Wisconsin Statutes

Wis. Stat. § 801.58 (2026)

Substitution of judge

✓ current as of July 2026

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801.58801.58 Substitution of judge.

801.58(1)(1) Any party to a civil action or proceeding may file a written request, signed personally or by his or her attorney, with the clerk of courts 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 or, if by any other party, not later than 60 days after service of a summons and complaint upon that party. If a new judge is assigned to the trial of a case, a request for substitution must be made within 10 days of receipt of notice of assignment, provided that if the notice of assignment is received less than 10 days prior to trial, the request for substitution must be made within 24 hours of receipt of the notice and provided that if notification is received less than 24 hours prior to trial, the action shall proceed to trial only upon stipulation of the parties that the assigned judge may preside at the trial of the action. Upon filing the written request, the filing party shall forthwith serve a copy thereof on all parties to the action and in the manner provided in s. 801.18 (6) (a) or (c).

801.58(2)(2) When the clerk receives a request for substitution, the clerk shall immediately contact the judge whose substitution has been requested for a determination of whether the request was made timely and in proper form. If the request is found to be timely and in proper form, the judge named in the request has no further jurisdiction and the clerk shall request the assignment of another judge under s. 751.03. If the judge named in the substitution request finds that the request was not timely and in proper form, that determination may be reviewed by the chief judge of the judicial administrative district, or by the chief judge of an adjoining judicial administrative district if the judge named in the request is the chief judge, if the party who made the substitution request files a written request for review with the clerk no later than 10 days after the determination by the judge named in the request. If no determination is made by the judge named in the request within 7 days, the clerk shall refer the matter to the chief judge of the judicial administrative district or to the chief judge of an adjoining judicial administrative district, if the judge named in the request is the chief judge, for determination of whether the request was made timely and in proper form and reassignment as necessary. The newly assigned judge shall proceed under s. 802.10 (1).

801.58(2m)(2m) If, under sub. (2), the judge determines that the request for substitution was made timely and in proper form, any ex parte order granted by the original judge remains in effect according to the terms, except that a temporary restraining order issued under s. 813.12 (3), 813.122 (4), 813.123 (4), or 813.125 (3) by the original judge is extended until the newly assigned judge holds a hearing on the issuance of an injunction. The newly assigned judge shall hear any subsequent motion to modify or vacate any ex parte order granted by the original judge.

801.58(3)(3) Except as provided in sub. (7), no party may file more than one such written request in any one action, nor may any single such request name more than one judge. For purposes of this subsection parties united in interest and pleading together shall be considered as a single party, but the consent of all such parties is not needed for the filing by one of such party of a written request.

801.58(4)(4) Upon the filing of an agreement signed by all parties to a civil action or proceeding, by the original judge for which a substitution of a new judge has been made, and by the new judge, the civil action or proceeding and pertinent records shall be transferred back to the original judge.

801.58(5)(5) In addition to other substitution of judge procedures, in probate matters a party may file a written request specifically stating the issue in a probate proceeding for which a request for substitution of a new judge has been made. The judge shall thereupon be substituted in relation to that issue but after resolution of the issue shall continue with the administration of the estate. If a person wishes to file a written request for substitution of a new judge for the entire proceeding, subs. (1) to (4) shall apply.

801.58(6)(6)

801.58(6)(a)(a) In probate matters ss. 801.59 to 801.62 apply, except that upon the substitution of any judge, the case shall be referred to the register in probate, who shall request assignment of another judge under s. 751.03 to attend and hold court in such matter.

801.58(6)(b)(b) Ex parte orders, letters, bonds, petitions and affidavits may be presented to the assigned judge, by mail or in person, for signing or approving, wherever the judge may be holding court, who shall execute or approve the same and forthwith transmit the same to the attorney who presented it, for filing with the circuit court of the county where the records and files of the matter are kept.

