Wisconsin Lawyer: Supreme Court Orders:

State Bar of Wisconsin

Sign In
    Wisconsin LawyerWisconsin Lawyer

News & Pubs Search

Advanced

    Supreme Court Orders

    On March 14, the Wisconsin Supreme Court will hold a public hearing on Order 01-14 regarding the Planning and Policy Advisory Committee, and Order 07-15 regarding dismissals of cases on appeal. At its open administrative conference, the court also will discuss Order 07-09 regarding the definition of the practice of law.


    Share This:

    Wisconsin LawyerWisconsin Lawyer
    Vol. 81, No. 2, February 2008

    Supreme Court Orders

    On March 14, the Wisconsin Supreme Court will hold a public hearing on Order 01-14 regarding the Planning and Policy Advisory Committee, and Order 07-15 regarding dismissals of cases on appeal. At its open administrative conference, the court also will discuss Order 07-09 regarding the definition of the practice of law.

    On April 7, the court will hold a public hearing to discuss Order 08-01 regarding the management of juries. At its open administrative conference, the court also will discuss Order 04-03 regarding paralegal licensure.

    On April 8, at its open administrative conference, the court will discuss Order 02-03 regarding state legislative redistricting, Order 06-07 regarding use of electronic signatures by court officials, and Order 06-08 regarding electronic filing in the circuit courts.

    The court has issued Order 05-05 amending Wis. Stat. § 802.12(5) relating to memorializing ADR settlements, Order 07-07 amending SCR 32.01 regarding the composition of the Judicial Education Committee, and Order 07-08 creating SCR 31.04 regarding comity for continuing legal education.

    State Legislative Redistricting

    In the matter of the adoption of procedures for original action cases involving state legislative redistricting

    Order 02-03

    On Jan. 7, 2002, Assembly Speaker Scott R. Jensen and Senate Minority Leader Mary E. Panzer, representing Assembly and Senate Republicans, petitioned this court for leave to commence an original action to declare the existing legislative districts constitutionally invalid due to population shifts documented by the 2000 census. They further asked this court to enjoin the Wisconsin Elections Board from conducting the 2002 elections using the existing districts. Finally, claiming a legislative impasse, they asked this court to remap the state's Senate and Assembly districts in time for the rapidly approaching 2002 election cycle. The Elections Board, by a 4-3 margin, supported the petition.

    On Feb. 12, 2002, this court issued its per curiam opinion denying the petition without prejudice. Jensen v. Wisconsin Elections Board, 2002 WI 13, 249 Wis. 2d 706, 639 N.W.2d 537. In its opinion, this court emphasized that the Wisconsin Constitution sets forth standards for redistricting and commits to the state legislature the authority and responsibility of drawing state Senate and Assembly district boundaries: "At its first session after each enumeration made by the authority of the United States, the legislature shall apportion and district anew the members of the senate and assembly, according to the number of inhabitants." Wis. Const. art. IV, § 3; see id. at ¶6. This court stated:

    "The framers in their wisdom entrusted this decennial exercise to the legislative branch because the give-and-take of the legislative process, involving as it does representatives elected by the people to make precisely these sorts of political and policy decisions, is preferable to any other." Id. at ¶10.

    At the time the Jensen petition was pending, it was well into the first legislative session following the 2000 census enumeration and not far (just three and a half months) from the official commencement of the next election season (nomination paper circulation begins June 1). Wis. Stat. § 10.72(2) (1999-2000). Id. at ¶12. A group of Wisconsin citizens had commenced a congressional reapportionment lawsuit in federal court over a year before, pending in the United States District Court for the Eastern District of Wisconsin, which had been amended to include the issue of state legislative redistricting. See Arrington v. Elections Board, No. 01-C-121 (E.D. Wis. filed 2001). A three-judge panel, established pursuant to 28 U.S.C. § 2284 (2000), had assumed jurisdiction over the federal case. Id. at ¶14.

    The timing of the Jensen petition did not permit the court to exercise its original jurisdiction in a way to do substantial justice. This court explained:

    "We have no established protocol for the adjudication of redistricting litigation in accordance with contemporary legal standards. A procedure would have to be devised and implemented, encompassing, at a minimum, deadlines for the development and submission of proposed plans, some form of factfinding (if not a full-scale trial), legal briefing, public hearing, and decision. We are obviously not a trial court; our current original jurisdiction procedures would have to be substantially modified in order to accommodate the requirements of this case. See Wis. S.Ct. IOP § II.B.3 (May 24, 1984)."

    "All this takes time, and there is precious little of that left _ certainly not enough for back-to-back state and federal plenary proceedings on a matter as complex and consequential as this." Id. at ¶21.

    While this court denied the petition for leave to commence an original action, it stated that it would initiate proceedings regarding procedures for original jurisdiction in future redistricting cases. Accordingly, as a consequence of the Jensen petition and decision, on Nov. 25, 2003, this court appointed a committee to review legislative redistricting, along with rules and procedures of other jurisdictions, and to propose procedural rules.

    On Sept. 21, 2007, the committee submitted its report and proposal, which the court has posted to its Web site at: http://wicourts.gov/news/archives/2007/docs/redistrictingreport.pdf. On Sept. 24, 2007, the court invited public comment on the report and stated that it would decide how to further proceed after receipt of comments. The court has received comments and is still open to receiving comments. The court has decided to discuss the matter at an open administrative conference to decide any future steps.

    IT IS ORDERED that on Tuesday, April 8, 2008, at 9:30 a.m., at its open administrative conference in the Supreme Court Room in the State Capitol, Madison, Wis., the court shall discuss the committee's report and comments received.

    IT IS FURTHER ORDERED that any interested persons may file with the court a written submission for the court's review at this conference, preferably no later than March 14, 2008. The court retains the entire file on this matter and interested persons are encouraged not to file duplicative submissions. As this matter is not presently scheduled for public hearing, general public testimony will not be entertained at the open conference at this time. The court may, in its discretion, direct questions to individuals present at the conference to aid the court's consideration of these matters.

    IT IS FURTHER ORDERED that notice of the hearing 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 not more than 60 days nor less than 30 days before the date of the hearing.

    Dated at Madison, Wis., this 4th day of January, 2008.

    By the court: David R. Schanker, Clerk of Supreme Court

    Top of page

    Regulating Paralegals

    In the matter of the Licensure and Regulation of Paralegals

    Order 04-03

    On Feb. 13, 2004, the Board of Governors of the State Bar of Wisconsin filed a petition for the establishment of a system for licensure and regulation of paralegals in Wisconsin. A public hearing was conducted by the court on Oct. 27, 2004, at which numerous persons appeared. At the ensuing open administrative conference, the court took the matter under advisement pending its determination of certain issues, including ramifications for the unauthorized practice of law, the court's authority to regulate nonlawyers and other matters.

    IT IS ORDERED that on April 7, 2008, at 9:45 a.m., at its open administrative conference in the Supreme Court Room in the State Capitol, Madison, Wis., the court shall discuss this petition.

    IT IS FURTHER ORDERED that any interested persons may file with the court a written submission regarding the subjects identified for this conference no later than March 7, 2008. The court retains the entire file on this matter and interested persons are encouraged not to file duplicative submissions. As this matter has already been the subject of a public hearing, general public testimony will not be entertained at the open conference. The court may, in its discretion, direct questions to individuals present at the conference to aid the court's consideration of these matters.

    IT IS FURTHER ORDERED that notice of the administrative conference be given by a single publication of a copy of this order and 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 4th day of January, 2008.

    By the court:

    David R. Schanker, Clerk of Supreme Court

    Petition
    The Board of Governors of the State Bar of Wisconsin, by R. George Burnett, President of the State Bar of Wisconsin, hereby petitions this Honorable Court to establish a system for the licensure and regulation of paralegals in Wisconsin.

    Petitioner respectfully requests that such licensure and regulation be conducted by one or more of the agencies of the Wisconsin Supreme Court; that all persons utilizing the title "paralegal" in Wisconsin be subject to such regulation and licensure; and that all such persons perform their services under the supervision of an attorney licensed to practice law in Wisconsin.

    Attached to this petition as Exhibit "A" is the supporting Final Report of the State Bar of Wisconsin Paralegal Task Force dated December 2003. [Editor's Note: Exhibit A is available online at www.wisbar.org/Paralegal_Taskforce_Report.]

    Respectfully submitted on behalf of the Board of Governors of the State Bar of Wisconsin this __ day of February, 2004.

    R. George Burnett
    President, State Bar of Wisconsin

    Top of page

    Memorializing ADR Settlements

    In the matter of the Creation of Wis. Stat. § 802.12(5) relating to Memorializing Settlements Reached by Way of Alternative Dispute Resolution

    Order 05-05

    On Feb. 16, 2005, Attorney Donald Leo Bach filed a petition seeking to amend Wis. Stat. § 807.05 and to create Wis. Stat. § 802.12(5), relating to memorializing settlements reached by way of alternative dispute resolution. A public hearing was conducted on this petition on Oct. 25, 2005. At the court's request, an amended petition was filed on Jan. 26, 2006. The court solicited public comment on the amended petition from a number of interested parties.

    At the Dec. 11, 2006, public hearing on the amended petition, Attorney Bach voluntarily dismissed the portion of the petition seeking to amend § 807.05, and spoke in support of the petition to amend § 802.12. The State Bar of Wisconsin Board of Governors did not take a position on the petition. The Alternative Dispute Resolution section and the Family Law section of the State Bar each appeared in opposition to the petition. The Litigation section of the State Bar and the Litigation section of the Wisconsin Department of Justice generally favored the petition.

    At the ensuing open administrative conference, the court ascertained that the concerns of all interested parties could be addressed by inclusion of comments to the relevant statutes, §§ 802.12 and 807.05, and directed the interested parties to propose language for the court's consideration. The court considered and approved proposed comments at its open administrative conference on March 21, 2007.

    IT IS ORDERED that the following comment shall be published with Wis. Stat. § 802.12:

    "See s. 805.07, formal requirements to render binding agreements reached in an action or special proceeding. In some cases, such as family law cases, court approval is required for an agreement to be effective."

    IT IS FURTHER ORDERED that the following comment shall be published with Wis. Stat. § 807.05:

    "This section also applies to agreements, stipulations, and consents reached as a result of alternative dispute methods outlined in s. 802.12. In some cases, such as family law cases, court approval is required for an agreement to be effective."

    IT IS FURTHER ORDERED that the comments to Wis. Stat. §§ 807.05 and 802.12 are not adopted but will be published and may be consulted for guidance in interpreting and applying the statutes.

    IT IS FURTHER ORDERED that notice of publishing the comments to Wis. Stat. §§ 807.05 and 802.12 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.

    Annette Kingsland Ziegler, J., did not participate.

    Dated at Madison, Wis., this 11th day of January, 2008.

