(concurring). I concur in the majority opinion because, given the present substitution statutes, it reaches the only result possible. However, I am compelled to express my serious reservations about the utility of Wisconsin’s liberal substitution rule, particularly as it concerns the criminal process.
We have made great strides in streamlining the criminal process to secure the speedy disposition of criminal cases. Unfortunately, the flood of substitutions secured “of right” often frustrates the goal of prompt disposition without adding materially to the basic fairness of the procedure. It is fundamental that criminal defendants are entitled to an impartial trial judge as a part of their right to a fair trial. There will always be instances where a defendant has reason to believe a fair trial cannot be obtained before a particular judge, and in those instances substitutions for cause, based upon articulable reasons, should be permitted. But the wholesale substitution now possible without any showing whatsoever on the part of the defendant only opens the door to dilatory tactics, judge shopping and their inevitable consequence, excessive delay in the criminal justice system. Indeed the current practice may well constitute more of an expression of the personal preferences of counsel than of the legitimate interests of their clients.
Prior to the enactment of our current substitution statutes, a party could secure the substitution of a judge only upon a showing of some cause or reason to believe the judge would not be impartial. See: Secs 956.03, 261.08, Stats. 1967. This is also the procedure currently *739followed in the federal courts. See: 28 U.S.C. Sec. 144 (1976). While it may be true that even the affidavit of prejudice is susceptible to abuse, particularly if treated as pro forma by the courts, nonetheless it offers a mechanism to stem the tide of tactical substitutions attempted for purposes other than securing a fair trial yet still to give effect to truly meritorious challenges. Moreover, parties always have the right to appeal on the ground of trial court prejudice.
The legislature has before it several bills dealing with this subject. One, AB 218, eliminates altogether substitution as of right, and another, SB 163, limits substitution to one per case. Without expressing a preference for either of these bills, I strongly urge legislative action in this area. Litigants’ interests in a fair trial can be protected by less time-consuming and costly means, and we cannot and should not countenance a procedure which can stall the court system on the whim of defense counsel or the hope of a better deal before another judge. If the right to substitute a judge is linked to some demonstrable manifestation of judicial prejudice, parties with legitimate reasons to seek substitution will have a remedy, and the public’s interest in the efficient administration of justice will not be sacrificed.
I am hereby authorized to state that Justice John L. Coffey joins in this concurring opinion.