Wisconsin Lawyer: Supreme Court Orders:

State Bar of Wisconsin

Sign In
    Wisconsin LawyerWisconsin Lawyer

News & Pubs Search

Advanced

    Supreme Court Orders

    On Feb. 20, the Wisconsin Supreme Court will discuss Order 02-03 (state legislative redistricting). On March 9, the court will hold a public hearing on Order 08-13 (conditional admission) and Order 08-24 (special responsibilities of prosecutors). The court has amended rules relating to cost assessments in the lawyer regulation system (Order 05-01A), citing unpublished opinions (Order 08-02), procedures for reporting CLE credits (Order 08-04), notices of noncompliance with CLE requirements and reinstatement (Order 08-05), admission on proof of practice elsewhere (Order 08-07), and e-filing of appellate briefs and no-merit reports (Order 08-15) and petitions for review and responses (Order 08-18).
    Share This:

    Wisconsin LawyerWisconsin Lawyer
    Vol. 82, No. 2, February 2009

    State Legislative Redistricting

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

    Order 02-03

    On Nov. 25, 2003, this court appointed a committee to review this court’s opinion in Case No. 02-0057-OA, Jensen v. Wisconsin Elections Bd., 2002 WI 13, 249 Wis. 2d 706, 639 N.W.2d 537, and to review the history of state legislative redistricting in Wisconsin, and redistricting rules and procedures in other jurisdictions, including federal and state courts. The court authorized the committee, upon completion of its review, to propose procedural rules in the event an original action involving redistricting litigation was filed and accepted.

    The committee’s appointment resulted from the original action petition filed in this court in the Jensen case by Assembly Speaker Scott R. Jensen and Senate Minority Leader Mary E. Panzer, representing Assembly and Senate Republicans, seeking this court’s involvement in the redistricting process due to a legislative impasse. The original action petition filed in Jensen sought a declaration that the existing legislative districts were constitutionally invalid due to population shifts documented by the 2000 census. The petition requested this court to enjoin the Wisconsin Elections Board from conducting the 2002 elections using the existing districts.

    Although the court found that the petition filed in the Jensen case warranted this court’s original jurisdiction, it determined this court lacked procedures for redistricting litigation in the event of a legislative impasse resulting in a petition for an original action. The court’s decision in the Jensen case said this court’s existing original jurisdiction procedures would have to be substantially modified to accommodate the case’s requirements. It explained that a “procedure would have to be devised and implemented, encompassing, at a minimum, deadlines for the development and submission of proposed plans, some form of fact-finding (if not a full-scale trial), legal briefing, public hearing, and decision.”

    The Jensen decision stated, in part: “[T]o assure the availability of a forum in this court for future redistricting disputes, we will initiate rulemaking proceedings regarding procedures for original jurisdiction in redistricting cases.” The timing of the request in Jensen for this court to take original jurisdiction did not permit the exercise of jurisdiction in a way to do substantial justice, and the dispute was ultimately resolved in federal court, where a case was already pending.

    The Jensen decision indicated new procedures could include “provisions governing factfinding (by a commission or panel of special masters or otherwise); opportunity for public hearing and comment on proposed redistricting plans; established timetables for the factfinder, the public and the court to act; and if possible, measures by which to avoid the sort of federal-state court ‘forum shopping’ conflict presented [in this case].” Consequently, this court voted to convene a committee to study and draft procedural rules that govern state legislative redistricting litigation in Wisconsin.

    The committee filed its initial report with the court in September 2007, which was distributed to interested parties and is available on the court’s Web site. See http://wicourts.gov/supreme/petitions_audio.htm. The committee has now filed a supplemental memorandum, which supplements information in the committee’s initial proposal and was drafted in response to public comment and questions asked by various justices during an open administrative conference held on April 8, 2008. The committee’s supplemental memorandum is also available on the court’s Web site. The supplemental memorandum addresses details of the committee’s original proposal, which outlined procedures that could be implemented if:

    1) the Legislature is at an impasse in attempting to redraw legislative and congressional district boundaries; and

    2) a party files a lawsuit asking the court to take original jurisdiction; and

    3) the court agrees to grant the case; and

    4) the court approves the procedures.

    The court has invited public comment on the supplemental memorandum and will discuss the matter further, including any comments it receives, at future open administrative conferences and will decide any future steps that may be necessary.

    IT IS ORDERED that on Thursday, Jan. 22, 2009, at 10 a.m., and on Friday, Feb. 20, 2009, at 9:30 a.m., at its open administrative conferences in the Supreme Court Room in the State Capitol, Madison, Wis., the court shall discuss the committee’s report, the committee’s supplemental memo, and comments received.

    IT IS FURTHER ORDERED that any interested persons may file with the court a written submission for the court’s review at these conferences, preferably no later than Dec. 31, 2008. The court retains the entire file on this matter and interested persons are encouraged not to file duplicative submissions. As this matter is not presently scheduled for public hearing, general public testimony will not be entertained at the open conferences at this time. The court may, in its discretion, direct questions to individuals present at the conferences to aid the court’s consideration of these matters.