    By the court: David R. Schanker, Clerk of Supreme Court

    Top of page

    Use of Electronic Signatures by Court Officials

    In the matter of the Creation of a Court Rule Authorizing Use of Electronic Signatures by Court Officials

    Order 06-07

    On Dec. 6, 2006, A. John Voelker, Director of State Courts, filed a petition seeking to create a supreme court rule authorizing the use of electronic signatures by court officials. A public hearing was scheduled for March 2007, but prior to the date of the hearing the court granted the petitioner's request that the court postpone the matter until the 2007-2008 term.

    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 Tuesday, April 8, 2008, 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 4th day of January, 2008.

    By the court:
    David R. Schanker, Clerk of Supreme Court

    Petition
    The Director of State Courts petitions this court to create a supreme court rule authorizing the use of electronic signatures by court officials. This petition is brought pursuant to the court's rulemaking authority under Wis. Stats. s. 751.12 and its administrative authority over all courts conferred by Article VII, s. 3 of the Wisconsin Constitution. This request is supported by the CCAP Steering Committee and the Records Management Committee. It is consistent with the electronic filing petition but is intended to stand independently.

    Electronic signature technology has been developed by the Consolidated Court Automation Program (CCAP) as part of the court electronic filing pilot project. To use the technology, a court official logs onto the case management system, using his or her regular user name and password, and brings up a form or order to be reviewed. When the document is ready to be signed, the court official indicates approval of the document, causing the official's name to appear on the signature line of the document. Court commissioners and clerks of circuit court have been applying electronic signatures to small claims judgments and orders as part of the electronic filing pilot project since April 2005, without any problem or objection.

    Signing case-related documents. This petition requests that electronic signatures be approved for use by court officials outside the context of electronic filing. The technology can apply an electronic signature to any order or form generated by the CCAP case management system or the Supreme Court/Court of Appeals (SCCA) case management system. This petition requests that electronic signatures be made available to circuit court judges, clerks of circuit court, registers in probate, juvenile clerks, and court commissioners appointed under Wis. Stats. 757.68 and SCR 75.02(1), and to the Supreme Court, Court of Appeals, and the Clerk of the Supreme and Appellate Courts, to sign documents for case purposes. Electronic signatures will not necessarily be used for every electronic document, but they will be extremely useful for the common orders and forms that are generated many times a day.

    Signing administrative documents. The same signature can also be used by CCAP users outside the CCAP and SCCA case management systems to sign electronic documents for administrative purposes. Documents such as certifications of pending cases, requests for judicial assignment, and interpreter reimbursements will no longer need to be faxed in order to preserve a signature, and their information may be stored electronically in lieu of paper copies. This petition requests electronic signatures for the court officials listed above, plus the Director of State Courts and his designees. Such signatures will be authorized for administrative documents to the extent that programming resources are available and the business need is shown.

    Electronic signature statutes. In 2003 Wisconsin Act 294, the Wisconsin legislature approved the use of electronic signatures in government records and commercial transactions by adopting provisions of the Uniform Electronic Transactions Act (UETA). Wis. Stats. s. 990.01(38) defines a "signature" to include handwriting, the personal mark of one unable to write, and an electronic signature.1 The heart of UETA appears at s. 137.15:

    Legal recognition of electronic records, electronic signatures, and electronic contracts.

    (1) A record or signature may not be denied legal effect or enforceability solely because it is in electronic form.

    (2) A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation.

    (3) If a law requires a record to be in writing, an electronic record satisfies that requirement in that law.

    (4) If a law requires a signature, an electronic signature satisfies that requirement in that law.

    At the request of the Wisconsin Director of State Courts, the UETA legislation exempted court filings from coverage to let the court develop its own technical and legal standards for court documents.2 The proposed rule now authorizes court officials to use electronic signatures on those documents described in Wis. Stats. s. 137.12 (2m), as well as any other documents signed by the court.3

    The electronic signature feature developed by CCAP meets the security and verifiability standards of UETA and meets national standards in commercial and government practice. CCAP has received many requests for a signature technology from judges and clerks of circuit court. Enabling this feature will expedite the work of the courts without detriment to the security of the signature or the integrity of court documents.

    Signing by designees. Under the proposed rule, a court official's electronic signature is identified with the official personally and can only be applied through programs provided by CCAP. This rule also allows designees to apply an official's electronic signature when authorized to do so through the user security procedures of the case management system.4 In the clerk's office, a deputy clerk can be designated to sign those documents that are sent out many times a day, such as small claims summonses, notices of entry of judgment, and satisfactions. For judges, the technology represents a more secure and controllable version of a signature stamp. Since current practices vary widely with respect to signature stamps and delegated signing powers, this rule allows each court to develop a system that works most efficiently for it and encourages the use of electronic processes by judges.

    Appellate decisions have reasoned that counsel's personal signature is necessary to confer jurisdiction on the court, to assure that the pleadings are well-grounded in law and fact, and to prevent the unauthorized practice of law. See Schaefer v. Riegelman, 2002 WI 18, 250 Wis. 2d 494, 512-13; Novak v. Phillips, 2001 WI App. 156, 246 Wis. 2d 673, 680-81; Jadair, Inc. v. U.S. Fire Insurance Co., 209 Wis. 2d 187, 211-12 (1997). No case has examined the signature requirements for court officials, and the reasoning behind these cases seems inapplicable. Under this rule, the court official remains responsible for reviewing, revising and approving the document before his or her electronic signature is applied. The court official should be held accountable as if the document had been signed personally and should be expected to take corrective action for any misuse of the signature.

    Accordingly, the Director requests that a new section of SCR 70 be created as follows:

    SCR 70.__ Electronic Signatures.

    (1) As used in this rule, "court official" means a circuit court judge, clerk of circuit court, register in probate, juvenile clerk, court commissioner appointed under s. 757.68 and SCR 75.02(1), justice of the Supreme Court, judge of the Court of Appeals, and the Clerk of the Supreme and Appellate Courts. "Electronic signature" means an electronic sound, symbol, or process attached to or logically associated with a document and executed or adopted by a person with the intent to sign the document.

    (2) Secure electronic signatures may be provided by the Consolidated Court Automation Program (CCAP) for use by court officials who sign electronic documents. The electronic signature shall be treated as the court official's personal original signature for all purposes under Wisconsin statutes and court rules. An electronic signature may be used on all court documents, including those documents described in Wis. Stats. s. 137.12(2m). The official's printed name shall be inserted in place of a handwritten signature.

    (3) A court official may delegate the use of his or her electronic signature to an authorized designee, using the security procedures of the CCAP case management system or the Supreme Court/Court of Appeals (SCCA) case management system. A court official is responsible for any use of his or her electronic signature by an authorized designee.

    (4) An electronic signature shall be used only by the official to whom it is assigned and by such designees as the official may authorize. Upon learning that the confidentiality of the electronic signature has been compromised, the court official shall immediately report it to CCAP.

    (5) Court officials may use their electronic signatures for administrative purposes. If the signature of a court official is required on a document, an electronic signature satisfies that requirement. Electronically signed documents may be stored electronically for the proper retention period.

    (6) Electronic signatures may be provided to the Director of State Courts and such employees as the Director may designate for administrative purposes. At the discretion of the Director, an employee may be provided with his or her own electronic signature if appropriate for the conduct of official business. The electronic signature shall be treated as the person's original signature.

    (7) The chief justice, chief judges and Director of State Courts may use their electronic signatures for the assignment of judges pursuant to SCR 70.23 and 70.24. A district court administrator may be the designee of the chief judges for purposes of judicial assignment.

    1Wis. Stats. s. 990.01, construction of laws; words and phrases:

    (38) Signature. If the signature of any person is required by law it shall always be the handwriting of such person or, if the person is unable to write, the person's mark or the person's name written by some other person at the person's request and in the person's presence, or, subject to any applicable requirements under subch. II of ch. 137, the electronic signature of the person.

    Wis. Stats. 137.11(8) defines "electronic signature" as "an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record."

    2The uniform version of UETA does not have an exemption for court documents. To provide one, Senate Amendment 3 to 2003 AB 755 used language from an earlier uniform act, the Electronic Signatures in Global and National Commerce Act (E-Sign), 15 USC 7001. As a result, Wis. Stats. s. 137.12(2m) provides:

    (2m) This subchapter does not apply to any of the following records or any transaction evidenced by any of the following records:

    (a) Records governed by any law relating to adoption, divorce, or other matters of family law.

    (b) Notices provided by a court.

    (c) Court orders.

    (d) Official court documents, including briefs, pleadings, and other writings, required to be executed in connection with court proceedings.

    This language was intended to respect the separation of powers by having the court develop its own standards; it was not intended to preclude use of electronic signatures on court documents.

    3This proposed rule does not authorize electronic signatures for attorneys or self-represented parties; that issue is addressed only in the proposed electronic filing rule.

    4Within the existing user security system, court officials will identify each authorized designee, the effective date of authorization, and the expiration date if needed. Documents will be grouped into categories based on the type of document. The court official will identify which categories of documents each designee is authorized to sign, so that the system can block application of the official's signature outside the range of the designee's authority.

    Respectfully submitted this ___ day of ___, 2006.

    A. John Voelker, Director of State Courts

    Top of page

    Electronic Filing in the Circuit Courts

    In the matter of the Creation of a Court Rule Governing Electronic Filing in the Circuit Courts

    Order 06-08

    On Dec. 6, 2006, A. John Voelker, Director of State Courts, filed a petition asking this court to create a new rule implementing electronic filing in the Wisconsin circuit courts. A public hearing was scheduled for March 2007, but prior to the date of the hearing the court granted the petitioner's request that the court postpone the matter until the 2007-2008 term. On Dec. 21, 2007, the petitioner filed an amended petition which reflects programming changes necessitated by budget considerations. Therefore,

    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 Tuesday, April 8, 2008, 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 amended 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 4th day of January, 2008.

    By the court:
    David R. Schanker, Clerk of Supreme Court

    Amended Petition
    On Dec. 6, 2006, the Director of State Courts petitioned this court to create a new rule implementing electronic filing in the Wisconsin circuit courts. The Director now submits this amended petition in lieu of the earlier petition, to reflect programming changes necessitated by budget considerations. This petition is brought at the request of the Consolidated Court Automation Program (CCAP) Steering Committee.

    The e-filing rule is proposed as part of Wisconsin Statutes Chapter 801, the general rules of procedure and practice that govern commencement of action, service and filing, form of papers, time for filing, filing by facsimile, and similar matters. The provisions of Chapter 801 were adopted by the Supreme Court pursuant to its rulemaking authority under Wis. Stats. s. 751.12 and its administrative authority over all courts conferred by Article VII, s. 3 of the Wisconsin Constitution. An electronic filing rule may be created by the court under that same authority.

    This petition is supported by the amended report of a special committee of the Director of State Courts, attached as Exhibit A, describing the genesis of the rule and the technology to be used. The amended language of the proposed rule is attached to this petition as Exhibit B. The notes accompanying the rule are intended to be published for guidance. Additional comments not intended for publication are found in italics. [Editor's Note: Exhibit A is published in the full amended petition, available at www.wicourts.gov/supreme/docs/0608petitionamend.pdf .]

