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    Supreme Court Orders

    The Wisconsin Supreme Court will hold a public hearing on Oct. 28, 2008, to consider defining the practice of law (Order 07-09) and electronic filing in appellate courts (Orders 08-15 and 08-18). At a public hearing on Nov. 10, the supreme court will consider continuing education and admission rules (Orders 08-05, 08-06, and 08-14). The court has amended SCR Chapter 20 _ Rules of Professional Conduct for Attorneys (Order 06-06). The court corrected typographical errors in rules related to Wis. Stat. section 887.26 (Order 08-19), e-filing in circuit courts (Order 08-20), and videoconferencing in the courts (Order 08-21), and amended the rules of appellate procedure (Order 04-08).


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    Wisconsin LawyerWisconsin Lawyer
    Vol. 81, No. 9, September 2008

    Supreme Court Orders

    The Wisconsin Supreme Court will hold a public hearing on Oct. 28, 2008, to consider defining the practice of law (Order 07-09) and electronic filing in appellate courts (Orders 08-15 and 08-18). At a public hearing on Nov. 10, the supreme court will consider continuing education and admission rules (Orders 08-05, 08-06, and 08-14). The court has amended SCR Chapter 20 _ Rules of Professional Conduct for Attorneys (Order 06-06). The court corrected typographical errors in rules related to Wis. Stat. section 887.26 (Order 08-19), e-filing in circuit courts (Order 08-20), and videoconferencing in the courts (Order 08-21), and amended the rules of appellate procedure (Order 04-08).

    Rules of Appellate Procedure

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

    Order 04-08

    On Sept. 30, 2004, the Wisconsin Judicial Council filed a petition seeking to amend §§ 809.30(2)(b), 809.32(4) and 809.62(1) through (7) of the Rules of Appellate Procedure. This petition was the culmination of extensive work by a Judicial Council Committee, with assistance from the Appellate Practice Section and Criminal Law Section of the State Bar, and the Wisconsin Association of Criminal Defense Lawyers.

    A public hearing was conducted on the petition on March 15, 2005. At the ensuing open administrative conference, the court discussed certain aspects of the petition and took the remaining issues under advisement. The matter was discussed at subsequent open conferences on March 21, 2007, and June 25, 2008, at which time the court voted unanimously to adopt portions of the petition, as set forth herein, and to deny other aspects of the petition. The effective date of the amendments adopted herein will be Jan. 1, 2009.

    IT IS ORDERED that effective Jan. 1, 2009:

    Section 1. 809.107 (2) (bm) (intro.) of the statutes is amended to read:

    809.107 (2) (bm) Notice of intent to pursue postdisposition or appellate relief. (intro.) A person shall initiate an appeal under this section by filing, within 30 days after the date of entry of the judgment or order appealed from, as specified in s. 808.04 (7m), a notice of intent to pursue postdisposition or appellate relief with the clerk of the circuit court in which the judgment or order appealed from was entered. Also within that time period, the appellant shall serve a copy of the notice of intent on the person representing the interests of the public, opposing counsel, the guardian ad litem appointed under s. 48.235 (1) (c) for the child who is the subject of the proceeding, the child's parent and any guardian and any custodian appointed under s. 48.427 (3) or 48.428 (2). If the record discloses that final adjudication occurred after the notice of intent was filed, the notice shall be treated as filed after entry of the judgment or order appealed from on the day of the entry of the final judgment or order. The notice of intent shall include all of the following:

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

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

    Section 3. The following Judicial Council Committee Comment to s. 809.30 (2) (b) is included to read as follows:

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

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

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

    Section 5. 809.62 (1) (intro.) of the statutes is renumbered s. 809.62 (1m) and amended to read:

    809.62 (1m) A party may file with the supreme court a petition for review of an adverse decision of the court of appeals pursuant to s. 808.10 within 30 days of the date of the decision of the court of appeals. Supreme court review is a matter of judicial discretion, not of right, and will be granted only when special and important reasons are presented. The following, while neither controlling nor fully measuring the court's discretion, indicate criteria that will be considered:

    Section 6. 809.62 (1) (a) to (e) of the statutes are renumbered 809.63 (1r) (a) to (e).

    Section 7. 809.62 (1g) of the statutes is created to read:

    809.62 (1g) Definitions. In this section:

    (a) "Adverse decision" means a final order or decision of the court of appeals, the result of which is contrary, in whole or in part, to the result sought in that court by any party seeking review.

    (b) "Adverse decision" includes the court of appeals' denial of or failure to grant the full relief sought or the court of appeals' denial of the preferred form of relief.

    (c) "Adverse decision" does not include a party's disagreement with the court of appeals' language or rationale in granting a party's requested relief.

    Section 8. The following Judicial Council Committee Comment to s. 809.62 (1g) is included to read as follows:

    Judicial Council Committee Comment: The definition in s. 809.62 (1g) codifies the holding in Neely v. State, 89 Wis. 2d 755, 757-58, 279 N.W.2d 255 (1979), to the effect that a party cannot seek review of a favorable result merely because of disagreement with the court of appeals' rationale. At the same time, s. 809.62 (1g) underscores the fact that a court of appeals' decision that is generally favorable to a party remains adverse to that party to the extent that it does not grant the party all the relief requested, i.e., the full relief or the preferred form of relief sought by the party. See also State v. Castillo, 213 Wis. 2d 488, 492, 570 N.W.2d 44 (1997).

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

    Section 9. 809.62 (1m) (title) of the statutes is created to read:

    809.62 (1m) (title) General rule; time limit.

    Section 10. 809.62 (1r) (intro.) of the statutes is created to read:

    809.62 (1r) Criteria for granting review. (intro.) Supreme court review is a matter of judicial discretion, not of right, and will be granted only when special and important reasons are presented. The following, while neither controlling nor fully measuring the court's discretion, indicate criteria that will be considered:

    Section 11. The following Judicial Council Committee Comment to s. 809.62 (1m) and (1r) is included to read as follows:

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

    Section 12. 809.62 (2) (title) of the statutes is created to read:

    809.62 (2) (title) Contents of petition.

    Section 13. 809.62 (2) (a), (d) and (f) 2. of the statutes are amended to read:

    809.62 (2) (a) A statement of the issues presented for review the petitioner seeks to have reviewed, the method or manner of raising the issues in the court of appeals and how the court of appeals decided the issues. The statement of issues shall also identify any issues the petitioner seeks to have reviewed that were not decided by the court of appeals. The statement of an issue shall be deemed to comprise every subsidiary issue as determined by the court. If deemed appropriate by the supreme court, the matter may be remanded to the court of appeals.

