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    The Wisconsin Supreme Court recently denied a petition to license and regulate paralegals (Order 04-03), amended Wis. Stat. section 887.26 relating to depositions conducted outside Wisconsin (Order 05-06), created a rule authorizing the use of electronic signatures by court officials (Order 06-07), created a rule implementing electronic filing in circuit courts (Order 06-08), created a rule governing the use of videoconferencing in the courts (Order 07-12), and corrected typographical errors in SCR 70.40(1) (Order 08-12). The Board of Bar Examiners will hold a public hearing Aug. 1, 2008, on proposed amendments to SCR Chapters 31 and 40.
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    Wisconsin LawyerWisconsin Lawyer
    Vol. 81, No. 6, June 2008

    Supreme Court Orders

    The Wisconsin Supreme Court amended SCR 13.045(1) to require judicial members to pay the annual WisTAF assessment, amended SCR 70.14(2) to formalize the PPAC vice chair position, and amended Wis. Stat. section (Rule) 809.18 governing voluntary dismissals of cases on appeal.

    Paralegal Licensure and Regulation

    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 asking this court to establish a system for mandatory licensure and regulation of paralegals in Wisconsin. A public hearing was conducted by the court on Oct. 27, 2004, at which numerous persons appeared. The court took the matter under advisement pending consideration of certain issues, including jurisdiction to regulate nonlawyers and possible ramifications for a pending petition addressing the unauthorized practice of law. On April 7, 2008, the court, having considered all written submissions and previous testimony, discussed this matter in open administrative conference. The court recognized the essential contributions of paralegals to our legal system and their legitimate desire for recognition of their expertise and professionalism. However, the court also acknowledged the reality that the prospect of creating an entirely new regulatory and enforcement structure or dramatically expanding existing agencies presents a daunting task in the present economic climate. Therefore,

    IT IS ORDERED that the petition is denied.

    IT IS FURTHER ORDERED that the Board of Governors of the State Bar of Wisconsin and interested paralegal organizations are invited to consider the merits of a voluntary registered paralegal program such as the program adopted by the Florida Supreme Court, and may, if they deem it appropriate, submit a rules petition to the court proposing a voluntary plan for the registration of paralegals in Wisconsin.1

    Dated at Madison, Wis., this 24th day of April, 2008.

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

    1See In re: Amendments to the Rules Regulating the Florida Bar - Florida Registered Paralegal Program, No. SC06-1622 (Fla. Nov. 15, 2007) (eff. Mar. 1, 2008).

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    Depositions Conducted Outside Wisconsin

    In the matter of Proposed Amendment to Wis. Stat. § 887.26

    Order 05-06

    On June 15, 2005, the Judicial Council filed a petition proposing certain amendments to Wis. Stat. § 887.26, relating to requirements for depositions conducted outside the state of Wisconsin. On Nov. 14, 2005, the court conducted a public hearing on this matter. The court and the petitioner concluded that the petition required certain revisions to clarify that § 887.26, as amended, would permit the taking of both oral and written depositions. The petition was returned to the Judicial Council. An amended petition was filed on June 12, 2006. At its open administrative conference on March 21, 2007, the court adopted the petition, as amended, effective July 1, 2008.

    Therefore,

    IT IS ORDERED that, effective July 1, 2008, 887.26 of the statutes is amended as follows:

    Section 1. 887.26 (title) and (1) of the statutes are amended to read:

    887.26 (title) Depositions without this outside state by commission . (1) How taken. In any civil action, proceeding, or matter in which depositions may be taken within this state, the deposition of any witness without outside the state may be taken before any officer as provided in s. 804.03 (1) or (2) or as provided in the rules of the state or country where taken. Depositions outside the state may be taken orally or upon written interrogatories questions as provided in this section.

    Section 2. Section 887.26 (4) of the statutes is amended to read:

    887.26 (4) Commission to take. A commission may issue from any court of record to take the deposition of any witness without outside the state, where an issue of fact has been joined or the time therefor has expired, after commencement of the action, except as provided in s. 804.015 or as provided in s. 804.02 (1), for any cause which shall be that is deemed sufficient by the court, or when required for use on any trial or hearing or upon any motion or proceeding. The commission shall be signed by the clerk and sealed and shall be accompanied by a copy of subs. (4), (5), and (6).

    Section 3. Section 887.26 (5) (a) of the statutes is renumbered 887.26 (5) (bm) 1. and amended to read:

    887.26 (5) (bm) 1. The party person desiring a commission shall prepare interrogatories a notice of intent to obtain a commission and state in the caption thereof of the notice of intent the name of the commissioner proposed by the party, the name of the witness and the his or her residence of each with particularity, and shall serve a copy thereof of the notice of intent on the opposite party, with a notice that, at the expiration of 10 5 days from the date of such service the notice of intent, a commission will be issued to take the deposition of the witness, directed to the court of jurisdiction of the residence of the witness, requesting that a subpoena issue from that court compelling the deposition upon written questions of the witness, and specifying the reason for taking the same. The notice of intent shall be accompanied by the questions. Within such time the 5-day period, the opposite party may file with the clerk and serve upon the other his or her party any objections, to the interrogatories proposed and to the competency of the witness and to the issuance of the commission and serve his or her cross-interrogatories cross-questions; and state the name and residence of any person whom the opposite party desires to act as an additional commissioner, who must reside in the county in which the commissioner first named resides, and may serve any objections to the questions and any cross-questions.

    Section 4. Section 887.26 (5) (am) of the statutes is created to read:

    887.26 (5) (am) Oral Depositions. 1. The person desiring a commission shall prepare a notice of intent to obtain a commission and state in the caption of the notice of intent the name of the witness and his or her residence with particularity, and shall serve a copy of the notice of intent on the opposite party, with a notice that, at the expiration of 5 days from the date of the notice of intent, a commission will be issued directed to the court of jurisdiction of the residence of the witness, requesting that a subpoena issue from that court compelling the oral deposition of the witness, and specifying the reason for taking the same. Within the 5-day period the opposite party may file with the clerk and serve upon the other party objections to the issuance of the commission.

    2. At the expiration of the 5 days, and no objection being received or sustained, the commission shall issue as provided in sub. (4). At the noticing person's expense, the commission shall be transmitted to the court of jurisdiction of residence of the witness, for issuance of the deposition subpoena in accord with the rules applicable to that court. No commission shall issue if the witness's residence is not given as required.