    Respectfully submitted this 26th day of December, 2007.

    A. John Voelker, Director of State Court

    Exhibit B
    Proposed Wis. Stats. 801.20, electronic filing.

    §1 Definitions.

    §2 Scope.

    §3 Registration requirements.

    §4 Time & effect of electronic filing.

    §5 Commencement of action.

    §6 Filing and service of documents of subsequent documents.

    §7 Payment of fees.

    §8 Format & content of documents.

    §9 Official record.

    §10 Authentication.

    §11 Notarization and oaths.

    §12 Signatures of registered users.

    §13 Court official signatures.

    §14 Confidential information.

    §15 Technical failures.

    The Director of State Courts requests that new Wis. Stats. 801.20, Electronic Filing, be created to read:

    (1) Definitions. In this section:

    (a) "CCAP" means the Consolidated Court Automation Programs, an office of the Wisconsin Director of State Courts Office.

    (b) "Clerk of court" means the official circuit court record keeper for the case in question, which may be the clerk of circuit court, juvenile clerk, or register in probate for that county.

    (c) "Compromised" means inadvertently or improperly disclosed.

    (d) "Document" means a pleading, form, notice, motion, order, affidavit, paper exhibit, brief, judgment, writ of execution, or other filing. For purposes of this rule, a document includes the transmittal page submitted with the filing.

    (e) 1. "Electronic filing system" means a web-based program established by CCAP for the purpose of filing documents with a circuit court and automatically integrating them into the CCAP case management system.

    2. "Electronic filing" does not include submission by electronic mail, facsimile, floppy disks, or other electronic methods.

    (f) "Electronic filing system administrator" means an individual appointed by CCAP to receive information and take action as necessary to run the electronic filing system.

    (g) "Electronic signature" means an electronic sound, symbol, or process attached to or logically associated with a document, that can be executed or adopted by the user with the intent to sign the document.

    (h) "Initiating document" means a summons and complaint, petition, application, citation, criminal complaint, or any other document filed to commence a court action.

    (i) "Traditional methods" means those methods of filing and serving documents, other than electronic filing, currently provided under Wisconsin statutes and local rules.

    (j) "Transmittal page" means a page generated by the electronic filing system containing the case management information necessary to transmit and file a document.

    (2) Scope. (a) The Director of State Courts, through CCAP, shall implement an electronic filing system for the Wisconsin circuit courts.

    (b) Use of the electronic filing system is voluntary. Parties or their attorneys may choose to participate in the electronic filing system or may request traditional service of paper documents.

    (c) Any action that may be brought in circuit court may be brought using electronic filing, subject to the ability of the electronic filing system to accept the documents. This section does not guarantee anyone the right to file electronically.

    (d) The procedures set forth in this section shall be interpreted in a manner consistent with existing procedural rules.

    (3) Registration requirements. (a) The following users may register for access to the electronic filing system:

    1. Licensed Wisconsin attorneys.

    2. Attorneys appearing pursuant to SCR 10.03 (4).

    3. Parties to an action who are not represented by an attorney.

    4. Full-time employees authorized under s. 799.06 (2).

    (b) Registered users of the electronic filing system shall be individuals, not law firms, agencies, corporations, or other groups.

    (c) Users shall register through the electronic filing system website by executing a user agreement governing the terms of use of the electronic filing system. To register, users must have the capability to produce, file, and receive electronic documents meeting the technical requirements of the electronic filing system. By registering, users agree to file all documents electronically to the extent the electronic filing system can accept them.

    (d) Upon completion of a properly executed user agreement, the electronic filing system shall assign to the user a confidential, secure access code. The access code shall be used only by the user to whom it is assigned and by any agents or employees that the user authorizes. Upon learning that the confidentiality of the access code has been compromised, the registered user shall immediately report it through the electronic filing system website.

    (e) Registered users shall notify the electronic filing system within 10 days of any change in the information provided for registration. Attorneys shall notify the electronic filing system within 10 days of beginning representation of a formerly self-represented user.

    (f) Nonresident attorneys may register following court approval of a motion to appear pro hac vice under SCR 10.03 (4).

    (g) The same access code shall be used for all cases on which the user is an attorney or a party. The user's access code will expire 6 months from the last activity on any case for which the user is registered. The electronic filing system may reset access codes and electronic signatures as needed for administrative and security purposes.

    (h) Registered users who wish to stop using ("opt out of") the electronic filing system must do so through the electronic filing system website. The electronic filing system will generate a notice to all parties that traditional service must be used for this party for future filings.

    (i) The electronic filing system may provide a method for submitting reports by individuals who are not parties to the case, such as presentence investigators and social workers.

    (4) Time and effect of electronic filing. (a) The electronic filing system is an agent of the circuit court for purposes of electronic filing, receipt, service, and retrieval of electronic documents.

    (b) When a document is submitted by a party to the electronic filing system, the electronic filing system shall transmit it to the appropriate clerk of court in the county where the case is filed. The electronic filing system shall issue a confirmation that submission to the electronic filing system is complete.

    (c) The clerk of court may review the document to determine if the document should be accepted for filing.

    1. If the clerk accepts the document, it shall be considered filed with the court at the time the original submission to the electronic filing system was complete. Upon acceptance, the electronic filing system shall issue a confirmation with the date and time of the original submission to serve as proof of filing.

    2. If the clerk rejects the document following review, the document will not become part of the court record and the filer will receive notification of the rejection. The filer may be required to refile the documents.

    (d) The date of filing shall be determined by the regular designated business hours of the clerk of court. Any document submitted to the electronic filing system before the close of regular business hours shall be considered filed on that date, so long as it is subsequently accepted by the clerk upon review. A document submitted after the close of regular business hours shall be considered filed the next business day.

    (e) Whenever a party has the right or duty to do some act within a prescribed period after the service of a document upon the party, 1 day shall be added to the prescribed period if the document is served through the electronic filing system between 5 p.m. and midnight.

    (f) The calculation of time for reply under other statutes and rules is neither expanded nor contracted by this section.

    (g) The electronic filing system will receive electronic filings 24 hours per day except when undergoing maintenance or repair.

    Note: Sub. (4) is intended to be consistent with the rules for facsimile transmissions under ss. 801.15 and 801.16.

    (5) Commencement of action. (a) If the clerk of court accepts an initiating document for filing, the clerk of court shall assign a case number and authenticate the document as provided under this section. The electronic filing system shall send a notice to the filer that the filing has been accepted and is available on the electronic filing system website.

    (b) Initiating documents shall be served by traditional methods as provided by Wisconsin statutes and local rules, unless the responding party has consented in writing to accept electronic service or service by some other method. Initiating documents shall be served together with a notice to the responding party stating that the case has been electronically filed and giving instructions for how to use the electronic filing system if the responding party chooses to do so.

    (c) A responding party or attorney for a responding party may register to use the electronic filing system as provided by this section. After registering to use the electronic filing system, the responding party or attorney must also register ("opt in") as a user on the particular case. A notice indicating the new user will be sent to the other registered users on the case.

    (6) Filing and service of subsequent documents. (a) Filing of documents other than initiating documents through the electronic filing system shall cause a notice of activity to be sent to the electronic mail account of the other registered users on that case. Registered users shall access filed documents through the electronic filing system website.

    1. For documents that do not require personal service, the notice of activity is valid and effective service on the other registered users and shall have the same effect as traditional service of a paper document, except as provided in sub. (b).

    2. Documents requiring personal service must be served by traditional methods as provided by Wisconsin statutes and local rules unless the responding party has consented in writing to accept electronic service or service by some other method.

    (b) If a notice of activity sent to a registered user's electronic mail account is rejected or returned undeliverable, the electronic filing system will automatically notify the filing party. The filing party must then serve the document on that user by traditional methods. The party whose electronic mail account rejected the notice will be treated as a nonregistered party until the party corrects the problem and re-registers with the electronic filing system.

    (c) Unrepresented parties or attorneys who are not registered users shall be served by traditional methods. The clerk shall maintain a list indicating which unrepresented parties or attorneys are to be served electronically and which are to be served by traditional methods.

    (d) An unrepresented party or attorney may submit a request to the clerk of court to begin electronic filing of documents at any time while the case is pending. The decision to allow electronic filing of documents after the case has been commenced is in the sole discretion of the clerk of court. If the request is granted, the requester shall register as provided by this section and shall send a notice to the other parties by traditional methods stating that the case has been electronically filed and giving instructions for how to use the electronic filing system if the other parties choose to do so.

    (e) Subpoenas may be electronically generated consistent with s. 805.07 and ch. 885, and may bear the electronic signature of the issuing attorney or court official. Subpoenas shall be served by traditional methods unless the responding party has consented in writing to accept electronic service or service by some other method.

    (f) Discovery materials may not be electronically exchanged through the electronic filing system, consistent with s. 804.01 (6).

    Note: Sub. (6) does not apply the general rule that most documents are considered served when they are mailed. Although documents are considered filed when they are accepted by the clerk and posted to the electronic filing website, the parties are notified of the posting by a notice sent to a electronic mail accounts. Because electronic mail is not yet as reliable as the United States Post Office; this subsection requires the filing party to revert to traditional service if the electronic mail notice is returned as undeliverable.

    (7) Payment of fees. (a) Registered users shall make any payment due to the clerk of court through the electronic filing system unless otherwise ordered by the court or unless special arrangements are made with the clerk of court. Documents that require payment of a fee are not considered filed until the fee is paid or a waiver of the fee is granted. The electronic filing system shall establish one or more methods for electronic payment.

    (b) Users may submit a request for waiver of fees under s. 814.29 (1), using the form provided by the electronic filing system for that purpose.

    (c) The electronic filing system shall deposit the fees due to the clerk of court in the clerk's account.

    (d) Users may be charged a convenience fee for use of the electronic filing system, as provided by s. 758.19(4m).

    Note: Sub. (7) provides that most routine fees be paid electronically, including filing, motion, and docketing fees, fines and forfeitures, court costs, and court-ordered attorney fees. Larger fees and deposits, such as condemnation awards, may be paid by other methods if ordered by the court or agreed to by the clerk of court. Attorneys should consult the Rules of Professional Conduct, SCR 20:1.15(e), with respect to the restrictions on electronic transactions from trust accounts.

    (8) Format and content of documents. (a) All electronically filed documents shall, to the extent practicable, be formatted in accordance with Wisconsin Statutes and local rules governing formatting of paper documents, including page limits.

    (b) Registered users shall provide any case management information needed to transmit and file the document. The electronic filing system will reject the document for failure to include information in any one of the mandatory fields identified by the system.

    (c) The electronic filing system may set limits on the length or number of exhibits. Exhibits rejected by the system for this reason may be filed by traditional methods.

    Note: Under sub. (8), users should maintain the original of each electronically filed document in electronic form until final disposition of the case and expiration of all time for appeal.

    (9) Official record. (a) Electronically filed documents have the same force and effect as documents filed by traditional methods.

