET, J., delivered the majority opinion for a unanimous
Court.
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant-petitioner, there were briefs
filed by Dustin C. Haskell, assistant state public defender.
There was an oral argument by Dustin C. Haskell.
For the petitioner-respondent, there was a brief filed by
Sara Lynn Shaeffer, assistant attorney general; with whom on the
brief was Joshua L. Kaul, attorney general. There was an oral
argument by Sara Lynn Shaeffer.
2021 WI 42NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP2142
(L.C. No. 2018CI3)
STATE OF WISCONSIN : IN SUPREME COURT
In re the commitment of Tavodess Matthews:
State of Wisconsin,
FILED
Petitioner-Respondent,
May 14, 2021
v.
Sheila T. Reiff
Tavodess Matthews, Clerk of Supreme Court
Respondent-Appellant-Petitioner.
DALLET, J., delivered the majority opinion for a unanimous
Court.
REVIEW of a decision of the Court of Appeals. Reversed and
cause remanded.
¶1 REBECCA FRANK DALLET, J. This case is about whether
Tavodess Matthews timely requested a judicial substitution under
Wis. Stat. § 801.58(1) (2019-20).1 Section 801.58(1) entitles a
party in a civil case to substitute the assigned circuit court
judge if, among other things, that party files a written
1All subsequent references to the Wisconsin Statutes are to
the 2019-20 version unless otherwise indicated.
No. 2018AP2142
substitution request before "the hearing of any preliminary
contested matters." Matthews filed his substitution request
after the circuit court granted his motion to adjourn a
scheduled probable cause hearing under Wis. Stat. ch. 980. We
hold that Matthews' substitution request was timely because his
motion to adjourn is not a "preliminary contested matter" per
that phrase's accepted legal meaning and the circuit court heard
no other such matter before Matthews filed his request.
Accordingly, we reverse the court of appeals.
I
¶2 This case arises from the early stages of proceedings
to commit Matthews as a sexually violent person under Wis. Stat.
ch. 980.2 After the State files a petition to commence ch. 980
proceedings, the circuit court must "hold a hearing to determine
whether there is probable cause to believe that the person named
in the petition is a sexually violent person." Wis. Stat.
§ 980.04(2). The circuit court must hold a probable cause
hearing for a person already in the State's custody "no later
than 10 days after the person's scheduled release or discharge
date." Id. If the court determines that there is probable
cause to believe that the person is sexually violent, then the
Department of Health Services evaluates the person to determine
2Although commitment proceedings under Wis. Stat. ch. 980
resemble criminal proceedings in some respects, they are civil
actions. See State v. Carpenter, 197 Wis. 2d 252, 541
N.W.2d 105 (1995). Thus, the civil judicial substitution
statute, Wis. Stat. § 801.58(1), applies. See State v.
Brown, 215 Wis. 2d 716, 573 N.W.2d 884 (Ct. App. 1997).
2
No. 2018AP2142
whether that is in fact the case. § 980.04(3). Otherwise, the
circuit court must dismiss the petition. Id.
¶3 Here, after the State filed its ch. 980 petition, the
circuit court set a probable cause hearing for August 15, 2018
(eight days after Matthews' scheduled release from the Green Bay
Correctional Institution), and appointed two attorneys to
represent Matthews. Matthews' attorneys met with him for the
first time on the morning of the probable cause hearing. That
same morning, Matthews' attorneys told the State they intended
to ask the circuit court to adjourn the hearing because they
needed more time to prepare. As a result, the State told its
sole witness not to appear.
¶4 At the outset of the probable cause hearing, the
circuit court acknowledged that the parties were "not going
forward with the hearing."3 Matthews' counsel requested
additional time to prepare, noting that Matthews had no
objection to rescheduling the hearing outside of the 10-day
window required under Wis. Stat. § 980.04(2). The State
objected to the adjournment "for the record," but admitted that
it was "in a somewhat difficult position" as it had let go of
its witness for the day. Despite its "disappointment," the
circuit court agreed to reschedule the hearing so long as
Matthews waived his statutory right to a probable cause
determination within 10 days of his scheduled release. Matthews
3 The Honorable Michelle A. Havas of the Milwaukee County
Circuit Court presided.
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No. 2018AP2142
did so, and the circuit court rescheduled the hearing for
August 29.