801.58(7)(7) If upon an appeal from a judgment or order or upon a writ of error the appellate court orders a new trial or reverses or modifies the judgment or order as to any or all of the parties in a manner such that further proceedings in the trial court are necessary, any party may file a request under sub. (1) within 20 days after the filing of the remittitur in the trial court whether or not another request was filed prior to the time the appeal or writ of error was taken.

801.58 HistoryHistory: 1971 c. 46, 138, 296; Sup. Ct. Order, 67 Wis. 2d 585, 757 (1975); Stats. 1975 s. 801.58; 1977 c. 135 ss. 7, 15, 16; 1977 c. 187 s. 135; Sup. Ct. Order, 82 Wis. 2d ix (1978); 1977 c. 449; 1979 c. 175 ss. 50, 53; 1981 c. 137; 1987 a. 68; 2013 a. 322; Sup. Ct. Order No. 20-07, 2021 WI 37, 397 Wis. 2d xiii.

801.58 NoteJudicial Council Note, 1977: 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, 64 Wis. 2d 241 (1974).

801.58 NoteA new provision has been added to allow the parties to a criminal action or proceeding, the prosecuting attorney, and the original and the new judge to agree to have the matter referred back to the original judge. This will aid the administration of justice in those cases where it is advantageous for everyone concerned to have the original judge take back the matter. [Bill 74-S]

801.58 NoteJudicial Council Committee’s Note, 1977: Sub. (1) is amended to give a plaintiff 60 days from the time the summons and complaint are filed or a defendant or any added party 60 days after service of a summons and complaint upon them to request a substitution of a new judge, provided no preliminary contested matters have been argued by the requester. The previous time periods for requesting a substitution of judge (i.e., 10 days after the date of notice for a scheduling conference or 10 days after service of a standard scheduling order) are repealed as the use of such a conference or order is no longer mandatory under s. 802.10. [Re Order effective July 1, 1978]

801.58 NoteJudicial Council Note, 1981: Sub. (2) has been revised to allow the clerk to refer the substitution request to the chief judge of the judicial administrative district when the judge whose substitution has been requested fails to determine within 7 days whether the request is timely made and in proper form.

801.58 NoteSub. (7) has been amended to clarify that the 20-day time period for filing a substitution request after an appellate remand commences upon the filing of the remittitur in the trial court. Rohl v. State, 97 Wis. 2d 514 (1980). [Bill 163-S]

801.58 AnnotationA right can be waived by participation in preliminary motions in which the judge is allowed to receive evidence that of necessity is used and weighed in deciding ultimate issues. Pure Milk Products Cooperative v. National Farmers Organization, 64 Wis. 2d 241, 219 N.W.2d 564 (1974).

801.58 AnnotationThe Bacon, 34 Wis. 594 (1874)-Bahr, 80 Wis. 2d 72 (1977), rule, which interprets this section to bar substitution in proceedings to modify support or custody orders, applies only to cases in which the judge has been previously involved. State ex rel. Tarney v. McCormack, 99 Wis. 2d 220, 298 N.W.2d 552 (1980).

801.58 AnnotationA substitution of judge request may be filed with a deputy clerk. Bartell v. Bartell, 101 Wis. 2d 296, 304 N.W.2d 175 (Ct. App. 1981).

801.58 AnnotationAn added party may request a substitution within 60 days of service if the added party has not actually participated in preliminary contested matters. City of La Crosse v. Jiracek Cos., 108 Wis. 2d 684, 324 N.W.2d 440 (Ct. App. 1982).

801.58 AnnotationThe ten-day period for substitution under sub. (1) is triggered by receipt of actual notice that the new judge has been assigned. State ex rel. Laborers International Union of North America v. Circuit Court, 112 Wis. 2d 337, 332 N.W.2d 832 (Ct. App. 1983).

801.58 AnnotationSub. (7) creates an unqualified right to substitution when further trial court proceedings are necessary after remand from an appellate court. State ex rel. Oman v. Hunkins, 120 Wis. 2d 86, 352 N.W.2d 220 (Ct. App. 1984).