    (b) For documents that have been electronically filed, the electronic version constitutes the official record. No paper copy of an electronically filed document shall be sent to the court.

    (c) The clerk of court may maintain the official court record in electronic format or in a combination of electronic and traditional formats. If a document submitted by traditional methods is not of sufficient graphical quality to be legible when electronically scanned into the electronic filing system, the clerk shall maintain the document in paper format.

    (d) Any official court record containing electronically filed documents must meet the operational standards set by SCR 72.05 for electronic records.

    (e) The clerk of court shall make the public portions of the electronic record available through the public access terminal located in the clerk's office. The clerk of court shall charge for copies of pages from the electronic record as provided by ss. 814.61 (10) and 814.66 (1) (h).

    (f) Certified copies of an electronic record shall be available through the clerk of court's office by traditional methods, as provided by s. 889.08.

    (g) Documents submitted by traditional methods will be electronically scanned and made part of the official record. The clerk of court may discard the paper copy immediately, notwithstanding SCR 72.03(3). If a document is filed by traditional methods, the submitting party shall file a copy of that document and not the original paper document. The court may require the submitting party to produce the original paper document if validity of the signature or document is challenged.

    Note: Sub. (9) requires parties filing documents by traditional methods, such as by hand delivery or by mail, to submit copies instead of original documents, to allow the clerk to eliminate the paper file. Discarding the paper copy is consistent with the rule governing facsimile copies, s. 801.16(2)(e), which provides that the faxed copy is the official record, and the original, if received, should be discarded. The rule does not require the submitting party to retain original paper documents. If there is likely to be a challenge to the validity of a signature or exhibit, parties may be well-advised to keep the original paper document. For a high-volume law practice, the economics may not support keeping paper originals when the remainder of the file is electronic, and parties may prefer to assume the risk of failure of proof.

    SCR 72.03(3) provides that even when the clerk of court has electronically stored a court file, the clerk may not destroy the paper file until one year after entry of a final order in the case. In contrast, the electronic filing rule anticipates that there may not even be a paper file for the case, so the clerk should be allowed to discard the paper copy as soon as it is electronically scanned and the clerk has confirmed that the electronic copy is legible, complete, and properly saved to the file.

    (10) Authentication. Electronic placement of the clerk's filing stamp and case number on each copy of an initiating document constitutes authentication under the Wisconsin Statutes and rules of court. An authenticated copy may be printed from the CCAP case management system by the clerk of court or from the electronic filing system by the filing party.

    Note: Sub. (10) provides that electronic authentication satisfies the authentication requirements of Wisconsin Statutes, including ss. 801.02, 801.09(4), and 909.02(8). Statutory authentication requirements must be met upon filing of the summons and complaint in order to confer jurisdiction on the court. American Family Mut. Ins. Co. v. Royal Ins. Co., 167 Wis.2d 524, 534 (1992). The purpose of authentication is to give assurance by the clerk that copies served are true copies of filed documents and to provide the case number for future reference. J.M.S. v. Benson, 91 Wis.2d 526, 532 (Ct. App. 1979), rev'd on other grounds, 98 Wis.2d 406 (1980). The security and verifiability provided by the electronic filing system satisfy the purposes of the authentication requirements under statutes and case law.

    (11) Notarization and oaths. (a) If a law requires a document be notarized, acknowledged, verified, or made under oath, the requirement is satisfied if the electronic signature of the person authorized to administer the oath or to make the notarization, acknowledgment, or verification, together with all other information required to be included by other applicable law, is attached to or logically associated with the document. A physical or electronic image of a stamp, impression, or seal need not accompany the electronic signature. The electronic signature and notary seal may be applied to the document's transmittal page.

    (b) The electronic filing system may provide an electronic signature and notary seal for notaries public who hold valid appointments under ch. 137. Expiration or renewal of the electronic signature and notary seal shall be concurrent with the notary's commission with the Secretary of State. The Director of State Courts Office may enter into an agreement with the Secretary of State governing notarization within the court electronic filing system.

    (c) Notaries public may register with the electronic filing system for authorization to notarize electronically filed documents. To register, notaries must be able to meet the technical requirements of the system. Upon receipt of a properly executed notary agreement, the system shall assign to the notary a confidential electronic signature and seal. The notary signature and seal shall be used only by the notary to whom it is assigned. Upon learning that the confidentiality of the signature and seal have been compromised, the registered notary shall immediately report it through the electronic filing system website.

    (d) Documents notarized by traditional methods may be filed through the electronic filing system if a handwritten signature and physical seal appear on the original document. The user shall submit a scanned copy of the notarized document to the electronic filing system, and the court shall maintain the scanned document as the official court record. The court may require the submitting party to produce the original paper document if validity of the notarization is challenged.

    (e) Other officers authorized by law to perform notarial acts may do so by application of their electronic signatures if those signatures are already provided through the electronic filing system under this section.

    (f) The electronic signature and seal provided for notaries public by the electronic filing system satisfy the self-authentication requirements of s. 909.02.

    Note: Sub. (11) is intended to satisfy the standards for electronic notarization set by Wis. Stats. s. 137.19 (the Uniform Electronic Transactions Act) and §706.25(2)(c) (the Uniform Real Property Electronic Recording Act). The rule should be interpreted flexibly to the extent that technical standards for electronic notarization evolve.

    The function of the notary is to witness the signature and to administer an oath when one is required. See ss. 706.07; 887.01; 887.03; Kellner v. Christian, 197 Wis.2d 183, 191 (1995). Notarial acts as defined by s. 706.07(1)(c) include the ability to administer oaths, take acknowledgments and verifications, and authenticate or certify documents. These functions may be performed not only by notaries public but also by a judge, clerk or deputy clerk of a court of record, or a court commissioner under s. 706.07(3). This section provides that the electronic signature of one of these officials may be applied to a certificate of notarial acts certifying that the function was performed.

    This section does not require the submitting party to retain original paper documents or exhibits bearing the notary's seal and signature. If there is likely to be a challenge to the validity of the notarization, parties may be well-advised to keep the paper copies. The court may require a party to produce the original paper document if validity of the notarization is challenged.

    Additional committee comment in support of this section:

    Notarization is required on documents such as affidavits and small claims verifications so they can be relied upon as sworn evidence in court. Notarization is also required on a number of probate forms that are subsequently filed with the register of deeds. Since these documents can be electronically signed, they also need to be electronically notarized, to avoid printing the documents for the sole purpose of applying the notary seal and signature.

    Electronic notarization in Wisconsin was approved in concept by the Uniform Electronic Transactions Act (UETA), 2003 Wisconsin Act 294, now s.137.19. The legislature also recently passed the Uniform Real Property Electronic Recording Act (URPERA), 2005 Wisconsin Act 421, now s. 15.01(4) and revised ch. 706, which authorizes electronic recording and notarization for real property instruments.

    The technology for electronic notarization is still under development. The process for electronic recording of real property instruments is expected to rely on proprietary software purchased by banks and real estate firms; notarization will be performed by employees with notary commissions using an electronic signature incorporated in the software. The Secretary of State and Department of Administration may at some point provide Wisconsin notaries with a electronic notary seal and signature for use in any type of electronic transaction, but a timetable for development has not been set.

    Rather than wait for such a development or rely on expensive vendor software, CCAP will build an electronic notarization feature to be used by duly commissioned notaries within the electronic filing system, a "registered notary" category of users. The Secretary of State is creating a database of all Wisconsin notaries which the electronic filing system can use to validate the notary's commission at the time the document is notarized. This system should work well for law offices, court offices, and litigants with notaries on staff. The committee recognizes that the system will not always be efficient for self-represented users, but traditional paper notarizations can be scanned in where necessary. CCAP will work with other state offices and the Wisconsin Register of Deeds Association to make sure court standards are compatible with the other systems as they are developed.

    Although electronic notarization can be accomplished by the use of a single electronic signature and does not call for a separate electronic seal under s. 706.25, the committee decided that public comfort would be increased if an image of a seal was applied to make it clear on paper copies that the document has been notarized. The security features of the electronic filing system, not the picture, will reveal if a notary seal or signature has been tampered with.

    No specific disciplinary provisions are provided for misuse of an electronic notary seal and signature. Notaries are subject to punishment for misconduct under s. 137.01(8), and attorneys and self-represented parties are subject to discipline under the signature provisions of this section.

    (12) Signatures of registered users. (a) Registered users shall be provided with an electronic signature that can be executed by the user with the intent to sign a document. The electronic signature shall be treated as the registered user's personal original signature for all purposes under Wisconsin statutes and court rules. Each document electronically signed shall bear that person's name, mailing address, telephone number, and State Bar number if applicable. If a statute requires a signature at a particular location on a form, the user shall insert the user's printed name and an indication that the document has been electronically signed. The electronic signature may be applied to the document's transmittal page.

    (b) A summons and complaint, petition, or other initiating document that is electronically signed in compliance with this section bears a sufficient signature under s. 802.05.

    (c) An electronic signature shall be used only by the user to whom it is assigned. Upon learning that the confidentiality of the electronic signature has been compromised, the registered user shall immediately report it through the electronic filing system.

    (d) Attorneys are responsible for electronically filed documents to the same extent as for paper filings, with similar consequences for missing or improper signatures. Attorneys using the electronic filing system are subject to sanctions under s. 802.05 and contempt procedures under ch. 785, and are subject to discipline for any violation of a duty to the court under the Supreme Court Rules.

    (e) Self-represented parties are responsible for electronically filed documents to the same extent as for paper filings, with similar consequences for missing or improper signatures. Self-represented parties using the electronic filing system are subject to sanctions under s. 802.05 and contempt procedures under ch. 785.

    (f) Documents containing signatures of third parties, such as affidavits, may be filed through the electronic filing system if a handwritten signature appears on the original document. The user shall submit a scanned copy of the signed document to the electronic filing system, and the court shall maintain the scanned signature as the official court record. The court may require the submitting party to produce the original paper document if validity of the signature is challenged.

    (g) If a document bearing a signature is filed by traditional methods, the filing party shall file a copy of that document and not the original paper document, as provided by sub. (8).

    Note: Sub. (12) adopts the definition of electronic signature appearing in ss. 137.11 (8) and 706.25(1)(d). Consistent with s. 137.15(4), it provides that if a law requires a signature, an electronic signature applied through the electronic filing system satisfies that requirement.

    The Wisconsin legislature has affirmed the trend toward acceptance of electronic signatures in government records and commercial transactions. At the request of the Wisconsin Director of State Courts, 2003 Wisconsin Act 294 (the Uniform Electronic Transactions Act) exempted court filings from coverage in order to allow the court to develop its own technical and legal standards. This section now allows the electronic signing and filing of those documents described in s. 137.12 (2m), as well as all other documents filed with the court.