¶5 The morning of the rescheduled hearing, Matthews'
counsel filed a written request under Wis. Stat. § 801.58(1) to
substitute the circuit court judge. Section 801.58(1) provides
that a party in a civil action, such as a ch. 980 commitment
proceeding, may request to substitute the circuit court judge
before "the hearing of any preliminary contested matters" but
"not later than 60 days after the summons and complaint are
filed." § 801.58(1). Matthews argued that his motion was
timely because he filed it only 33 days after the State filed
its ch. 980 petition and, since the circuit court had not
actually commenced the probable cause hearing, it had not yet
heard a "contested matter." The circuit court disagreed,
finding Matthews' request untimely because the State's objection
to Matthews' motion to adjourn rendered the matter "contested."
The circuit court also noted that it had made the "substantive
decision" to accept Matthews' time-limit waiver, so it was too
late for Matthews to request a substitution. Upon review,4 Chief
Judge Maxine A. White of the Milwaukee County Circuit Court
agreed with the circuit court's determination, explaining that
Matthews' time waiver constituted a preliminary contested
matter.
4 See Wis. Stat. § 801.58(2).
4
No. 2018AP2142
¶6 The court of appeals accepted Matthews' interlocutory
appeal and affirmed the circuit court's ruling.5 State v.
Matthews, 2020 WI App 33, 392 Wis. 2d 715, 946 N.W.2d 200.
Relying mainly upon Sielen6 and Galaxy Gaming,7 the court of
appeals reasoned that the circuit court had heard a preliminary
contested matter when it granted Matthews' motion to adjourn the
probable cause hearing because the circuit court could have
denied Matthews' motion and held the hearing——a decision that
would have "obviously implicated the merits." Id., ¶19 (quoted
source omitted). The court of appeals explained that both the
scheduled probable cause hearing and Matthews' motion to adjourn
that hearing were, in a literal sense, "contested": Matthews
and the State disagreed about whether there was probable cause
to commit Matthews and the State objected to Matthews' motion to
adjourn the hearing. See id. The court of appeals therefore
held that the circuit court had heard a preliminary contested
matter prior to Matthews' judicial substitution request,
rendering that request untimely. We granted Matthews' petition
for review.
5 A party must receive leave from the court of appeals to
appeal a non-final circuit court order. See Wis. Stat.
§ 808.03.
6 State ex rel. Sielen v. Cir. Ct. for Milwaukee Cnty., 176
Wis. 2d 101, 499 N.W.2d 657 (1993).
7 DeWitt Ross & Stevens, S.C. v. Galaxy Gaming & Racing Ltd.
P'ship, 2003 WI App 190, 267 Wis. 2d 233, 670 N.W.2d 74, rev'd
in part on other grounds, 2004 WI 92, 273 Wis. 2d 577, 682
N.W.2d 839.
5
No. 2018AP2142
II
¶7 This case turns on our interpretation of Wis. Stat.
§ 801.58(1), which is a question of law that we review de novo.
See Moreschi v. Vill. of Williams Bay, 2020 WI 95, ¶13, 395
Wis. 2d 55, 953 N.W.2d 318. In relevant part, § 801.58(1)
provides as follows:
Any party to a civil action or proceeding may file a
written request . . . 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 . . . .
¶8 Our focus here is specifically on the phrase "the
hearing of any preliminary contested matters," which both
parties recognize as the crux of the case. Matthews maintains
that we have previously held that only substantive issues are
preliminary contested matters. According to Matthews, a motion
to adjourn a probable cause hearing is not a substantive issue;
therefore, it is not a preliminary contested matter. He also
argues that a party timely files a substitution request if it
does so before the circuit court actually hears a substantive
issue. The State counters that the circuit court held a hearing
on a preliminary contested matter when it commenced what was
scheduled to be a probable cause hearing. The State asserts
that because Matthews filed his substitution request after he
appeared at that hearing, his substitution request was untimely.
¶9 We resolve this dispute first by interpreting the
phrase "preliminary contested matters" and then by analyzing
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No. 2018AP2142
what it means for there to be "the hearing of" such matters.
The goal of statutory interpretation is to give the statutory
text its "full, proper, and intended effect." State ex rel.
Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶44, 271
Wis. 2d 633, 681 N.W.2d 110. We generally give words their
common, everyday meaning, "but we give legal terms of art their
accepted legal meaning." Estate of Matteson v. Matteson, 2008
WI 48 ¶22, 309 Wis. 2d 311, 749 N.W.2d 557; Wis. Stat.
