Wisconsin Lawyer
Vol. 78, No. 2, Febuary 2005

Supreme Court Orders

• Composition of Judicial Branch Planning and Advisory Committee
• Lawyer Regulatory System
• Petitions for Supreme Court Review
• Lawyer Regulation System District Committees

Composition of Judicial Branch Planning and Advisory Committee

In the matter of the Amendment of Supreme Court Rule 70.14(1)

Order 04-04

On Oct. 27, 2004, the court held a public hearing on the petition filed May 11, 2004, by the Wisconsin Association of Judicial Court Commissioners and the Wisconsin Family Court Commissioner Association seeking to amend Supreme Court Rule 70.14(1) to appoint one commissioner from each petitioning organization to serve on the Planning and Policy Advisory (PPAC) Committee. At the ensuing open administrative conference, the court adopted the petition, in part, voting to approve the addition of a single court commissioner to PPAC.

IT IS ORDERED that, effective the date of this order, Supreme Court Rule 70.14 is amended as follows:

70.14(1)(k) of the Supreme Court Rules is created to read:

SCR 70.14(1)(k) One circuit court commissioner, who shall be selected for a three-year team, the selection to be made alternately, first by the Wisconsin Family Court Commissioners Association, then by the Wisconsin Association of Judicial Court Commissioners.

IT IS FURTHER ORDERED that the initial term shall commence effective the date of this order, and shall expire on June 30, 2008. Thereafter, the terms shall commence on July 1 and expire on June 30.

IT IS FURTHER ORDERED that notice of this amendment of SCR 70.14 be given by a single publication of a copy of this order in the official state newspaper and in an official publication of the State Bar of Wisconsin.

Dated at Madison, Wis., this 9th day of December, 2004.

By the court:

Cornelia G. Clark, Clerk of Supreme Court

Lawyer Regulatory System

In the matter of the Petition for Amendment to Supreme Court Chapter 22 - Procedures for the Lawyer Regulatory System

Order 04-06

On Nov. 16, 2004, the court held a public hearing on the petition filed June 17, 2004, by the Office of Lawyer Regulation (OLR), seeking to amend Supreme Court Rules 22.11, 22.20, and 22.21 relating to procedures for the lawyer regulation system. At the ensuing open administrative conference the court unanimously adopted the petition with certain modifications.

IT IS ORDERED that, effective Feb. 1, 2005, Supreme Court Rules 22.11, 22.20, and 22.21 are amended as follows:

Section 1. 22.11(2) of the Supreme Court Rules is amended to read:

SCR 22.11(2) The complaint shall set forth only those facts and misconduct allegations for which the preliminary review panel determined there was cause to proceed and may set forth the discipline or other disposition sought. Facts and misconduct allegations arising under SCR 22.20 and SCR 22.22 may be set forth in a complaint without a preliminary review panel finding of cause to proceed.

Section 2. 22.20(6) of the Supreme Court Rules is created to read:

SCR 22.20(6) Filing of complaint. The director, or special investigator acting under SCR 22.25, shall file the complaint in the disciplinary proceeding within 2 months of the effective date of the summary suspension or shall show cause why the summary suspension should continue. The respondent attorney may file a response with the supreme court within 10 days of service. Reinstatement under this section does not terminate any misconduct investigation or disciplinary proceeding pending against the attorney.

Section 3. 22.20(7) of the Supreme Court Rules is created to read:

SCR 22.20(7) Filing of referee report. The referee appointed to conduct a hearing on the complaint shall conduct the hearing promptly and file the report required by SCR 22.16 no later than 3 months after the filing of the complaint. In the event the report is not filed within 3 months of the filing of the complaint, the respondent attorney may move the supreme court for reinstatement pending completion of the disciplinary proceeding. Reinstatement under this section does not terminate any misconduct investigation or disciplinary proceeding pending against the attorney.

Section 4. 22.21(3) of the Supreme Court Rules is created to read:

SCR 22.21(3) Filing of complaint. The director, or a special investigator acting under SCR 22.25, shall file the complaint in the disciplinary proceeding within 4 months of the effective date of the temporary suspension imposed under this section, or shall show cause why the temporary suspension should continue. The respondent attorney may file a response with the supreme court within 10 days of service. Reinstatement under this section shall not terminate any misconduct investigation or disciplinary proceeding pending against the attorney.

Section 5. 22.21(4) of the Supreme Court Rules is created to read:

SCR 22.21(4) Filing of referee report. The referee appointed to conduct a hearing on the complaint shall conduct the hearing promptly and file the report required by SCR 22.16 no later than 6 months after the filing of the complaint. If the report is not filed within 6 months of the filing of the complaint, the respondent attorney may move the supreme court for reinstatement pending completion of the disciplinary proceeding. Reinstatement under this section does not terminate any misconduct investigation or disciplinary proceeding pending against the attorney.

IT IS ORDERED that notice of this amendment of Supreme Court Rules 22.11, 22.20, and 22.21 be given by a single publication of a copy of this order in the official state newspaper and in an official publication of the State Bar of Wisconsin.

Dated at Madison, Wis., this 19th day of November, 2004.

By the court:

Cornelia G. Clark, Clerk of Supreme Court

Petitions for Supreme Court Review

In re: Proposed Amendments to Wis. Stat. §§ 809.30, 809.32, and 809.62

Order 04-08

On Sept. 30, 2004, the Wisconsin Judicial Council filed a petition seeking to amend Wis. Stat. §§ 809.30(2)(b), 809.32(4) and 809.62(1) through (7). These statutes concern notice, criteria, and content of petitions for review filed in the Wisconsin Supreme Court.

IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on March 15, 2005, at 9:30 a.m.

IT IS FURTHER ORDERED that the court's conference in the matter shall be held promptly following the public hearing.

IT IS FURTHER ORDERED that notice of the hearing be given by publication of a copy of this order and of the petition in the official state newspaper once each week for three consecutive weeks and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.

Dated at Madison, Wis., this 6th day of December, 2004.

By the court:

Cornelia G. Clark, Clerk of Supreme Court

Petition

The Wisconsin Judicial Council respectfully petitions this Court for an order pursuant to Wis. Stat. § 751.12, adopting these proposed amendments to §§ 809.30, 809.32, and 809.62, Rules of Appellate Procedure. The Judicial Council Appellate Procedure Committee's explanations for the proposed amendments, entitled "Judicial Council Committee Notes" and a discussion of "Matters not addressed in this petition," follow the text of the proposed amendments.

The proposed amendments to Rule 809.62 address concerns first raised by the supreme court in 1993, when it sought amendment of the rules to require identification of all issues that may be presented, whether by the petitioner or the respondent, should it grant a particular petition. The supreme court was concerned about granting a petition raising one discrete issue, only to learn after briefing that the respondent wished to argue unrelated issues in support of the court of appeals' result in its favor. See S. Ct. Order 93-17 (June 7, 1993).

The rule changes proposed by the court in 1993 required a respondent to specify the issues that the respondent sought to have reviewed that were not set forth in the petition for review, prohibited argument in the briefs or at oral argument on issues not set forth in the petition for review or the response unless ordered by the supreme court, and added language consistent with the practice of presenting issues to the supreme court for review when the issues had not been decided by the court of appeals. The objectives of these proposed changes were to inform the supreme court what issues were likely to be dispositive of the case, whether the issues presented were worthy of review, and what other issues might need to be decided in the interest of judicial economy. Public hearings exposed concerns with the proposed changes that could not be overcome. Those concerns included: the changes would force the Department of Justice to file more responses, it was unclear whether it was necessary for a respondent to raise issues in a petition for cross-review, and respondents feared that requiring issues to be raised in a response to the petition would undercut the rule in State v. Holt, 128 Wis. 2d 110, 125 N.W.2d 679 (Ct. App. 1985) (appellate court may sustain a lower court's ruling on a theory or on reasoning not presented to the lower court.). Alternative drafts were submitted to the court by the Department of Justice and the Office of the State Public Defender, but no changes were adopted.

In 1999, the Supreme Court asked the Appellate Practice Section of the State Bar of Wisconsin and the Judicial Council Appellate Procedure Committee to advise whether changes to the rules were necessary to clarify what must be contained in a petition for review and a petition for cross-review to preserve issues for review in the wake of State v. Scheidell, 227 Wis. 2d 285, 595 N.W.2d 661 (1999) (respondent cannot argue issue raised below unless the issue was raised in a petition for cross-review) and, if so, what those changes might be. The court observed that "questions continue to arise concerning whether a respondent must raise an issue by cross-petition to preserve it or may raise it in a brief." The court enclosed copies of its materials from the 1993 rule change petition.