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

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

    Section 14. The following Judicial Council Committee Comment to s. 809.62 (2) (a) is included to read as follows:

    Judicial Council Committee Comment: Rule 809.62(2)(a) is amended to require the petitioner to identify all issues on which it seeks review, including issues raised in the court of appeals but not decided in the court of appeals. The amendment to Rule 809.62(2)(a) also clarifies that the statement of an issue incorporates all subsidiary issues. This amendment is adapted from the United States Supreme Court's rules. See U.S. Sup. Ct. Rule 14.1(a). See also In the Interest of Jamie L., 172 Wis. 2d 218, 232-33, 493 N.W.2d 56 (1992).

    Section 15. 809.62 (2m) (title) of the statutes is created to read:

    809.62 (2m) (title) Inapplicable to parental consent to abortion cases.

    Section 16. 809.62 (2r) (title) of the statutes is created to read:

    809.62 (2r) (title) Application to termination of parental rights cases.

    Section 17. 809.62 (3) of the statutes is amended to read:

    809.62 (3) Except as provided in s. 809.32 (4), an opposing party may file a response to the petition within 14 days after the service of the petition. If filed, the response may contain any of the following:

    (a) Any reasons for denying the petition.

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

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

    (d) Any alternative ground supporting the court of appeals result or a result less favorable to the opposing party than that granted by the court of appeals.

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

    Section 18: 809.62 (3) (title) of the statutes is created to read:

    809.62 (3) (title) Response to petition.

    Section 19. The following Judicial Council Committee Comment to s. 809.62 (3) is included to read as follows:

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

    The amendments to Rule 809.62(3) also advise the respondent to identify in its response any perceived misstatements of law or fact, or any defects (such as waiver, mootness, or estoppel) that could prevent the supreme court from reaching the merits of the issue presented in the petition. Compare U.S. Sup. Ct. Rule 15.2.

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

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

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

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

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

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

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

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

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

    Section 20. 809.62 (3m) of the statutes is created to read:

    809.62 (3m) Petition for cross-review. (a) When required; time limit. A party who seeks to reverse, vacate, or modify an adverse decision of the court of appeals shall file a petition for cross-review within the period for filing a petition for review with the supreme court, or 30 days after the filing of a petition for review by another party, whichever is later.

    (b) No cross-petition required. 1. A petition for cross-review is not necessary to enable an opposing party to defend the court of appeals' ultimate result or outcome based on any ground, whether or not that ground was ruled upon by the lower courts, as long as the supreme court's acceptance of that ground would not change the result or outcome below.

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

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

    Section 21. The following Judicial Council Committee Comment to s. 809.62 (3m) is included to read as follows:

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

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

    Amended Rule 809.62(3m) also clarifies when a respondent must raise an issue in a petition for cross-review, rather than raising the issue in a response to the petition or merely arguing it in the brief. Compare State v. Scheidell, 227 Wis. 2d 285, 288 n.1, 595 N.W.2d 661 (1999) (respondent cannot argue issue raised below unless the issue was raised in a petition for cross-review), with, e.g., In the Interest of Jamie L., 172 Wis. 2d 218, 232-33, 493 N.W.2d 56 (1992) (noting "general rule" that a petition for cross-review is not necessary to defend a judgment on any ground previously raised). Complicating these matters are holdings that a party may not petition for review (or cross-review) if it receives a favorable outcome from the court of appeals, State v. Castillo, 213 Wis. 2d 488, 492, 570 N.W.2d 44 (1997).

    Rule 809.62(3m)(b) clarifies that a respondent need not file a petition for cross-review to raise alternative issues or grounds in support of either (1) the court of appeals' ultimate result or (2) a judgment less favorable than that granted by the court of appeals but more favorable to the respondent than might be granted for the petitioner. Any such alternative grounds for affirmance or lesser relief should, however, be identified in the response. See Rules 809.62(3)(d), (3)(e) and (6).

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

    Section 22. 809.62 (4) (title) of the statutes is created to read:

    809.62 (4) (title) Form and length requirements.

    Section 23. 809.62 (4m) of the statutes is created to read as follows:

    809.62 (4m) Combined response and petition for cross-review. When a party elects both to submit a response to the petition for review and to seek cross-review, its submission shall be titled "Combined Response and Petition for Cross-Review." The time limits set forth in sub. (3m) shall apply. The response portion of the combined document shall comply with the requirements of subs. (3) and (4). The cross-review portion of the combined document shall comply with the requirements of subs. (2) and (4), except that the requirement of sub. (2) (d) may be omitted. The cross-review portion shall be preceded by a blank white cover. A signature shall be required only at the conclusion of the cross-review portion of the combined document.

    Section 24. The following Judicial Council Committee Comment to s. 809.62 (4m) is included to read as follows:

    Judicial Council Committee Comment: New Rule 809.62(4m) is created to permit a combined document when a party elects both to respond to the petition for review and to submit a petition for cross-review. The content and format requirements of the combined document are similar to the requirements for a combined brief of respondent and cross-appellant found in s. 809.19(6)(b)2.

    Section 25. 809.62 (5) (title) of the statutes is created to read:

    809.62 (5) (title) Effect on court of appeals proceedings.

    Section 26. 809.62 (6) of the statutes is amended to read:

    809.62 (6) The supreme court may grant the petition or the petition for cross-review or both upon such conditions as it considers appropriate, including the filing of additional briefs. If the a petition is granted, the petitioner parties cannot raise or argue issues not set forth in the petition unless ordered otherwise by the supreme court. The supreme court may limit the issues to be considered on review. If the issues to be considered on review are limited by the supreme court and do not include an issue that was identified in a petition and that was left undecided by the court of appeals, the supreme court shall remand that issue to the court of appeals upon remittitur, unless that issue has become moot or would have no effect.

    Section 27. 809.62 (6) (title) of the statutes is created to read:

    809.62 (6) (title) Conditions of grant of review.

    Section 28. The following Judicial Council Committee Comment to s. 809.62 (6) is included to read as follows:

    Judicial Council Committee Comment: The last sentence of Rule 809.62(6) is new and is intended to preserve, for review by the court of appeals following remand, any issue raised at the court of appeals but not decided by that court or by the supreme court on review. For instance, after a civil jury verdict, an insured party might appeal issues relating to liability and damages. The insurer might appeal issues relating to coverage and damages. If the court of appeals reverses on the liability issue, without deciding the coverage and damages issues, and the supreme court accepts review on the liability issue only, amended Rule 809.62(6) preserves the damage and coverage issues raised in the court of appeals and identified in the petition or response for consideration by the court of appeals following remand and remittitur from the supreme court. Remand of a preserved issue will not occur if the supreme court's decision renders the issue moot or of no effect.

    Section 29. 809.62(7) of the statutes is repealed.