§ 990.01(1). When the legislature adopts a phrase from the
common law that has a specific legal meaning and does not
otherwise define it, we presume that the legislature adopts the
phrase's specific legal meaning. Bank Mut. v. S.J. Boyer
Constr., Inc., 2010 WI 74, ¶39, 326 Wis. 2d 521, 785 N.W.2d 462;
see also Strenke v. Hogner, 2005 WI 25, ¶28, 279 Wis. 2d 52, 694
N.W.2d 296 (explaining that when the legislature uses a
"specific common law phrase," we presume it does so with "full
knowledge" of that phrase's meaning). That principle applies
with at least equal force when the legislature amends a statute
to incorporate language from one of this court's decisions,
resulting in a "significant revision to the language in which we
are interested." See White v. City of Watertown, 2019 WI 9,
¶10, 385 Wis. 2d 320, 922 N.W.2d 61. Indeed, a statute's
background, encompassing its "previously enacted and repealed
provisions," can provide helpful context for a plain-meaning
analysis. United States v. Franklin, 2019 WI 64, ¶13, 387
Wis. 2d 259, 928 N.W.2d 545; see also Richards v. Badger Mut.
Ins. Co., 2008 WI 52, ¶22, 309 Wis. 2d 541, 749 N.W.2d 581.
7
No. 2018AP2142
¶10 Applying these principles to Wis. Stat. § 801.58(1)
reveals two things. First, that "preliminary contested matters"
has a specific legal meaning, which the legislature explicitly
adopted when it amended § 801.58(1). And second, that there is
no "hearing of" a preliminary contested matter until a court
actually hears such a matter.
A
¶11 The phrase "preliminary contested matters" has a
specific legal meaning referring to pretrial issues that go to
the ultimate merits of the case. The roots of this meaning can
be traced to the court's interpretation of a mid-nineteenth
century change-of-venue statute. That statute provided that
when a party requested a change of venue because of the
presiding judge's "prejudice," the judge had no discretion to
deny the request. Wis. Stat. ch. 51, § 1 (1853); Rines v.
Boyd, 7 Wis. 155, 157 (1859); Baldwin v. Marygold, 2
Wis. 419, 420 (1853).
¶12 The timeliness of such change of venue requests hinged
upon whether the trial judge had already decided some
substantive question. See, e.g., State ex rel. Winchell v. Cir.
Ct. of Waukesha Cnty., 116 Wis. 253, 93 N.W. 16 (1903);
Swineford v. Pomeroy, 16 Wis. 553, 554-55 (1863). In Swineford,
the court explained that, under "a rational construction," the
change-of-venue statute was meant to prevent a party from
changing the venue after the trial judge "ruled contrary to
[that party's] expectations or unfavorably to" it. 16 Wis.
at 555. Thus, a party's venue-change request was untimely if
8
No. 2018AP2142
made after the trial judge called the jury or issued a ruling.
Id. If, however, a party made such a request after the court
placed a matter "on the calendar for trial" but before it ruled
on any issues, the request was timely. See Eldred v. Becker, 60
Wis. 48, 48, 18 N.W. 720 (1884). In essence, a party could
request a change of venue only if the trial judge had not yet
decided a contested matter.
¶13 That reasoning has informed both the development of
the judicial substitution statute and our interpretation of it.
In the statute's initial form, its text reflected our change-of-
venue jurisprudence in that it allowed a party to request a
judicial substitution "before the first day of the term of court
at which the case is triable or within 10 days after the case is
noticed for trial." Wis. Stat. § 261.08 (1971-72). The statute
left open the question of whether a party could request a
judicial substitution after a judge had ruled on pretrial issues
but before the case had been noticed for trial.
¶14 We took up that question in Pure Milk Products
Cooperative v. National Farmers Organization, 64 Wis. 2d 241,
219 N.W.2d 564 (1974). There, drawing heavily from our change-
of-venue jurisprudence, we held that "the legislature could not
have intended by the wording of" the substitution statute to
allow a party to substitute a judge after "the hearing of a
contested motion [that] implicates the merits of the action."
Id. at 249. We explained that other jurisdictions with similar
judicial substitution statutes required a party to file its
substitution request before "the hearing of contested
9
No. 2018AP2142
preliminary matters." Id. at 248. Our survey of the case law
revealed that, in the judicial substitution context, a
preliminary contested matter is more than just a preliminary
issue over which the parties disagree (or, literally,
"contest"). Rather, the phrase carries a particular common law
meaning referring to a substantive pretrial matter that relates
to the "ultimate issues" of the case. See id. at 248-50; Bahr
v. Galonski, 80 Wis. 2d 72, 87, 257 N.W.2d 869 (1977). We
ultimately accepted that specific common law meaning as the
meaning of "preliminary contested matters" in the judicial
substitution statute.