    Section 5. Section 887.26 (5) (b) of the statutes is renumbered 887.26 (5) (bm) 3. and amended to read:

    887.26 (5) (bm) 3. At the expiration of the time limited, the moving party may file the notice and interrogatories, with proof of service thereof and the moving parties' objections to the cross-interrogatories. The moving party may also serve redirect interrogatories on the opposite party, who may, within 3 days after such service, file objections to such redirect interrogatories. Thereupon period under sub. (b) 1. and (b) 2., and if no objection to the issuance of the commission has been received or sustained the commission shall be issued issue, with the interrogatories written questions, direct, cross and redirect, and all objections, and transmitted to the commissioner first named by mail or express at the expense of the moving party. But when any defendant shall not have appeared and the time for the defendant to plead has expired, no notice is required to be given such defendant, and the commission may issue on filing the direct interrogatories questions as provided in sub. (4). At the noticing person's expense, the commission shall be transmitted to the court of jurisdiction of the residence of the witness, for issuance of the subpoena in accord with the rules applicable to that court. No commission shall issue if the witness's residence s are residence is not given as required.

    Section 6. Section 887.26 (5) (bm) (title), 2., 4. and (c) of the statutes are created to read:

    887.26 (5) (bm) (title) Written Questions.

    2. If cross-questions are served, within 3 days after such service the noticing person may also serve redirect questions on the opposite party, who may, within 3 days after such service, serve objections to such redirect questions.

    4. Upon issuance of the commission, the noticing person shall transmit to the officer taking or transcribing the deposition, by mail or express, the direct, cross, and redirect questions, and the objections to the questions.

    (c) Before Commencement of Action. When testimony is sought of a witness outside the state before commencement of an action as provided in s. 804.02 (1), the order issued under s. 804.02 (1) (c) shall also include a commission in the form provided by sub. (4) of this section.

    Section 7. Section 887.26 (6) (title) of the statutes is amended to read:

    887.26 (6) (title) Duty of Commissioner Commissioner—Examination and Cross-Examination; Record.

    Section 8. Section 887.26 (6) (a) of the statutes is renumbered 887.26 (6) (cm) and amended to read:

    887.26 (6) (cm) The commissioner first named shall fix the time and place for executing the commission and give the other commissioner one day's notice if residing in the same place, and when not, one day's notice in addition for every 30 miles of distance between the place of residence and the place fixed for executing the commission. If the notice be by mail double time shall be allowed; but notice may be waived in writing or by appearance at the execution of the commission. If there be 2 commissioners the commission shall be executed in the county where they reside, unless they agree upon another. The commissioner first named taking or transcribing the deposition shall have charge of and return the deposition, which return shall be in the same form and manner directed by the commission or as provided by s. 804.05 (7). If either commissioner shall not attend at the time and place so fixed, the other may execute the commission with like effect as if both were present, but such commissioner must certify in the return that the other had due notice but failed to attend.

    Section 9. Sections 887.26 (6) (am) and (bm) of the statutes are created to read:

    887.26 (6) (am) Oral Examination. Testimony shall be taken in the manner provided by ss. 804.05 (4) to (6).

    (bm) Examination by Written Questions. Testimony shall be taken in the manner provided by s. 804.06(2).

    Section 10. Sections 887.26 (6) (b), (c) and (d) of the statutes are repealed.

    Section 11. Section 887.26 (6) (cm) (title) of the statutes is created to read:

    887.26 (6) (cm) (title) Certification and Service by Officer; Exhibits; Copies; Notice of Service.

    Section 12. Section 887.26 (7) of the statutes is amended to read:

    887.26 (7) Fees. The persons who take or transcribe the depositions and the witness shall be entitled to the fees allowed supplemental court commissioners reporters under s. 814.68 814.69 (1) and witnesses for similar service by the law of this state, or such as may be prescribed by the law of the state or country where taken.

    Section 13. Section 887.26 (8) of the statutes is amended to read:

    887.26 (8) Translations. When the witness is unable to speak the English language, the judge of the court from which the commission issues may appoint some competent and disinterested person to translate the commission, rules, interrogatories and cross-interrogatories, or such , at the expense of the noticing person, the subpoena, rules, and deposition questions and answers, or any part thereof as may be necessary, from the English into the language spoken used by the witness or vice versa; and such translation shall be sent to the commissioner in place of the original papers that have been translated. Upon the return of the commission and deposition, such judge shall in like manner cause the answers of the witness and the exhibits to be translated into English, as well as all other proceedings in a foreign language, and such translation to be filed the translation shall be transcribed and maintained as part of the deposition transcript. The translator shall append to all translations the translator's affidavit that the translator knows the English and such foreign the language of the witness, and that in making such translation the translator carefully and truly translated such the proceedings from the English into such foreign the witness's language or from the witness's language into English, and that such the translation is correct. Such A translation under this paragraph shall have the same effect as if all the proceedings were in English, but the trial circuit court, upon the deposition being offered in evidence, may admit the testimony of witnesses learned in such foreign the language of the deposed witness for the purpose of correcting errors therein; and, if it shall appear that the first translation was in any respect so incorrect as to mislead the witness, the court may, in its discretion, continue the cause for the further taking of testimony.

    IT IS FURTHER ORDERED that notice of these amendments 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 29th day of April, 2008.

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

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    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 on the petition was conducted on April 8, 2008.

    At the ensuing administrative conference, the court voted unanimously to adopt the petition, as modified. Therefore,

    IT IS ORDERED that, effective the date of this order, 70.42 of the Supreme Court Rules is created to read:

    SCR 70.42 Electronic Signatures. (1) Definitions. In this rule:

    (a) "Court official" means a circuit court judge, clerk of circuit court, register in probate, juvenile clerk, court commissioner appointed under section 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.

    (b) "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 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 section 137.12 (2m) of the statutes. 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 consolidated court automation program. A court official is responsible for any use of his or her electronic signature by an authorized designee. Court officials shall safeguard the security of their electronic signatures and exercise care in delegating the electronic signature.

    (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 inadvertently or improperly disclosed, the court official shall immediately report that fact to the consolidated court automation program.

    (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.

    IT IS ORDERED that notice of the creation of Supreme Court Rule SCR 70.42 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 1st day of May, 2008.

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

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    Electronic Filing in 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. On Dec. 21, 2007, the petitioner filed an amended petition which reflects programming changes necessitated by budget considerations. A public hearing on the amended petition was conducted on April 8, 2008.