    Compliance with this section satisfies the signature requirements of ss. 801.09(3), 802.05(1), and 805.07(4)(a), as well as all other statutes and rules relating to court documents. Appellate decisions have reasoned that counsel's personal signature is necessary to confer jurisdiction on the court, to assure that the pleadings are well-grounded in law and fact, and to prevent the unauthorized practice of law. See Schaefer v. Riegelman, 2002 WI 18, 250 Wis.2d 494, 512-513; Novak v. Phillips, 2001 WI App. 156, 246 Wis.2d 673, 680-81; Jadair, Inc. v, U.S. Fire Insurance Co., 209 Wis.2d 187, 211-212 (1997). For registered users of the electronic filing system, the identification procedures, security, and personal accountability provided by these rules are deemed to satisfy the purposes of a handwritten signature and all other signature requirements.

    The intent of this section is to make attorneys and self-represented parties responsible for electronic filings to the same extent they are responsible for paper filings. For that reason, the rule does not include a provision allowing attorneys to reveal their electronic signatures to office staff so the staff can apply the signature; the attorney must review each electronically filed document and apply his or her electronic signature personally. The courts and the Office of Lawyer Regulation have a range of sanctions and disciplinary measures that will serve as an adequate deterrent to any misuse of electronic signatures.

    This section does not require the submitting party to retain original paper documents bearing handwritten signatures. If there is likely to be a challenge to the validity of the signature, the submitting party may be well-advised to keep the original document.

    (13) Signatures of court officials. (a) If the signature of a court official is required on a document, the signature may be applied electronically. The electronic signature shall be treated as the court official's personal original signature for all purposes under Wisconsin statutes and court rules. Where a signature appears on a particular order, form, letter, or other document, the official's printed name shall be inserted.

    (b) The electronic signature of a court official shall be used only by the official to whom it is assigned and by such designees as the official may authorize. The court official is responsible for any use of his or her electronic signature by an authorized designee.

    (c) A court official may delegate the use of his or her electronic signature to an authorized designee pursuant to the security procedures of the CCAP case management system. Upon learning that the confidentiality of the electronic signature has been compromised, the court official shall immediately report it to CCAP.

    Note: Sub. (13) provides electronic signatures for those court officials whose duties require them to sign documents in circuit court case files, including circuit court judges, clerks of circuit court, registers in probate, juvenile clerks, and circuit court commissioners appointed under s. 757.68 and SCR 75.02(1). Electronic signatures may also be provided for the chief justice and the director of state courts to use for assignment of judges pursuant to SCR 70.23 and 70.24. A district court administrator may be the designee of a chief judge for purposes of judicial assignment.

    Under this section, court officials may allow an authorized staff member to apply the official's electronic signature at the official's specific direction. Appellate decisions have reasoned that counsel's personal signature is necessary to confer jurisdiction on the court, to assure that the pleadings are well-grounded in law and fact, and to prevent the unauthorized practice of law. No case has examined the signature requirements for court officials, and the reasoning behind previous decisions seems inapplicable. Each court official remains responsible for reviewing, revising and approving the document before the electronic signature is applied, and should be held accountable as if the document were signed personally.

    Additional committee comment in support of this section:

    The committee concluded that allowing court officials to delegate use of their electronic signatures will foster the use of electronic processes by judges and will allow each court to develop a system that works most efficiently for it. As long as the court official remains responsible for reviewing, revising and approving the document before his or her electronic signature is applied, the purpose of the signature is met.

    The committee decided that no comment was needed with respect to the consequences that may follow if a court official's electronic signature is misused. With respect to an errant employee, the consequences are likely to include personnel action and criminal prosecution, just as with forgery of a paper signature. With respect to the affected case, the judge will need to vacate any order mistakenly or fraudulently entered and otherwise rectify the mistake. Since judges already have the power and duty to do so if their signatures are miused on paper, no specific provisions are necessary for electronic signatures.

    The user security procedures of the CCAP case management system will be applied to the signatures of authorized designees. Court officials will identify each authorized designee and record the effective date of authorization, and the expiration date if needed. Documents will be grouped into categories based on the type of document. The court official will identify which categories of documents each designee is authorized to sign, so that the system can block application of the official's signature outside the range of the designee's authority. Since current practices vary widely with respect to use of signature stamps and delegated signing powers, the committee decided that it was not advisable to make a centralized decision about which documents could or could not be signed by an authorized staff member.

    For assignment of judges pursuant to SCR 70.23 and 70.24, the signature of the chief justice, the director of state courts, or the chief judge of a judicial district is required. These signatories may authorize designees to apply their signatures.

    (14) Confidential information. (a) The confidentiality of electronic records is the same as for equivalent paper records. The electronic filing system may permit access to confidential information only to the extent provided by law. No person in possession of a confidential electronic record may release the information to any other person except as provided by law.

    (b) If a document is made confidential by statute, it shall be identified as confidential by the submitting party when it is filed. The electronic filing system may require registered users to enter certain information, such as social security numbers, in confidential fields. The clerk of court is not obligated to review documents to determine if confidential information is contained within them.

    (c) If a registered user seeks court approval to make a document confidential, the registered user may electronically file the document under temporary seal pending court approval of the user's motion to seal.

    (d) The electronic filing system will place a visible mark on documents identified as confidential.

    Note: Sub. (14) provides that the electronic filing system shall protect those case types made confidential by statutes. Within an open case type, certain documents may be sealed by statute, such as presentence reports, financial disclosure forms, psychological evaluations, and certain health care records. This section places the burden on the submitting party to identify those documents as confidential. Confidential information may also be contained within an otherwise open document, such as a trade secret; the burden is on the filing party to move to seal those documents. As an added protection, the electronic filing system will mark confidential documents in a way that will be visible on the computer screen and when the documents are printed.

    (15) Technical failures. (a) A registered user whose filing is made untimely as a result of a technical failure may seek appropriate relief from the court as follows:

    1. If the failure is caused by the court electronic filing system, the court shall grant appropriate relief upon satisfactory proof of the cause.

    2. If the failure is not caused by the court electronic filing system, the court may grant appropriate relief upon satisfactory proof of the cause. Parties are responsible for timely filing of electronic documents to the same extent as filing of paper documents, with similar consequences for missed deadlines.

    (b) This section shall be liberally applied to avoid prejudice to any person using the electronic filing system in good faith.

    Note: Sub. (15) addresses technical failures of the court's electronic filing system or the user's electronic systems. Technical failures may include an error in the transmission of the document to the electronic filing system or to a served party, a failure to process the document upon receipt by the electronic filing system, or erroneous exclusion of a party from the service list by the electronic filing system.

    Correction of technical failures should generally be allowed in order to encourage the use of the electronic filing system. Correction should be automatic where the user can demonstrate that the problem was caused by the court's electronic filing system. The electronic filing system will generate a report if needed for a user to document the problem. Where the failure is caused by the user's electronic systems (such as electronic mail, word processing, or a database program) or by external forces (such as problems with the user's Internet service provider or power outages), the court has the discretion to correct the problem. The court should consider what consequences would follow a missed deadline for traditional filings, caused by forces such as malfunctioning equipment or traffic delays. The committee considered limiting the court's discretion to correct technical errors in the filing of initiating documents, where untimely filing is a jurisdictional issue, but decided against creating a bright-line rule because of occasional exceptions such as St. John's Home of Milwaukee v. Continental Casualty Co., 147 Wis.2d 764, 788-89 (Ct. App. 1988) and Granado v. Sentry Ins., 228 Wis.2d 794, 799 (Ct. App. 1999).

    Top of page

    Judicial Education Committee

    In the matter of the Amendment of Supreme Court Rule 32.01

    Order 07-07

    On June 13, 2007, the Wisconsin Association of Judicial Court Commissioners and the Wisconsin Family Court Commissioners Association filed a petition proposing to amend Supreme Court Rule 32.01 pertaining to the composition of the Judicial Education Committee. A public hearing was held on Nov. 27, 2007. Family Court Commissioner Darcy McManus presented the petition on behalf of both the Wisconsin Association of Judicial Court Commissioners and the Wisconsin Family Court Commissioners Association. In addition, the Director of State Courts submitted a memorandum on behalf of the Judicial Education Committee in support of the proposal, but with modifications.

    At the ensuing open administrative conference, the court voted unanimously to adopt the petition, with modifications. Accordingly, effective the date of this order, Supreme Court Rule 32.01 is amended as follows:

    SCR 32.01 Judicial education committee.

    A judicial education committee is created consisting of the chief justice of the supreme court or his or her designee, the chief judge of the court of appeals or his or her designee, the director of state courts, 2 circuit court commissioners appointed by the supreme court, 8 circuit court judges appointed by the supreme court, and the deans of the university of Wisconsin and Marquette law schools or their designees. The circuit court judge and circuit court commissioner members shall serve staggered 2-year terms and may serve not more than two successive 2-year terms. The dean of the Wisconsin Judicial College is a member ex officio of the committee and has voting privileges.

    IT IS ORDERED that notice of this amendment of Supreme Court Rule 32.01 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 14th day of December, 2007.

    By the court:
    David R. Schanker, Clerk of Supreme Court

    Top of page

    Comity Rule for Continuing Legal Education

    In the matter of Amendment to Supreme Court Rule SCR 31.04 Relating to Creation of a Comity Rule for Continuing Legal Education

    Order 07-08

    On June 18, 2007, the Board of Bar Examiners (BBE) filed a petition proposing to amend SCR 31.04 to create a subparagraph (3) relating to comity for nonresident Wisconsin-licensed attorneys who meet the continuing legal education requirements of their home jurisdiction. A public hearing was held on Nov. 27, 2007. John Kosobucki, Director of the BBE, presented the petition. Other appearances were made by James Huston, Chair, BBE Rules Committee; Thomas J. Basting Sr., President, State Bar of Wisconsin; Attorney Steven Levine; and four nonresident members of the Wisconsin State Bar: Attorney Donna M. Jones of Atlanta, Ga.; Attorney Paul E. Conrad of Washington, D.C.; Attorney Wendy D. Calvert of Chicago, Ill.; and Attorney Jon Erik Kingstad of Oakdale, Minn.

    At the ensuing open administrative conference, the court voted to deny the petition as presented and to request that interested persons submit arguments supporting or opposing a "pure comity" rule rather than a "conditional comity" rule regarding the proposed CLE exemption. The court requested these arguments by Dec. 7, 2007, for discussion at its open administrative conference on Monday, Dec. 10, 2007. On Dec. 6, 2007, the Board of Bar Examiners, by its director, John E. Kosobucki, submitted a letter indicating that it had voted to make no further comment. On Dec. 7, 2007, the State Bar of Wisconsin, by its president, Thomas J. Basting Sr., submitted a letter and memorandum supporting a "pure comity" rule.

    At the open administrative conference on Dec. 10, 2007, the court voted to adopt a "pure comity" version of the proposed amendment, which will be in effect for the CLE reporting period ending Dec. 31, 2008. Accordingly, effective the date of this order, Supreme Court Rule 31.04(3) is created to read:

    SCR 31.04

    (3) A lawyer whose practice is principally in another jurisdiction that has mandatory continuing legal education requirements and who is current in meeting those requirements is exempt from the attendance requirement of SCR 31.02, but shall comply with the reporting requirement of SCR 31.03.

