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    The Wisconsin Supreme Court will hold a public hearing on April 13, 2005, to consider three petitions filed by the Director of State Courts, regarding: the adoption of voluntary court forms for use by pro se litigants, rules pertaining to the retention of court records, and the translation of court forms into languages other than English. The BBE will hold a public hearing April 6 regarding SCR Chapter 40 changes.


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    Wisconsin Lawyer
    Vol. 78, No. 3, March 2005

    Supreme Court Orders

    The Wisconsin Supreme Court will hold a public hearing on April 13, 2005, to consider three petitions filed by the Director of State Courts, regarding: the adoption of voluntary court forms for use by pro se litigants, rules pertaining to the retention of court records, and the translation of court forms into languages other than English. The BBE will hold a public hearing April 6 regarding SCR Chapter40 changes.

    Court Forms for Pro Se Litigants

    In the matter of the Adoption of Voluntary Court Forms Designed for Self-represented Litigants

    Order 05-02

    On Jan. 21, 2005, the Director of State Courts filed a petition seeking to amend Wis. Stat. §§ 758.18, 807.001, 971.025, and SCR 70.153 concerning mandatory court forms for use by self-represented litigants.

    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 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 3rd day of February, 2005.

    By the court:

    Cornelia G. Clark,
    Clerk of Supreme Court Petition

    The Director of State Courts, on the recommendation of the Records Management Committee (RMC), hereby petitions this court to amend the statutes and rules governing standard court forms in a way that will allow RMC to oversee court forms designed for self-represented litigants without making use of the forms mandatory. This change is requested pursuant to the court's rulemaking authority under § 751.12.

    Currently, all forms generated by RMC on behalf of the judicial conference are standard forms that must be used by parties and court officials in civil and criminal actions if the forms are applicable. See Supreme Court Order 98-01, 228 Wis. 2d xiii (2000), creating Wis. Stat. § 758.18 (judicial conference shall adopt standard forms for use by parties and court officials in all civil and criminal actions); § 807.001 (standard forms to be used in civil actions); § 971.025 (standard forms to be used in criminal and juvenile actions); and SCR 70.153 (RMC shall publicize forms and respond to objections, with final determination by this court).1 The clear import of these statutes is that any form approved by RMC is necessarily a mandatory form.

    At the same time that mandatory forms have become standard practice for the bench and bar, the courts have seen a growing number of self-represented litigants, particularly in family cases. In 2000, a survey conducted by the Wisconsin Pro Se Working Group found increasing numbers of self-represented litigants in all counties, as well as general agreement among the clerks of circuit court that it would be helpful to provide forms and instructions to self-represented litigants.2 The report recommended that the court develop user-friendly family forms for statewide use. At the time, RMC was not prepared to take on the extra workload, so the report stopped short of recommending that the task be assigned to RMC. The report also noted that the statutes and rules making RMC forms mandatory would be an obstacle, since the report did not envision that pro se forms would be mandatory.

    In 2004, the Chief Justice appointed the former state law librarian, in consultation with an ad hoc working group, to develop a set of simplified family forms suitable for use by self-represented litigants statewide.3 This group has now completed a set of family forms that is ready to be reviewed and distributed. The pro se forms are not intended to be mandatory, since their purpose is to make it easier for self-represented litigants to use the courts, not to pose a hurdle for them. Because they are simplified forms, their use should not be mandatory for attorneys, although attorneys may use them where appropriate.

    The purpose of this amendment is to assure that RMC has the necessary authority to handle voluntary pro se forms. It requires that the forms be accepted for filing as long as they are properly completed, so they can be filed in any circuit court without fear of rejection. If the clerk of circuit court distributes pro se forms or posts them on a county website, the clerk must use the RMC form if one is available.