In response to the court's 1999 request, the Appellate Practice Section solicited input from its members on these matters and deferred to the Judicial Council to propose changes to the rules. The Judicial Council committee reviewed the 1993 rule change petition materials forwarded by the court and researched the issues presented. The Judicial Council committee also sought additional input from the Criminal Law Section of the State Bar of Wisconsin and the Wisconsin Association of Criminal Defense Lawyers.

Beginning in 2001, the Council committee created numerous drafts of proposals to address the court's concerns, and others that became apparent. The Council committee cochairs were the Hon. Ted E. Wedemeyer Jr., Court of Appeals, and Attorney Marla J. Stephens, Appellate Division Director for the Wisconsin Public Defender. Committee members included Margaret Carlson, Chief Staff Attorney for the Court of Appeals; Assistant Attorneys General Mary E. Burke, William Gansner, Christopher Wren, and Gregory M. Weber, Wisconsin Department of Justice; First Assistant State Public Defender Joseph N. Ehmann; Attorney Beth Ermatinger Hanan, Gass, Weber, Mullins LLC; and Attorney Robert Henak, Henak Law Office S.C., who was appointed to the committee as a representative of the Wisconsin Association of Criminal Defense Lawyers on an ad hoc basis for this project, and who took the lead in drafting this petition. Although the Council committee was unable to reach consensus on every proposal, this petition has been thoroughly aired and considered, is responsive to this court's request, and represents the committee's best effort.

A. Section 809.30(2)(b) of the statutes is amended to read:

809.30(2)(b) Notice of intent to pursue postconviction or postdisposition relief. Within 20 days after the date of sentencing or final adjudication, the person shall file in circuit court and serve on the prosecutor and any other party a notice of intent to pursue postconviction or postdisposition relief. If the record discloses that sentencing or final adjudication occurred after the notice of intent was filed, the notice shall be treated as filed after sentencing or final adjudication and on the day thereof. The notice shall include all of the following ...

Judicial Council Committee Note to Rule 809.30: The amendment to (2)(b) allows a notice of intent that is filed too early to be deemed filed on the date that a judgment and sentence or other final adjudication is filed. This is consistent with the procedure applicable to civil appeals under Rule 808.04(8).

B. Section 809.32(4) of the statutes is amended to read:

809.32(4) No-merit petition for review. If a fully briefed appeal is taken to the court of appeals and the attorney is of the opinion that a petition for review to the supreme court under s. 809.62 would be frivolous and without any arguable merit, the attorney shall advise the person of the reasons for this opinion and that the person has the right to file a petition for review. If requested by the person, the attorney shall file a petition satisfying the requirements of s. 809.62(2)(d) and (f) and the person shall file a supplemental petition satisfying the requirements of s. 809.62(2)(a), (b), (c) and (e). The petition and supplemental petition shall both be filed within 30 days after the date of the decision or order of the court of appeals. An opposing party may file a response to the petition and supplemental petition as provided in s. 809.62(3) within 14 30 days after the service of the supplemental petition.

Judicial Council Committee Note to Rule 809.32: New content requirements in Rule 809.62 (3) also apply to respondents in the no-merit petition for review context. Consequently, amended Rule 809.32(4) expands the time limit for filing a response to a no-merit petition for review from 14 to 30 days.

C. Section 809.62 (1) of the statutes is amended to read:

809.62. Petition for review

(1) General rule; time limit. A party may file with the supreme court a petition for review of an adverse decision of the court of appeals pursuant to s. 808.10 within 30 days of the date of the decision of the court of appeals.

(1g) Criteria for granting review. Supreme court review is a matter of judicial discretion, not of right, and will be granted only when special and important reasons are presented. The following, while neither controlling nor fully measuring the court's discretion, indicate criteria that will be considered:

(a) A real and significant question of federal or state constitutional law is presented.

(b) The petition for review demonstrates a need for the supreme court to consider establishing, implementing or changing a policy within its authority.

(c) A decision by the supreme court will help develop, clarify or harmonize the law, and

1. The case calls for the application of a new doctrine rather than merely the application of well-settled principles to the factual situation; or

2. The question presented is a novel one, the resolution of which will have statewide impact; or

3. The question presented is not factual in nature but rather is a question of law of the type that is likely to recur unless resolved by the supreme court.

(d) The court of appeals' decision is in conflict with controlling opinions of the United States Supreme Court or the supreme court or other court of appeals' decisions.

(e) The court of appeals' decision is in accord with opinions of the supreme court or the court of appeals but due to the passage of time or changing circumstances, such opinions are ripe for reexamination.

Judicial Council Committee Note to Rule 809.62(1) and (1g): Rules 809.62 (1) and (1g) are former Rule 809.62(1), divided into subsections and subtitled. Subtitles are added throughout Rule 809.62 to help practitioners and parties locate particular provisions.

D. Section 809.62 (1r) of the statutes is created to read:

(1r) Adverse decision defined. As used in this rule, an "adverse decision" is a final order or decision of the court of appeals, the result of which is contrary, in whole or in part, to the result sought in that court by the party seeking review. Where the court of appeals denied or failed to grant the full relief sought by the party, that court's denial of or failure to grant full relief or denial of the preferred form of relief constitutes an adverse decision for purposes of this rule. A party's disagreement with the court of appeals' language or rationale in granting that party's requested relief does not render that court's resolution an adverse decision.

Judicial Council Committee Note to Rule 809.62(1r): New Rule 809.62(1r) addresses confusion regarding when action by the court of appeals may be deemed sufficiently "adverse" to a party's interests to permit a petition for review. This confusion arises from a perceived conflict between the meaning of that term applied in State v. Castillo, 213 Wis. 2d 488, 492, 570 N.W.2d 44 (1997), and that previously stated in Neely v. State, 89 Wis. 2d 755, 757-58, 279 N.W.2d 255 (1979). The definition in s. 809.62(1r) clarifies the matter by codifying the holding in Neely, to the effect that a party cannot seek review of a favorable result merely because of disagreement with the court of appeals' rationale. At the same time, s. 809.62(1r) underscores the fact that a court of appeals decision that is generally favorable to a party remains adverse to that party to the extent that it does not grant the party all the relief requested, i.e., the full relief or the preferred form of relief sought by the party.

As an example, a criminal defendant seeking reversal of his conviction or, if that is not granted, resentencing, would be entitled to seek review of the court of appeals' failure to grant a new trial, even if it did order resentencing. Similarly, a civil appellant challenging a verdict finding liability and, should that be denied, the amount of damages, would be entitled to seek review of the court of appeals' failure to grant a new trial on liability, even if the court of appeals did order reassessment of damages.

E. Section 809.62 (2) of the statutes is amended to read:

(2) Contents of petition. Except as provided in s. 809.32(4), the petition must contain:

(a) A statement of the issues presented for on which the petitioner seeks review, the method or manner of raising the issues in the court of appeals and how the court of appeals decided the issues. The statement of issues must also identify any issues on which the petitioner seeks review that were not decided by the court of appeals. The statement of an issue will be deemed to comprise every subsidiary issue fairly included in it.

(b) A table of contents.

(c) A concise statement of the criteria of sub. (1) (1g) relied upon to support the petition, or in the absence of any of the criteria, a concise statement of other substantial and compelling reasons for review.

(d) A statement of the case containing a description of the nature of the case; the procedural status of the case leading up to the review; the dispositions in the trial circuit court and court of appeals; and a statement of those facts not included in the opinion of the court of appeals relevant to the issues presented for review, with appropriate references citation to the record.

(e) An argument amplifying the reasons relied on to support the petition, arranged in the order of the statement of issues presented. All contentions in support of the petition must be set forth in the petition. A memorandum in support of the petition is not permitted.

(f) An appendix containing, in the following order:

1. The decision and opinion of the court of appeals.

2. The Judgment judgments, orders, findings of fact, conclusions of law and memorandum decisions of the circuit court and administrative agencies necessary for an understanding of the petition.