¶15 Shortly thereafter, the legislature codified our
decision in Pure Milk Products via an amendment to the judicial
substitution statute (now Wis. Stat. § 801.58).8 See State ex
rel. Sielen v. Cir. Ct. for Milwaukee Cnty., 176
Wis. 2d 101, 113, 499 N.W.2d 657 (1993) (explaining that this
amendment "is a codification" of the court's decision in Pure
Milk Products) (quoting State ex rel. Carkel, Inc. v. Cir. Ct.
for Lincoln Cnty., 141 Wis. 2d 257, 265, 414 N.W.2d 640 (1987)).9
As amended——and as it reads today——the statute requires a party
to file its substitution request before "the hearing of any
In 1975, this court renumbered Wis. Stat. § 261.08 as
8
§ 801.58.
See also See State v. Norwood, 2005 WI App 218, ¶12, 287
9
Wis. 2d 679, 706 N.W.2d 683; City of LaCrosse v. Jiracek
Cos., 108 Wis. 2d 684, 694, 324 N.W.2d 440 (Ct. App. 1982);
Kroll v. Bartell, 101 Wis. 2d 296, 302, 304 N.W.2d 175 (Ct.
App. 1981).
10
No. 2018AP2142
preliminary contested matters." See § 15, ch. 135, Laws
of 1977; Wis. Stat. § 801.58(1). The legislature's adoption
verbatim of the phrase "preliminary contested matters" instructs
that the phrase means the same thing in § 801.58(1) as it did in
Pure Milk Products.10 See White, 385 Wis. 2d 320, ¶10
(explaining that "a significant revision to the language in
which we are interested" assists in determining a statute's
plain meaning); Strenke, 279 Wis. 2d 52, ¶¶30-31, 39 (holding
that when the legislature amended Wis. Stat. § 895.85(3) to
include the common law phrase "disregard of rights," that phrase
retained its "specific" common-law meaning).
¶16 In the 41 years since the legislature codified Pure
Milk Products, Wisconsin courts have interpreted "preliminary
contested matters" consistent with its accepted legal meaning.
Pretrial motions that directly implicate the merits of a case,
such as a motion to dismiss for failure to state a claim,
Carkel, 141 Wis. 2d at 261, and a motion to compel discovery,
Sielen, 176 Wis. 2d at 113-14, are preliminary contested
Indeed, the Judicial Council's note to the 1977 statutes
10
plainly confirms that conclusion:
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.
Judicial Council Note, 1977, Wis. Stat. § 801.58 (citation
omitted); see also, e.g., Sands v. Whitnall Sch. Dist., 2008
WI 89, ¶27, 312 Wis. 2d 1, 754 N.W.2d 439.
11
No. 2018AP2142
matters. The former implicates a case's merits because, if the
circuit court grants the motion, it has decided that there is no
claim for it to hear. E.g., PRN Assocs. LLC v. DOA, 2009 WI 53,
¶¶26-27, 317 Wis. 2d 656, 766 N.W.2d 559. The latter implicates
the merits because the circuit court could "impose a sanction
that precludes a party from submitting any evidence," thus
making it impossible for that party to prove the merits of its
claim. See Sielen, 176 Wis. 2d at 114. Similarly, because an
initial commitment proceeding decides the ultimate merits
regarding commitment under ch. 51, that proceeding is a
preliminary contested matter for the purposes of a commitment
extension proceeding. State ex rel. Serocki v. Cir. Ct. for
Clark Cnty., 163 Wis. 2d 152, 159-60, 471 N.W.2d 49 (1991).
¶17 Conversely, this court, as well as the court of
appeals, has held that procedural issues that have no direct
effect on the merits of a case are not preliminary contested
matters. For example, a circuit court judge's decision whether
to accept a family court commissioner's proposed alimony-
modification order, although "not perfunctory" and requiring the
judge to "ascertain" the merits of the proposed order, is not a
preliminary contested matter under § 801.58(1). State ex rel.
Tarney v. McCormack, 99 Wis. 2d 220, 234, 298 N.W.2d 552 (1980).
Motions to join additional parties and to intervene are also not
preliminary contested matters. See City of La Crosse v. Jiracek
Cos., 108 Wis. 2d 684, 688-89, 694-95, 324 N.W.2d 440 (Ct.