    IT IS FURTHER ORDERED that notice of the open 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 each of the two conferences, specifically in the State Bar’s November 2008, December 2008, and February 2009 publications.

    Dated at Madison, Wis., this 1st day of October, 2008.

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

    Top of Page

    Cost Assessments in Lawyer Regulation System

    In the matter of the Petition for Amendment to Supreme Court Rules relating to Cost Assessments in the Lawyer Regulation System  

    Order 05-01A

    On May 1, 2006, this court issued an order in the above-captioned matter amending Supreme Court Rule 22.24 relating to the assessment of costs in lawyer disciplinary proceedings. The order provided that the amendments to Supreme Court Rule 22.24 would expire on Dec. 31, 2008, unless this court took further action. The court reviewed this matter at its open administrative conference on Oct. 28, 2008, and concluded it was appropriate for the amendments to continue in effect until further order of this court. A public hearing on the amendments will be scheduled prior to Dec. 31, 2010.

    IT IS ORDERED that the amendments to Supreme Court Rule 22.24 made pursuant to this court’s order dated May 1, 2006, shall continue in effect until further order of this court.

    IT IS FURTHER ORDERED that a public hearing on the amendments to Supreme Court Rule 22.24 made pursuant to this court’s order dated May 1, 2006, will be scheduled for public hearing prior to Dec. 31, 2010.

    IT IS FURTHER ORDERED that notice of this amendment to the supreme court rules 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 December, 2008.

    By the court:

    David R. Schanker,
    Clerk of Supreme Court 

    Top of Page

    Citing Unpublished Opinions

    In the matter of amendment of Wis. Stat. § (Rule) 809.23(3) regarding citation to unpublished opinions.

    Order 08-02

    On Jan. 25, 2008, the Wisconsin Judicial Council petitioned this court for amendment to Wis. Stat. § (Rule) 809.23(3) to allow unpublished opinions to be cited for their persuasive value. The court held a public hearing on Oct. 14, 2008, on the petition. Upon consideration of matters presented at the public hearing and submissions made in response to the proposed amendment, the court adopted the petition, with modifications, on a 6 to 1 vote. Justice Bradley dissented from the adoption of the petition. Further, the court voted the effective date of the amendments adopted herein will be July 1, 2009, and that the court will review the operation of this rule approximately three years from the effective date.

    Therefore,

    IT IS ORDERED that effective July 1, 2009:

    Section 1. 809.23 (3) of the statutes is renumbered 809.23 (3) (a) and amended to read:

    809.23 (3) Unpublished Citation of unpublished opinions not cited. (a) An unpublished opinion is of no precedential value and for this reason may not be cited in any court of this state as precedent or authority, except to support a claim of claim preclusion, issue preclusion, or the law of the case, and except as provided in par. (b).

    Section 2. 809.23 (3) (b) of the statutes is created to read:

    809.23 (3) (b) In addition to the purposes specified in par. (a), an unpublished opinion issued on or after July 1, 2009, that is authored by a member of a three-judge panel or by a single judge under s. 752.31(2) may be cited for its persuasive value. A per curiam opinion, memorandum opinion, summary disposition order, or other order is not an authored opinion for purposes of this subsection. Because an unpublished opinion cited for its persuasive value is not precedent, it is not binding on any court of this state. A court need not distinguish or otherwise discuss an unpublished opinion and a party has no duty to research or cite it. 

    Section 3. 809.23 (3) (c) of the statutes is created to read:

    809.23 (3) (c) A party citing an unpublished opinion shall file and serve a copy of the opinion with the brief or other paper in which the opinion is cited.

    Judicial Council Note, 2008: Section (3) was revised to reflect that unpublished Wisconsin appellate opinions are increasingly available in electronic form. This change also conforms to the practice in numerous other jurisdictions, and is compatible with, though more limited than, Fed. R. App. P. 32.1, which abolished any restriction on the citation of unpublished federal court opinions, judgments, orders, and dispositions issued on or after Jan. 1, 2007. The revision to Section (3) does not alter the non-precedential nature of unpublished Wisconsin appellate opinions.

    IT IS FURTHER ORDERED that the court will convene a committee that will identify data to be gathered and measured regarding the citation of unpublished opinions and explain how the data should be evaluated. Prior to the effective date of this rule amendment, the committee and CCAP staff will identify methods to measure the impact of the rule amendment and establish a process to compile the data and make effective use of the court‘s data keeping system. The data shall be presented to the court in the fall of 2011.

    IT IS FURTHER ORDERED that notice of this amendment of Wis. Stat. § (Rule) 809.23(3) 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 6th day of January, 2009. 

    By the court:

    David R. Schanker, Clerk of Supreme Court 

    ¶1 ANN WALSH BRADLEY, J. (dissenting). This court has faced three previous petitions to amend the current citation rule, and has up until now declined to do so. I respectfully dissent for the reasons previously stated. In the Matter of the Amendment of Wis. Stat. § (Rule) 809.23(3), 2003 WI 84, 261 Wis. 2d xiii, ¶¶ 6-11. No sufficient problem has been identified to warrant the change. I continue to believe that the potential increased cost and time outweigh any benefits gained. Therefore, I would deny the petition.