801.58 Annotation“Further proceedings” under sub. (7) and s. 808.08 (3) have the same definition. State ex rel. Ondrasek v. Circuit Court, 133 Wis. 2d 177, 394 N.W.2d 912 (Ct. App. 1986).

801.58 AnnotationIf parties are united in interest and plead together and one presents its views in a preliminary contested matter, all united parties are barred from moving for substitution. State ex rel. Carkel, Inc. v. Circuit Court, 141 Wis. 2d 257, 414 N.W.2d 640 (1987). See also DeWitt Ross & Stevens, S.C. v. Galaxy Gaming & Racing Ltd. Partnership, 2003 WI App 190, 267 Wis. 2d 233, 670 N.W.2d 74, 02-0359.

801.58 AnnotationAffirmed on other grounds. 2004 WI 92, 273 Wis. 2d 577, 682 N.W.2d 839, 02-0359.

801.58 AnnotationWhen the trial court is ordered to clarify its ruling in a divorce matter on remand, the Bacon, 34 Wis. 594 (1874)-Bahr, 80 Wis. 2d 72 (1977), rule applies, and no substitution under sub. (7) is permitted. State ex rel. Parrish v. Circuit Court, 148 Wis. 2d 700, 436 N.W.2d 608 (1989).

801.58 AnnotationBecause an ex parte restraining order is not issued in the context of a contested proceeding, a substitution request may be granted subsequent to the entry of an order and prior to a hearing on the merits. Threlfall v. Town of Muscoda, 152 Wis. 2d 308, 448 N.W.2d 274 (Ct. App. 1989).

801.58 AnnotationA request for substitution is not allowed when a recommitment hearing under s. 51.20 (13) (g) 3. is before the same judge who conducted the original commitment proceeding. State ex rel. Serocki v. Circuit Court, 163 Wis. 2d 152, 471 N.W.2d 49 (1991).

801.58 AnnotationThe requirement of sub. (1) that substitution requests be filed preceding the hearing of any “preliminary contested matters” applies to requests filed under sub. (5). A motion to compel discovery constitutes a “preliminary contested matter.” State ex rel. Sielen v. Circuit Court, 176 Wis. 2d 101, 499 N.W.2d 657 (1993).

801.58 AnnotationA nonsummary contempt motion is a part of the underlying action from which it arises, and the time allowed for requesting judicial substitution runs from the commencement of the action not from receipt of notice of the contempt proceeding. State ex rel. James L.J. v. Circuit Court, 200 Wis. 2d 496, 546 N.W.2d 460 (1996), 94-2043.

801.58 AnnotationThe court of appeals is authorized to exercise its supervisory authority over a chief judge who is ruling on a substitution request. State ex rel. James L.J. v. Circuit Court, 200 Wis. 2d 496, 546 N.W.2d 460 (1996), 94-2043.

801.58 AnnotationThe right to judicial substitution applies to ch. 980 proceedings. State v. Brown, 215 Wis. 2d 716, 573 N.W.2d 884 (Ct. App. 1997), 96-1211.

801.58 AnnotationWhen a judge normally presides in one county but is assigned by substitution to a case filed in another county, the filing and entry for appeal purposes occur when the document comes into the possession of the clerk of court in the county in which the case is commenced. State v. Williams, 230 Wis. 2d 50, 601 N.W.2d 838 (Ct. App. 1999), 98-3338.

801.58 AnnotationThe only time a chief judge may become involved in the substitution process under sub. (2) is if a circuit court denies a substitution request for not being timely or properly filed. State ex rel. J.H. Findorff & Son, Inc. v. Circuit Court, 2000 WI 30, 233 Wis. 2d 428, 608 N.W.2d 679, 97-3452.

801.58 AnnotationIf a circuit court may exercise discretion in discharging its duties on remand, the court must engage in “further proceedings” under sub. (7), entitling the parties to the right of substitution. If the remand requires a specific action that requires no exercise of discretion by the trial court, no substitution is allowed. State ex rel. J.H. Findorff & Son, Inc. v. Circuit Court, 2000 WI 30, 233 Wis. 2d 428, 608 N.W.2d 679, 97-3452.