    While these forms have the potential to be a great resource for litigants and courts, their effectiveness will be short-lived unless they have institutional support to ensure that they stay up to date. RMC believes that user-friendly forms for self-represented litigants should be available on a uniform basis statewide. Since RMC is a continuing committee with special expertise in the area of forms development and maintenance, it is appropriate that RMC act as the clearinghouse for pro se forms to assure they are legally sufficient.

    Under the proposed change, RMC will review any pro se forms before they are finalized and will take on the responsibility of keeping them updated and posted on the court website.4 Although RMC currently does not plan to create any pro se forms, the rule should be written to give RMC that option if the committee finds it to be appropriate in the future. The director of state courts will act as gatekeeper for all form requests, to protect RMC from being inundated with form proposals from inside and outside the court system. Only family forms are under consideration at this time.

    Accordingly, RMC requests that the statutes be amended as follows:

    § 758.18 Judicial conference: standard court forms.

    (1) The judicial conference shall adopt standard court forms for use by parties and court officials in all civil and criminal actions and proceedings in the circuit court as provided in § 807.001(1) - (4) and § 971.025(1) - (4).

    (2) In addition, at the request of the director of state courts, the judicial conference may adopt forms created for voluntary use by self-represented litigants in the circuit court. The judicial conference shall identify which forms are intended for voluntary use.

    § 807.001 Forms.

    (1) In all civil actions and proceedings in circuit court, the parties and court officials shall use the standard court forms adopted by the judicial conference under s. 758.18, commencing the date on which the forms are adopted.

    (2) A party or court official may supplement a standard court form with additional material.

    (3) A court may not dismiss a case, refuse a filing or strike a pleading for failure of a party to use a standard court form or to follow the format rules but shall require the party to submit, within 10 days, a corrected form and may impose statutory fees or costs or both.

    (4) If the judicial conference does not create a standard court form for an action or pleading undertaken by a party or court official, the party or court official may use a format consistent with any statutory or court requirement for the action or pleading.

    (5) In addition, the judicial conference may adopt forms created for voluntary use by self-represented litigants in the circuit court as provided in § 758.18(2).

    § 971.025 Forms.

    (1) In all criminal actions and proceedings and actions and proceedings under chapters 48 and 938 in circuit court, the parties and court officials shall use the standard court forms adopted by the judicial conference under s. 758.18, commencing the date on which the forms are adopted.

    (2) A party or court official may supplement a standard court form with additional material.

    (3) A court may not dismiss a case, refuse a filing or strike a pleading for failure of a party to use a standard court form or to follow the format rules but shall require the party to submit, within 10 days, a corrected form and may impose statutory fees or costs or both.

    (4) If the judicial conference does not create a standard court form for an action or pleading undertaken by a party or court official, the party or court official may use a format consistent with any statutory or court requirement for the action or pleading.

    (5) In addition, the judicial conference may adopt forms created for voluntary use by self-represented litigants in the circuit court as provided in § 758.18(2).

    SCR 70.153 Judicial conference, forms.

    (1) The standard court forms that the judicial conference is required to adopt under § 758.18 of the statutes shall be developed by the records management committee, an advisory committee to the director of state courts office.

    (2) Under article VIII of the bylaws of the judicial conference, the judicial members of the records management committee act on behalf of the judicial conference in the adoption of standard court forms.

    (3) Each standard court form shall include a notice that the form may be supplemented with additional material.

    (4)(a) Upon adoption of a standard court form, the records management committee shall distribute or make a copy of the form available to the clerks of circuit court, the circuit court judges, the state bar of Wisconsin and other persons who are required to use the form.

    (b) Within 90 days after the date of distribution of a standard court form under par. (a), an interested person may file with the records management committee a written objection to the mandatory use of the form, to the content of the form or to both the use and the content.

    (c) The records management committee shall respond to the objector under par. (b) in writing within 90 days after receipt of the objection.

    (d) Within 30 days after the date on which he or she receives the written response of the records management committee to an objection filed under par. (b), the person filing the objection may file with the clerk of the supreme court a petition for review of the decision of the records management committee. The supreme court may request a response from the records management committee and establish a schedule for submission of the matter to the supreme court for determination.