    At the ensuing administrative conference, the court voted to adopt the petition unanimously, as modified, with the exception of sub. (9) (c). Justice Butler dissented from the adoption of that portion of the rule which permits the immediate destruction of paper copies of filed documents after scanning by the circuit court clerk, sub. (9) (c). Finally, the court ruled that the effective date of this rule shall be July 1, 2008.

    Therefore,

    IT IS ORDERED that effective July 1, 2008:

    SECTION 1. 801.17 of the statutes is created to read:

    801.17 Electronic filing.

    (1) Definitions. In this section:

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

    (b) "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.

    (c)

    1. "Electronic filing system" means a web-based system established by the director of state courts for the purpose of filing documents with a circuit court, automatically integrating them into the consolidated court automation program case management system, and electronically serving them on the parties.

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

    (d) "Electronic filing system administrator" means an individual appointed by the director of state courts to receive information and take action as necessary to run the electronic filing system.

    (e) "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.

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

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

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

    (i) "User" means an individual who has registered to use the electronic filing system under section (3).

    (2) Scope.

    (a) The director of state courts 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 on a case-by-case basis. Parties or attorneys who choose not to participate shall file, serve, and receive paper documents by traditional methods.

    (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 in this section shall be interpreted in a manner consistent with existing procedural rules.

    (3) Registration requirements.

    (a) The following individuals may register for access to the electronic filing system:

    1. Licensed Wisconsin attorneys.

    2. Attorneys appearing under 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) 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 electronically file all documents 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 inadvertently or improperly disclosed, the user shall immediately report that fact through the electronic filing system.

    (e) 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 shall 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) Users who wish to stop using the electronic filing system in a particular case must notify the director of state courts through the electronic filing system. The electronic filing system shall generate a notice to all parties that traditional methods must be used for this party for future filings and service.

    (i) The electronic filing system may provide a method for filing documents by individuals who are not parties to the case, such as witnesses seeking protective orders, intervenors, and amicus curiae. It may also 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 user 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. If the clerk accepts the document, the document 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. If the clerk rejects the document, the document shall not become part of the court record and the filer shall receive notification of the rejection. The filer may be required to refile the document.

    (d) The date the document is considered filed 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. The electronic filing system shall note the date and time the document is submitted.

    (e) Whenever a party has the right or duty to do some act within a prescribed period after the service of a document on the party, one day shall be added to the prescribed period if the document is served through the electronic filing system between 5 p.m. and 12 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 shall receive electronic filings 24 hours per day except when undergoing maintenance or repair.

    (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 in sub. (10). The electronic filing system shall send a notice to the filer that the filing has been accepted and is available through the electronic filing system website.

    (b) Initiating documents shall be served by traditional methods 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 shall also register as a user on the particular case. A notice indicating the new user will be sent to the other 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 users who are parties to the action. Users shall access filed documents through the electronic filing system.

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

    (c) Documents requiring personal service shall be served by traditional methods unless the responding party has consented in writing to accept electronic service or service by some other method.

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

    (e) Unrepresented parties or attorneys who are not 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.

    (f) An unrepresented party or attorney may submit a request to the clerk of court to begin electronic filing of documents after commencement of the case. 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 under this section and shall send a notice to the other parties by traditional methods stating that the case has been electronically filed and shall include instructions for how to use the electronic filing system if the other parties choose to do so.

    (g) Subpoenas may be electronically generated consistent with s. 805.07 and ch. 885, and shall 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.

    (h) The electronic filing system shall not be used for the electronic exchange of discovery materials and other communications between the parties that are not intended to be filed with the court. Discovery materials that are not filed with the court through the electronic filing system may be exchanged electronically between the parties by mutual consent, consistent with s. 804.01.

    (7) Payment of fees.

    (a) 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 a 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).

    (8) Format and content of documents.

    (a) To the extent practicable, the user shall format all electronically filed documents in accordance with statutes and local rules governing formatting of paper documents, including page limits.

    (b) Users shall provide any case management information needed to transmit and file the document. The electronic filing system shall 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 shall be filed and served by traditional methods. Leave of court may be granted for traditional filing and service in appropriate cases.

    (d) Users shall 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 nonelectronic formats. Documents filed by traditional methods shall 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 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 a public access terminal located in the clerk's office. The clerk of court shall charge for copies of pages from the electronic record under ss. 814.61 (10) and 814.66 (1) (h).

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

    (g) 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.

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

    (11) Notarization and oaths.

    (a) If a document is required to 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) Notaries public who hold valid appointments under ch. 137 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 electronic filing system. Upon receipt of a properly executed notary agreement, the electronic filing 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 inadvertently or improperly disclosed, the notary shall immediately report that fact through the electronic filing system website.

    (c) 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.

    (d) 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.

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

    (12) Signatures of users.

    (a) 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 user's personal original signature for all purposes under the 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 inadvertently or improperly disclosed, the user shall immediately report that fact through the electronic filing system.

    (d) Attorneys are responsible for electronically filed documents to the same extent as for paper filings. 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. 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. (9).

    (13) Signatures of court officials.

    (a) If the signature of a court official is required on a document, an electronic signature may be used. 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 nonelectronic signature would be located 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 consolidated court automation program case management system. Upon learning that the confidentiality of the electronic signature has been inadvertently or improperly disclosed, the court official shall immediately report that fact to the consolidated court automation program. Court officials shall safeguard the security of their electronic signatures and exercise care in delegating the electronic signature.

    (14) Confidential information.

    (a) The confidentiality of an electronic record, or an electronic or paper copy thereof, is the same as for the equivalent paper record. 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, or an electronic or paper copy thereof, may release the information to any other person except as provided by law.

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

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

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

    (15) Technical failures.

    (a) A 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 subsection shall be liberally applied to avoid prejudice to any person using the electronic filing system in good faith.

    SECTION 2. The following Comment to Wis. Stat. § 801.17 is not adopted but will be published and may be consulted for guidance in interpreting and applying the statute.

    Comment, 2008

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

    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 an electronic mail account. 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.

    Sub. (6) (f) provides that the clerk of court may allow an existing case to be converted to electronic filing upon the request of a party, but the clerk is not required to do so.

    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.

    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.

    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.

    Sub. (11) is intended to satisfy the standards for electronic notarization set by ss. 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. The intent of this section is to allow notaries to perform traditional notarial functions using alternate technology, and to make them responsible for electronic notarization to the same extent they are responsible for traditional notarization. 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.

    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, 512-13; 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). For 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.

    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. The electronic signature shall be applied in accordance with the provisions of SCR 70.42.