3. Any other portions of the record necessary for an understanding of the petition.

Judicial Council Committee Note to Rule 809.62(2): Rule 809.62(2)(a) is amended to require the petitioner to identify all issues on which it seeks review, including issues raised in the court of appeals but not decided in the court of appeals. The amendment to Rule 809.62(2)(a) also clarifies that the statement of an issue incorporates all subsidiary issues. This amendment is adapted from the United States Supreme Court's rules. See U.S. Sup. Ct. Rule 14.1(a).

F. Section 809.62 (2m) of the statutes is amended to read:

(2m) Inapplicable to parental consent to abortion cases. Subsection (2) does not apply to a petition for review of an appeal that is governed by s. 809.105. A petition governed by that section shall comply with s. 809.105(11).

G. Section 809.62 (2r) of the statutes is amended to read:

(2r) Application to termination of parental rights cases. This section applies to petitions for review of an appeal under s. 809.107, except as provided in s. 809.107(6)(f).

H. Section 809.62 (3) of the statutes is amended to read:

(3) Response to petition for review. Except as provided in s. 809.32(4), an opposing party may file a response to the petition within 14 30 days after the service of the petition. A response is not mandatory except when ordered by the supreme court. A petition will not be granted unless the opposing party either files a response or fails to comply with an order to file a response. If filed, the response must contain:

(a) any reasons for denying the petition,

(b) any perceived defects that may prevent ruling on the merits of any issue in the petition,

(c) any perceived misstatements of fact or law set forth in the petition that have a bearing on the question of what issues properly would be before the court if the petition were granted,

(d) any alternative ground supporting the court of appeals' result or a result less favorable to the opposing party than that granted by the court of appeals, and

(e) any other issues the court may need to decide if the petition is granted, a statement indicating whether the other issues were raised before the court of appeals, the method or manner of raising the issues in the court of appeals, whether the court of appeals decided the issues, and how the court of appeals decided the issues.

Judicial Council Committee Note to Rule 809.62(3): Rule 809.62(3) is amended to require the respondent to apprise the supreme court, in the response to the petition, of any issues the court may need to decide if it grants review of the issue(s) identified in the petition. This new requirement applies whether or not the court of appeals actually decided the issues to be raised.

The amendments to Rule 809.62(3), consistent with United States Supreme Court rules, require the respondent to identify in its response any perceived misstatements of law or fact, or any defects (such as waiver, mootness, or estoppel) that could prevent the supreme court from reaching the merits of the issue presented in the petition. See U.S. Sup. Ct. Rule 15.2. To ensure that the respondent has sufficient time to comply with these new content requirements, the time for response is expanded from 14 to 30 days.

Rule 809.62(3)(d) addresses the circumstance in which the respondent asserts an alternative ground to defend the court of appeals' ultimate result or outcome, whether or not that ground was raised or ruled upon by the lower courts.

Rule 809.62(3)(d) also addresses the circumstances in which the respondent asserts an alternative ground that would result in a judgment less favorable than that granted by the court of appeals but more favorable to the respondent than might be granted for the petitioner (e.g., remand for a new trial rather than a rendition of judgment for the petitioner). The language is modified from Tex. R. App. P. 53.3(c)(3).

Rule 809.62(3)(d) and (e) are intended to facilitate the supreme court's assessment of the issues presented for review, not to change current law regarding the application of waiver principles to a respondent. See State v. Holt, 128 Wis. 2d 110, 125, 382 N.W.2d 679 (Ct. App. 1985) (An appellate court may sustain a lower court's holding on a theory or on reasoning not presented to the lower court.)

Implicit in these amendments, although not expressly stated as in the federal rule, U.S. Sup. Ct. Rule 15.2, is the understanding that a respondent may be deemed to have waived issues or defects that do not go to jurisdiction if they are not called to the attention of the supreme court in a response to the petition. See Rule 809.62(7). The supreme court retains its inherent authority to disregard any waiver and address the merits of an unpreserved argument or to engage in discretionary review under Wis. Stat. §§ 751.06 or 752.35. See State v. Mikrut, 2004 WI 79, ¶ 38. The possible invocation of waiver for failure to raise such alleged defects in the response will encourage the respondent to inform the supreme court of such defects before the supreme court decides whether to expend scarce judicial resources on the case. See Oklahoma City v. Tuttle, 471 U.S. 808, 815-16 (1985).

A number of other states have rules requiring the respondent to identify other issues it seeks to raise if review is granted, and either expressly or impliedly limiting the issues before the supreme court on a grant of review to those set forth in the petition and response. See Ariz. R. Civ. App. P. 23(e); Cal. App. R. 28(e)(2) & (5); Kan. R.S. & A. Cts. Rule 8.03(g)(1); N.C. R. App. P. 15(d) & 16(a); Or. R. App. P. 9.20(2); Wash. R. App. 13.4(d).

Acknowledging the added workload placed upon respondents by the new content requirements, amended Rule 809.62(3) explicitly recognizes the practice in the United States Supreme Court (and informally followed in the Wisconsin Supreme Court) that a response (entitled a "brief in opposition" or "opposing brief" in United States Supreme Court) is not mandatory unless ordered by the Court. See U.S. Sup. Ct. Rule 15.1. The amended rule also incorporates the practice in those courts that the supreme court will not grant review unless the opposing party first either files a response or fails to comply with an order to provide one.

A leading handbook on United States Supreme Court practice describes the procedure in that Court as follows:

"A respondent may also choose to waive the right to oppose a petition, which seems clearly without merit. This will save time and money, without any substantial risk if respondent feels certain that certiorari will be denied. In order that the waiver will clearly be understood as based upon the lack of merit in the petition, the statement filed with the Court - which may be in the form of a letter to the Clerk - should contain language to this effect: `In view of the fact that the case clearly does not warrant review by this Court [as is shown by the opinion below], respondent waives the right to file a brief in opposition.' The letter may also request leave to file a response to the petition if the Court wishes to see one. This will seldom be necessary, since if the respondent has not filed a response, or has affirmatively waived the right to file, and if the Court believes that the petition may have some merit, the respondent will usually be requested to file a response - usually within 30 days from the request.

"In recent years, in order to expedite the filing of responses in the more meritorious cases, the Solicitor General has waived the right to file opposition briefs in many cases deemed to be frivolous or insubstantial. States often do the same thing, especially in criminal cases. Such waivers should be filed promptly, in order to speed up the distribution of the petition and the disposition of the case. Usually such petitions are denied, even though the Court may call for a response if any of the Justices so request."

Stern, R., et al., Supreme Court Practice § 6.37 at 374-75 (7th ed. 1993) (footnote omitted).

I. Section 809.62 (3m) of the statutes is created to read:

(7) (3m) Petition for Cross-Review. (a) When required; time limit. A party who seeks a modification of to reverse, vacate or modify an adverse decision of the court of appeals may shall file a petition for cross-review within the period for filing a petition for review with the supreme court, or 30 days after the filing of a petition for review by another party, whichever is later.

(b) When not necessary.

1. A petition for cross-review is not necessary to enable an opposing party to defend the court of appeals' ultimate result or outcome based on any ground, whether or not that ground was ruled upon by the lower courts, as long as the supreme court's acceptance of that ground would not change the result or outcome below.

2. A petition for cross-review is not necessary to enable an opposing party to assert grounds that establish the party's right to a result that is less favorable to it than the result or outcome rendered by the court of appeals but more favorable to it than the result or outcome that might be awarded to the petitioner.

(c) Rights and obligations of parties. A party seeking cross-review has the same rights and obligations as a party seeking review under ch. 809, and any party opposing a petition for cross-review has the same rights and obligations as a party opposing review.

Judicial Council Committee Note to Rule 809.62(3m): Rule 809.62(3m) is former Rule 809.62(7) renumbered and amended. The requirements governing petitions for cross-review fit more logically after the requirements for the petition and the response, contained in Rules 809.62(2) and (3).

Amended Rule 809.62(3m)(a) replaces the permissive "may" with the mandatory "shall" to clarify that a petition for cross-review is mandatory if the respondent seeks to reverse, vacate, or modify an adverse decision of the court of appeals.

