Vol. 83, No. 8, August 2010
There are more than 250 municipal courts in towns, villages, and cities throughout Wisconsin. All but two courts are part-time, and the judges in nearly half are nonattorneys. Courts in some jurisdictions dispose of fewer than 60 cases per year. In the city of Milwaukee, by contrast, three full-time judges disposed of more than 169,000 cases in 2008. It is a diverse court system. To achieve a measure of uniformity and to enhance independence and professionalism in the courts, the Wisconsin Legislature passed 2009 Wisconsin Act 402. This comprehensive revision of Wis. Stat. chapters 755 and 800 was signed by Gov. Doyle on May 18, 2010, and will take effect on Jan. 1, 2011.
This article reviews the major changes made by the Act. Attorneys who practice in these courts and counsel who advise municipal governments should be aware of the significant ways in which court operations will differ after Jan. 1.
Independence of the Courts
Chapter 755 empowers municipalities to create municipal courts. Two or more municipalities can combine resources to create a joint court, and there are 45 such courts now. Concerns have arisen from time to time over the independence of municipal courts. Judges are not present much of the time, and clerks hired to work in a court may also work for other municipal departments, like the police department. Courtroom facilities and work space for the clerk often are shared with other departments or are located close to those same departments, offices, and facilities. The court phone number is sometimes answered by the police dispatcher. Confusion can arise in the minds of the public about law enforcement officers’ role in the adjudication process.
Act 402 addresses these issues in several ways, beginning with the following clear declaration: “A municipal court created under this section is a coequal branch of the municipal government, subject to the superintending authority of the supreme court, through the chief judge of the judicial administrative district.”1 This states the obvious. It makes clear the general concept that the courts’ independence is to be observed by the other branches. It also clarifies that the Wisconsin Supreme Court, acting through the state’s 10 chief judges, has a direct role in regulating municipal court operations. This is reflected in a requirement that before a newly created court can begin operations, the municipality will have to first notify the director of state courts and receive a certification from the chief judge that the court meets standards for court operation created by the Act. This will allow the municipality and the office of state courts to work together to make certain that a new court has the minimum requisites to earn the public’s confidence that it will function fairly, independently, and efficiently.
The term separation of powers is given real meaning by the Act. The annual budget for a court’s operations can no longer be merged with that of other municipal departments but must instead be set forth separately or at least as a separate line item.2 The court must be given a telephone number or extension separate from that of any other governmental department,3 and the municipality must provide a courtroom and clerk work space that are separated from the police department “by design or signage.”4 This latter requirement will not mandate the construction of separate buildings or even separate rooms to house court operations but will simply call for commonsense measures that assure the public that the court is not part of the police department.
Another change that will promote independence is the increase in the length of the term of office for many judges. Currently, a municipality can by ordinance set the judge’s term at two, three, or four years. Nearly two-thirds of the state’s municipal judges now have two-year terms. By contrast, circuit court judges serve six-year terms. Under the Act, all municipal-judge terms will be set at four years unless a municipality reduces it to two or three years through the more difficult charter-amendment process.5 Setting four-year terms will offer some protection against the loss of independence that can occur when judges face election at frequent intervals.
Judges will be able to determine the hours of operation for the courts over which they preside, although they will have to obtain the municipality’s approval so as to harmonize their decision with budget limitations.6 If a municipality is considering a new electronic-records-management system that will affect the court, the presiding judge will have to approve the system, so as to avoid imposition of a system that does not work properly with court operations.7
In a significant change that will further a judge’s control of his or her court, “the hiring, termination, hours of employment, and work responsibilities of the court personnel, when working during hours assigned to the court,” are placed squarely under the judge’s authority.8 This provision will eliminate the uncertainty that exists now when a court clerk serves two masters: the judge and another department head, often the police chief. The amendment balances the interests of the courts, municipal governments, and unions. Municipalities will be able to work out accommodations using job descriptions or memoranda of understanding, which can spell out how decisions are made on matters like approving vacation time and determining the hours to be spent working in each area.