    IT IS FURTHER ORDERED that the Judicial Council Committee Comments are not adopted, but will be published and may be consulted for guidance in interpreting and applying Wis. Stat. §§ 809.30, 809.32 and 809.62.

    IT IS FURTHER ORDERED that notice of these amendments to Wis. Stat. §§ 809.30, 809.32, and 809.62 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 30th day of July, 2008.

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

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    Rules of Professional Conduct for Attorneys

    In the matter of the Petition for Amendment to Supreme Court Chapter 20 _ Rules of Professional Conduct for Attorneys:

    Order 06-06

    On Nov. 20, 2006, the State Bar of Wisconsin filed a petition seeking to amend Supreme Court Rules 20:5.5, 20:8.5, and 10.03 (4). The petition proposed changes to the Supreme Court Rules pertaining to the temporary practice of law by lawyers not licensed to practice in the state of Wisconsin as well as changes to the rules governing admission pro hac vice. A public hearing was conducted on April 12, 2007. Numerous comments were received. The court discussed this petition and additional comments at open administrative conferences on April 12, 2007; Jan. 9, 2008; Feb. 22, 2008; and April 24, 2008. On April 24, 2008, the court voted unanimously to adopt the petition, with certain amendments.

    The court added comments where it adopted changes that differed substantively from the ABA Model Rule or where it deemed additional guidance appropriate ("Wisconsin Comments"). The Wisconsin Comments and comments to the ABA Model Rules are not adopted, but will be published and may be consulted for guidance in interpreting and applying the Rules of Professional Conduct for Attorneys. Therefore,

    IT IS ORDERED that effective Jan. 1, 2009, SCRs 20:5.5, 20:8.5, and 10.03 (4) of the Supreme Court Rules are repealed and recreated to read as set forth in the order of this court dated July 30, 2008;

    IT IS FURTHER ORDERED that the full text of the order repealing and recreating SCRs 20:5.5, 20:8.5, and 10.03 (4) shall be made available on the Web site of the Wisconsin Supreme Court, http://wicourts.gov, and the Web site of the State Bar of Wisconsin, www.wisbar.org.

    Dated at Madison, Wis., this 30th day of July, 2008.

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

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    Defining the Practice of Law

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

    Order 07-10

    On June 19, 2007, the Board of Governors of the State Bar of Wisconsin ("State Bar") filed a petition asking the court to create a new court rule to define the practice of law and to create a system to administer the rule, subject to supervision and control by the court. A public hearing and open administrative conference on this matter were conducted on Dec. 10, 2007. Numerous interested persons appeared at the hearing or submitted written comments. The court further discussed the matter, including additional written comments received, at an open administrative conference on March 14, 2008.

    On April 23, 2008, the State Bar submitted a letter asking the court to hold this matter in abeyance in order to permit the State Bar to carefully evaluate the various proposals submitted regarding this matter. The court approved the State Bar's request at an open administrative conference on April 24, 2008, and by written order dated May 29, 2008. The court also ordered the State Bar to advise the court, in writing, of the status of its review of this matter. The court has been informed that the State Bar has completed its review.

    IT IS ORDERED that on Tuesday, Oct. 28, 2008, at 9:30 a.m., at its open administrative conference in the Supreme Court Room in the State Capitol, Madison, Wis., the court shall discuss this matter. As this petition has already been the subject of a public hearing, general public testimony will not be entertained at the open conference. The court may, in its discretion, direct questions to individuals present at the conference to aid the court's consideration of this matter.

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

    Dated at Madison, Wis., this 30th day of July, 2008.

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

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    Rules of Pleading, Practice and Procedure - Juries

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

    Corrected Order 08-01

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

    A public hearing was held on Monday, April 7, 2008. At its open administrative conference on April 24, 2008, the court voted to grant the petition, with certain amendments. In addition, the court directed the petitioners to report to the court within six months of the date of this order whether petitioners deem it advisable to amend Wis. Stat. § 756.04 (2) (c) to permit the office of the director of state courts to seek the additional lists proposed by interested parties to this rules proceeding at the open conference on April 7, 2008. The court also directed the petitioners to report to the court within three years of the effective date of this order regarding whether the amendments made pursuant to this petition have advanced the primary goals of improving representation on Wisconsin juries and protecting juror privacy. Therefore,

    IT IS ORDERED that effective Jan. 1, 2009:

    Section 1. 756.01 of the statutes is created to read:

    756.01 Definitions. In this chapter:

    (1) "Juror" means a person summoned in compliance with this chapter or who has taken an oath or affirmation under s. 756.08 (1).

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

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

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

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

    (6) "Jury year" means the calendar year beginning January 1 and ending December 31.

    Section 2. 756.04 (1) of the statutes is repealed.

    Section 3. 756.04 (2) of the statutes is renumbered 756.04 (2) (intro.) and amended to read:

    756.04 (2) (intro.) Jurors for all circuit courts shall be selected under ss. 756.04 to 756.07, subject to all of the following:

    Section 4. 756.04 (2) (a) to (f) of the statutes are created to read:

    756.04 (2) (a) Each year, the office of the director of state courts shall compile a master list of potential jurors for use by the circuit courts of each county during the coming year. The master list shall be compiled as described in this section.

    (b) Each year, on a date agreed upon with the office of the director of state courts, the department of transportation shall compile a list that includes the name, address, county, date of birth, race, gender, identification number and renewal date of each person residing in the state who is licensed as a motor vehicle operator under ch. 343 or who has received an identification card under s. 343.50 or 343.51, and social security number, as permitted by law and any record sharing agreement between the department of transportation and the office of the director of state courts. The office of the director of state courts shall establish the format of the list by agreement with the department of transportation. The department of transportation shall transmit the list to the office of the director of state courts, without charge.

    (c) The office of the director of state courts may use any of the following lists in addition to the list provided by the department of transportation under par. (b) in order to create the master list of potential jurors compiled under par. (a). The director may each year request any of the following information from the custodians of that information:

    1. A list of registered voters from the government accountability board.

    2. A list of all natural persons that may have filed a state income tax return with the department of revenue.

    3. A list of child support payors and payees from the department of workforce development.

    4. A list of recipients of unemployment compensation from the department of workforce development.

    5. A list of residents of this state issued approvals or licenses from the department of natural resources.

    (d) If the records listed in par. (c) are requested, the director of state courts may enter into a record sharing agreement with the custodian of the records. Any record sharing agreement shall be in writing for a prescribed period of time and shall identify data that would allow for a match of personally identifiable information on the list maintained by that custodian with personally identifiable information in the master list of potential jurors to the extent required to identify duplicate names and to determine current addresses of prospective jurors. Any list provided under par. (c) shall contain no data other than the data provided in par. (b). The agreement shall establish the format of the list and date of transmission of the list.