Amended Rule 809.62(3m) also clarifies when a respondent must raise an issue in a petition for cross-review, rather than raising the issue in a response to the petition or merely arguing it in the brief. Compare State v. Scheidell, 227 Wis. 2d 285, 288 n.1, 595 N.W.2d 661 (1999) (respondent cannot argue issue raised below unless the issue was raised in a petition for cross-review), with, e.g., In the Interest of Jamie L., 172 Wis. 2d 218, 232-33, 493 N.W.2d 56 (1992) (noting "general rule" that a petition for cross-review is not necessary to defend a judgment on any ground previously raised). Complicating these matters are holdings that a party may not petition for review (or cross-review) if it receives a favorable outcome from the court of appeals, State v. Castillo, 213 Wis. 2d 488, 492, 570 N.W.2d 44 (1997), and generalized confusion over whether something is a separate "issue" or merely another "argument" supporting a party's position on a single issue. Compare, for instance, the majority and dissenting opinions in State v. Weber, 164 Wis. 2d 788, 476 N.W.2d 867 (1991), originally reported at 163 Wis. 2d 116, 471 N.W.2d 187 (1991).

Rule 809.62(3m)(b) resolves the tension between Scheidell and Jamie L. by clarifying that a respondent need not file a petition for cross-review to raise alternative issues or grounds in support of either (1) the court of appeals' ultimate result or (2) a judgment less favorable than that granted by the court of appeals but more favorable to the respondent than might be granted for the petitioner. Any such alternative grounds for affirmance or lesser relief should, however, be identified in the response, see Rules 809.62(3)(d), (3)(e) and (7), and the failure to do so may be deemed a waiver.

Amended Rule 809.62(3m)(c) clarifies that a party opposing a petition for cross-review has the same rights and obligations as a respondent under Rule 809.62(3).

J. Section 809.62 (4) of the statutes is amended to read:

(4) Form and length requirements. The petition for review and response, if any, shall conform to s. 809.19(8)(b) and (d) as to form and certification, shall be as short as possible, and may not exceed 35 pages in length if a monospaced font is used or 8,000 words if a proportional serif font is used, exclusive of appendix. The petition for review and the response shall have a white cover and a party shall file 10 copies with the clerk of the supreme court.

K. Section 809.62 (5) of the statutes is created to read:

(5) Combined Response and Petition for Cross-Review. When a party elects both to submit a response to the petition for review and to seek cross-review, its submission shall be titled "Combined Response and Petition for Cross-Review." The time limits set forth in sub. (3m) shall apply. The response portion of the combined document shall comply with the requirements of subs. (3) and (4). The cross-review portion of the combined document shall comply with the requirements of subs. (2) and (4), except that the requirement of sub. (2)(d) may be omitted. The cross-review portion shall be preceded by a blank white cover. A signature shall be required only at the conclusion of the cross-review portion of the combined document.

Judicial Council Committee Note to Rule 809.62(5): New Rule 809.62(5) is created to permit a combined document when a party elects both to respond to the petition for review and to submit a petition for cross-review. The content and format requirements of the combined document are similar to the requirements for a combined brief of respondent and cross-appellant found in s. 809.19(6)(b)2.

L. Section 809.62 (6) of the statutes is created to read:

(5) (6) Effect on court of appeals proceedings. Except as provided in s. 809.24, the filing of the petition stays further proceedings in the court of appeals.

Judicial Council Committee Note to Rule 809.62(6): Rule 809.62(6) is former Rule 809.62(5) renumbered.

M. Section 809.62 (7) of the statutes is created to read:

(6) (7) Conditions of grant of review. The supreme court may grant the petition or the petition for cross-review or both upon such conditions as it considers appropriate, including the filing of additional briefs. If the a petition is granted, the petitioner parties cannot raise or argue issues not set forth in the petition or response unless ordered otherwise by the supreme court. The supreme court may limit the issues to be considered on review. If the issues to be considered on review are limited by the supreme court and do not include an issue that was identified in a petition or a response and that was left undecided by the court of appeals, the supreme court shall remand that issue to the court of appeals upon remittitur, unless that issue has become moot.

Judicial Council Committee Note to Rule 809.62(7): Rule 809.62(7) is former Rule 809.62(6) renumbered and amended. The last sentence is new and is intended to preserve, for review by the court of appeals following remand, any issue raised at the court of appeals but not decided by that court or by the supreme court on review. For instance, after a civil jury verdict, an insured party might appeal issues relating to liability and damages. The insurer might appeal issues relating to coverage and damages. If the court of appeals reverses on the liability issue, without deciding the coverage and damages issues, and the supreme court accepts review on the liability issue only, amended Rule 809.62(7) preserves the damage and coverage issues raised in the court of appeals and identified in the petition or response for consideration by the court of appeals following remand and remittitur from the supreme court. Remand of a preserved issue will not occur if the supreme court's decision renders the issue moot.

N. Matters not addressed in this petition:

There are circumstances in which new matters are raised in a response to the petition for review that demand a reply from the petitioner. The purpose of such a reply is to avoid misleading the supreme court regarding facts or alleged defects that could prevent review of an issue on the merits if review is granted. Explicitly requiring a respondent to raise any alternative grounds for affirming the court of appeals' decision will enhance the need for such a reply. Because current Wisconsin procedure does not expressly provide for a reply, the Judicial Council Appellate Procedure Committee considered a new rule that would allow a brief reply, limited to addressing matters first raised in the response:

"Within 14 days of the service of the response, the petitioner may file a reply limited to addressing new points raised in the response. The reply shall conform to s. 809.19(8)(b) and (d) as to form and certification and shall not exceed 13 pages in length if a monospaced font is used or 3,000 words if a proportional serif font is used."

The United States Supreme Court has a similar provision, see U.S. Sup. Ct. Rule 15.6, as do several other states. See Ala. R. App. P. 39(f)(3); Cal. App. R. 28(d); Colo. App. R. 53(d); Ind. R. App. P. 57(E); Kan. R. S&A Cts. Rule 8.03(d); Okla. S. Ct. Rule 1.179(c); Tex. R. App. P. 53.5; Utah R. App. P. 50(e); Wash. R. App. P. 13.4(d). But see Ariz. R. Civ. App. P. 23(e) (reply not permitted); Ill. S. Ct. R. 315(e) (same); Ohio S. Ct. Rule III (3)(B) (same); Tenn. R. App. P. 11(d).

Upon further consideration, however, the council committee determined that an express rule would be unnecessary, as parties already may seek leave by motion to file such a reply in the extraordinary circumstance when one may be necessary to avoid misleading the supreme court. See Rule 809.14.

Finally, the council committee also considered addressing the distinction between "issues" and "arguments," see Weber, supra, but determined that any effort to do so in the rules would be more confusing than helpful.

O. Conclusion:

The Judicial Council respectfully requests that this Court adopt the proposed amendments to §§ 809.30, 809.32 and 809.62, Rules of Appellate Procedure.

Further, the Judicial Council respectfully requests that this Court publish the Judicial Council Committee Notes to the adopted amendments.

Respectfully submitted,

Judicial Council

By James C. Alexander

Rules of Evidence

In the matter of the Amendment of the Rules of Evidence: Wis. Stat. §§ (Rules) 908.03(6), 909.02(12) and 909.02(13), Related to Domestic and Foreign Records of Regularly Conducted Activity

Order 04-09

On Oct. 25, 2004, Jason J. Hanson on behalf of the Dane County District Attorney's Office, filed a petition seeking to amend Wis. Stat. § 908.03(6) and create §§ 909.02(12) and (13).

IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on March 15, 2005, at 9:30 a.m.

IT IS FURTHER ORDERED that the court's conference in the matter shall be held promptly following the public hearing.

IT IS FURTHER ORDERED that notice of the hearing be given by publication of a copy of this order and of the petition in the official state newspaper once each week for three consecutive weeks and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.

Dated at Madison, Wis., this 6th day of December, 2004.

By the court:

Cornelia G. Clark, Clerk of Supreme Court

Petition

Section I. Wis. Stat. § 908.03(6) is amended to read:

(6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

Note: This section would adopt the amendment of Federal Rule of Evidence Rule 803(6) in 2000. The Advisory Committee's Notes pertaining to that amendment are as follows: "The amendment provides that the foundation requirements of Rule 803(6) can be satisfied under certain circumstances without the expense and inconvenience of producing time-consuming foundation witnesses. Under current law, courts have generally required foundation witnesses to testify. See, e.g., Tongil Co., Ltd. v. Hyundai Merchant Marine Corp., 968 F.2d 999 (9th Cir. 1992) (reversing a judgment based on business records where a qualified person filed an affidavit but did not testify). Protections are provided by the authentication requirements of Rule 902(11) for domestic records, Rule 902(12) for foreign records in civil cases, and 18 U.S.C. § 3505 for foreign records in criminal cases." Prior Wisconsin decisions have held that, though § 908.03(6) does not contain the specific language added by this amendment, § 908.03(6) and FRE 803(6) are virtually identical in meaning. Accordingly, the amendment would cause virtually no change in meaning but would bring the language in Wisconsin's rule into conformity with the federal rule.