    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.

    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).

    IT IS ORDERED that notice of the creation of Wis. Stat. § (Rule) 801.17 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 1st day of May, 2008.

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

    ¶1 LOUIS B. BUTLER, JR., J. (Concurring in part, dissenting in part.). I dissent from the adoption of sub. (9) (c) of this rule on the grounds that sub. (9) (c) permits the immediate destruction of paper copies of filed documents after scanning by the circuit court clerk, resulting in a completely paperless system, which is inconsistent with the prudent management of Wisconsin's judicial records. I join in the adoption of the remainder of the rule.

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    Videoconferencing in the Courts

    In the matter of the petition to create a rule governing the use of videoconferencing in the courts

    Order 07-12

    On Sept. 4, 2007, A. John Voelker, Director of State Courts, petitioned the court to create a rule governing the use of videoconferencing in the courts, pursuant to the court's rulemaking authority under Wis. Stat. § 751.12. A public hearing on the petition was conducted on Jan. 8, 2008.

    At the ensuing administrative conference, the court voted to adopt the petition, as modified. The court ruled that the effective date of this rule shall be July 1, 2008.

    Therefore,

    IT IS ORDERED that effective July 1, 2008:

    Section 1. Subchapter III of chapter 885 of the statutes is created to read:

    SUBCHAPTER III

    CHAPTER 885

    USE OF VIDEOCONFERENCING IN THE CIRCUIT COURTS

    885.50 Statement of intent.

    (1) It is the intent of the Supreme Court that videoconferencing technology be available for use in the circuit courts of Wisconsin to the greatest extent possible consistent with the limitations of the technology, the rights of litigants and other participants in matters before the courts, and the need to preserve the fairness, dignity, solemnity, and decorum of court proceedings. Further, it is the intent of the Supreme Court that circuit court judges be vested with the discretion to determine the manner and extent of the use of videoconferencing technology, except as specifically set forth in this subchapter.

    (2) In declaring this intent, the Supreme Court finds that careful use of this evolving technology can make proceedings in the circuit courts more efficient and less expensive to the public and the participants without compromising the fairness, dignity, solemnity, and decorum of these proceedings. The Supreme Court further finds that an open-ended approach to the incorporation of this technology into the court system under the supervision and control of judges, subject to the limitations and guidance set forth in this subchapter, will most rapidly realize the benefits of videoconferencing for all concerned.

    (3) In declaring this intent, the Supreme Court further finds that improper use of videoconferencing technology, or use in situations in which the technical and operational standards set forth in this subchapter are not met, can result in abridgement of fundamental rights of litigants, crime victims, and the public, unfair shifting of costs, and loss of the fairness, dignity, solemnity, and decorum of court proceedings that is essential to the proper administration of justice.

    885.52 Definitions. In this subchapter:

    (1) "Circuit court" includes proceedings before circuit court judges and commissioners, and all references to circuit court judges include circuit court commissioners.

    (2) "Participants" includes litigants, counsel, witnesses while on the stand, judges, and essential court staff, but excludes other interested persons and the public at large.

    (3) "Videoconferencing" means an interactive technology that sends video, voice, and data signals over a transmission circuit so that two or more individuals or groups can communicate with each other simultaneously using video monitors.

    885.54 Technical and operational standards.

    (1) Videoconferencing technology used in circuit court proceedings shall meet the following technical and operational standards:

    (a) Participants shall be able to see, hear, and communicate with each other.

    (b) Participants shall be able to see, hear, and otherwise observe any physical evidence or exhibits presented during the proceeding.

    (c) Video and sound quality shall be adequate to allow participants to observe the demeanor and non-verbal communications of other participants and to clearly hear what is taking place in the courtroom to the same extent as if they were present in the courtroom.

    (d) Parties and counsel at remote locations shall be able, upon request, to have the courtroom cameras scan the courtroom so that remote participants may observe other persons present and activities taking place in the courtroom during the proceedings.

    (e) In matters set out in sub. (g), counsel for a defendant or respondent shall have the option to be physically present with the client at the remote location, and the facilities at the remote location shall be able to accommodate counsel's participation in the proceeding from such location. Parties and counsel at remote locations shall be able to mute the microphone system at that location so that there can be private, confidential communication between them.

    (f) If applicable, there shall be a means by which documents can be transmitted between the courtroom and the remote location.

    (g) In criminal matters, and in proceedings under chs. 48, 51, 55, 938, and 980, if not in each other's physical presence, a separate private voice communication facility shall be available so that the defendant or respondent and his or her attorney are able to communicate privately during the entire proceeding.

    (h) The proceeding at the location from which the judge is presiding shall be visible and audible to the jury and the public, including crime victims, to the same extent as the proceeding would be if not conducted by videoconferencing.

    (2) The moving party, including the circuit court, shall certify that the technical and operational standards at the court and the remote location are in compliance with the requirements of sub. (1).

    885.56 Criteria for exercise of court's discretion.

    (1) In determining in a particular case whether to permit the use of videoconferencing technology and the manner of proceeding with videoconferencing, the circuit court may consider one or more of the following criteria:

    (a) Whether any undue surprise or prejudice would result.

    (b) Whether the proponent of the use of videoconferencing technology has been unable, after a diligent effort, to procure the physical presence of a witness.

    (c) The convenience of the parties and the proposed witness, and the cost of producing the witness in person in relation to the importance of the offered testimony.

    (d) Whether the procedure would allow for full and effective cross-examination, especially when the cross-examination would involve documents or other exhibits.

    (e) The importance of the witness being personally present in the courtroom where the dignity, solemnity, and decorum of the surroundings will impress upon the witness the duty to testify truthfully.

    (f) Whether a physical liberty or other fundamental interest is at stake in the proceeding.

    (g) Whether the court is satisfied that it can sufficiently know and control the proceedings at the remote location so as to effectively extend the courtroom to the remote location.

    (h) Whether the participation of an individual from a remote location presents the person at the remote location in a diminished or distorted sense such that it negatively reflects upon the individual at the remote location to persons present in the courtroom.

    (i) Whether the use of videoconferencing diminishes or detracts from the dignity, solemnity, and formality of the proceeding so as to undermine the integrity, fairness, and effectiveness of the proceeding.

    (j) Whether the person proposed to appear by videoconferencing presents a significant security risk to transport and present personally in the courtroom.

    (k) Waivers and stipulations of the parties offered pursuant to s. 885.62.

    (L) Any other factors that the court may in each individual case determine to be relevant.