    (5)(a) In addition, the judicial members of the records management committee may act on behalf of the judicial conference in the adoption of voluntary forms created for use by self-represented litigants in the circuit court as provided in § 758.18(2).

    (b) Upon adoption of a voluntary form, the records management committee shall distribute or make a copy of the form available to the clerks of circuit court, the circuit court judges, and the state bar of Wisconsin.

    (c) Any adopted voluntary form, if properly completed, shall be received for filing or other appropriate action by the circuit court. If a clerk of circuit court distributes voluntary forms, the clerk must use adopted forms whenever they are available for that purpose.

    (d) Voluntary forms may be used by members of the state bar if no mandatory form is available for that purpose.

    (e) A party or court official may supplement an adopted voluntary form with additional material.

    Respectfully submitted:

    A. John Voelker,
    Director of State Courts

    1See also Bylaws of the Judicial Conference of Wisconsin, Art. VIII (if statute or rule requires form development, judicial members of RMC authorized to act on behalf of judicial conference).

    2See Pro Se Litigation: Meeting the Challenge of Self-Represented Litigants in Wisconsin at 7 (December 2000).

    3The demand for these forms is so great that local working groups have already developed family forms for use in Waukesha County and in the Tenth Judicial District, now incorporated into the statewide committee's work. A 2003 study in the Tenth Judicial District found that one or both parties are self-represented in 64% of family cases, 75% of small claims cases, and 58% of civil cases.

    4CCAP staff have been working with the ad hoc committee to make fillable forms and simplified instructions available on the court website.

    Record Retention

    In the matter of the Amendment of SCR 72.01 and SCR 70.36 Regarding Record Retention

    Order 05-03

    On Jan. 21, 2005, the Director of State Courts filed a petition seeking to amend SCR 72.01 and 70.36 concerning the retention of court records.

    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 3rd day of February, 2005.

    By the court:

    Cornelia G. Clark
    Clerk of Supreme Court Petition

    The Director of State Courts, on the recommendation of the Records Management Committee, hereby petitions the court to make two amendments to the Supreme Court Rules regarding record retention, pursuant to the court's rulemaking authority under § 751.12 and its administrative authority over all courts conferred by Article VII, § 3 of the Wisconsin Constitution.

    1) SCR 72.01(46) should be amended to eliminate the conflict between this rule and Wis. Stat. 974.07, which became effective September 1, 2001. Wis. Stat. 974.07 allows a person, any time after being convicted of a crime, adjudicated delinquent, or found not guilty by reason of mental disease or defect, to request DNA testing of any "biological material" collected in connection with the investigation or prosecution of a case. SCR 72.01(46), however, requires the clerk to retain criminal case exhibits for only one year past the time of appeal and makes no distinction as to retaining biological material longer.

    SCR 72.01(46) should be amended to reflect the new statutory provision. SCR 72.01(46a) should be created to read as follows:

    SCR 72.01(46a). Criminal case exhibits containing biological material subject to DNA testing under Wis. Stat. 974.07. Any criminal case exhibit that is deemed to contain "biological material" and that remains in the courts' custody shall be retained for 50 years after entry of final judgment or until the court otherwise orders the disposition of the evidence under 974.07.

    2) SCR 70.36, judges' and circuit court commissioners' certification of status of pending cases, should be amended to provide a retention period for these records to make this rule clearer and more complete. These records are kept so that litigants and citizens can verify that judges are disposing of cases in a timely manner. They are also kept to provide investigatory information for the judicial commission.

    The Records Management Committee recommends a 10-year retention period to provide a sufficient number of records to show that judges are accurately reporting their cases or to establish any pattern of misconduct. SCR 70.36(2)(a)(3) should be created to read as follows:

    70.36(2)(a)(3). Certificates shall be retained by the office of the director of state courts for 10-years from the date they are filed.

