(concurring). I agree with the opinion of the court, but state that I am opposed to the liberal substitution procedures set out in sec. 801.58, Stats., and its criminal counterpart, sec. 971.20, Stats.1 These stat*237utes grant an absolute right (assuming the request is timely made and in proper form) to have at least one substitution of the assigned judge and this right is fre*238quently abused in that it is all too often invoked because the litigant’s attorney does not approve of the assigned judge, or if the attorney is unprepared and expects that the substitution process will accomplish another delay. This type of substitution practice is a dilatory tactic that causes a great deal of expense and inconvenience to litigants, to witnesses, as well as the taxpayers who foot the bill for court administration. In the past two years, a study conducted by the Resource Planning Corporation of Washington, D. C. (RPC) at the request of the Wisconsin Judicial Planning Committee determined that one of the major causes of delay in the Wisconsin trial court system is its “unique and extremely liberal” substitution practice delineated in secs. 801.58 and 971.20, Stats.2 *239As a result of this investigation, the PRC recommended that the delay occasioned by the present substitution procedures would be eliminated by abandoning the concept of judicial substitution as a matter of right and a return to the method of disqualifying judges only for cause, a procedure similar in nature to that employed in federal courts3 and formerly used in Wisconsin. Speeifical*240ly, the RPC recommended that: (1) litigants should be allowed to disqualify the assigned judge only upon the filing of an affidavit of prejudice with a judge other than the judge named in the affidavit in which the movant would be required to show cause, and (2) “judges should be under an affirmative duty to disqualify themselves in cases in which they have an interest, have formed an opinion or predisposition of the facts, or are related to the parties professionally or by consanguinity or affinity.”4
The legislature should consider redrafting the procedures for substitutions by affidavits of prejudice (substitution of judges) and allow for the affidavit of prejudice only after a showing of due cause. This change, in addition to the taxing of costs against a party who filed an affidavit of prejudice but was unable to prove cause to replace the presiding judge, would be a major step toward eliminating judge shopping and case processing delay in our overburdened court system.
Some thought has been given to limiting the substitution of judge to only one per case. It should be pointed out, however, that the filing of an affidavit of prejudice (now known as request for substitution of judge) when allowed as a matter of right causes more serious problems in a case where there are multi-party litigants not united in interest. A serious constitutional question arises if one litigant is granted a right to file an affidavit of prejudice to remove a judge from the case and others similarly situated are not accorded the same right against the successor judge.
Sec. 971.20, Stats., provides:
“Substitution of judge. (1) The defendant or the defendant’s attorney 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. The request shall be signed by the defendant or the defendant’s *237attorney personally and shall be made before making any motion or before arraignment. 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.
“ (2) Upon the filing of the request in proper form and within the proper time the judge named in the request has no authority to act further in the case except to conduct the initial appearance, accept pleas of not guilty, and set bail. Except as provided in subs. (7) and (8), no more than one judge may be substituted in any action.
“(3) In addition to the procedure under sub. (1), 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.
“(4) When a judge is substituted under this section, the clerk of circuit court shall request assignment of another judge under s. 751.03.
“(7) If the judge who heard the preliminary examination is the same judge who is assigned to the trial of that case, the defendant or the defendant’s attorney may file a request under sub. (1) within 7 days after the preliminary examination or at the time of the arraignment, whichever occurs first, and still retain the right for one additional request under sub. (1).
“(8) 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 in a manner such that further proceedings in the trial court are necessary, the defendant or the defendant’s attorney may file a request under sub. (1) within 20 days after the entry of the judgment or decision of the appellate court whether or not another request was filed prior to the time the appeal or writ of error was taken.”
See: Wisconsin Case Processing Study Final Report, July 1, 1978 at pp. 4-7, 4-8 (hereinafter referred to as Final Report). In this study the RPC concluded as follows:
“4.5 Eliminate Judicial Substitution as a Matter of Bight
“The Rules of Civil Procedure and the Criminal Procedure Code presently allow each party to an action to request and receive substitution of a new judge for the judge assigned to the case. As of July 1, 1978, the request in civil actions may be filed as late as 60 days after the party was served with a summons and complaint.
“No justification for these provisions can be found; in fact, the comment to the criminal substitution provision states only that affidavits of prejudice were used primarily as tactical devices, and therefore the substitution terminology is more accurate. This argument implies that since substitution was being abused and used primarily as a tactical device, it was accepted and institutionalized in the form of the current statutory provisions on substitution. Although data are not available on the substitution policies or the rates of judicial substitution in other states, in the experience of the consultants, Wisconsin’s substitution procedures are unique and extremely liberal.
“Substitution has a negative impact on the appearance of justice and on timely disposition of eases. The ease processing date presented in Chapter 3.0 documents delay in the courts. Though no data were collected on the frequency of substitutions, judges’ replies to questionnaires and interviews indicated a perception that substitution was indeed a major cause of delay. *239“The judge assigned to a case has little impetus to become involved in its early stages if a substitution request might ultimately be filed. After a request is filed, assignment of a new judge might take several weeks. In fact, consultant teams noted that in some instances substitution of a judge required over two months to perfect. This not only delays the case at hand, but also adversely impacts the newly assigned judge’s calendar. In addition, judges mentioned that substitution is a much abused process, used as a delaying tactic by attorneys with the expectation that the process will consume a significant amount of time.
“Moreover, elimination of the right to judicial substitution would allow the trial judiciary greater latitude in caseflow management. The present substitution provision is, in fact, an implicit statutory prohibition against master calendars. We do not believe that either a master or an individual calendaring system is inherently better than the other, but do believe that the judges at the local level should have the greatest possible discretion in the development of procedural policy for their courts.
“Judges should he under an affirmative duty to disqualify themselves in cases in which they have an interest, have formed an opinion or predisposition of the facts, or are related to the parties professionally or by consanguinity or affinity. This, combined with a return to the affidavit of prejudice, should alleviate delay caused by substitution.
' “It should be noted the recommendation to reinstitute the affidavit of prejudice is contingent upon two conditions. A party bringing a motion for disqualification based on prejudice should be required to show cause, and the motion should be reviewed, heard, and decided by a judge other than the judge named in the affidavit.
“Obviously, nothing in these recommendations infringes on a party’s right to appeal a decision in which the record reflects prejudicial conduct on the part of the trial judge.”
See: 28 U.S.C. §§144 and 455 (1979) and Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction §§3542 and 3551 (1975).
Final Report-, supra, n. 2 at 4-8.