    (2) The denial of the use of videoconferencing technology is not appealable.

    885.58 Use in civil cases and special proceedings.

    (1) Subject to the standards and criteria set forth in ss. 885.54 and 885.56 and to the limitations of sub. (2), a circuit court may, on its own motion or at the request of any party, in any civil case or special proceeding permit the use of videoconferencing technology in any pre-trial, trial, or post-trial hearing.

    (2) (a) A proponent of a witness via videoconferencing technology at any evidentiary hearing or trial shall file a notice of intention to present testimony by videoconference technology 30 days prior to the scheduled start of the proceeding. Any other party may file an objection to the testimony of a witness by videoconferencing technology within 10 days of the filing of the notice of intention. If the time limits of the proceeding do not permit the time periods provided for in this paragraph, the court may in its discretion shorten the time to file notice of intention and objection.

    (b) The court shall determine the objection in the exercise of its discretion under the criteria set forth in s. 885.56.

    885.60 Use in criminal cases and proceedings under chapters 48, 51, 55, 938, and 980.

    (1) Subject to the standards and criteria set forth in ss. 885.54 and 885.56 and to the limitations of sub. (2), a circuit court may, on its own motion or at the request of any party, in any criminal case or matter under chs. 48, 51, 55, 938, or 980, permit the use of videoconferencing technology in any pre-trial, trial or fact-finding, or post-trial proceeding.

    (2) (a) Except as may otherwise be provided by law, a defendant in a criminal case and a respondent in a matter listed in sub. (1) is entitled to be physically present in the courtroom at all critical stages of the proceedings, including evidentiary hearings, trials or fact-finding hearings, plea hearings at which a plea of guilty or no contest, or an admission, will be offered, and sentencing or dispositional hearings.

    (b) A proponent of a witness via videoconferencing technology at any evidentiary hearing, trial, or fact-finding hearing shall file a notice of intention to present testimony by videoconference technology 20 days prior to the scheduled start of the proceeding. Any other party may file an objection to the testimony of a witness by videoconference technology within 10 days of the filing of the notice of intention. If the time limits of the proceeding do not permit the time periods provided for in this paragraph, the court may in its discretion shorten the time to file notice of intention and objection.

    (c) If an objection is made by the plaintiff or petitioner in a matter listed in sub. (1), the court shall determine the objection in the exercise of its discretion under the criteria set forth in s. 885.56.

    (d) If an objection is made by the defendant or respondent in a matter listed in sub. (1), the court shall sustain the objection.

    885.62 Waivers and stipulations. Parties to circuit court proceedings may waive the technical and operational standards provided in this subchapter, or may stipulate to any different or modified procedure, as may be approved by the court.

    885.64 Applicability.

    (1) The provisions of this subchapter shall govern the procedure, practice, and use of videoconferencing in the circuit courts of this state.

    (2) All circuit court proceedings, with the exception of proceedings pursuant to s. 972.11 (2m), that are conducted by videoconference, interactive video and audio transmission, audiovisual means, live audiovisual means, closed-circuit audiovisual, or other interactive electronic communication with a video component, shall be conducted in accordance with the provisions of this subchapter.

    (3) The use of non-video telephone communications otherwise permitted by specific statutes and rules shall not be affected by this subchapter, and shall remain available as provided in those specific statutes and rules.

    Section 2. The following Comment to subchapter III of chapter 885 of the statutes is not adopted but will be published and may be consulted for guidance in interpreting and applying the statute.

    Comment, 2008

    Section 885.50 of the subchapter is intended to recognize and summarize the larger debate concerning the use of videoconferencing technology in the courts, and to provide a clear statement of the Supreme Court's intent concerning such use, which should be helpful guidance to litigants, counsel and circuit and appellate courts in interpreting and applying these rules.

    This subchapter is not intended to give circuit court judges the authority to compel county boards to acquire, maintain or replace videoconferencing equipment. Rather, it is intended to provide courts with authority and guidance in the use of whatever videoconferencing equipment might be made available to them.

    Section 885.54 is intended to establish stringent technical and operational standards for the use of videoconferencing technology over objection, and in considering approval by the circuit court of waivers or stipulations under s. 885.62. Mobile cart-based systems will not meet these standards in many or even most situations, but may still be used pursuant to a waiver or stipulation approved by the court. The effect will be to encourage the installation of multiple camera systems, while still allowing the use of cart-based systems when participants are in agreement to do so, which is likely to be much of the time.

    Section 885.56 is intended to give the circuit court broad discretion to permit the use of videoconferencing technology when the technical and operation standards of s. 885.54 are met, while providing clear guidance in the exercise of that discretion. Under this section, the circuit court may permit the use of videoconferencing technology in almost any situation, even over objection, except as provided under s. 885.60. On the other hand, the court may deny the use of videoconferencing technology in any circumstance, regardless of the guidelines. This is consistent with the intent of this legislation to vest circuit courts with broad discretion to advance the use of videoconferencing technology in court proceedings under the standards and guidelines set out, but to reserve to courts the prerogative to deny its use without explanation. A circuit court's denial of the use of videoconferencing is not appealable as an interlocutory order, but to the extent the denial involves issues related to a party's ability to present its case and broader issues related to the presentation of evidence, the denial can be appealed as part of the appeal of the final judgment.

    Regarding section 885.58, civil cases and special proceedings in general pose few problems of constitutional dimension concerning the use of videoconferencing technology and offer litigants the potential of significant savings in trial expenses. For these reasons, this technology will likely gain rapid acceptance resulting in expanding use. Where objections are raised, the rule provides that the circuit court will resolve the issue pursuant to the standards and decisional guidance set out in ss. 885.54 and 885.56.

    It is the intent of s. 885.60 to scrupulously protect the rights of criminal defendants and respondents in matters which could result in loss of liberty or fundamental rights with respect to their children by preserving to such litigants the right to be physically present in court at all critical stages of their proceedings. This section also protects such litigants' rights to adequate representation by counsel by eliminating the potential problems that might arise where counsel and litigants are either physically separated, or counsel are with litigants at remote locations and not present in court.

    "Critical stages of the proceedings" is not defined under this section, but incorporates existing law as well as new law as it is adopted or decided. This section is not intended to create new rights in litigants to be physically present which they do not otherwise possess; it is intended merely to preserve such rights, and to avoid abrogating by virtue of the adoption of this subchapter any such rights.