    (e) The lists of prospective jurors provided to the clerks of circuit courts shall contain only the name, address, gender, date of birth, race and county of residence of each prospective juror.

    (f) All social security numbers shall be kept secure from unauthorized access and shall not be provided to the clerk of circuit court and shall not be open to the public.

    Comment: SCR 73.01 provides guidance regarding monitoring of the jury system.

    Section 5. 756.04 (3) to (5) of the statutes are repealed.

    Section 6. 756.04 (3m) of the statutes is created to read:

    756.04 (3m) From the statewide master list of potential jurors created under sub. (2), the office of the director of state courts shall provide each clerk of circuit court with a list of prospective jurors residing in the clerk's county to be used during the following jury year. The list for each county shall be created by randomly selecting from the master list of potential jurors the number of names of residents of the county requested by the clerk of circuit court for that year. The office of the director of state courts shall transmit the list of prospective jurors to each clerk, with a certification that the list was prepared in strict conformity with this chapter.

    Section 7. 756.04 (6) of the statutes is renumbered 756.04 (6) (am) and 756.04 (6) (am) (intro.), as renumbered, is amended to read:

    756.04 (6) (am) (intro.) The Using the list of prospective jurors provided by the office of the director of state courts under sub. (3m), the clerk of circuit court shall mail to every prospective juror to be summoned, separately or together with the summons under s. 756.05, a juror qualification form requesting accompanied by instructions requiring the person to complete and return the form to the clerk within 10 days after receiving it. The form shall request all of the following:

    Section 8. 756.04 (7) of the statutes is renumbered 756.04 (6) (bm) and amended to read:

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

    Section 9. 756.04 (6) (cm) of the statutes is created to read:

    756.04 (6) (cm) The juror qualification form mailed to prospective jurors under par. (am) may be supplemented to request other information that the court requires to manage the jury system in an efficient manner, including information that may be sought during voir dire examination.

    Section 10. 756.04 (8) of the statutes is renumbered 756.04 (6) (dm) and amended to read:

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

    Section 11. 756.04 (9) of the statutes is renumbered 756.04 (9) (a) and amended to read:

    756.04 (9) (a) During each year, the clerk of circuit court shall provide the court with a sufficient number of names of prospective jurors to meet the needs of the court. The clerk shall randomly select names from the department list or master list and strike the name of any person randomly selected whose returned juror qualification form shows that the person is not qualified for jury service under s. 756.02. The clerk shall certify that the names were selected in strict conformity with this chapter. The clerk shall include a verified statement with the list of names describing the manner in which the names were selected, including an identification of all sources used in the preparation of the list. The clerk shall keep a certified copy of the names of prospective jurors, including the address of each prospective juror, for public inspection. To create a jury array, the clerk of circuit court shall strike from the list provided by the office of the director of state courts under sub. (3m) the name of any person whose returned juror qualification form shows that the person is not qualified for jury service under s. 756.02.

    Section 12. 756.04 (9) (b) and (c) of the statutes are created to read:

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

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

    Section 13. 756.04 (10) of the statutes is amended to read:

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

    Section 14. 756.04 (11) of the statutes is created to read:

    756.04 (11) (a) All completed juror qualification forms mailed to prospective jurors under sub. (6) (am) and supplemental information obtained under sub. (6) (cm) shall be confidential and shall be released only upon order of the court upon a showing of good cause. However, the completed juror qualification forms and supplemental information of jurors in the jury venire or jury panel when the trial is scheduled shall be made available to counsel and parties to the litigation upon request without a circuit court order. This information shall remain confidential and shall be used only for the purpose of the trial or any appeal. Counsel and parties may not retain copies of the qualification forms or supplemental information obtained under sub. (6) (am) and sub. (6) (cm).

    (b) A list of the names and city, village, or town of residence of each juror sworn to hear a trial shall be retained in the court file.

    Section 15. 756.05 of the statutes is amended to read:

    756.05 Jury summons, when and how issued. At least 12 days before the first day on which a jury is required to be present, to create the jury venire, the clerk of circuit court shall summon randomly select a sufficient number of prospective jurors from the jury array created under s. 756.04 (9) who shall be summoned to appear before the court at an appropriate time for jury service. The summons may be served by 1st class mail or another method.

    Section 16. 756.06 (1) and (2) (am) of the statutes are amended to read:

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

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

    Section 17. 756.07 of the statutes is amended to read:

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

    Section 18. 756.30 (1m) (intro.) of the statutes is created to read:

    756.30 (1m) Juror contempt procedure. Whoever does any of the following is subject to sanctions for contempt of court:

    Section 19. 756.30 (1) is renumbered 756.30 (1m) (am) and amended to read:

    756.30 (1m) (am) Whoever willfully Willfully misrepresents any material fact on a juror qualification form under s. 756.04 (6) or whoever fails to return the completed qualification form within 10 days after receipt of the form may be required to forfeit not more than $500 .

    Section 20. 756.30 (1m) (bm) and (cm) of the statutes are created to read:

    756.30 (1m) (bm) Fails to return the completed juror qualification form within 10 days after receipt of the form.

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

    Section 21. 756.30 (2m) of the statute is created to read:

    756.30 (2m) Sanctions. A circuit court may impose a sanction for violation of sub. (1m) in an amount not to exceed $500. The sanction may be imposed by the court after hearing on an order to show cause why the prospective juror should not be held in contempt for failure to comply with the obligation of jury service. No costs, fees, or surcharges shall be imposed and the sanction shall be retained by the clerk of circuit court to offset juror costs.

    Section 22. 756.30 (2) (title) of the statutes is created to read:

    756.30 (2) Clerk of circuit court; fraud.

    Section 23. 756.30 (3) of the statutes is repealed.

    IT IS FURTHER ORDERED that within six months of the date of this order the petitioners shall advise the court, in writing, whether petitioners deem it advisable to amend s. 756.04 (2) (c) to permit the office of the director of state courts to seek the additional lists proposed by interested parties to this rules proceeding at the open conference on April 7, 2008.

    IT IS FURTHER ORDERED that within three years of the effective date of this order the petitioners shall advise the court, in writing, whether the amendments made pursuant to this petition have advanced the primary goals of improving representation on Wisconsin juries and protecting juror privacy.

    IT IS FURTHER ORDERED that the Comments are not adopted, but will be published and may be consulted for guidance in interpreting and applying Wis. Stat. Ch. 756.

    IT IS FURTHER ORDERED that notice of this amendment of Chapter 756 of the Wisconsin 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 25th day of July, 2008.

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

    Continuing Legal Education

    In the matter of the petition to amend Supreme Court Rules SCRs 31.10 and 31.11, relating to notices of noncompliance with continuing legal education (CLE) requirements and reinstatement.