Professional Standards for the Courts
The changes brought by Act 402 include provisions that set certain minimal standards for the first time. To begin with, the municipality will have to provide a court clerk.9 This will eliminate the obvious shortcoming in several of the state’s smaller courts, in which currently the judge is required to handle all the court’s administrative functions. Similarly, the municipality will be required to be represented at trial by a prosecuting attorney.10 The current law does not require this and some courts do not now have a prosecuting attorney, which puts the judge in the untenable position of overseeing the prosecution’s case. This requirement will not affect many courts, but for those that will have a trial prosecutor for the first time, the change is long overdue.
Municipal courts often operate in a less formal environment than do the circuit courts, but the authors of Act 402 sought to establish some comparable standards. One is that the judge must be provided with an office or appropriate work space.11 This will not require a separate room. It is simply designed to ensure that the judge has a designated area in which to store items and conduct out-of-court business. Another is that the judge must wear a black robe while presiding in court “except where exceptional circumstances exist.”12 This makes statutory a requirement now contained in the Supreme Court Rules.13 The Act also addresses clerks’ attire. As mentioned earlier, many clerks also work for police departments. Some have worn police department uniforms while performing work for judges, even when in the courtroom. That will no longer be permitted.14
Municipal court clerks take on a great deal of responsibility because, in most courts, they spend far more time at the court than do the part-time judges. Training to prepare the clerks for this responsibility is provided by the office of state courts as part of an annual two-day seminar.15 Until now, attendance has been voluntary. After Jan. 1, training will be mandatory and will be subject to rules to be adopted by the supreme court.16 Judges are already subject to an annual continuing education requirement.
Act 402 also addresses varied practices that exist on keeping court records. In some municipalities, court records are kept in a storage area along with records from other departments, and access to them is unrestricted. After Jan. 1, court records must be kept in the clerk’s office or another appropriate space where access can be restricted to court personnel, other persons authorized by law, or the judge.17 The requirement could be met by something as simple as a locked file cabinet. This should protect the integrity of the records and ensure the required confidentiality of juvenile records.
Workable Procedures for Court Operations
Huge challenges exist in establishing procedures that will work as well in the part-time court in the village of Boyceville (pop. 1,088) as in the full-time court in the city of Madison (pop. 226,650). With this in mind, the authors of Act 402 set out to harmonize, simplify, and modernize the provisions of chapter 800 so that the courts can meet their goal of quick and efficient adjudications.
A major change will allow a municipal court to acquire jurisdiction over a defendant when the citation or summons and complaint are served by first-class mail. Current law allows mailed service, within the state borders, but prohibits a judge from taking a default judgment if the defendant fails to appear. This prohibition results in dismissals or warrants to obtain the defendant’s appearance. Act 402 will permit default judgments. However, as a concession to the fact that the defendant might not have actually received the document, the judge will not be able to enforce the judgment through a warrant or license suspension but will instead have to rely solely on collection procedures like intercept of a state tax refund.18 This compromise will strike a proper balance between the courts’ needs and defendants’ rights. The Act permits judges who disfavor default judgments to specify in the citation or complaint that an appearance is mandatory.19
Municipalities will continue to be able to amend a citation or complaint before the initial appearance. A copy of the amended pleading will have to be delivered to the defendant.20 A judge will have the right to amend the charge at trial to conform to the evidence but must allow both parties to present evidence with respect to the amended charge.21
James A. Gramling Jr., U.W. 1971, was a municipal judge in Milwaukee for 21 years, retiring in 2007. He chaired a committee of the Wisconsin Municipal Judges Association, which began work on the legislation in May 2006 with other stakeholders and legislative sponsors to develop the final bill. He currently is a volunteer attorney at the Center for Driver’s License Recovery and Employability in Milwaukee. The author thanks Dane County Court Commissioner Todd Meurer for his contributions to this article.
The Act places an important restriction on judges’ ability to jail defendants pending court appearances. When a judge orders an appearing defendant into custody pending trial after determining there is a reasonable possibility the defendant will not appear, or when a defendant is taken into custody on a warrant issued after a failure to appear in court, the judge will be limited to holding the defendant for no more than 48 hours.22 Current law allows the court to hold the person until the date of trial or until the person can be brought before the judge.