    Respectfully submitted:

    A. John Voelker,
    Director of State Courts

    Translation of Court Forms

    In the matter of the Translation of Court Forms

    Order 05-04

    On Jan. 21, 2005, the Director of State Courts filed a petition seeking to amend Wis. Stat. § 758.18 and SCR 70.155 concerning the translation of court forms into languages other than English.

    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 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 3rd day of February, 2005.

    By the court:

    Cornelia G. Clark,
    Clerk of Supreme Court Petition

    The Director of State Courts hereby petitions this court to create a rule governing translation of court forms, pursuant to the court's rulemaking authority under § 751.12. This petition is submitted on behalf of the Committee to Improve Interpreting and Translation in the Wisconsin Courts and the Records Management Committee, which are working jointly to identify those court forms most appropriate for translation into other languages and to set standards for their format and use.

    As part of the effort to improve services to court users with limited English proficiency,1 the court interpreter program has recommended that the director's office contract for professional translation of the most important court forms and instructions. The records management committee has been asked to apply its forms expertise to the design of bilingual forms. This court is requested to approve the use of translated forms and to set guidance for use of the forms.

    A number of other state courts provide translations of forms, as do Wisconsin executive agencies. Translation of important documents is consistent with Title VI of the Civil Rights Act of 1964 and its requirements for agencies receiving federal funding; there provide that "vital documents" used by a funded agency be translated into the languages most commonly used in the jurisdiction.2 The director's office plans to use its federal interpreter grant funding for 2005 to contract for the translations.

    There is a high demand for translated forms from counties with large Spanish- and Hmong-speaking populations.3 Many clerks of court have paid for local translations of the plea questionnaire, the affidavit of indigency, and various waiver forms, but quality of the translations has been mediocre at best.4 Standard forms deserve standard, professional translations that are as carefully reviewed and legally sufficient as the English versions, and creating official versions of the most- requested forms is the best way to assure their quality.5

    The proposed rule does not contemplate that the official record will be kept in a language other than English, and forms must still be completed in English to be accepted for filing in the circuit courts. Wis. Stats. § 757.18 provides that "All writs, process, proceedings and records in any court within this state shall be in the English language...." The proposed rule accordingly provides that translated forms will contain both English and foreign language text, and that any form calling for a response will require the response to be in English. Interpreters may assist parties in filling out the forms by reading the form and waiting for the party to provide the answer, then filling in the English equivalent or checking the appropriate box.6

    The proposed rule says that translations are not intended to substitute for the services of an interpreter, the advice of counsel, or a colloquy with the court. The interpreter committee seeks to avoid situations where defendants are handed a form waiving their rights and asked to sign it without further explanation, or where interpreters are instructed to explain the form in violation of the interpreter code of ethics. Merely reading a translated form to a defendant from another country falls woefully short of discharging the responsibilities of court or counsel, since it assumes that the defendant understands not just the words but the concepts underlying them. In fact, defendants not born in this country often fail to understand concepts such as "jury" and "counsel", let alone the underlying premise that an individual possesses "rights" with respect to the government. Because the use (and misuse) of translated forms is substantively different, any rule recognizing translations as official court forms should guide their proper usage.

    The interpreter committee and the records management committee have each contributed members to an ad hoc committee on translation. This committee has identified forms and instructions to be translated,7 agreed on an appropriate format,8 and determined that the language most critically needed is Spanish.9 The court interpreter program manager will have the responsibility to negotiate and monitor contracts with translators, assemble a review panel to make sure translations are accurate and easily comprehended by diverse speakers of the language, distribute the forms, and keep the materials updated. Once a form is translated into a particular language for the first time, keeping up with changes should involve a manageable level of time and expense.