    In the matter of the petition to amend Supreme Court Rules SCR 31.32(2), relating to the manner of filing documents relating to continuing legal education (CLE) requirements.

    In the matter of the petition to amend Supreme Court Rules SCRs 40.14(2) and 40.14(3)(h), relating to the filing of applications for admission and the fee for late application under the diploma privilege.

    Orders 08-05, 08-06, and 08-14

    On April 1, 2008, the Board of Bar Examiners, by its director, John E. Kosobucki, petitioned this court to amend Supreme Court Rules 31.10 and 31.11, relating to notices of noncompliance with CLE requirements and reinstatement, and, by separate petition, to amend Supreme Court Rule SCR 31.13(2), relating to the manner of filing documents relating to CLE requirements.

    On May 14, 2008, the Board of Board Examiners, by its director, John E. Kosobucki, petitioned this court to amend Supreme Court Rules SCRs 40.14(2) and 40.14(3)(h), relating to the filing of applications for admission and the fee for late application under the diploma privilege.

    On July 24, 2008, amended petitions were filed in these matters to show marked versions of the proposed amendments.

    IT IS ORDERED that a public hearing on these petitions, as amended, shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on Monday, Nov. 10, 2008, at 9:45 a.m.

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

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

    Dated at Madison, Wis., this 30th day of July, 2008.

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

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    Amended Petition 08-05

    The Board of Bar Examiners, by its director John E. Kosobucki, petitions the Supreme Court of Wisconsin for orders amending Supreme Court Rules 31.10(1) and 31.11(1)(b), relating to the notices given when lawyers are automatically suspended for noncompliance with CLE requirements, and when lawyers are reinstated after automatic suspensions. If the Court grants these orders, the affected sections will read as follows:

    SCR 31.10 Noncompliance.

    (1) If a lawyer fails to comply with the attendance requirement of SCR 31.02, fails to comply with the reporting requirement of SCR 31.03(1), or fails to pay the late fee under SCR 31.03(2), the board shall serve a notice of noncompliance on the lawyer. This notice shall advise the lawyer that the lawyer's state bar membership of the lawyer shall be automatically suspended for failing to file evidence of compliance or to pay the late fee within 60 days after service of the notice. The board shall certify the names of all lawyers so suspended under this rule to the clerk of the supreme court and to each judge of a court of record in this state , to all court of appeals and circuit court judges and to all circuit court commissioners appointed under SCR 75.02(1) in this state, and to the executive director of the State Bar. A lawyer shall not engage in the practice of law in Wisconsin while his or her state bar membership is suspended under this rule.

    (2) * * * *

    SCR 31.11 Reinstatement.

    (1) Suspension of less than 3 consecutive years.

    (a) * * * *

    (b) Within 60 days after service of a petition for reinstatement, the board shall make a determination regarding compliance. If the board determines that the lawyer is in compliance with all requirements under this chapter, it shall reinstate the lawyer's membership in the state bar. The board shall certify the names of all lawyers so reinstated to the clerk of the supreme court, to all court of appeals and circuit court judges and to all circuit court commissioners appointed under SCR 75.02(1) in this state, and to the executive director of the State Bar.

    JUSTIFICATION: Under the present SCR 31.10 and 31.11, in about March of each year, the BBE notifies lawyers who have not complied with their CLE requirements that they will be automatically suspended from the practice of law if they do not come into compliance within sixty days. Sixty days later, the board transmits a list of the lawyers who have been automatically suspended to the clerk of the Supreme Court and each judge of a court of record. Later, the board sends to the clerk of the Supreme Court a list of the lawyers who are reinstated within three years of their automatic suspension.

    The proposed amendment to SCR 31.10(1) would widen the distribution of the notice of automatic suspension to include the state bar and court commissioners appointed under SCR 75.02(1), i.e., commissioners who perform limited judicial or quasi-judicial duties under the direction of the chief judge and the judges of the circuit. Section 75.02(1) commissioners regularly preside over court proceedings and, therefore, need notice of lawyers' automatic suspensions for the same reasons that circuit court judges do. Notice to the state bar will allow the bar to keep its Internet directory of Wisconsin lawyers up-to-date.

    The proposed amendment to SCR 31.11 (1)(b) would widen the distribution of the notices of reinstatement to include judges on the court of appeals, circuit court judges, court commissioners appointed under SCR 75.02(1) and the state bar. Fairness requires notices of reinstatement to be circulated as widely as the corresponding notices of automatic suspensions.

    Dated this 31st day of March, 2008.

    John E. Kosobucki, Director,
    Board of Bar Examiners

    Amended Petition 08-06

    The Board of Bar Examiners, by its director John E. Kosobucki, petitions the Supreme Court of Wisconsin for an order amending Supreme Court Rule 31.13(2), relating to the manner in which CLE reports and other documents relating to CLE requirements may be filed. If the Court grants these orders, SCR 31.13(2) will read as follows:

    SCR 31.13 Service; filing

    (1) * * * *

    (2) Filing of a report form or a petition is effective on the date the form or petition is received at the office of the board during regular business hours. A report or other communication to the board under this chapter is timely filed if it, together with the applicable fees, is received at the board's office within the time specified for filing; or if sent to the board through the United States Postal Service by first-class mail (including express or priority mail), postage prepaid, and bears a postmark, other than a commercial postage meter label, showing that the communication was mailed on or before the last day for filing; or if delivered on or before the last day for filing to a third-party commercial carrier for the board within three (3) calendar days.

    JUSTIFICATION: Under the present rule, a CLE report or other CLE-related document is not deemed timely unless it arrives at the board's offices during regular business hours on or before the deadline day. Applicants who rely on first class mail cannot be sure their timely mailed documents will arrive in time. If they want to be sure, they must incur the greater cost of hand delivery or a courier service.

    The proposed amendment is patterned on the rule for filing briefs in the United States Supreme Court. It gives applicants more control over their transmissions, better assuring them that they will not incur the costs associated with an untimely filing. (By a separate petition, the board is asking the Court to make a similar change in the manner of filing applications for admission to the bar.)

    Dated this 31st day of March, 2008.

    John E. Kosobucki, Director,
    Board of Bar Examiners

    Amended Petition 08-14

    The Board of Bar Examiners, by its director John E. Kosobucki, petitions the Supreme Court of Wisconsin for orders amending Supreme Court Rules 40.14(2) and 40.14(3)(h). If the Court issues this order, these sections will read as follows:

    PROPOSED AMENDMENTS: SCR 40.14 Application; fees.

    (2) An application is filed on the date a properly executed application and payment of the applicable fees are received at the office of the board during regular business hours.