801.58 AnnotationReview by the chief judge under sub. (2) is a prerequisite to appeal a denial of a request for substitution. A chief judge may review a denial only if a timely request for review is made. Barbara R.K. v. James G., 2002 WI App 47, 250 Wis. 2d 667, 641 N.W.2d 175, 01-1219.

801.58 AnnotationBecause two insurance companies’ policies for the same insured were in effect on different dates and provided different types of coverages, they would not be similarly affected by the court’s determination of when damages occurred. As determination of the dates would eliminate the possibility of coverage by one company and raise the possibility of coverage by the other, the two companies were not united in interest under sub. (3) although they shared some interests in the case. State ex rel. Cincinnati Insurance Co. v. Circuit Court, 2003 WI 57, 262 Wis. 2d 99, 663 N.W.2d 275, 02-2756.

801.58 AnnotationFor a motion hearing to be a “preliminary contested matter” for purposes of sub. (1), the dispositive question is whether the hearing concerned a substantive issue that went to the merits of the case. A hearing on a motion that depositions be suspended sought to narrow the scope of discovery and thus addressed a substantive issue that affected the presentation of the case. DeWitt Ross & Stevens, S.C. v. Galaxy Gaming & Racing Ltd. Partnership, 2003 WI App 190, 267 Wis. 2d 233, 670 N.W.2d 74, 02-0359.

801.58 AnnotationAffirmed on other grounds. 2004 WI 92, 273 Wis. 2d 577, 682 N.W.2d 839, 02-0359.

801.58 AnnotationAlthough sub. (7) limits substitution to appeals and writs of error, and a petition for a supervisory writ is neither an appeal nor a writ of error, sub. (7) creates an unqualified right to substitution when further trial court proceedings are necessary after remand from an appellate court. Because the supreme court’s supervisory writ reversed orders of the circuit court and remanded the matter to the circuit court for further proceedings, either party was permitted to seek a substitution of judge. State ex rel. Universal Processing Services of Wisconsin, LLC v. Circuit Court, 2017 WI 26, 374 Wis. 2d 26, 892 N.W.2d 267, 16-0923.

801.58 AnnotationNothing in the grant of authority under s. 751.03 (3) says anything about a method, process, or mechanism by which a chief judge may assign a case, let alone the method by which the chief judge must assign a case. Thus, s. 751.03 (3) permits a chief judge to develop and adopt methods for assigning substitute judges that do not involve personal involvement of the chief judge in each assignment. In this case, a substitute judge was assigned by using an email volunteer system, under which an email was sent to the other judges and the first responding available judge was assigned to the case. The email volunteer system used to assign a substitute judge did not violate this section or s. 751.03 (3). Petitioner v. Evans, 2018 WI App 53, 383 Wis. 2d 669, 917 N.W.2d 218, 17-2297.

801.58 AnnotationUnder sub. (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. State v. Matthews, 2021 WI 42, 397 Wis. 2d 1, 959 N.W.2d 640, 18-2142.

801.58 AnnotationThe civil peremptory substitution statute: Is Wisconsin too liberal? Seaburg. WBB Jan. 1986.

Notes of Decisions

Cited in 83 cases (14 in the last 5 years), 1977–2026 · leading case: State Ex Rel. Universal Processing Servs., LLC v. Circuit Court of Milwaukee Cnty., 2017 WI 26 (Wis. 2017).

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State Ex Rel. Universal Processing Servs., LLC v. Circuit Court of Milwaukee Cnty., 2017 WI 26 (Wis. 2017). · cites it 23× “58 (7), we permit either party to seek a substitution of judge pursuant to the procedures set forth in Wis. Stat. § 801.58 (1) and (7). Because there is no record in this court in the instant case to be remitted, the 20-day period provided in Wis.”

State v. Tavodess Matthews, 2021 WI 42 (Wis. 2021). · cites it 32× “This case is about whether Tavodess Matthews timely requested a judicial substitution under Wis. Stat. § 801.58 (1) (2019-20).1 Section 801.”