    This section is also intended to preserve constitutional and other rights to confront and effectively cross-examine witnesses. It provides the right to prevent the use of videoconferencing technology to present such adverse witnesses, but rather require that such witnesses be physically produced in the courtroom. In requiring a defendant's objection to the use of videoconferencing to be sustained, this section also preserves the defendant's speedy trial rights intact.

    Objections by the State or petitioner to the use of videoconferencing technology to present defense witnesses are resolved by the court in the same manner as provided in civil cases and special proceedings under ss. 885.54 and 885.56.

    The intent of s. 885.62 is to permit litigants to take advantage of videoconferencing technology in any matter before the court regardless of whether the provisions of this subchapter would otherwise permit such use, as long as the parties are in agreement to do so and the circuit court approves. This should help to encourage innovation and experimentation in the use of videoconferencing technology, and thereby promote the most rapid realization of its benefits, while preserving to the litigants and ultimately to the courts the ability to prevent abuses and loss of the fairness, dignity, solemnity and decorum of court proceedings.

    The intent of s. 885.64 is to make it clear that all electronic communications with a video component are to be conducted under the provisions of this subchapter, regardless of the various names and terms by which such means of communication are referenced in other statutes and rules, and also to make clear that the provisions of this subchapter are to take precedence over other statutes and rules which address the use of such means of communication. Finally, sub. (3) is intended to make clear that existing authority for the use of non-video telephone communications in court proceedings remains unaffected by the new provisions of this subchapter concerning videoconferencing.

    IT IS ORDERED that notice of the creation of subchapter III of chapter 885 of the statutes 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 1st day of May, 2008.

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

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    Correcting Typographical Errors in SCR 70.40(1)

    In the matter of SCR 70.40

    Order 08-12

    The court having identified typographical errors in the printed volume containing SCR 70.40 (1) and deciding on its own motion to correct these errors, effective the date of this order, Supreme Court Rule 70.40 (1) is amended to read:

    70.40 (1) The clerk of circuit court shall use the "IP" (incarcerated person) case type designation to identify pleadings and papers submitted by any prison prisoner, as defined in s. 801.02 (7) (1) (a) 2., stats., seeking to commence, prosecute or defend an action or proceeding under s. 814.29 (1m), stats., without the prepayment of costs and fees.

    IT IS FURTHER ORDERED that notice of this amendment of Supreme Court Rule 70.40 (1) 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 29th day of April, 2008.

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

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    Board of Bar Examiners Public Hearing

    NOTICE: The Board of Bar Examiners will hold a public hearing from 9 to 10 a.m. on Aug. 1, 2008, at the State Bar Center, 5302 Eastpark Boulevard, Madison, WI 53718, and will there receive oral comment on the following proposed amendments to its appendices to Chapters 31 and 40 of the Supreme Court Rules. Written comments on these proposed amendments will be considered if they are received at the offices of the Board of Bar Examiners, P.O. Box 2748, Madison, WI 53701-2748, at or before the time of the hearing.

    APPENDIX TO CHAPTER 31

    CLE 1.01 For the purpose of administering SCR Chapter 31, t The year of an attorney's admission to the State Bar of Wisconsin shall be the year carried on the computer records of the State Bar unless the lawyer notifies the Board in writing prior to the end of his or her first reporting period that the State Bar data is incorrect and attaches supporting documentation.

    CLE 1.02 For the purpose of administering SCR Chapter 31, Except for repeated on-demand programs, the minimum number of persons attending a course shall be two attendees and one moderator. Fewer than that number, and the course shall be deemed to be self-study and shall not be approved for continuing legal education credit.

    CLE 3.01 For the purpose of administering SCR Chapter 31, t The classification of State Bar of Wisconsin membership on the February 1 immediately following the end of the lawyer's reporting period will govern whether a report will be required. The Board will grant lawyers who change to inactive status after February 1 according to State Bar records a deferment of the 30 hours then due on receipt of a written request that is accompanied by the $50.00 late fee then due and the written statement of the State Bar that the lawyer has in fact already converted his or her membership to inactive status. A request will be considered timely if received at the Board office by the close of business on the date that the lawyer's suspension is to go into effect pursuant to SCR 31.10(1); that is, the filing date established by that rule.

    CLE 3.015 (1) Lawyers who will have been in inactive status for less than 2 years, or have been voluntarily resigned from the State Bar for less than 2 years, must complete 30 hours of CLE (including 3 ethics hours) prior to resuming active status.

    (2) Lawyers who will have been in inactive status for more than 2 years, or have been voluntarily resigned from the State Bar for more than 2 years, must complete 60 hours of CLE (including 3 ethics hours) prior to resuming active status.

    (3) Lawyers who resume active status must satisfy the requirements of SCR 31.02 for the reporting period in which they are reactivated.

    CLE 3.02(1) A No late fee will be assessed for against lawyers who report courses in satisfaction of one reporting period that were actually attended in the next reporting period complete their reporting and attendance requirements by the February 1 following the end of their reporting period.

    (2) Lawyers who have been served with the notice of noncompliance set out in SCR 31.10(1) may avoid the automatic suspension therein described if, within 60 days after service, they (a) complete their reporting and attendance requirements and (b) pay the late fee.

    CLE 5.01 Sponsors must provide a method for lawyers who have taken on-line on-demand programs to submit questions, and must provide answers supplied by instructors who are qualified by practical or academic experience within five business days, at no additional cost.

    CLE 5.02 Applications for approval of on-line on-demand programs must be accompanied by

    (a) A copy of the on-line on-demand program on DVD;

    (b) Written materials that are provided to lawyers who subscribe to the on-line on-demand program; and

    (c) A statement of the manner in which the sponsor intends to comply with CLE 5.01.

    CLE 5.03 A sponsor whose application for approval of a repeated on-demand program is denied may appeal to the Board.

    CLE 7.005 Except for repeated on-demand programs as defined in SCR 31.01(6m) and self-study courses as defined in CLE 1.02, courses approved for CLE credit by any other state or territory or the District of Columbia are deemed approved for the same number of hours and for the same purposes in Wisconsin. To take advantage of this section, lawyers must document the out-of-state approval in connection with filing their CLE Form 1.

    CLE 7.01 The following nonacademic portions of the program may not be counted for credit: breaks, introductory remarks, keynote speeches and business meetings, and similar non-academic activities

    CLE 7.02 Credit hours shall be rounded down to the nearest whole or half hour. Hours of credit shall be determined by the following formula:

    Total minutes minus nonacademic portions (breaks, introductory remarks, keynote speeches, business meetings) divided by 50 minutes equal the hours of CLE credit.