Significant changes are being made to the procedures applicable when judges are unable to act. If there is a recusal or substitution request, the new judge will determine in which court’s location the action will be heard; also, the parties will remain the same, the prosecutor of the transferring court will prosecute in the new court, and any judgment ordered shall be payable to the transferring court.23 These provisions resolve some of the issues left unsettled by the 1997 decision in City of West Allis v. Sheedy.24 If a new judge is assigned to the trial of the case, and the defendant has not already requested a substitution, the defendant is given the right to request a substitution on the new judge.25 If a municipal judgeship is vacant or the judge is temporarily absent, the chief judge of the judicial administrative district now will be able to appoint a municipal judge from anywhere in the state to sit on a temporary basis.26
Municipal judges currently have the authority to appoint guardians ad litem (GALs) when they have reason to believe a defendant is mentally incompetent. Three important changes have been made in this area. First, social workers certified or licensed under chapter 457 will be able to perform the functions of GALs. Second, the test for appointment will become whether a defendant “lacks substantial mental capacity to understand the proceedings or assist in his or her defense.” Third, if the court, with the GAL’s assistance, finds those criteria to exist, the judge will be required to suspend the proceedings.27
Defendants seeking pretrial discovery will no longer have to show cause for their request, so long as they make a demand within 30 days of the initial appearance. They will be able to seek discovery at other times but they will then be required to show cause.28
Current law provides for limited telephone and audiovisual appearances. Beginning Jan. 1, a party, witness, or interpreter will be able to appear by such means at any proceeding if the parties stipulate and the court approves, or if the judge finds good cause after considering the factors set forth at Wis. Stat. section 807.13(2)(c).29
The standard of proof for a conviction currently is evidence that is clear, satisfactory, and convincing. The Act more specifically requires evidence “that is clear, is satisfactory, and convinces the judge to a reasonable certainty.”30
Conduct constituting contempt of court is redefined in the Act to include 1) misconduct in the presence of the court that interferes with the court proceeding or the administration of justice or that impairs the respect due the court, and 2) refusal of a witness to appear without reasonable excuse.31 Forfeitures are increased to up to $200 for both categories, and for the first category, a judge can impose a jail sentence of up to seven days.
Act 402 requires courts to consider a defendant’s poverty in certain circumstances. These include notice to appearing defendants that they can request alternatives to payment; the duty to determine whether a defendant who appears and is convicted is unable to pay because of poverty; the duty to consider requiring community service in lieu of payment of judgment when poverty is determined; and the ability of defendants seeking an appeal to petition for waiver of the bond or appeal, transcript, or jury fees.32
Upon finding a defendant guilty, judges currently can, in limited types of cases, order restitution pursuant to Wis. Stat. section 800.093. The Act expands the cases in which restitution can be ordered to include all nontraffic cases and operating-while-intoxicated-related violations.33 The maximum amount of restitution will be pegged to the maximum small-claims-court amount.
When a judge orders suspension of a defendant’s driving privileges as a consequence of failure to pay a forfeiture, the judge will have the discretion to order concurrent or consecutive suspensions. Under the new law, repeat suspensions cannot be ordered on the same judgment, judgments can continue to be collected by other means at the end of the suspension period, and the total suspension time ordered on any one judgment cannot exceed two years.34
Under the new law, when the judge orders incarceration as a consequence of failure to pay a forfeiture or perform community service, the defendant may not be jailed unless the judge makes a finding that the defendant has the ability to pay within a reasonable period of time, has failed without good cause to perform community service, has failed to attend an indigency hearing, or has failed without good cause to complete an assessment or treatment program related to alcohol or drugs.35 A defendant may request a review of any such finding at any time before incarceration.36 Defendants will receive a credit against their forfeiture of at least $50 per day of imprisonment, up from the current $25 per day.
The Act gives judges the authority to compel payment of the judgment through a wage assignment.37 Prosecutors will have the ability to request the reopening of judgments. The grounds will be limited to those spelled out in Wis. Stat. section 806.07(1)(c), (d), (g), or (h), for example, the judgment being void or procured by fraud.38
The Act makes clear that appeals to circuit court can be taken from decisions on motions to reopen and determinations with respect to inability to pay because of poverty as well as from judgments,39 and it forecloses the possibility of appealing from a default judgment.
The creation and passage of Act 402 resulted from the dedicated work of many judges, court clerks, court administrators, and state court employees, as well as the leadership of the sponsors in the Legislature, Sen. Lena Taylor and Reps. Donna Seidel and Joe Parisi. The changes Act 402 will bring offer the public assurance that this important part of the state’s justice system will operate with independence, professionalism, and efficiency.