    IT IS ORDERED that SCR 31.04(3), as created by this order, shall first apply to those lawyers who have a continuing legal education reporting period ending Dec. 31, 2008.

    IT IS FURTHER ORDERED that notice of this amendment of Supreme Court Rule 31.04 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 11th day of January, 2008.

    By the court:
    David R. Schanker, Clerk of Supreme Court

    Top of page

    Definition of the Practice of Law

    In the matter of the Definition of the Practice of Law and the Administration of a Rule Defining the Practice of Law

    Order 07-09

    On June 19, 2007, the Board of Governors of the State Bar of Wisconsin filed a petition asking the court to create a new court rule to define the practice of law and to create a system to administer the rule, subject to supervision and control by the court. A public hearing was conducted on Dec. 10, 2007. Attorney Thomas R. Basting Sr., President of the State Bar of Wisconsin, presented the petition to the court. Numerous interested persons appeared at the hearing or submitted written comments. At the ensuing administrative conference, the court discussed the matter and directed court staff to conduct certain research and to invite the various professional organizations that appeared in opposition to the petition to submit draft language to the court for its consideration.

    IT IS ORDERED that on March 14, 2008, at 9:30 a.m., at its open administrative conference in the Supreme Court Room in the State Capitol, Madison, Wis., the court shall discuss this matter together with proposed amendments. As this petition has already been the subject of a public hearing, general public testimony will not be entertained at the open conference. The court may, in its discretion, direct questions to individuals present at the conference to aid the court's consideration of these matters.

    IT IS FURTHER ORDERED that notice of the administrative conference be given by publication of a copy of this order 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 4th day of January, 2008.

    By the court:
    David R. Schanker, Clerk of Supreme Court

    Top of page

    Planning and Policy Advisory Committee

    In the matter of the Amendment to SCR 70.14(2) formalizing vice-chairperson position on the Planning and Policy Advisory Committee (PPAC)

    Order 07-14

    On Oct. 31, 2007, A. John Voelker, Director of State Courts, petitioned this court on behalf of the Planning and Policy Advisory Committee (PPAC) for an amendment to SCR 70.14(2) to formalize the position of PPAC vice-chairperson in SCR 70.14, which outlines the membership and role of PPAC.

    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 Friday, March 14, 2008, 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.1

    Dated at Madison, Wis., this 4th day of January, 2008.

    By the court:
    David R. Schanker, Clerk of Supreme Court

    1Notice of the hearing will appear in the Wisconsin Lawyer, the official publication of the State Bar of Wisconsin, 29 days before the hearing rather than the required minimum of 30 days due to the State Bar's publication schedule. Pursuant to its rule-making authority under Wis. Stat. § 751.12 and its Internal Operating Procedures, the court exercises its discretion to allow this unavoidable deviation from the requirements.

    Petition
    The Director of State Courts hereby petitions this court to amend SCR 70.14, pursuant to the court's rulemaking authority under Wis. Stats. s. 751.12. This petition is submitted on behalf of the Planning and Policy Advisory Committee (PPAC) of the Wisconsin Supreme Court, which is the court's advisory committee on planning initiatives, the administrative structure of the court system and the expeditious handling of judicial matters. The purpose of this proposed amendment is to amend language in SCR 70.14, Section (2), to formalize the position of PPAC vice-chairperson.

    The position of vice-chairperson of PPAC has existed informally for over a decade. In the absence of the formal chairperson (Chief Justice or his/her designee), the vice-chairperson acts as chairperson by leading PPAC meetings, and/or representing PPAC's interests at other engagements in the absence of the chairperson, and serves as an ex-officio member on the PPAC Planning Subcommittee. For this reason, PPAC proposes the following language to formalize the position of vice-chairperson in SCR 70.14, which outlines the membership and role of PPAC.

    PPAC proposes the following amended language to SCR 70.14 (2).

    (2) The chief justice, or his or her designee, or such other member as the chief justice shall appoint will act as chairperson of the planning and policy advisory committee. The chairperson shall appoint an existing judicial member of the planning and policy advisory committee to serve as vice-chairperson. The vice-chairperson will act in a leadership capacity in the absence of the chairperson and will serve in this capacity at the discretion of the chairperson.

    Based on the foregoing, the Director of State Courts requests that the Supreme Court amend SCR 70.14 as proposed.

    Respectfully submitted:
    A. John Voelker, Director of State Courts
    [Editor's Note: Attachment A of the petition, SCR 70.14 Planning and policy advisory committee, is available on the court's Web site at www.wicourts.gov/supreme/docs/0714petition.pdf. ]

    Top of page

    Voluntary Dismissals of Cases on Appeal

    In the matter of the Proposed Amendment to Wis. Stat. § (Rule) 809.18 (Voluntary Dismissal)

    Order 07-15

    On Nov. 27, 2007, the Wisconsin Court of Appeals by Chief Judge Richard S. Brown, filed a petition to amend Wis. Stat. § (Rule) 809.18 governing voluntary dismissals of cases on appeal and creating a subsection which requires the parties to immediately notify the court that the matter has been compromised or settled.

    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 Friday, March 14, 2008, 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 a 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.1

    Dated at Madison, Wis., this 4th day of January, 2008.

    By the court:
    David R. Schanker, Clerk of Supreme Court

    1Notice of the hearing will appear in the Wisconsin Lawyer, the official publication of the State Bar of Wisconsin, 29 days before the hearing rather than the required minimum of 30 days due to the State Bar's publication schedule. Pursuant to its rule-making authority under Wis. Stat. § 751.12 and its Internal Operation Procedures, the court exercises its discretion to allow this unavoidable deviation from the requirements.

    Petition
    The Court of Appeals respectfully petitions the Supreme Court to amend Wis. Stat. Rule 809.18 as follows:

    809.18(1). An appellant may dismiss a filed appeal by filing a notice of dismissal in the court or, if the appeal is not yet filed, in the circuit court. The dismissal of an appeal by the appellant or by agreement of the parties or their counsel does not affect the status of a lower court decision, the status of a cross-appeal, or the right of a respondent to file a cross-appeal.

    (2) If the parties compromise or otherwise settle the matter in litigation while the appeal is pending, the parties shall immediately inform the court that the matter has been compromised or settled. Upon receipt of such information, the court shall dismiss the appeal in accordance with sub. (1).

    This petition is directed to the Supreme Court's rule-making authority under Wis. Const., art. VII, sec. 3(1) and Wis. Stat. § 751.12.

    Respectfully submitted:
    Richard S. Brown, Chief Judge, Wisconsin Court of Appeals

    Top of page

    Management of Jurors in the Circuit Courts

    In the matter of the Amendment of Rules of Pleading, Practice and Procedure: Wis. Stat. § Ch. 756, Juries

    Order 08-01

    On Jan. 3, 2008, A. John Voelker, Director of State Courts, petitioned this court on behalf of the Committee of Chief Judges and the Chief Judge Subcommittee on Juror Treatment and Selection for an amendment to Chapter 756 of the Wisconsin Statutes relating to juries. The petition states that the goal of the rule petition "is to improve and clarify provisions governing the management of jurors in the circuit courts."

    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 7, 2008, at 9:45 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 4th day of January, 2008.

    By the court:
    David R. Schanker, Clerk of Supreme Court

    Petition
    The Director of State Courts hereby petitions the Supreme Court to amend Wis. Stats. ch. 756, Juries, pursuant to the court's rulemaking authority under Wis. Stats. s. 751.12. This petition is submitted on behalf of the Committee of Chief Judges and the Chief Judge Subcommittee on Juror Treatment and Selection. The goal of this rule change is to improve and clarify provisions governing the management of jurors in the circuit courts.

    Background

    In 1994, the Supreme Court requested the Judicial Council to identify what changes in rule or statute would be required to implement the American Bar Association Standards Relating to Juror Use and Management and to bring Wisconsin practice into compliance with current theories of best practices. Three petitions were submitted to the Supreme Court, all of which were adopted, effective July 1, 1997, (Orders 95-11, 96-05, 96-08). The petitions significantly reworked ch. 756 and created SCR 73. The new rule set forth a requirement that each court annually evaluate the jury system using five measures. The amendments to ch. 756 focused on modernizing the terminology and structure, changing the period jurors are eligible to serve and the length of service, preparing prospective juror lists, selecting jurors, and renumbering and revising the provisions for grand jury and inquest jury selection and service.

    In 1998, on the recommendation of the Wisconsin Records Management Committee, the Director of State Courts presented another petition to the Supreme Court. This petition would have provided for increased confidentiality of juror personal identifying information by referring to jurors by number alone and no longer permitting counsel to elicit personal identifying information from jurors during voir dire. Although the petition was denied, Order 98-08 contained the following language: "…the court stated that while it decided to deny the petition as filed, it would consider alternatives to address issues of confidentiality of personal identifying information of jurors…"

    In 2000, a delegation from Wisconsin attended the National Association for Court Management conference in Kansas City, returning with a number of jury-related topics of concern. Included was the problem of how address errors in the source list provided by the state Department of Transportation might result in the potential for bias in the selection process. The Chief Judge Subcommittee on Juror Treatment and Selection was formed and its action plan was approved by the Judicial Conference on Sept. 8, 2000; to assist judges and clerks through education and guidance to implement reforms and improve administration, to work with CCAP and the Records Management Committee to improve automation support and forms, and to monitor innovations in other states to suggest application in Wisconsin where appropriate.

    The Subcommittee reported back to the Committee of Chief Judges in June, 2006. The report again reviewed current practices and measured them against ABA Standards and reforms being implemented in courts across the country. It recommended: 1) implementing means and methods of increasing minority representation in those jurisdictions where it may be a concern, either through rule, policy or legislation; and 2) developing a plan for improved juror privacy. The Subcommittee researched existing Wisconsin law on these topics and relevant laws in selected other states, conferred with jury management experts in the National Center for State Courts and solicited feedback from clerks and judges about areas where current law is not clear. The resulting changes were adopted by the Committee of Chief Judges on Nov. 30, 2007 and are now presented in this petition.

    Highlight of Changes

    For the revised chapter to read in a comprehensible, logical manner, many provisions were reordered into a new sequence. A definitions section has been added for the first time and the new definitions used throughout the chapter.

    The petition does not request substantive changes in:

    • State policy on the obligation and opportunity to serve;
    • Juror qualifications;
    • Excuse and deferral provisions;
    • Insufficient jurors;
    • Oaths and affirmations;
    • Juror fees and mileage reimbursements;
    • Juror leaves of absence from work;
    • Length of service and periods of eligibility; or
    • Summons, when and how issued.
    • The petition does request substantive changes to:
    • Penalties;
    • Jury selection;
    • Juror lists, how compiled and maintained; and
    • Juror privacy.