    For every half day of programming in excess of 120 minutes, a minimum of 15 minutes will be deducted as a break allowance for the purpose of calculating hours.

    CLE 7.05 No continuing legal education activity that is offered in conjunction with a meal will be approved unless the meal portion is allocated no less than 30 minutes in duration and the education portion occupies a separate period lasting at least 50 minutes.

    Only under unusual circumstances will credit in excess of 1.0 hour be extended to a continuing legal education activity offered in conjunction with a meal. (Repealed)

    CLE 8.03 Any sponsor holding general program approval that fails to cooperate with the administrative requirements developed by the Director Board may have its general program approval revoked by the Board.

    CLE 8.04 A CLE Form 2 shall be submitted to the Board to initiate a request for course approval. The Board will accept a uniform national course approval request form at the discretion of its Director Board.

    CLE 8.05 A CLE Form 5, or a CLE Form 2, shall be submitted to initiate a request for legal ethics and professional responsibility approval. The Board will accept a uniform national course approval request form at the discretion of its Director Board.

    REINSTATEMENT AFTER SUSPENSION PURSUANT TO SCR 31.11

    CLE 11.02 Petitions for reinstatement pursuant to SCR 31.11(1)(a) must be executed under oath or affirmation.

    CLE 11.03 The number of hours required of a lawyer seeking reinstatement is 30 per previous reporting period up to a maximum of 90 60; in addition, the lawyer will be required to meet the requirement for the reporting period in which his or her reinstatement falls .

    CLE 12.01 The Board will consider extensions for completion of attendance and reporting requirements only upon written request.

    CLE 13.01 Documents filed with the Board may be sent by facsimile transmission, provided that the filing requirement will not be satisfied unless the Board receives by United States Postal Service or third-party commercial carrier within ten business days after the facsimile transmission an exact paper copy bearing an original signature together with any applicable fee. If the paper copy is timely received, the date of the facsimile transmission will be deemed the date of filing. The Board will not accept facsimile transmissions in satisfaction of its filing requirements.

    BOARD MEETINGS

    CLE 14.01. As an agency of the Supreme Court, the Board is not subject to Subchapter V of Chapter 19 of the Wisconsin Statutes, relating to open meetings of governmental bodies. However, the Board posts the dates and locations of its meetings on its Internet web site and invites the public to attend its meetings. Members of the public are not allowed to attend meetings or parts of meetings that involve confidential matters. Examples of confidential matters include (i) individuals' applications for admission to the Wisconsin bar, (ii) hearings on admission applications and (iii) bar examination questions.

    APPENDIX TO CHAPTER 40

    BA 4.02 Accommodations. Special testing accommodations must be requested by a writing that is filed no later than the first filing deadline ( December 1 for the February examination and May 1 for the July examination) . The Board may deny requests that are not in writing or that are filed after the deadline.

    BA 4.03 (b) Staff closure of a file is appealable to the full Board.

    BA 5.01 (b) Staff closure of a file is appealable to the Board.

    BA 6.02 Relevant Conduct or Condition. The revelation or discovery of any of the following should be treated as cause for further inquiry before the Board decides whether the applicant possesses the character and fitness to practice law:

    (i) evidence of mental or emotional impairments substantial enough to affect the applicant's ability to practice law;

    BA 6.04 Notice of an at-risk application. If the Board determines that an application is at risk of being denied, the Board shall notify the applicant of its determination in writing. The notice shall state the reasons for the possible denial, describe the applicant's right to seek a hearing, advise the applicant of the deadline for requesting a hearing and include a copy of the Board's hearing procedures. At the time of mailing the notice of an at-risk application, the Board shall provide the applicant with copies of all materials that were reviewed by the Board in making its decision. Thereafter, while the application is under review, the applicant may review all materials in the applicant's file during the Board's business hours, and may obtain copies thereof at a cost of no more than twenty-five cents per page. 

    The Board shall notify an applicant in writing that it intends to deny his or her application for admission. The notice shall state the reasons for the intended denial and provide an opportunity to request a hearing before the Board. At the time of notice, the Board shall provide the applicant with a copy of the complete packet of information it used in arriving at its decision.

    BA 6.06 (b) Staff closure of a file is appealable to the Board.

    BA 10.01 The board may waive any of the requirements of this Appendix in exceptional cases and for good cause. An application and the filing fee appropriate to the rule must accompany the request for waiver. One-half of the filing fee will be refunded if the waiver is denied.

    The Board will consider requests for waiver only on receipt of an application and the applicable filing fee. On receipt of the written request for waiver, the Director will make a ruling and issue an appropriate refund of some or all of the filing fee if the request is denied. The applicant may make written request for review of the Director's determination as to waiver. At such time as the applicant requests Board review, the filing fee will become entirely nonrefundable. Board decisions on review will be reported by letter to the applicant.

    BA 14.01 Facsimile Transmissions. Documents filed with the Board may be sent by facsimile transmission, provided that the filing requirement will not be satisfied unless the Board receives by United States Postal Service or third-party commercial carrier within ten business days after the facsimile transmission an exact paper copy bearing an original signature together with any applicable fee. If the paper copy is timely received, the date of the facsimile transmission will be deemed the date of filing. Applications and supporting documentation must be submitted in original form. The Board will not accept facsimile transmissions in satisfaction of its filing requirements.

    BA 14.02 An application for bar admission, or for a character and fitness certification pursuant to SCR 40.06(3m), will not be filed unless:

    (a) It is submitted in typewritten form;

    (a) It is accompanied by two properly executed signed and notarized authorization and release forms; and

    (b) It is accompanied by the applicable filing fees. In the proper amount, and, if it is a bar examination application, payment is by certified check or money order; and

    (d) The applicant's signatures on the application and on the authorization and release forms are notarized.

    BA 14.025. Handwritten applications will not be accepted.

    BA 14.03 Continuing application. Applications are continuing applications during their pendency. Applicants are required to notify the Board in writing of any changes with respect to the information elicited by the application, and each application must be amended to accurately reflect the facts throughout the entire time that the application is processed pending, including the date on which the applicant is admitted to practice in Wisconsin.

    BA 14.04 Absolute application deadline. (a) Applicants for bar admission on the diploma privilege shall file an application for a character and fitness certification with the Board between the time the student has completed a minimum of 50 credit hours and 30 days a predetermined date after the J.D. is conferred (February 1 for December graduates; July 1 for May graduates; October 1 for August graduates). Payment of a late fee will be assessed to spring graduates who have not filed by December 15, summer graduates who have not filed by March 15, and fall/winter graduates who have not filed by July 15.