State Ex Rel. Tarney v. McCormack, 298 N.W.2d 552 (Wis. 1980). · cites it 35× “This is a review of the court of appeals' denial of a petition for issuance of a supervisory writ [1] to compel the appropriate officials *222 of the circuit courts for Milwaukee county to honor petitioner's request for substitution of a judge pursuant to sec. 801.58, Stats. We…”

State ex rel. J. H. Findorff & Son, Inc. v. Circuit Court for Milwaukee Cnty., 2000 WI 30 (Wis. 2000). · cites it 77× “Upon remand, Findorff moved to substitute Judge Haese under Wis. Stat. § 801.58 (7X1995-96). 3 *435 Judge Haese granted the request, and the case was temporarily reassigned to Judge Lee E.”

DeWitt Ross & Stevens, S.C. v. Galaxy Gaming & Racing Ltd. P'ship, 2003 WI App 190 (Wis. Ct. App. 2003). · cites it 26× “Whether or not a party is entitled to a substitution of judge under Wis. Stat. § 801.58 (1) and (3) presents an issue of statutory interpretation, which we review de novo.”

State v. Brown, 573 N.W.2d 884 (Wis. Ct. App. 1997). · cites it 22× “, the right to judicial substitution afforded by § 801.58, Stats., does apply to Chapter 980 civil commitment proceedings.”

Portage Cnty. v. J.W.K. (In Re Mental Commitment of J.W.K.), 927 N.W.2d 509 (Wis. 2019). · cites it 3× “We concluded a recommitment hearing was "a continuation of the original commitment proceeding and previous *694 recommitment hearings" in the context of the substitution request under Wis. Stat. § 801.58 (1) (1989-90). Serocki , 163 Wis.”

Lemke v. Lemke, 2012 WI App 96 (Wis. Ct. App. 2012). · cites it 14× “as to any or all of the parties in a manner such that further proceedings in the trial court are necessary, any party may file a request [for substitution of judge] within 20 days after the filing of the remittitur in the trial court.”

In Matter of Civil Contempt of Kroll, 304 N.W.2d 175 (Wis. Ct. App. 1981). · cites it 19× “It is clear from a reading of Pure Milk Products that rare will be the case where a civil matter proceeds to trial or final hearing within the time limits, so as to allow a party to personally appear before the court with a timely substitution.”

State Ex Rel. Town of Delavan v. Circuit Court for Walworth Cnty., 482 N.W.2d 899 (Wis. 1992). · cites it 13× “58(7) does not afford the town the right to a substitution of judge. The town's petition to the court of appeals stated that the town had requested Chief Judge Simanek to review Judge Carlson's decision but that no decision had been received and that the town had contacted the…”

Driehaus v. Walworth Cnty., 2009 WI App 63 (Wis. Ct. App. 2009). · cites it 12× “Driehaus directs us to Wis. Stat. § 801.58 (1) (2007-08) 5 for support.”

Dep't of Nat. Resources v. Wisconsin Court of Appeals, Dist. IV, 909 N.W.2d 114 (Wis. 2018). · cites it 4× “2d at 721 (holding that Wis. Stat. § 801.58 (7) applies in a ch. 227 judicial review; also applying Wis.”

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— Wis. Stat. § 801.58(1) — 28 cases

State v. Tavodess Matthews, 2021 WI 42 (Wis. 2021). “This case is about whether Tavodess Matthews timely requested a judicial substitution under Wis. Stat. § 801.58 (1) (2019-20).1 Section 801.”

DeWitt Ross & Stevens, S.C. v. Galaxy Gaming & Racing Ltd. P'ship, 2003 WI App 190 (Wis. Ct. App. 2003). “Whether or not a party is entitled to a substitution of judge under Wis. Stat. § 801.58 (1) and (3) presents an issue of statutory interpretation, which we review de novo.”

