Opinion
September 16, 1949. —
October 11, 1949.
ORDER TO SHOW CAUSE why a writ of prohibition should not issue requiring the Honorable ALVIN C. REIS, one of the judges of the circuit court for Dane county, to refrain from ruling on a motion to suppress an adverse examination. Application denied.
Kersten McKinnon of Milwaukee, for the petitioner.
The Attorney General, Stewart G. Honeck, deputy attorney general, and Robert W. Arthur, district attorney of Dane county, for the respondent state.
Alvin C. Reis, in pro. per.
The action is one to revoke petitioner's license to lobby because of alleged violations of the lobby laws. Before answering to the complaint, petitioner served a notice of adverse examination on the district attorney. At the opening of the hearing on the district attorney's motion to suppress the adverse examination, petitioner filed an affidavit of prejudice. The respondent contends that this affidavit of prejudice merely stated that affiant had reason to believe he could not have a fair trial before respondent. It did not contain a statement that he did believe that he could not have a fair trial before respondent. However, Judge REIS heard the motion pending before him on the suppression of the adverse examination. On June 30, 1949, an amended final order was issued by the circuit court suppressing the adverse examination. On July 6, 1949, the supreme court issued this order to show cause why a writ of prohibition should not be granted to prevent Judge REIS from ignoring the affidavit of prejudice and ruling on the motion to suppress the adverse examination.
The affidavit of prejudice was clearly defective. Therefore, at the time of entering the order to suppress the adverse examination, the court, as then constituted with the Hon. ALVIN C. REIS presiding, had jurisdiction to rule upon the matter. There was no valid and effective objection to the venue then laid.
With reference to the point attempted to be made that the judge disqualified himself by accepting petitioner's objectionable affidavit, it appears that the jurisdiction to rule upon the motion was not affected by anything then occurring. He said, "the court will accept Senator Murray's statement that he cannot have a fair trial before me, but the court considers that the affidavit is not going to block me out from ruling on this preliminary question of law upon which my ruling cannot hurt the defendant whatsoever, even if it is against him, because it is a ruling on a question of law and I cannot, legally, be any more prejudiced on a question of law than can any judge in Wisconsin and, if I am wrong, the ruling is thoroughly reviewable before the supreme court of Wisconsin and its seven justices."
By the Court. — Application denied.