    Accordingly, the director requests the following changes to the statutes and rules. Wis. Stats. § 758.18(3) should be created to read as follows:

    § 758.18 Judicial conference: standard court forms.10

    (3) The judicial conference may adopt translations of forms adopted under sub. (1) and (2). The judicial conference shall identify the forms to be translated and the languages to be used.

    SCR 70.155 should be created to read as follows:

    SCR 70.155 Translations of Court Forms.

    (1) The records management committee, working with the director of state courts office, shall identify court forms and instructions suitable for translation into a language other than English. Translated forms adopted by the judicial members of the records management committee on behalf of the judicial conference shall be treated as court forms adopted under § 758.18 and SCR 70.153.

    (2) Translated forms shall use a format that incorporates both English and the second language. Every question or statement requiring a response, such as a check box or signature, will provide only one location in the English portion of the form to make that response. The answers to free-text questions must be written in English.

    (3) Each translated form shall carry a notice, in both languages, that the translated form does not replace the need for an interpreter, any colloquies mandated by law, or the responsibility of court and counsel to ensure that persons with limited English proficiency fully comprehend their rights and obligations.

    (4) Use of a translated form does not supersede the need for an interpreter for communicating with counsel, or for in-court proceedings pursuant to Wis. Stats. § 885.38. Interpreters may assist individuals in filling out forms to the extent provided by SCR 63.07.

    Respectfully submitted:

    A. John Voelker,
    Director of State Courts

    1See Committee to Improve Interpreting and Translation in the Wisconsin Courts, Improving Interpretation in Wisconsin's Courts at 36 (October 2000).

    2Title VI and the related guidance of the U.S. Department of Justice are described in the Wisconsin Director of State Courts Language Assistance Plan at 5 (January 26, 2004), found at http://www.wicourts.gov/services/judge/docs/lapstate.pdf .

    3The legislature has already provided in § 799.04 that in counties with a population over 500,000, the small claims summons form shall have all provisions printed in both English and Spanish.

    4Some locally translated forms include nonexistent words, unrecognizable spelling, and word-for-word translations that render the meaning in Spanish nonsensical.

    5This rule does not govern translation of brochures, signs, web pages, and other information undertaken by the director of state courts or other court agencies.

    6The Code of Ethics for Court Interpreters, SCR ch. 63, limits the assistance an interpreter may provide in reading and filling out forms:

    63.07 Scope of practice. Interpreters shall limit themselves to interpreting or translating and shall not give legal or other advice, express personal opinions to persons using their services, or engage in any other activities that may be construed to constitute a service other than interpreting or translating while serving as an interpreter.

    Comment: ... Interpreters may convey legal advice from an attorney to a person only while that attorney is giving it. Interpreters should not explain the purpose or contents of forms, services, or otherwise act as counselors or advisors unless they are interpreting for someone who is acting in that official capacity. Interpreters may translate language on a form for a person who is filling out the form, but should not explain the form or its purpose for such a person. While engaged in the function of interpreting, interpreters should not personally perform official acts that are the official responsibility of other court officials. (emphasis added)

    7Court documents chosen for translation include the adult and juvenile plea questionnaires, waiver of right to counsel, notice of right to seek post-conviction relief, and the domestic abuse injunction form and instructions.

    8A draft translation of the plea questionnaire, CR-227, is attached to demonstrate the format. [Attached only to the petition filed with the court.]

    9Hmong translations may be provided at a later date after completion of a Hmong-English legal glossary currently in development.

    10The Records Management Committee is concurrently submitting a petition on forms for use by self-represented litigants, which would add a second section to § 758.18:

    (1) The judicial conference shall adopt standard court forms for use by parties and court officials in all civil and criminal actions and proceedings in the circuit court.

    (2) In addition, at the request of the director of state courts, the judicial conference may adopt forms created for voluntary use by self-represented litigants in the circuit court. The judicial conference shall identify which forms are intended for voluntary use. This translation petition contemplates that both standard forms and voluntary pro se forms, if any, will be covered by the translation rule.




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