App. 1982) (allowing substitution requests after deciding
motions to join and intervene). To be sure, these are
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No. 2018AP2142
preliminary matters that parties routinely contest. But as our
jurisprudence makes clear, they fall outside the accepted legal
meaning of "preliminary contested matters."
¶18 Because "preliminary contested matters" has a specific
legal meaning, there is no need to parse the phrase's individual
words in search of each word's non-technical meaning. See S.J.
Boyer Constr., 326 Wis. 2d 521, ¶52. For the same reason, it
matters not whether either party in fact contested a preliminary
matter. Instead, we treat the phrase "preliminary contested
matters" as one unit with a specific legal meaning: a
substantive issue that goes to the ultimate merits of a case.
B
¶19 We next analyze what it means for there to be "the
hearing of" preliminary contested matters. The State urges that
Matthews' substitution request is untimely because he filed it
after appearing at what was set as a contested probable cause
hearing. According to the State, it is irrelevant whether the
circuit court actually reached the substance of the merits issue
at that hearing.
¶20 Our decisions in Tarney and Serocki, however, strongly
favor Matthews' argument that there is no "hearing of" a
preliminary contested matter until the circuit court in fact
hears such a matter. In Tarney, we explained that § 801.58(1)
requires a party to file its substitution request "before the
judge has heard" a preliminary contested matter. 99 Wis. 2d
at 234 (emphasis added). We reiterated that position in
Serocki, concluding that a party must request substitution
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No. 2018AP2142
"before the circuit court reaches a substantive issue." 163
Wis. 2d at 156 (emphasis added). A judge cannot "reach" a
substantive issue without first "hearing" arguments on that
issue. Merely scheduling a hearing about a substantive issue is
insufficient. See Eldred, 60 Wis. at 48.
¶21 Our conclusion is consistent with the policy
underlying § 801.58(1). As we stated in Carkel, the statute's
policy is to prevent a party unhappy with how a judge is
"handling" a preliminary contested matter from requesting a
different judge "simply because the litigant believes things are
going badly." 141 Wis. 2d at 265 (quoted source omitted). That
is, a party may not "'test the waters' with a particular judge
before requesting substitution." Serocki, 163 Wis. 2d at 156(quoting Carkel, 141 Wis. 2d at 265); see also Swineford, 16
Wis. at 555. But a judge must first hear a substantive issue——
not just schedule to hear one——before a party has tested the
proverbial waters.
¶22 The bottom line is that whether a party has timely
filed its judicial substitution request turns on what issues a
circuit court has already heard. It is irrelevant whether a
judge schedules to hear a preliminary contested matter or
whether a party actually contests a preliminary issue.
Accordingly, we hold that a party's substitution request is
timely if it is made before a judge in fact hears a substantive
issue that goes to the ultimate merits of the case.
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No. 2018AP2142
C
¶23 Turning to the facts in this case, we conclude that
the circuit court heard no preliminary contested matter prior to
Matthews' filing his judicial substitution request. By the time
Matthews filed his request on August 29, the circuit court had
addressed only his motion to adjourn the August 15 hearing. At
that hearing, although it was "set as a contested probable cause
hearing," no party "presented its views" on whether the State
had probable cause to commit Matthews. Cf. Carkel, 141 Wis. 2d
at 265. Rather, the entire discussion revolved around Matthews'
motion to adjourn. The circuit court's decision to grant the
motion had no effect on the ultimate merits of whether Matthews
is a subject for commitment under Wis. Stat. ch. 980. Matthews'
waiver of his right to have a probable cause hearing within 10
days of his release from prison was part and parcel of his
motion to adjourn. It was not, contrary to the circuit court's
conclusion, a standalone substantive issue that "directly
affected the presentation" of his case. Accordingly, Matthews
timely requested a judicial substitution.
III
¶24 Under Wis. Stat. § 801.58(1), a party timely files a
judicial substitution request if, prior to that filing, the
circuit court has heard no preliminary contested matter. The
phrase "preliminary contested matter" has an accepted legal
meaning that refers to a substantive issue that goes to the
ultimate merits of the case. Here, because the circuit court
heard no such matter prior to Matthews filing his judicial
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No. 2018AP2142
substitution request, his request was timely. We therefore
reverse the court of appeals and remand the cause for further
proceedings.
By the Court.—The decision of the court of appeals is
reversed and the cause is remanded to the circuit court.
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No. 2018AP2142
1