    (2) An application is timely filed if it, together with the applicable fees, is received at the board's offices within the time specified for filing; or if sent to the board through the United States Postal Service by first-class mail (including express or priority mail), postage prepaid, and bears a postmark, other than a commercial postage meter label, showing that the document was mailed on or before the last day for filing; or if delivered on or before the last day for filing to a third-party commercial carrier for delivery to the board within three calendar days.

    (3) The following fees are payable to the board:

    (h) Late fee for a character and fitness investigation under SCR 40.06(3m) $100 $500

    JUSTIFICATION: Under the present rule, an application for admission to the bar is not deemed timely unless it arrives at the board's offices during regular business hours on or before the deadline day. Applicants who rely on first class mail cannot be sure their timely mailed documents will arrive in time. If they want to be sure, they must incur the greater cost of hand delivery or a courier service.

    The proposed amendment, adapted from the rule for filing briefs in the United States Supreme Court, gives applicants more control over their transmissions, better assuring them that their applications will not be rejected as untimely. (By a separate petition, the board is asking the Court to make a similar change in the manner of filing CLE reports and other documents).

    The second proposed amendment would affect only the small number of persons each year who do not make a timely application, but who otherwise satisfy all requirements for admission under the Diploma Privilege, SCR 40.03. In recent years, the board has often certified these applicants for admission if their applications were no more than a few days or weeks late, subject to the $100 late fee set by SCR 40.14(3)(h). In these cases, the Board deems relegating these applicants to the bar examination process a penalty that is disproportionate to their tardiness.

    However, the Board also deems the $100 late fee set by SCR 40.14(3)(h) to be too insignificant a penalty, and therefore asks the Court to increase it to $500. The Board makes this request to magnify the incentive for timely applications, and not with an intent to increase its revenues. Indeed, the Board hopes the increased late fee will prompt all applicants to file their applications on time.

    Dated this 13th day of May 2008.

    John E. Kosobucki, Director,
    Board of Bar Examiners

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    Electronic Filing in Appellate Court

    In the matter of the petition to create Wis. Stat. §§ (Rule) 809.19(8)(a)4., 809.19(12), 809.19(13), 809.32(1)(fm), 809.80(5) and amend Wis. Stat. § (Rule) 809.80(3) relating to the electronic filing of appellate briefs and no-merit reports.

    In the matter of the petition to create Wis. Stat. § (Rule) 809.80(5) and amend Wis. Stat. § (Rule) 809.62(4) relating to the electronic filing of petitions for review and responses.

    Orders 08-15 and 08-18

    On June 19, 2008, the Wisconsin Court of Appeals, by Chief Judge Richard S. Brown, petitioned this court to create Wis. Stat. §§ (Rule) 809.19(8)(a)4., 809.19(12), 809.19(13), 809.32(1)(fm), 809.80(5) and amend Wis. Stat. § (Rule) 809.80(3) relating to the electronic filing of appellate briefs and no-merit reports.

    On July 14, 2008, David R. Schanker, Clerk of the Supreme Court, petitioned this court for an order to create Wis. Stat. § (Rule) 809.80(5) and amend Wis. Stat. § (Rule) 809.62(4) relating to the electronic filing of petitions for review and responses.

    IT IS ORDERED that a public hearing on these petitions shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on Tuesday, Oct. 28, 2008, at 9:30 a.m.

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

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

    Dated at Madison, Wis., this 30th day of July, 2008.

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

    Petition 08-15

    The Court of Appeals respectfully petitions the Supreme Court to create Wis. Stat. Rules 809.19(8)(a)4., 809.19(12), 809.19(13), 809.32(1)(fm), and 809.80(5), and to amend Wis. Stat. Rule 809.80(3). This petition is directed to the Supreme Court's rule-making authority under Wis. Const. art. VII, sec. 3(1) and Wis. Stat. § 751.12. The Court of Appeals further respectfully requests that the Court publish the Comment to proposed ss. 809.19(12) and (13).

    The goal of this petition is to increase judicial efficiency in the Court of Appeals by requiring appellate counsel to file an electronic copy of all appellate briefs and no-merit reports. The proposed rule changes also permit, but do not require, the filing of an electronic copy of the appendix.

    This petition proposes a system for electronic filing of appellate briefs and no-merit reports as an initial step toward electronic filing at the appellate level. Under the proposed rules, attorneys will be required to file an electronic copy of all briefs and no-merit reports filed on appeal. Self-represented parties are excluded from this requirement but are not precluded from filing an electronic copy of a brief. The filing of an electronic appendix is optional for attorneys and self-represented parties alike. The system also enables attorneys to file briefs enhanced with internal links (such as a table of contents with links to locations in the brief) or external links (to websites containing cases or statutes cited in the brief).

    Under the proposed rules, electronic copies of appellate briefs, no-merit reports, and appendices will be filed using the web-based interface developed by the Consolidated Court Automation Programs (CCAP) for e-filing in Wisconsin's circuit courts. A rule authorizing and governing the implementation of the CCAP e-filing system was adopted by the Supreme Court as Wis. Stat. § 801.17 (effective July 1, 2008).

    The CCAP e-filing system requires a filer to register and acquire a unique password for use in verifying his or her identity and for the creation of an electronic signature. The proposed rules require briefs to be filed in text-searchable Portable Document Format (PDF); appendices may be filed in non-text searchable PDF. Users will log on to the system, complete an electronic transmittal form with information about the case and the document, and then upload the document. A confirmation of receipt will be sent to the user. When the document is received by the clerk's office, it will be reviewed by a clerk's office employee. If the brief is accepted, information from the transmittal form will be automatically entered into the appellate courts' case management system (SCCA) and the document will be associated with the appropriate case in SCCA. The electronic brief, no-merit report, or appendix can then be accessed by judges and other court personnel through SCCA.

    The proposed rules represent an important step toward electronic filing in the appellate courts. The availability of briefs, no-merit reports, and appendices in electronic form will enable Court of Appeals judges to view these case materials on their computers, to search for specific terms, to jump to a location within a brief, to copy text, to link to cited cases and statutes, and to take advantage of the portability and ease of transmission of electronic files.

    For these reasons, the Court of Appeals respectfully requests that the Supreme Court adopt the following rules.

    SECTION 809.19(8)(a)4. of the statutes is created to read:

    809.18(8) Number, form and length of briefs and appendices.

    (a) Number.

    1. A person shall file either 22 copies of a brief or appendix in the supreme court or the number that the court directs and shall serve 3 copies on each party.

    2. Except as provided in subd. 3 and s. 809.43, person shall file either 10 copies of a brief or appendix in the court of appeals or the number that the court directs and shall serve 3 copies on each party.