    Penalties: In the penalties section (Wis. Stats. s. 756.30), the fine of $40 for failure to appear when summoned (unchanged since at least 1969) has been increased to match the existing $500 forfeiture for failure to return a questionnaire or willfully misrepresent information on the questionnaire. The section on fraud, s. 756.30(2), has not been changed but merely moved into a separate section. The new language clarifies how the forfeiture is to be imposed (by the court) and to where payments are directed (to the clerk of court to offset juror fees). Over the years there has been much discussion among judges and clerks as to who had, or did not have, the authority to apply these sanctions. Some judges felt a District Attorney or Corporation Counsel must initiate action to prosecute before the penalties could be applied, while others felt this was within the authority of the court. The purpose of this change is to provide courts clear direction on this process to maintain the integrity of the jury summoning process and treat citizens consistently across counties.

    Jury selection: The jury selection section (Wis. Stats. s. 756.06) has been modified to reflect the decision of the court in State v Hansford, 219 Wis. 2d 226 (1998), which held that a six-person jury in a misdemeanor case was unconstitutional. Therefore 756.06(2)(am) is changed to a 12-person jury.

    Juror lists: Much of the Subcommittee's discussion has revolved around meeting the mandate of SCR 73.01(1), to ensure that the juror list used is representative and inclusive of the population of each circuit. This petition proposes to address this issue by improving the accuracy of the addresses of potential jurors to decrease undeliverable returns and thereby increase the level of representation for each cognizable group. A comparison of demographic characteristics between the United State's Census and the list of potential jurors, as provided by the Department of Transportation to each circuit court under current rules, demonstrates that the current source list adequately reflects the population in each county. But after the qualification and summoning process, counties with a measurable percentage of racial minority groups show a drop in the level of those groups. This does not appear to be wholly due to disproportionate disqualification pursuant to eligibility requirements, nor did the Subcommittee find any deliberate policy decisions or operational mechanisms resulting in bias. The reduced representation occurs primarily through return of undeliverable mail and failures to appear.

    To correct this, two approaches were considered. The first is stratified, or targeted, summoning. This process identifies geographic areas believed to have a higher concentration of the under-represented minority group. A proportionate increase in mailings is then sent to that area to obtain the appropriate number of responses. This process has been used in some jurisdictions across the country, where allowed by law, including the Eastern District of Wisconsin federal court. It has been criticized for violating the tenets of maintaining an equal opportunity to be selected and randomness in selection. It is also lacking in exactness, as zip code identifiers needed to target mailing do not precisely track with the boundaries of minority neighborhoods. A second method, proposed in the petition, is to improve the currency of the addresses used on the original mailings. Improving the currency of the source list was recommended by the National Center for State Courts, rather than the use of stratified or targeted summoning.

    The Department of Transportation (DOT) list is inherently inclusive; it has more names across social and economic lines than any other list the Subcommittee could identify. To improve the currency of addresses, this petition proposes that the court supplement the DOT list with other state lists having better currency. A number of lists have more current addresses because they require more frequent renewal or provide some incentive for keeping in touch with the agency. The suggested lists are:

    1. a list of registered voters provided by the State Elections Board.

    2. a list of all natural persons filing a state tax form provided by the Department of Revenue.

    3. a list of child support payors and payees provided by the Department of Workforce Development.

    4. a list of recipients of unemployment compensation provided by the Department of Workforce Development.

    5. a list of persons residing in Wisconsin approved or licensed by the Department of Natural Resources.

    Under the proposed rule, the DOT list will be used as the base list. If a potential juror does not appear on the DOT list the name will be added. If a potential juror appears on the DOT list and a supplemental list, the address from the list with better currency will be used. Duplicate names will be screened out. The merger will be implemented by decision of the Director of State Courts, done at the state level, and performed by the Consolidated Court Automation Program (CCAP).

    Because formatting differences between potential additional source lists makes accurate matching of names difficult based on currently available data fields of address, name and birth date, a unique piece of identifying information is needed for each potential juror to make sure they are not used more than once. The social security number has been selected as being common to multiple lists, but authorization to use the social security number is required. Protection of the confidentiality of the social security number is included in the proposal.

    Juror privacy: There are increasing concerns in society concerning the use and release of personal identifying information such as home address, phone numbers, employers and information on family members. A court must obtain the information necessary to legally qualify a potential juror for service. Some courts in Wisconsin, although not all, have developed the tradition of requesting supplemental information such as noted above for use by attorneys during voir dire. The petition allows for the collection of this information and its use by attorneys during voir dire, but protects the privacy of jurors by returning the information to the court at the conclusion of voir dire. Once voir dire is complete, all qualification forms and any supplemental information a court requests of potential jurors shall be confidential and released only upon the order of the court upon a showing of good cause. This is in compliance with Principle 7.A.8 of the ABA Principles Relating to Juries and Jury Trials (2005).

    Unlike elected officials and other government employees who choose a career in public service, jurors are private citizens summoned to participate in public service. In its report on The State of the States Survey of Jury Improvement Efforts, the National Center for State Courts, Center for Jury Studies says, "They (jurors) do not, therefore, automatically surrender expectations of privacy. In particular, they have a right to expect that personal information will be disclosed only to those individuals with a legitimate need for it. To meet those expectations, courts have increasingly placed restrictions on the information that prospective jurors are required to disclose and to whom that information may be subsequently released." The Center for Jury Studies states that more than one-third of courts report they do not even provide attorneys with a full street address. More than one-quarter report they provide no address information on jurors at all. This petition provides attorneys in voir dire full information, but joins the trend to increased privacy by limiting the public list of jurors to name, and village, town or city of residence.

    Conclusion

    The proposed provisions changing Chapter 756 will give the courts the tools to improve the administration of the jury system and better serve the citizens called to serve. The authorization permitting better, merged source lists can decrease undeliverable returns, increasing participation by minority groups. Clarifying the penalties for failure to comply will make the sanctions consistent and protects the integrity of the summoning process. The plan for protecting the privacy of jurors' personal information will enhance the likelihood of honest participation, without hindering the voir dire process.

    Respectfully submitted:
    A. John Voelker, Director of State Courts

    CHAPTER 756

    JURIES

    756.001 State policy on jury service; opportunity and obligation to serve as juror.

    756.01 Definitions.

    756.02 Juror qualifications.

    756.03 Excuse; deferral.

    756.04 Prospective juror lists; number; how compiled.

    756.05 Jury summons, when and how issued.

    756.06 Jury selection.

    756.07 Insufficient jurors.

    756.08 Oaths and affirmations.

    756.25 Juror fees and mileage.

    756.255 Leave of absence.

    756.28 Length of juror service; periods of required availability.

    756.30 Penalties.

    756.31 Clerk of circuit court fraud.

    756.001 State policy on jury service; opportunity and obligation to serve as juror. (1) Trial by jury is a cherished constitutional right.

    (2) Jury service is a civic duty.

    (3) No person who is qualified and able to serve as a juror may be excluded from that service in any court of this state on the basis of sex, race, color, sexual orientation as defined in s. 111.32 (13m), disability, religion, national origin, marital status, family status, lawful source of income, age or ancestry or because of a physical condition.

    (4) All persons selected for jury service shall be selected at random from the population of the area served by the circuit court. All qualified persons shall have an equal opportunity to be considered for jury service in this state and the obligation to serve as jurors when summoned under this chapter for that purpose. Any manual or automated method of selection that provides each qualified person with an equal probability of selection for jury service or that provides each prospective juror with an equal opportunity for assignment to a particular trial may be used.

    (5) The presiding judge of each circuit court, or, if there is none, the circuit judge designated by the chief judge to supervise the jury system, shall be responsible for administering the jury system in that court and shall discharge that duty in an efficient, equitable and cost-effective manner, in accordance with this chapter. The clerk of circuit court, if delegated by and under the supervision of the judge responsible for administering the jury system, may select and manage juries under policies and rules established by the judges in that circuit court.

    756.01 Definitions.

    (1) "Jury array" means the annual list of prospective jurors in each county qualified as eligible to serve under s. 756.02.

    (2) "Jury venire" means the jurors summoned for a date-specific term of service.

    (3) "Jury panel" means the jurors present for voir dire in a specific case.

    (4) "Jury" means the jurors and alternates sworn to hear a trial.

    756.02 Juror qualifications. Every resident of the area served by a circuit court who is at least 18 years of age, a U.S. citizen and able to understand the English language is qualified to serve as a juror in that circuit unless that resident has been convicted of a felony and has not had his or her civil rights restored.

    756.03 Excuse; deferral. (1) EXCUSE. The court to which a person is summoned for jury service may excuse the person from jury service if the court determines that the person cannot fulfill the responsibilities of a juror. The court shall not consider any structural limitations of a facility when making that determination.

    (2) DEFERRAL. The court to which a person is summoned for jury service may, upon request of that person, defer to a later date set by the court the period in which the person must serve if the court determines that service as a juror would entail undue hardship, extreme inconvenience or serious obstruction or delay in the fair and impartial administration of justice.

    (3) CLERK AUTHORIZED TO GRANT. The judge responsible for administering the jury system in the circuit court may authorize the clerk of circuit court to grant excuses or deferrals under this section. The authorization may limit the grounds on which the clerk of circuit court may grant the excuse or deferral and may require persons seeking an excuse or deferral to document the basis for any excuse or deferral.

    756.04 Prospective juror lists; number; how compiled.

    (1)In this section:

    (a) "Department" means the department of transportation.

    (b) "Department list" means a compilation of information prepared by the department that includes the name, address, date of birth, race and gender of each person who is licensed as a motor vehicle operator under ch. 343 or who has received an identification card under s. 343.50 or 343.51.

    (c) "Race" means African American, American Indian or Alaskan Native, Asian or Pacific Islander, Caucasian, Hispanic, or other racial category.

    (2) (1) Jurors for all circuit courts shall be selected under ss. 756.04 to 756.07.

    (2) (a) Each year, the Director of State Courts Office shall compile a master list of potential jurors for use by the circuit courts of each county during the coming year. The master list shall be compiled as described in this section and in a manner designed to meet the goals set forth in Supreme Court Rule 73.01.

    (b) Each year, on a date agreed upon with the Director of State Courts Office, the Department of Transportation shall compile a list that includes the name, address, county, date of birth, race, gender, social security number, license number and renewal date of each person residing in the state who is licensed as a motor vehicle operator under ch. 343 or who has received an identification card under s. 343.50 or 343.51. The Director of State Courts Office shall establish the format of the list by agreement with the department. The Department of Transportation shall transmit the list to the Director of State Courts Office, without charge.

    (c) The Director of State Courts Office may use any of the following lists in addition to the Department of Transportation list in order to create the master list of potential jurors. The Director may request the following lists from their custodians each year:

    1. a list of registered voters provided by the State Elections Board.

    2. a list of all natural persons filing a state tax form provided by the Department of Revenue.

    3. a list of child support payors and payees provided by the Department of Workforce Development.

    4. a list of recipients of unemployment compensation provided by the Department of Workforce Development.

    5. a list of persons residing in Wisconsin approved or licensed by the Department of Natural Resources.