Section II. Wis. Stat. § 909.02(12) is created to read:

(12) Certified Domestic Records of Regularly Conducted Activity. The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under § 908.03(6) if accompanied by a written declaration of its custodian or other qualified person, in a manner complying with any statute or rule adopted by the supreme court, certifying that the record:

(a) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;

(b) was kept in the course of the regularly conducted activity; and

(c) was made by the regularly conducted activity as a regular practice.

A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.

Note: This section would adopt the creation of Federal Rule of Evidence Rule 902(11) in 2000. The Advisory Committee's Notes pertaining to that provision are as follows: "The amendment adds two new paragraphs to the rule on self-authentication. It sets forth a procedure by which parties can authenticate certain records of regularly conducted activity, other than through the testimony of a foundation witness. See the amendment to Rule 803(6). 18 U.S.C. § 3505 currently provides a means for certifying foreign records of regularly conducted activity in criminal cases, and this amendment is intended to establish a similar procedure for domestic records, and for foreign records offered in civil cases.

A declaration that satisfies 28 U.S.C. § 1746 would satisfy the declaration requirement of Rule 902(11), as would any comparable certification under oath.

The notice requirement in Rules 902(11) and (12) is intended to give the opponent of the evidence a full opportunity to test the adequacy of the foundation set forth in the declaration."

Section III. Wis. Stat. § 909.02(13) is created to read:

(13) Certified Foreign Records of Regularly Conducted Activity. The original or a duplicate of a foreign record of regularly conducted activity that would be admissible under § 908.03(6) if accompanied by a written declaration by its custodian or other qualified person certifying that the record:

(a) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;

(b) was kept in the course of the regularly conducted activity; and

(c) was made by the regularly conducted activity as a regular practice.

The declaration must be signed in a manner that, if falsely made, would subject the maker to criminal penalty under the laws of the country where the declaration is signed. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.

Note: This section would adopt the creation of Federal Rule of Evidence Rule 902(12) in 2000. The Advisory Committee's Notes pertaining to that provision are as stated in the last section. While FRE 902(12) begins with a clause limiting its application to civil cases, the notes clearly indicate that this was done because a similar provision for federal criminal cases already exists in 18 U.S.C. § 3505. Because Wisconsin law does not have a similar provision for certifying foreign records of regularly conducted activity, the limiting clause should not be included in Wisconsin's rule.

WHEREFORE the petitioner believes that the adoption of these provisions would greatly enhance the efficiency of the courts, result in substantial savings for litigants and the holders of business records who would otherwise be required to appear as witnesses, and accomplishes these goals while providing all parties with a fair opportunity to challenge the records under appropriate conditions, the petitioner respectfully requests that the Supreme Court of Wisconsin schedule this matter for a hearing and that the changes proposed be adopted and incorporated into the Wisconsin Rules of Evidence.

Submitted by:

Attorney Jason J. Hanson, Dane County District Attorney's Office

Lawyer Regulation System District Committees

In the matter of the Petition for Amendment to Supreme Court Rules Relating to District Committees in the Lawyer Regulation System

Order 04-10

On Nov. 2, 2004, the Office of Lawyer Regulation (OLR) filed a petition seeking to amend Supreme Court Rules 21.06, 21.07, 21.10, 21.11, 22.04 and 22.25 relating to district committees within the lawyer regulation system.

IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on April 13, 2005, at 9:30 a.m.

IT IS FURTHER ORDERED that the court's conference in the matter shall be held promptly following the public hearing.

IT IS FURTHER ORDERED that notice of the hearing be given by a single publication of a copy of this order and of the petition in the official state newspaper and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.

Dated at Madison, Wis., this 6th day of December, 2004.

By the court:

Cornelia G. Clark, Clerk of Supreme Court

Petition

In response to the Board of Administrative Oversight Report on the Functions and Operations of District Committees, the Petitioner, Keith L. Sellen, Director of the Office of Lawyer Regulation, hereby petitions the Supreme Court of Wisconsin for an order that amends Supreme Court Rules (SCR) relating to District Committees in the Lawyer Regulation System as follows.

PROPOSED AMENDMENTS

SCR 21.06 District committees.

(1) A district committee in each of the state bar districts established under SCR 10.05(2) consists of lawyers and nonlawyers public members appointed by the supreme court. The number of members of each committee shall be in proportion to the geographic and population size of the district, . At least one-third, and to the extent feasible, one-third two-fifths of the members shall be public members nonlawyers . Members serve staggered 3-year terms. A member may serve not more than 3 consecutive 3-year terms.

SCR 21.07 Preliminary review committee.

(1) The 14-member preliminary review committee consists of 9 lawyers and 5 nonlawyers public members appointed by the supreme court. Members serve staggered 3-year terms. A member may serve not more than 2 consecutive 3-year terms.

(2) The preliminary review committee, having a quorum of 8 members, is comprised of 2 7-member panels, each having at least 4 lawyers and 2 nonlawyers public members and a quorum of 4 members. The chairperson of the preliminary review committee shall designate the members of each panel and shall devise and implement a rotation system by which each member of the committee serves on each panel during each 3-year period.

SCR 21.10 Board of administrative oversight.

(1) The 12-member board of administrative oversight of the lawyer regulation system consists of 8 lawyers and 4 nonlawyers public members appointed by the supreme court. Members serve staggered three-year terms. A member may serve not more than two consecutive three-year terms.

SCR 21.11 Training of lawyer regulation system participants.

(1) The director and current staff of the office of lawyer regulation shall provide formal training for new members of the staff.

(2) The director shall provide formal training in procedural and substantive ethics rules to the members of the district committees. Committee members are required to attend training within the first year of appointment as a condition of appointment.

(3) The director and current members of the preliminary review committee shall provide formal training to new members of the preliminary review committee.

(4) Staff of the supreme court shall provide formal training to the referees.

(5) The director and current members of the board of administrative oversight shall provide formal training to the new members of the board of administrative oversight.

(6) The training provided in (1) through (3) and (5) shall emphasize the role and the importance of the contributions of nonlawyer public member participants in the lawyer regulation system.

SCR 22.04 Referral to district committee.

(3) The district committee shall conduct an investigation and file an investigative report with the director within 90 days after the date of referral the respondent's right to request substitution as a matter of right terminates or has been waived. The chairperson, with notice to the grievant and respondent, may request an extension from the director. In the request, the chairperson will set forth the reasons for the request and the date by which a report will be filed. The director has discretion to approve or deny the request. The investigative report shall outline the relevant factual allegations and identify possible misconduct, if any, and may make a recommendation as to the disposition of the matter. The district committee shall include in reports to the director all relevant exculpatory and inculpatory information obtained.

SCR 22.25 Misconduct and malfeasance allegations against lawyer regulation system participants.

(3) If the special investigator determines that there is not sufficient information to support an allegation of possible misconduct, the special investigator may close the matter. The special investigator shall notify the grievant in writing that the grievant may obtain review by the special preliminary review panel of the closure by submitting a written request to the special investigator. The request for review must be received by the special investigator within 30 days after the date of the letter notifying the grievant of the closure. The special investigator shall send the request for review to the special preliminary review panel consisting of 4 lawyers and 3 nonlawyers public members appointed by the supreme court and having a quorum of 4 members. Members of the special preliminary review panel serve staggered 3-year terms. A member may serve not more than 2 consecutive 3-year terms. Upon a timely request by the grievant for additional time, the special investigator shall report the request to the chairperson of the special preliminary review panel, who may extend the time for submission of additional information relating to the request for review. If the panel affirms the investigator's determination, the special preliminary review panel shall inform the grievant. The panel's decision affirming closure of the matter is final. If the panel does not concur in the investigator's determination, it shall direct the investigator to initiate an investigation of the matter.

Justification: In its Sept. 25, 2000, Order establishing the current Lawyer Regulation System, the Court charged the Board of Administrative Oversight with a review of the function and operation of District Committees. On March 22, 2004, the Board submitted its report with its recommendations to the Court.