    3. Except as provided in s. 809.43, a person who is found indigent under s. 814.29(1) and who is not represented by counsel shall file 5 copies of a brief or appendix in the court of appeals and shall serve one copy on each party. A prisoner who has been granted leave to proceed without prepayment of fees under s. 814.29(1m) and who is not represented by counsel shall file 5 copies of a brief or appendix in the court of appeals and shall serve one copy on each party.

    4. In addition to the copies required in subd. 1, 2, and 3, all parties represented by counsel shall file one electronic copy of the brief as provided in s. 809.19(12) and may file one electronic copy of the appendix as provided in s. 809.19(13).

    SECTION 809.19(12) of the statutes is created to read:

    809.19(12) Electronic briefs. (a) General Rule. In addition to paper briefs filed under s. 809.19(8), counsel for any party, guardian ad litem, or person filing a brief under s. 809.19(7), shall file with the court the same brief in electronic form. Notwithstanding s. 801.17(9), the paper copy of the brief remains the official court record. An appendix to the electronic brief may be filed in accordance with s. 809.19(13); the appendix should not be included with the electronic brief. A self-represented party is not required to file an electronic brief, but may do so as provided for in this subsection.

    (b) Process. Counsel filing an electronic brief shall use the electronic filing system set forth in s. 801.17.

    (c) Format. The electronic brief shall be in text-searchable Portable Document Format (PDF).

    (d) Filing. The electronic brief shall be electronically transmitted on the same date that the paper brief is filed under s. 809.80(3)(b).

    (e) Corrections. If corrections are required to be made to a paper brief, a corrected electronic brief shall be filed.

    (f) Certification. In addition to the form and length certification required by s. 809.19(8)(d), counsel must certify that the text of the electronic brief is identical to the text of the paper brief.

    SECTION 809.19(13) of the statutes is created to read:

    809.19(13) Electronic Appendix. (a) General Rule. In addition to the paper appendix filed under s. 809.19(2) or s. 809.19(3)(b), counsel may file with the court the same appendix in electronic form. Notwithstanding s. 801.17(9), the paper copy of the appendix remains the official court record. A self-represented party is not required to file an electronic appendix, but may do so as provided for in this subsection.

    (b) Process. Counsel filing an electronic appendix shall use the electronic filing system set forth in s. 801.17.

    (c) Format. An electronic appendix shall be in Portable Document Format (PDF). An electronic appendix shall be filed as a separate document or documents; it should not be included with the electronic brief.

    (d) Filing. An electronic appendix shall be electronically transmitted on the same date that the paper appendix is filed under s. 809.80(3)(b).

    (e) Corrections. If corrections are required to be made to a paper appendix, a corrected electronic appendix shall be filed.

    (f) Certification. In addition to the certification required by s. 809.19(2)(b) and s. 809.19(3)(b), counsel shall certify that the content of the electronic appendix is identical to the content of the paper appendix.

    Comment to Sections 809.19(12) and 809.19(13): An electronic brief required under s. 809.19(12) and an electronic appendix requested under s. 809.19(13) are in addition to and not a replacement for the paper brief and appendix required by s. 809.19. The filing requirement is satisfied only when the requisite number of paper copies of the brief and appendix and the electronic brief are filed. If an attorney is unable for good cause to comply with the requirement of an electronic brief, a motion for relief may be filed.

    The filing of an electronic appendix is encouraged, but not required. These rules do not provide for total electronic filing at the appellate level. Accordingly, the paper copies of appellate briefs and appendices constitute the official court record.

    An electronic brief shall be submitted as a text-searchable Portable Document Format (PDF) document. Text-searchable PDF documents must be created by electronically converting the original word processing file to PDF. PDF documents created by scanning paper documents do not comply with this requirement. An electronic appendix may be a non-text-searchable PDF document created by scanning.

    Electronic briefs may be enhanced with internal links (such as a table of contents with links to locations in the brief) or external links (links to websites containing the text of cases or statutes cited in the brief). External links in an electronic brief shall not require a password for access to the case or statute. No enhancement to an electronic brief shall alter the text of the brief.

    All electronic briefs shall be submitted in a single electronic file. The file containing the electronic brief shall not contain the appendix or any other document or material. An electronic appendix containing more than 200 pages may be split into smaller electronic files.

    Sample electronic brief certification form:

    CERTIFICATE OF COMPLIANCE WITH RULE 809.19(12)

    I hereby certify that:

    I have submitted an electronic copy of this brief, excluding the appendix, if any, which complies with the requirements of s. 809.19(12). I further certify that:

    This electronic brief is identical in content and format to the printed form of the brief filed as of this date.

    A copy of this certificate has been served with the paper copies of this brief filed with the court and served on all opposing parties.

    Signed:....

    Signature

    Sample electronic appendix certification form:

    CERTIFICATE OF COMPLIANCE WITH RULE 809.19(13)

    I hereby certify that:

    I have submitted an electronic copy of this appendix, which complies with the requirements of s. 809.19(13). I further certify that:

    This electronic appendix is identical in content to the printed form of the appendix filed as of this date.

    A copy of this certificate has been served with the paper copies of this appendix filed with the court and served on all opposing parties.

    Signed:....

    Signature

    SECTION 809.32(1)(fm) of the statutes is created to read:

    809.32(1)(fm) Filing of electronic copy of no-merit report and supplemental no-merit report. In addition to the paper copies of the no-merit report required under this rule and the optional supplemental no-merit report, the attorney shall file with the court the same no-merit report and supplemental no-merit report, if any, in electronic form, using the procedure set forth in s. 809.19(12). The attorney shall certify that the text of the electronic report is identical to the text of the paper report.

    SECTION 809.80(5) of the statutes is created to read:

    809.80(5) Filing of Electronic Briefs or No-Merit Reports. (a) General Rule. The electronic brief, electronic no-merit report, or electronic supplemental no-merit report required to be filed under s. 809.19(12) or s. 809.32(1)(fm) shall be transmitted to the clerk for filing on or before the date that the paper copy of the document is filed. Failure to transmit the electronic document on or before the date that the paper document is filed may result in the document being considered untimely.

    (b) Clerk review. The clerk shall review the electronic brief, electronic no-merit report, or electronic supplemental no-merit report to determine if the document should be accepted for filing.

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

    2. If the clerk rejects the document following review, the filer will receive notification of the rejection. The filer may be required to refile the document.

    SECTION 809.80(3) of the statutes is amended to read:

    809.80(3) Filing of papers; use of mail. (a) All filings _ general rule. Except as provided in pars. (b) to (e), filing is not timely unless the clerk receives the papers within the time fixed for filing. Filing may be accomplished by hand delivery, mail or by courier. Filing by facsimile is permitted only as set forth in s. 801.16. Electronic filing, other than filing by facsimile as set forth in s. 801.16, is not permitted unless otherwise ordered by the supreme court.