    (d) If the records listed in (c) are requested, the Director of State Courts shall enter into a record sharing agreement with the custodian of the records. Any record sharing agreement shall be in writing for a prescribed period of time and shall identify data that would allow for a match of personally identifiable information on the list maintained by that custodian with personally identifiable information in the master list of potential jurors to the extent required to identify duplicate names and to determine current addresses of prospective jurors. The agreement shall establish the format of the list and date of transmission of the list.89

    (e) The Director of State Courts shall enter into an agreement with the custodian of the records listed in (b) and (c) to match personally identifiable information on the list maintained by that custodian with personally identifiable information in the master list of potential jurors to the extent required to identify duplicate names and to determine current addresses of prospective jurors.

    (f) No social security number shall be included in the lists of prospective jurors provided to the clerks of circuit court. All social security numbers shall be kept secure from unauthorized access and shall not be open to the public.

    (3) Annually, on a date established by the secretary of transportation, the department shall transmit, without charge, to each clerk of circuit court a department list of persons residing in the area served by that circuit court. The department shall establish, by rule, uniform specifications regarding the size, format and content of computer tapes or other media used to prepare the department list.

    (4) The clerk of circuit court shall compile the list of prospective jurors by selecting names at random from the department list or from a master list created under this subsection and sub. (5).

    (5) (a) The clerk of circuit court may create a master list using the department list and any of the following:

    1. Voter registration lists.

    2. Telephone and municipal directories.

    3. Utility company lists.

    4. Lists of payers of real property taxes.

    5. Lists of high school graduates who are 18 years of age or older.

    6. Lists of persons who are receiving aid to families with dependent children under subch. III of ch. 49.

    (b) To create a master list, the clerk of circuit court shall select randomly a sample of names from each source used. The same percentage of names shall be selected from each source used. The department list shall be the primary source, and the names selected from the department list shall be compared with the names from the 2nd source. Duplicate names shall be removed from the 2nd source sample and the remaining names shall be combined with the names selected from the department list to create the master list. If more than 2 source lists are used, this process shall be repeated, using the previously compiled master list for comparison with any additional source list.

    (3) From the statewide master list created under sub. (2), the Director of State Courts Office shall provide each clerk of circuit court with a list of prospective jurors residing in the county to be used during the following year. The county lists shall be created by randomly selecting from the master list the number of names requested by the clerk of circuit court for that year. The Director of State Courts Office shall transmit the list of prospective jurors to each clerk, with a certification that the list was prepared in strict conformity with this chapter, including an identification of all sources used in the preparation of the list.

    (6) (4) (a) Using the list of prospective jurors provided by the Director of State Courts Office, T the clerk of circuit court shall mail to every juror to be summoned, separately or together with the summons under s. 756.05, a juror qualification form requesting accompanied by instructions requiring the person to complete and return the form to the clerk within 10 days after receiving it. The form shall request all of the following:

    (a) 1. Information necessary to determine if the person is qualified to serve as a juror in that circuit court.

    (b) 2. The race of the prospective juror.

    (c) 3. The prospective juror's declaration that the responses are true to the best of his or her knowledge.

    (7) (b) The juror qualification form shall be accompanied by instructions requiring the person to complete and return the form to the clerk within 10 days after receiving it. The form under sub. (6) may request other information that the court needs to manage the jury system in an efficient manner, including information ordinarily sought during voir dire examination. The form under sub. (6) shall include a notice that, if the person willfully misrepresents a material fact, or fails to return the completed form within 10 days after its receipt, or fails to attend court without being excused by the court, the person may be required to forfeit not more than $500.

    (c) The form may be supplemented to request other information that the court needs to manage the jury system in an efficient manner, including information ordinarily sought during voir dire examination.

    (8) (d) If a prospective juror is unable to fill out the form under sub. (6) , another person may complete the form and shall indicate why the person has done so. If it appears that there is an omission, ambiguity or error in a returned form, the clerk of circuit court shall return the form to the person with instructions to correct and return the form to the clerk within 10 days after receiving the form.

    (9) (5)(a) During each year, the clerk of circuit court shall provide the court with a sufficient number of names of prospective jurors to meet the needs of the court. The clerk shall randomly select names from the department list or master list and strike the name of any person randomly selected whose returned juror qualification form shows that the person is not qualified for jury service under s. 756.02. The clerk shall certify that the names were selected in strict conformity with this chapter. The clerk shall include a verified statement with the list of names describing the manner in which the names were selected, including an identification of all sources used in the preparation of the list. The clerk shall keep a certified copy of the names of prospective jurors, including the address of each prospective juror, for public inspection. To create a jury array, the clerk shall strike from the list provided by the Director of State Courts the name of any person whose returned juror qualification form shows that the person is not qualified for jury service under s. 756.02.

    (b) The clerk shall keep a certified copy of the array, indicating the city, village, or township of residence of each prospective qualified juror, for public inspection. Each year, the clerk shall certify compliance with all provisions of this chapter that fall under the authority of the clerk of circuit court.

    (c) Except for those individual jurors whose service has been deferred or postponed to a time that falls within a new jury year, names of prospective jurors not qualified or not summoned at the end of a jury year shall be discarded.

    (10) (d) The clerk of circuit court shall keep computerized juror lists secure against unauthorized access.

    (6)(a) The qualification form under (4)(a) and supplemental information under (4)(c) shall be made available to counsel and parties during voir dire. Once voir dire is complete and a jury has been selected for the trial, these records shall be returned to the court.

    (b) A list of the names and city, village or township of residence of each juror sworn to a trial shall be retained in the court file. All qualification forms and supplemental information shall be confidential and released only upon order of the court upon a showing of good cause.

    756.05 Jury summons, when and how issued. At least 12 days before the first day on which a jury is required to be present, to create the jury venire, the clerk of circuit court shall summon randomly select a sufficient number of prospective jurors from the jury array who shall be summoned to appear before the court at an appropriate time for jury service. The summons may be served by 1st class mail or another method.

    756.06 Jury selection. (1) Whenever an issue is to be tried before a jury, the clerk of circuit court shall randomly select names from the jury venire until the desired number is obtained to create the jury panel. The random selection of names may include the provision that jurors reporting for service who have not been considered for assignment to a panel be considered before other jurors are considered for a second panelfrom the prospective juror list until the desired number is obtained .

    (2) (a) A jury in a felony case shall consist of 12 persons unless both parties agree on a lesser number as provided in s. 972.02.

    (am) A jury in a misdemeanor case shall consist of 6 12 persons.

    (b) Except as provided in par. (c) and ss. 980.05 (2) and (2m) (c), 980.09 (3), and 980.095 (1), a jury in a civil case shall consist of 6 persons unless a party requests a greater number, not to exceed 12. The court, on its own motion, may require a greater number, not to exceed 12.

    (c) A jury in a case involving an offense for which a forfeiture may be imposed or in an inquest under s. 979.05 shall consist of 6 persons.

    (d) This subsection does not apply to cases under ch. 938.

    756.07 Insufficient jurors. When a sufficient number of jurors cannot be obtained for a trial from the list jury venire supplied by the clerk of circuit court, the court may order the sheriff to bring before the court persons in the vicinity for determination by the court of their qualification and ability to serve as jurors for the particular trial.

    756.08 Oaths and affirmations. (1) The jurors selected to try the issues in the action or proceeding shall take an oath or affirmation to try the issues submitted to them and, unless discharged by the court, to give a verdict according to the law and the evidence given in court.

    (2) When the issues have been submitted to the jury, a proper officer, subject to the direction of the court, shall swear or affirm that the officer will keep all jurors together in some private and convenient place until they have agreed on and rendered their verdict, are permitted to separate or are discharged by the court. While the jurors are under the supervision of the officer, he or she may not permit them to communicate with any person regarding their deliberations or the verdict that they have agreed upon, except as authorized by the court.

    756.25 Juror fees and mileage. (1) Every grand and petit juror summoned shall receive an amount, not less than $16, as fixed by the county board, for each day of attendance, and an amount equal to the mileage rate set under s. 20.916 (8) for each mile traveled each day in going and returning by the most usual route. A juror may not be paid for a day when the court is not in session unless payment is ordered by the court.

    (2) The county board may pay jurors by the half-day. The payment shall be for 50% of the established daily pay under sub. (1) and may not affect the payment for mileage.

    (3) Notwithstanding subs. (1) and (2), if the judges in any circuit have established a system under s. 756.28 in which jurors are summoned to serve for only one day or one trial, the county board may determine the amount to be paid jurors for the first day of attendance and the amount to be paid jurors for traveling to and from the court for the first day of attendance.

    (4) When a juror has completed his or her service, the clerk of circuit court shall promptly initiate the procedure for payment of the juror's fees and mileage under s. 59.64 (1) (g) 1.

    756.255 Leave of absence. An employer shall grant an employee a leave of absence without loss of time in service for the period of jury service. For the purpose of determining seniority or pay advancement, the status of the employee shall be considered uninterrupted by the jury service. No employer may use absence due to jury service as a basis for discharging an employee or for any disciplinary action against the employee. An employer who discharges or disciplines an employee in violation of this section may be fined not more than $200 and may be required to make full restitution to the aggrieved employee, including reinstatement and back pay. Except as otherwise provided in this section, restitution shall be in accordance with s. 973.20.

    756.28 Length of juror service; periods of required availability. (1) ONE DAY OR ONE TRIAL. The judges in any circuit may establish a system in which a person summoned under s. 756.05 may not be required to serve or attend court for prospective service as a petit juror for more than one day in a specified period, unless more days are necessary to complete service in a particular case. The specified period may not be less than 2 nor more than 4 years. In circuits where judges have established such a system, a petit juror whose deliberation ends with a verdict may not be required to participate in a 2nd trial even though the juror may not have completed the first day of juror service at the time of commencement of the 2nd trial.

    (2) GENERAL 4"YEAR ELIGIBILITY. In a county where a system has not been established under sub. (1), a person may be required to be available for service as a grand or petit juror only once in any 4"year period. The period for which any person may be required to be available for service may not exceed 31 consecutive days. No person may be required to serve, or attend court for prospective service, as a juror for a total of more than 5 days unless more days are necessary to complete service in a particular case.

    756.30 Penalties. (1) Whoever does any of the following may be required to forfeit not more than $500, which shall be imposed by the court, and be retained by the Clerk of Court to off-set juror fees:

    (a) Whoever w illfully misrepresents any material fact on a juror qualification form under s. 756.04 (6 ) 756.06(8) or whoever fails to return the completed qualification form within 10 days after receipt of the form may be required to forfeit not more than $500 .

    (b) Fails to return the completed qualification form within 10 days after receipt of the form.

    (c) Fails to attend court after being lawfully summoned without being excused by the court.

    756.31 Clerk of circuit court fraud.

    (2) If the clerk of circuit court commits any fraud in the selection of jurors or prospective jurors, the clerk shall forfeit not more than $500 for each offense.

    (3) Any person lawfully summoned to attend as a juror who fails to attend without any sufficient excuse shall pay a fine not exceeding $40, which shall be imposed by the court to which the person was summoned and shall be paid into the county treasury.

    Top of page




To view or add comment, Login