State Ex Rel. Serocki v. Circuit Court for Clark Cnty., 471 N.W.2d 49 (Wis. 1991).

State Ex Rel. Tarney v. McCormack, 298 N.W.2d 552 (Wis. 1980). “This is a review of the court of appeals' denial of a petition for issuance of a supervisory writ [1] to compel the appropriate officials *222 of the circuit courts for Milwaukee county to honor petitioner's request for substitution of a judge pursuant to sec. 801.58, Stats. We…”

Portage Cnty. v. J.W.K. (In Re Mental Commitment of J.W.K.), 927 N.W.2d 509 (Wis. 2019). “We concluded a recommitment hearing was "a continuation of the original commitment proceeding and previous *694 recommitment hearings" in the context of the substitution request under Wis. Stat. § 801.58 (1) (1989-90). Serocki , 163 Wis.”

— Wis. Stat. § 801.58(2) — 18 cases

State Ex Rel. Mentek v. Schwarz, 2000 WI App 96 (Wis. Ct. App. 2000).

City of La Crosse v. Jiracek Cos., Inc., 329 N.W.2d 441 (Wis. Ct. App. 1982).

In Matter of Civil Contempt of Kroll, 304 N.W.2d 175 (Wis. Ct. App. 1981). “It is clear from a reading of Pure Milk Products that rare will be the case where a civil matter proceeds to trial or final hearing within the time limits, so as to allow a party to personally appear before the court with a timely substitution.”

State Ex Rel. Oman v. Hunkins, 352 N.W.2d 220 (Wis. Ct. App. 1984).

State Ex Rel. Mentek v. Schwarz, 2001 WI 32 (Wis. 2001).

— Wis. Stat. § 801.58(2m) — 2 cases

v. Evans, 917 N.W.2d 218 (Wis. Ct. App. 2018).

Christina Tietz v. Ryan Tietz (Wis. Ct. App. 2025).

— Wis. Stat. § 801.58(3) — 5 cases

State Ex Rel. Carkel, Inc. v. Circuit Court for Lincoln Cnty., 414 N.W.2d 640 (Wis. 1987).

State Ex Rel. Cincinnati Ins. v. Circuit Court for Milwaukee Cnty., 2003 WI 57 (Wis. 2003).

In re Disciplinary Proceedings Against Marcus, 295 N.W.2d 752 (Wis. 1980).

State Ex Rel. Julie Ab v. Circuit Court of Sheboygan, 2002 WI App 220 (Wis. Ct. App. 2002).

— Wis. Stat. § 801.58(5) — 2 cases

State ex rel. Sielen v. Circuit Court for Milwaukee Cnty., 499 N.W.2d 657 (Wis. 1993).

ST. EX REL. SIELEN v. Milwaukee Cir. Ct., 499 N.W.2d 657 (Wis. 1993).

— Wis. Stat. § 801.58(6)(b) — 1 case

State v. Williams, 601 N.W.2d 838 (Wis. Ct. App. 1999).

— Wis. Stat. § 801.58(7) — 23 cases

State Ex Rel. Town of Delavan v. Circuit Court for Walworth Cnty., 482 N.W.2d 899 (Wis. 1992). “58(7) does not afford the town the right to a substitution of judge. The town's petition to the court of appeals stated that the town had requested Chief Judge Simanek to review Judge Carlson's decision but that no decision had been received and that the town had contacted the…”

State Ex Rel. Oman v. Hunkins, 352 N.W.2d 220 (Wis. Ct. App. 1984).

State Ex Rel. Ondrasek v. Circuit Court for Calumet Cnty., 394 N.W.2d 912 (Wis. Ct. App. 1986).

State ex rel. J. H. Findorff & Son, Inc. v. Circuit Court for Milwaukee Cnty., 2000 WI 30 (Wis. 2000). “Upon remand, Findorff moved to substitute Judge Haese under Wis. Stat. § 801.58 (7X1995-96). 3 *435 Judge Haese granted the request, and the case was temporarily reassigned to Judge Lee E.”

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