    (b) Notwithstanding (a) above, applicants otherwise eligible for admission on the diploma privilege may apply by December 31 of the year following their graduation from law school if by that date they document that they have passed a bar examination, and have been admitted to practice, in another US state, territory, or the District of Columbia.

    BA 14.05 Late fees: diploma privilege. A late fee will be assessed to the following applicants for bar admission on the diploma privilege: May graduates who have not filed an application by the preceding December 15; August graduates who have not filed an application by the preceding March 15; and December graduates who have not filed an application by the preceding July 15. An application for a character and fitness certification must be filed with the Board at least three months prior to a scheduled law school swearing-in ceremony in order for a diploma privilege applicant to be certified for participation in the large group swearing-in ceremony.

    BOARD MEETINGS

    BA 15.01. As an agency of the Supreme Court, the Board is not subject to Subchapter V of Chapter 19 of the Wisconsin Statutes, relating to open meetings of governmental bodies. However, the Board posts the dates and locations of its meetings on its Internet web site and invites the public to attend its meetings. Members of the public are not allowed to attend meetings or parts of meetings that involve confidential matters. Examples of confidential matters include (i) individuals' applications for admission to the Wisconsin bar, (ii) hearings on admission applications and (iii) bar examination questions.

    BA 16 PROCEDURES FOR HEARINGS BEFORE THE BOARD

    (1) Application. These rules govern all hearings before the Board of Bar Examiners.

    (2) Notice of an at-risk application. Before declining to certify an applicant's satisfaction of requirements under this chapter, the board shall notify the applicant in writing of the basis for its determination that the application is at risk of being denied and, except as to failure of the bar examination under SCR 40.04, the applicant shall have the opportunity to respond in writing within thirty days of the mailing of notification of the board's decision to the applicant at the last address furnished by the applicant in writing to the board.

    (3) Hearings. The Board may grant a hearing to any applicant who has received a notice under SCR 40.08(1).

    (4) Request for Hearing. Applicants must make their requests for a hearing in writing within 30 days after the mailing of the notice under SCR 40.08(1).

    (5) Review of Records. Applicants who have received a notice under SCR 40.08(1) may, while the application is pending, review, personally or by counsel, all materials in the applicant's files, including any staff recommendations. Upon written request, the Board will transmit copies of these materials to the applicant or the applicant's counsel at a cost not to exceed twenty-five cents per page.

    (6) Pre-hearing conference. Within 30 days after receiving an applicant's Request for Hearing, the Board Chair or the Chair's delegate shall confer in person or by telephone with the applicant or the applicant's counsel to set a hearing date, clarify the issues, determine whether the applicant will stipulate to any material facts, consider any limitations on the number of witnesses, the length of the hearing and such other matters as may aid the Board in its determination. Promptly after this pre-hearing conference, the Chair or the Chair's delegate shall prepare a memorandum for the record which summarizes all actions taken at the conference. The memorandum shall control the subsequent course of the action, unless modified at the hearing to prevent manifest injustice.

    (7) Hearing record. The hearing record shall include evidence received or considered, stipulations and admissions, a statement of matters officially noticed, questions and offers of proof, objections and rulings thereon, any proposed findings or decisions and exceptions, and any decision, opinion or report by the Board.

    (8) Counsel. An applicant shall be entitled to be represented by counsel at hearing at the applicant's expense, provided a notice of appearance is filed at or before the hearing.

    (9) Record of proceedings. A stenographic, electronic or other record of oral proceedings shall be made. If the board obtains a transcript of proceedings, it shall, upon request, provide the applicant with a copy at a cost not to exceed fifteen cents per page.

    (10) Presiding officer. The Board Chair or the Chair's designee shall preside at hearing, and shall rule on motions, objections and any other matters that arise.

    (11) Rules of evidence. The Board is not be bound by common law or statutory rules of evidence.

    (12) Hearing record. The applicant and any member of the Board may move that portions of the applicant's file be received in evidence. All evidence received at the hearing shall be made a part of the hearing record. The applicant shall be afforded adequate opportunity to rebut or offer countervailing evidence.

    (13) Official notice. The Board may take official notice of any generally recognized fact or any established technical or scientific fact, but the applicant shall be notified either before or during the hearing of the facts so noticed, and shall be afforded an opportunity to contest the validity of the official notice.

    (14) Documents. Documentary evidence may be received in the form of copies or excerpts if the original is not readily available.

    (15) Testimony. Witnesses may be heard in person, or their testimony may be received in the form of affidavits or deposition transcripts. As a general practice, examinations and cross-examinations of witnesses shall be made by the members of the Board. Applicants or their counsel may cross-examine adverse witnesses.

    (16) Record may remain open. The Chair or the Chair's designee may allow the record of the hearing to remain open for a limited period of time, which shall be specified, to give the applicant an opportunity to submit additional written materials.

    (17) Determination. At its next regularly scheduled meeting following the time set under Rule 16, the Board, unless it decides by majority vote to hold the record open for additional written or oral evidence, shall make its determination by majority vote of the members present and voting, in person or by telephone.

    (18) Adverse decision. If the determination is adverse to the applicant, the Board Chair or the Chair's designee shall within thirty days, incorporate the Board's determination in a written decision, which shall include findings of fact and conclusions of law, and shall promptly circulate the decision among all members of the Board. After the decision is circulated, dissenting board members shall have twenty-one days in which to transmit written dissents to the director.

    (19) Transmission of decision. The director shall transmit the Board's decision, together with any written dissents, to the applicant or the applicant's counsel within ten days after completion of the steps set out in Rule 18.

    (20) Reconsideration. Within thirty days after transmission of the Board's decision, the applicant may file a petition for reconsideration, which shall be granted only on the basis of some material error of law, some material error of fact, or the discovery of new evidence sufficiently strong to reverse the adverse determination. The Board shall dispose of the petition by majority vote at its next regularly scheduled meeting following the filing of the petition, either by denying the petition or by granting the petition on a schedule which it shall then specify.

    [Note: the foregoing section 20 will not take effect unless and until the supreme court adopts the board's recommended amendments to the deadline for filing an appeal.]

    (21) Confidentiality. The hearing shall be closed and written materials, including the board's preliminary and final determinations, shall be confidential and shall be disclosed only to the applicant and the applicant's counsel.

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