Many of the Board's recommendations are either currently reflected in Supreme Court Rules, or capable of implementation without changes to the Rules. The Petitioner proposes amendment of the Rules to implement Board recommendations that require changes to existing Rules.

The Board's Report is enclosed and incorporated into this petition.

Submitted by:

Keith L. Sellen, Director Office of Lawyer Regulation

Report to the Wisconsin Supreme Court on the Function and Operation of District Committees by the Board of Administrative Oversight of the Lawyer Regulation System

March 22, 2004

Introduction

In its Sept. 25, 2000, Order establishing the current Lawyer Regulation System, the Wisconsin Supreme Court charged the Board of Administrative Oversight with presentation of a report to the Court on its review of the function and operation of District Committees, recommending whether or not they should be retained, and, if so, proposing Rule amendments to improve their operation.

In conducting its review, the Board concentrated on four areas:

1. Structure of the District Committee System and individual District Committees

2. Role of District Committees

3. Operating Procedures of District Committees

4. Training members of District Committees

In addition, the Board considered ways to measure public trust and confidence in District Committees.

The Board appointed a Subcommittee chaired by Circuit Court Commissioner Dennis R. Cimpl and consisting of Attorney Burneatta L. Bridge (until September 2003), Attorney Scott Roberts and Claire A. Fowler to conduct the review. The Subcommittee reviewed the October, 1999 Report on the Wisconsin Lawyer Regulation System of the Standing Committee on Professional Discipline of the American Bar Association, the Manual for District Committees of the Office of Lawyer Regulation and a 1998 Survey of District Chairpersons by the BAPR Study Committee of the State Bar of Wisconsin. It visited every District Committee, following up the meetings with telephone surveys of each Chairperson. It met with District Chairpersons on numerous occasions. It solicited feedback from Committee members, investigative staff of the Office of Lawyer Regulation, members of the Preliminary Review Committee and the State Bar of Wisconsin OLR Study Committee. It studied questionnaire responses from grievants and respondents who had been involved with District Committees. It attended District Committee training sessions.

I. Should District Committees be Retained?

The Board unanimously recommends retention of District Committees. They serve a unique role as ambassadors of the Office of Lawyer Regulation, the legal profession and the public. They apply their local experience and knowledge of specific areas of legal practice and other professional and technical knowledge to the thorough and impartial investigation of grievances and provide an opportunity to lawyers for voluntary service to the profession. They apply judgment from public and professional perspectives in the evaluation of professional misconduct. They promote public confidence in the integrity of the Lawyer Regulation System, and consequently, in the administration of justice, by integrating peer review (which is accepted by members of the profession) and local perspective into the investigation of grievances, and by educating the public about the system. There is a strong belief that the system is more credible when grievants and respondents are actively involved in the process. Abolishing District Committees would eliminate a major source of statewide public participation in the Lawyer Regulation System. The Preliminary Review Committee is of the view that District Committee reports develop useful information, especially in complex cases.

There is a perception that lawyers investigating lawyers is unfair to the public. The Board, however, feels this perception is unfounded and, in any event, is outweighed by the benefits it has identified in this Report in support of the continuation of District Committees.

There are problems both with the timeliness and uniformity of District Committee investigations, both of which are addressed in this Report.

A major thrust of the Office of Lawyer Regulation for the past several years, especially since a significant increase in grievances began in January 2001 with the commencement of telephonic grievances, has been reduction in the average overall grievance process time. The single biggest problem with the function of District Committees appears to be the length of time from assignment of a grievance to a Committee to completion of an investigation and delivery of a written report to OLR. SCR 22.04(3) requires completion within 90 days. However, according to the Director's December 5, 2003 Report (page 17), since August 1999, committee investigations have taken an average of 190 days to complete.

Processing delays are attributable to a number of factors, including the type of grievances which fit the criteria for Committee referral, use of volunteers (rather than full-time staff), the learning curve of new Committee members, delays arising from a respondent exercising his or her right to substitute the assigned investigator(s), and the lack of any formal requirements for District Committee Chairpersons or assigned investigator(s) to report periodically to OLR on an investigation's status.

The Board's recommendations to address timeliness are as follows:

• The 90 days should commence when a matter is finally assigned and accepted (i.e., any right to substitute has expired or has been exercised).

• The Director should issue a proposed Master Schedule, including milestone dates for the assignment of the investigator, the investigative meeting, submission of the draft investigative report, the District Committee meeting, and delivery of the investigative report to OLR staff, with extensions granted only with the Director's approval.

• District Committee Chairpersons should be responsible for requesting approval from the Director, with notice to both grievant and respondent, to exceed the 90-day time limit, setting forth reasons as well as a date by which an investigative report will be completed.

• District Committees should meet frequently enough to complete their work in a timely fashion as required by SCR 21.06(4). The Board recommends that District Committees schedule meetings at least every two months.

• District Committee members should attend at least one training session within the first year of appointment, covering both procedural and substantive ethics rules.

• The Office of Lawyer Regulation should develop additional ongoing training sessions for District Committee members.

"Overdue" investigations, as well as information from District Chairpersons and staff investigators, indicate that there is a communication gap between OLR staff and some District Committees. Part of the problem appears to be that there are no formal requirements for District Committee investigators or Chairpersons to report periodically to OLR on investigation status. SCR 21.03(6)(k), SCR 21.06(2), SCR 22.04(3), SCR 22.04(5), and SCR 21.11(2) all make it clear that the Director is responsible for the conduct and completion of District Committee investigations.

When considering a possible investigation referral, the Director must choose between OLR staff and a District Committee. With a staff investigator, the Director has greater control since the investigator reports directly to the Director, who sets staff investigator priorities. With a District Committee, the Director does not have the same direct control. The Director has no influence over a committee member's pay since all are volunteers, nor is there any influence over appointment and tenure.

The Director's Report for FY 2003 shows that there were 122 referrals to District Committees for formal investigations. This represents close to 30% of all matters referred for formal investigation. (The 33 referrals to District Committees in FY 2004 (as of March 5, 2004) are abnormally low because the Director's emphasis has been on closing grievances. We understand referred matters will increase to a more normal level as older grievances are closed.)

The decision by the Director as to what investigations to refer is based on appropriate selection criteria. The District Committee Procedures Manual provides (page 9):

That a referral is indicated when:

• The credibility of the grievant, respondent, or other witnesses would be best evaluated by face to face questioning that can be done most effectively by a local investigator or through an investigative meeting.

• The perspective of attorneys with expertise in a particular area of law would be helpful.

• The perspective of local practitioners and law people, or knowledge of local customs would be helpful.

• The investigation requires extensive examination of local files and other evidence.

• The grievance involves issues relating to a frivolous action or an excessive fee.

Matters are referred to the district that encompasses the geographic area where the matter originated. There is also consideration given, not only to current OLR staff workload, but also to the current workload of a particular district and, to a lesser extent, the "track record" of the particular district in completing investigations.

After referral, other problems can occur. There are variances in procedures between District Committees; and, in some cases, investigations are not initially completed to the satisfaction of OLR staff and must be referred back for further consideration. These have been addressed by providing District Committees:

• Training sessions beginning in May, 2001

• An updated Procedures Manual published in August, 2003

• A standardized investigation report template published in August, 2003

It is expected that the training sessions, Manual and template will help improve investigative report thoroughness and uniformity.

II. Review of District Committees

A. Structure of the District Committee System and Individual District Committees

The current system divides this State into 16 areas mirroring State Bar Districts. This was the system under which the Board of Attorneys Professional Responsibility operated when the President of the State Bar appointed District Committee members.

The system of State Bar Districts is mandated by SCR 10.05(2). It permits members of the Board of Governors of the State Bar to represent proportionately the lawyers of this State. It also takes into consideration the composition of the 10 Judicial Administrative Districts, geography, and multi-county bar associations. It must be reviewed before January 1, 2005. The ten Judicial Administrative Districts were established by Supreme Court Order effective August 1, 1978 and the makeup of each, except for five counties, remains the same today.

The division of the State into districts is advantageous for administering matters. It enables greater geographic proximity to witnesses and it facilitates recognition and understanding of local customs and standards. Currently, the sixteen State Bar districts are used. This has the effect that Milwaukee County (District 2) and Dane County (District 9) have the largest number of members. Each District has but one committee except that Milwaukee functions as two. There are no limits (minimum or maximum) or guidelines on the number of committee members. In practice, the number of committee members is controlled both by the number of names submitted by the committees and by the number of Supreme Court appointees.