    Respectfully submitted on June 19, 2008.

    Richard S. Brown, Chief Judge,
    Wisconsin Court of Appeals

    Petition 08-18

    The Clerk of the Supreme Court respectfully petitions the Supreme Court to amend Wis. Stat. Rule 809.62(4) and the proposed Wis. Stat. Rule 809.80(5), the creation of which was requested by the Court of Appeals in its petition filed June 19, 2008. This petition is directed to the Supreme Court's rule-making authority under Wis. Const. art. VII, sec. 3(1) and Wis. Stat. § 751.12.

    The goal of this petition is to increase judicial efficiency in the Supreme Court by requiring appellate counsel to file an electronic copy of the Petition for Review and the Response to Petition for Review. The petition also proposes authorizing but not requiring the filing of an electronic copy of an appendix filed with a Petition for Review. This petition is intended to complement the Court of Appeals' petition, which proposed a rule requiring the filing of an electronic copy of briefs and no-merit reports.

    For these reasons, the Clerk of the Supreme Court respectfully requests that the Supreme Court adopt the following rules.

    SECTION 809.62(4) of the statutes is amended to read:

    809.62(4) The petition for review and response, if any, shall conform to s. 809.19(8)(b) and (d) as to form and certification, shall be as short as possible, and may not exceed 35 pages in length if a mono-spaced font is used or 8,000 words if a proportional serif font is used, exclusive of appendix. The petition for review and the response shall have white front and back covers, and a party shall file 10 copies with the clerk of the supreme court. In addition, counsel for any party, guardian ad litem, or person shall file with the court the same petition for review or response in electronic form using the procedure provided in s. 809.19(12) and may file one electronic copy of an appendix to the petition for review or response using the procedure provided in s. 809.19(13). A self-represented party is not required to file an electronic copy of the petition for review or response, but may do so as provided for in this subsection.

    Comment to Section 809.62(4): The electronic copy of a petition for review, response, or appendix is in addition to and not a replacement for the paper copies required by this rule. The filing requirement is satisfied only when the requisite number of paper copies are filed. If an attorney is unable for good cause to comply with the requirement of an electronic copy, a motion for relief may be filed.

    SECTION 809.80(5) of the statutes, as proposed by the Court of Appeals, is amended to read:

    809.80(5) Filing of Electronic Briefs, or No-Merit Reports, and Petitions for Review and Responses. (a) General Rule. The electronic brief, electronic no-merit report, or electronic supplemental no-merit report, or electronic petition for review and response required to be filed under s. 809.19(12), or s. 809.32(1)(fm), or 809.62(4) shall be transmitted to the clerk for filing on or before the date that the paper copy of the document is filed. Failure to transmit the electronic document on or before the date that the paper document is filed may result in the document being considered untimely.

    (b) Clerk review. The clerk shall review the electronic brief, electronic no-merit report, or electronic supplemental no-merit report, or electronic petition for review and response to determine if the electronic document should be accepted for filing.

    1. If the clerk accepts the electronic document, it shall be considered submitted to 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 submission. The filing date for the document remains the date on which filing was accomplished under s. 809.80(3).

    2. If the clerk rejects the electronic document following review, the filer will receive notification of the rejection. The filer may be required to resubmit the electronic document.

    Respectfully submitted on July 14, 2008.

    David R. Schanker,
    Clerk of Supreme Court

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    Correction to Wis. Stat. § 887.26

    In the matter of corrections to Supreme Court Order 05-06 amending Wis. Stat. § 887.26

    Order 08-19

    The court having identified typographical errors in its order issued April 29, 2008, amending Wis. Stat. § 887.26, and deciding on its own motion to correct these errors so the accurate language is included in the statutes when the statutes are published in the fall of 2008,

    IT IS ORDERED that effective the date of this order, the typographical errors found in Supreme Court Order 05-06 amending 887.26 of the statutes are corrected as follows:

    Section 1. Section 887.26 (5) (bm) 3., as renumbered and amended by Supreme Court Order 05-06, is amended to read:

    887.26 (5) (bm) 3. At the expiration of the period under sub. subds. (b) 1. and (b) 2., and if no objection to the issuance of the commission has been received or sustained the commission shall issue, with the 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 is not given as required.

    Section 2. Section 887.26 (6) (am) of the statutes, as created by Supreme Court Order 05-06, is amended to read:

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

    IT IS FURTHER ORDERED that notice of this correction to Supreme Court Order 05-06 amending of Wis. Stat. § 887.26 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 25th day of July, 2008.

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

    [Editor's Note: Order 08-19 amends final Order 05-06, published in the June 2008 Wisconsin Lawyer and available at www.wisbar.org.]

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    Corrections Wis. Stat. § 801.17

    In the matter of corrections to Supreme Court Order 06-08 creating Wis. Stat. § 801.17, governing electronic filing in the circuit courts

    Order 08-20

    The court having identified a typographical error in its order issued May 1, 2008, creating Wis. Stat. § 801.17, and deciding on its own motion to correct this error so the accurate language is included in the statutes when the statutes are published in the fall of 2008,

    IT IS ORDERED that effective the date of this order, the typographical error found in Supreme Court Order 06-08 creating Wis. Stat. § 801.17 of the statutes is corrected as follows:

    Section 1. 801.17 (6) (b) of the statutes, as created by Supreme Court Order 06-08, is amended to read:

    801.17 (6) (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. par. (d).

    IT IS FURTHER ORDERED that notice of this correction to Supreme Court Order 06-08 creating Wis. Stat. § 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 25th day of July, 2008.

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

    [Editor's Note: Order 08-20 amends final Order 06-08, published in the June 2008 Wisconsin Lawyer and available at www.wisbar.org.]

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    Videoconferencing in the Courts

    In the matter of corrections to Supreme Court Order 07-12 creating ch. 885 of the statutes, governing the use of videoconferencing in the courts

    Order 08-21

    The court having identified a typographical error in its order issued May 1, 2008, creating chapter 885 of the Wisconsin statutes, and deciding on its own motion to correct this error so the accurate language is included in the statutes when the statutes are published in the fall of 2008,

    IT IS ORDERED that effective the date of this order, the typographical error found in Supreme Court Order 07-12 creating chapter 885 of the statutes is corrected as follows:

    Section 1. Section 885.54 (1) (e) of the statutes, as created by Supreme Court Order 07-12, is amended to read:

    885.54 (1) (e) In matters set out in sub. par. (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.

    IT IS FURTHER ORDERED that notice of this correction to Supreme Court Order 07-12 creating ch. 885 of the Wisconsin 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 30th day of July, 2008.

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

    [Editor's Note: Order 08-21 amends final Order 07-12, published in the June 2008 Wisconsin Lawyer and available at www.wisbar.org.]

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