SCR 21.06 provides that the number of members of each District Committee shall be in proportion to the geographic and population size of the district. To the extent feasible, one-third shall be "non-lawyers." Members serve staggered three-year terms and may not serve for more than three consecutive terms. Reappointment is possible after a one-year hiatus. (At the request of the "public members" of the Board, we have used that term rather than the term "non-lawyer" throughout this Report. A "public member" includes a citizen eligible to vote and not a member of the State Bar.)

By providing that the number of members be in proportion to district geographic and population size, the number of committees is fixed and the number of committee members in each district is adjusted "based on geographic and population size." This interpretation leaves little room to compensate for a committee size that would be too small or too large for optimal performance. This interpretation also does not appear to allow an appropriate number of members based on the number of grievances filed, especially when taking prisoner grievances into account.

The term limits system maintains a good balance between the need for expertise and the benefit of a fresh perspective. For many, the first term is largely a learning experience. Reappointment after a one-year hiatus insures that committees always will have experienced members. It allows for the reappointment of persons who are assets to the system, yet allows for introduction of fresh ideas, perspectives and expertise.

The Supreme Court appoints Committee members. Currently, the Court requires two applicants for every vacancy. Unsuccessful applicants are not notified of their non-appointment. Currently, District Chairpersons are not formally consulted regarding appointments as to what is needed on their committee in the way of particular areas of expertise, geographic location and diversity.

To the extent practical, the Board endorses the current appointment process. District Committees and, in particular, Chairpersons must take a more active role in recruiting members, both from the profession and the public. It is through this role that Chairpersons have input as to what skills are needed on their committees. In recruiting, Chairpersons must be cautioned not to make any promises to applicants about appointment. There must be greater communication with all applicants before and after appointments are made.

The Board recognizes its duty in encouraging local bar associations and community organizations to become proactive in identifying potential members for District Committees. Towards this end, the Board should compile a list of resources that can be used in the appointment process, keeping in mind that diversity in all areas is important.

SCR 21.06(1) states that "to the extent feasible, one third of the members shall be nonlawyers." The Board recommends that SCR 21.06 be amended to mandate, as a goal, that up to two-fifths of all members of District Committees be public members. An increase from one-third to two-fifths would help blunt the perception that lawyers investigating lawyers is unfair. Public members should be actively recruited and promptly appointed so they do not lose interest. Public members are not expected to be familiar with the ethics rules or to be expert investigators. They perform a significant role by applying their common sense, judgment and experience to a Committee's consideration of grievances. The Board recognizes that public members need to have certain minimum qualifications. They would have to take a more active role in investigations than they do now, but, with appropriate training, this should be attainable.

We are not aware of a single instance in which committee votes have been split on the basis of public members versus lawyer members. There are no predetermined professional qualifications for public membership. Like jurors, public members are called upon to observe, to evaluate and to vote. Unlike jurors, public members fully participate in both fact-finding and deliberations. Public members help assure the fairness of the deliberations, both by participating and by witnessing, and thereby helping establish regulatory system credibility. No public members are either Chairpersons or Vice-Chairpersons.

Whether there are one-third or two-fifths public members, in either case, they will be in the minority. A simple majority is needed for a meeting quorum. Committee decisions are made by majority vote. Public members are not required either for a quorum or a majority vote.

District Committee membership for FY 2003 is shown in Figure 1.

This table shows that the sixteen District Committees vary in size from four members in District 10 to 36 members in District 2. Public members average 30% of total members.

Keeping in mind the timeliness problem raised in this Report and the public perception of intrinsic unfairness when lawyers regulate lawyers, the Board has appointed a subcommittee comprised of all four of its public members, as well as one lawyer member, to continue to monitor the operation of District Committees. This subcommittee will report any recommendations back to the Board before its March, 2005 meeting.

District Committees function under the supervision of the Director. Close supervision by the Director is essential to assure that investigations proceed uniformly and in a timely fashion so as to insure fairness to both grievants and respondents.

B. Role of District Committees

Committee duties are set forth in SCR 21.06(3):

(a) To educate the bar and the public about the high ideals of the legal profession and the practice of law consistent with the rules of professional conduct....

(b) To refer promptly to the director any possible misconduct or medical incapacity of an attorney that comes to its attention.

(c) To assist in the investigation of possible misconduct or medical incapacity of an attorney upon referral by the director.

(d) To make a recommendation to the director as it may consider appropriate as to the disposition of any matter the committee has investigated.

(e) To assist upon request of the director in monitoring an attorney's participation in an alternatives to discipline program or compliance with conditions imposed on the attorney's practice of law.

(f) To resolve or adjust at the request of the director a dispute between an attorney and a client or other attorney if the dispute does not involve misconduct or medical incapacity and the complaining person agrees to the procedure.***

These duties should not be modified. They are flexible enough to allow the Director to utilize District Committees effectively. Prior to current changes in the system, District Committees handled reinstatement hearings. Referees now handle them. This seems to be working well.

C. District Committee Operating Procedures

All sixteen District Committees operate with different procedures. The rationale given for this is that the practice of law varies throughout this state. There are guidelines for operating procedures. District Committees operate at little or no cost to the Office of Lawyer Regulation because committee members are volunteers. Due to the voluntary nature of committees, as well as other factors, reports frequently are not completed within the 90-day period mandated by SCR 22.04(3).

The Policy Manual anticipates that referral of a grievance to a District Committee proceed as follows:

"A grievance would be referred to the Chairpersons, who would appoint a member or committee of members to investigate. That member would be the lead investigator and interview all parties and witnesses. That member would determine if an investigative meeting was necessary. If so, it would be held before the District Committee or a subcommittee. The meeting would not be on the record. Both parties would be invited and subjected to questioning by committee members. Cross-examination would not be encouraged. After the meeting, a Report would be drafted by the lead investigator and disseminated to the entire District Committee prior to a subsequent meeting noticed to discuss it. (The committee could discuss the matter and come to some conclusions before the assigned member drafts a report although this is not the recommended practice.) At some point, there must be a meeting of the District Committee to consider the report and decide whether the investigation is complete; whether there is clear, satisfactory, and convincing evidence to support each allegation of misconduct; and whether to submit a recommended disposition. After this meeting, the report must be finalized to reflect the District Committee's decision and then filed with Office of Lawyer Regulation. This whole process must be completed within 90 days."

It is recommended that all District Committees implement this procedure. The Board recognizes that there are types of grievances that are better handled without investigative meetings. This should be the exception rather than the rule. The formality of an investigative meeting demonstrates that the system takes grievances seriously. It is desirable that parties confront each other to accomplish that purpose. The concept of the "parties receiving their day in court" has substantial value to the fairness and effectiveness of the system. This procedure also serves an educational function for participants. It is not just "form over substance." It is important that procedurally lawyers are treated uniformly throughout the State.

Cross-examination of the parties by each other at investigative meetings should not be permitted. It is time-consuming and can be intimidating and overwhelming for a grievant. However, Committees should develop procedures to allow parties to submit proposed areas of inquiry to the Chairpersons, who would exercise discretion in allowing them to be explored.

Currently, there are no verbatim transcripts of investigative meetings. This should continue except in exceptional circumstances.

It is recommended that the 90-day mandate neither be extended nor changed to an aspirational goal. Lawyers operate better and naturally under deadlines. It is important to the parties that grievances be resolved as expeditiously as possible.

The Board recommends retaining the 90-day standard and implementing the measures recommended in this Report to achieve it. At no time during the past ten years has the 90-day standard been achieved for the system as a whole. In the mid 1990s, when overall caseload was at its lowest, the best result (114 days on average) was achieved. Presently a few committees are meeting the standard yet the percentage of cases completed within 90 days remains low.

The Board is mindful that, during the past three years, District Committees were assigned a higher number of cases as a means to help reduce the caseload, and caseload correlates directly to timeliness. As a result, the Board believes that once the current backload is reduced to acceptable levels, and, with the implementation of additional measures proposed later in this Report, District Committees may be better able to meet the 90-day standard.

Considering the fact that District Committee investigations involve a portion rather than the entire processing of a grievance, it is important to maintain a prompt processing standard and to work diligently toward meeting it. There is a need for a better relationship between OLR staff and Committees. This is improving as the system works down the backlog and as the training of Committee members improves.

As noted above at pages 2 and 3, commencement of the 90 days should be changed from the time a Committee Chairperson receives a grievance to the time that a case is finally assigned and accepted. Currently, the time limit can be as short as 76 days because a respondent has a right to substitute within 14 days of notification of assignment of the lead investigator. The 90-day mandate assumes that the Chairperson assigns a matter as soon as it is received and that the lead investigator immediately sees no problems and accepts it. Changing the date of commencement of the 90-day period should resolve both these concerns.

It is essential that District Committee meetings be held as appropriate in order to meet the 90-day time limit. SCR 21.06(4) states, "Each district committee shall hold regularly scheduled meetings as needed to complete its work timely. Meetings also may be held at the call of the chairperson."

Currently, most District Committees meet quarterly. Meetings are scheduled in advance for an entire year. It is problematic for Committees to hold special meetings to comply with the 90-day time limit. Scheduling meetings at least every two months should alleviate this concern according to what the Board has learned from District Chairpersons.

Before the Director assigns an investigation to a District Committee Chairperson, it is recommended that the Director issue a proposed Master Schedule. This schedule would include milestone dates for the assignment including assigning the lead investigator, holding the investigative meeting, submission of the draft investigative report, the District Committee meeting, and completion of the investigative report. The schedule would help enforce the 90-day standard. The Director and the Chairperson would agree on the schedule. The Chairperson would be responsible for meeting the dates. Extensions would be granted only if approved by the Director. If the Director does not approve schedule changes, the Committee's work will be immediately concluded and sent by the Chairperson to the Director. The Director would subsequently assign the investigation to OLR staff or another District Committee as appropriate.

As a part of the proposed Master Schedule, a response from the Office of Lawyer Regulation would be made to the Committee's draft investigative report in a timely manner so that any concerns, especially as to completeness, could be communicated to the Chairperson prior to the District Committee meeting.

There also should be a requirement that the Chairperson is responsible for requesting approval from the Director to exceed the 90-day time limit setting forth reasons as well as a target date by which the report is to be filed. This would allow for cases that require more than 90 days to resolve. Requests for extensions should be on notice to both parties.

Currently, Committees investigate lawyers in their own districts. It is an advantage for local lawyers to investigate each other because they are familiar with local community standards and practice nuances. At present, Chairpersons try to assign cases to lawyers who have expertise in the subject matter of the grievance. It is an advantage for lawyers to investigate lawyers who have similar practices.

D. Training of District Committee Members

Since the inception of the Office of Lawyer Regulation, there have been four training sessions offered by the Director each year. Training has been held throughout the State. The sessions are interactive, but introductory in nature. Attendance is not required for appointment to District
Committees.

Each member should be required to attend at least one training session during the first year of appointment as a condition of appointment. The viewing of a training video could fulfill this requirement, but this method should be discouraged. Training should consist of procedural as well as substantive ethics rules. There is no need for additional mandatory training because initial training is reinforced by actual Committee work. However, there is a need to develop additional ongoing training for those members who wish to participate in it.

III. Measurement of Public Trust and Confidence

In 2002 the Board of Administrative Oversight began surveying all users of the Lawyer Regulation System. The Board separately monitors responses from users of District Committees.

As noted above, a disadvantage of the District Committee structure is that the public apparently perceives that it, as well as the entire Lawyer Regulation System, is inherently unfair because lawyers investigate other lawyers. However, the Board could find no evidence to support this perception. We recognize that there should be greater active participation of public members in District Committees. This should help alleviate what we believe is a misperception. The Board also favors the referral of more grievances to District Committees. This has the advantage of putting a public face on the system, which should help increase public trust.

As stated above, the Board of Administrative Oversight proposes that it further study the composition of District Committees as well as their operation. This will be undertaken by a subcommittee comprised of all four public members of the Board as well as at least one lawyer member. It will study the apparent perception of inherent systemic unfairness and explore ways for the Board to help alleviate it.

IV. Recommendations

The Board recommends:

1. That District Committees be
retained.

2. That the present sixteen-District system be retained.

3. That the current system of staggered three-year terms with no more than three consecutive terms and with reappointment possible after a one-year hiatus be
continued.

4. That the Supreme Court continue its current process for appointing District Committee members.

5. That references in the Rules to "non-lawyers" be changed to "public members."

6. That the Board of Administrative Oversight compile a list of community resources for potential public members that can be used in the appointment process keeping in mind that diversity in all areas is important.

7. That SCR 21.06 be amended to mandate as a goal that up to two-fifths of all District Committee members be public members.

8. That District Committees continue to function under the supervision of the Director.

9. That the duties of District Committees listed in SCR 21.06(3) should not be modified.

10. That the procedure called for in the Policy Manual be implemented by all District Committees and that they be encouraged to conduct investigative meetings.

11. That cross-examination of the parties by each other at investigative meetings not be permitted, but that Committees develop procedures to allow parties to submit proposed areas of inquiry to the Chairperson, who would exercise discretion in allowing them to be explored.

12. That there continue to be no verbatim transcripts prepared of investigative meetings except in exceptional circumstances.

13. That the 90-day mandate of SCR 22.04(3) neither be extended nor changed to a goal and that the commencement of the 90 days should be changed from the time a Chairperson receives a grievance to when a matter is finally assigned and accepted.

14. That District Committee Chairpersons be responsible for requesting approval from the Director, with notice to both parties, to exceed the 90-day time limit setting forth reasons as well as a date by which a Report will be filed.

15. That District Committees schedule meetings at least every two months.

16. That the Director and District Committee Chairpersons agree on a Master Schedule at the time an investigation is referred to a Committee.

17. That Committee members be required to attend at least one OLR training session within the first year of appointment as a condition of appointment, such training to cover both procedural and substantive ethics rules.

18. That the Office of Lawyer Regulation develop and offer additional training sessions for District Committee members.

19. That the Office of Lawyer Regulation refer as many grievances as feasible to District Committees.

Dated this 22nd day of March, 2004.

The Board of Administrative Oversight of the Lawyer Regulation System

By William H. Levit Jr., Chair

Board of Bar Examiners Order

SCR 31.14 having provided for rule-making authority by the Board of Bar Examiners that is consistent with Chapter 31 of the Supreme Court Rules, and the Board of Bar Examiners having conducted a public hearing on Aug. 17, 2004, after appropriate notice, the following regulation under Chapter 31 of the Supreme Court Rules is amended or created as follows:

SCR CHAPTER 31 APPENDIX

DEFINITIONS

CLE 1.02

For the purpose of administering SCR Chapter 31, the minimum number of persons attending a course shall be two attendees and one moderator. Fewer than that number, and the course shall be deemed to be self-study and shall not be approved for continuing legal education credit.

This rule shall become effective Aug. 17, 2004.

Dated at DePere, Wis. this 17th day of August 2004.

By the Board of Bar Examiners:

John O. Olson, Chairperson

Board of Bar Examiners Order

SCR 40.11 having provided for rule-making authority by the Board of Bar Examiners that is consistent with Chapter 40 of the Supreme Court Rules, and the Board of Bar Examiners having conducted a public hearing on Aug. 17, 2004, after appropriate notice, the following regulation under Chapter 40 of the Supreme Court Rules is amended or created as follows:

SCR CHAPTER 40 APPENDIX

BA 4.01

Applicants who otherwise satisfy SCR 40.04 and who have failed the Wisconsin bar examination three times may request special permission to write the bar examination. Special permission may be granted no more than once to an applicant who satisfies the following conditions:

(a) A petition under oath for special permission must be received by the Board by the May 1 preceding the July examination and the December 1 preceding the February examination. The petition must set forth a satisfactory supervised study plan, including in detail the preparation to be undertaken, consisting of formal coursework, independent study or a combination thereof; a schedule of hours to be dedicated thereto entailing no less than 160 hours in total; and the name of one or more supervising attorneys licensed to practice law in this state.

To create:

BA 4.01

(b) The petition must be filed with the application and with all application fees. The board shall refund the fee if permission to sit is denied.

And to re-number:

(c) A written statement under oath averring completion of the study plan proposed pursuant to (a), to which a corroborating statement under oath from the supervising attorney or attorneys is attached, must be received by the Board at least seven calendar days prior to the examination.

These rules shall become effective Aug. 17, 2004.

Dated at DePere, Wis. this 17th day of August 2004.

By the Board of Bar Examiners:

John O. Olson, Chairperson

Wisconsin Lawyer