    Top of Page

    Procedures for Reporting CLE Credits

    In the matter of the Petition for Amendment to Supreme Court Rules (SCR) 31.01, 31.03, 31.05, and 31.07 Relating to Procedures for Reporting Continuing Legal Education (CLE) Credits 

    Order 08-04

    On March 31, 2008, the Board of Bar Examiners, by its director John E. Kosobucki, filed a petition to amend Supreme Court Rules 31.01, 31.03, 31.05, and 31.07 to change the procedures by which Wisconsin attorneys report Continuing Legal Education (CLE) credits. An amended petition was filed on July 24, 2008, containing a red-lined version of the proposed rule. A public hearing was held on Tuesday, Oct. 14, 2008. John Kosobucki presented the petition on behalf of the Board of Bar Examiners.

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

    IT IS ORDERED that effective the date of this order, Chapter 31 of the Supreme Court Rules is amended as follows:

    Section 1. Supreme Court Rule 31.01(1m) is created to read:

    31.01(1m) “CLE” means continuing legal education.

    Section 2. Supreme Court Rules 31.01(2) and (6m) are amended to read:

    31.01(2) “Committee” means a panel comprised of comprising at least 3 members of the board.

    (6m) “Repeated on-demand program” means an on-line program delivered over the Internet, repeating consisting of a program previously approved by the board, and given at a time of the attendee ‘s choosing within twelve (12) months of the approval of the on-demand on-line program.

    Section 3. Supreme Court Rule 31.02(1) is amended to read:

    31.02(1) A lawyer shall attend a minimum of 30 hours of approved continuing legal education CLE during each reporting period.

    Section 4. Supreme Court Rule 31.03 is amended to read:

    31.03 Reporting requirement. (1) A lawyer shall file a written report under oath or affirmation on designated CLE Form 1 shall be filed with the board by a lawyer on or before the last day of the reporting period February 1 following the last day of the reporting period. The written report shall establish compliance with the attendance requirement of SCR 31.02.

    (2) A lawyer who has not satisfied SCR 31.02 and completed the reporting requirement under sub. (1) by the close of business on the February 1 following the last day of the reporting period shall be assessed a late fee of $50 $100.

    Section 5. Supreme Court Rule 31.04(3) is amended to read:

    31.04(3) A lawyer whose practice is principally in another jurisdiction that has mandatory continuing legal education CLE requirements and who is current in meeting those requirements is exempt from the attendance requirement of SCR 31.02, but shall comply with the reporting requirement of SCR 31.03.

    Section 6. Supreme Court Rules 31.05(1) and (2)(a)(intro) are amended to read:

    31.05(1) Only activities Activities that are approved by the board either before or after the close of the reporting period may be used to satisfy the requirement of SCR 31.02. Lawyers claiming credit for activities that are not already approved must seek approval on a CLE Form 2 filed contemporaneously with their CLE Form 1.

    (2)(a)(intro) Up to 15 hours of approved continuing legal education CLE reported on CLE Form 1 may be carried forward to the next reporting period if all of the following conditions are met:

    Section 7. Supreme Court Rules 31.05(2) a)1. and 2. are repealed and recreated to read:

    31.05(2)(a)1. The hours that are to be carried forward reflect attendance during the reporting period covered by the CLE Form 1.

    2. These hours reflect attendance at courses that are approved by the board either before or after the close of the reporting period. Lawyers claiming credit for activities that are not already approved must seek approval on a CLE Form 2 filed contemporaneously with their CLE Form 1.

    Section 7. Supreme Court Rule 31.05(2)(a)3. and (b) are repealed.

    Section 8. Supreme Court Rule 31.05(2)(c) and (5)(a)1. are amended to read:

    31.05(2)(c) Continuing legal education CLE programs approved by the board for legal ethics and professional responsibility may not be carried forward under this subsection for the purpose of fulfilling the legal ethics and professional responsibility requirement of SCR 31.02(2) but may be carried forward under par. (a), subject to par. (b).

    (5)(a) A repeated on-demand program may be used to satisfy the requirement of SCR 31.02, if all of the following conditions are met:

    1. The repeated on-demand program is approved prior to being claimed for credit by a lawyer on CLE Form 1, and the lawyer must take the on-demand program no later than December 31 of the year after the year in which approval was given.

    Section 9. Supreme Court Rule 31.07 (title) is amended to read:

    31.07 (Title) Standards for approval of continuing legal education CLE activities.

    Section 10. Supreme Court Rule 31.07(1) and (2)(a) through (e) are amended to read:

    31.07(1) The board shall designate the number of hours applicable to the requirement of SCR 31.02 for each approved continuing legal education CLE activity.

    (2) The following standards shall govern the approval of continuing legal education CLE activities by the board:

    (a) The primary objective of any continuing legal education CLE activity shall be to increase the attendee’s professional competence as a lawyer.

    (b) The continuing legal education CLE activity shall deal primarily with matters related to the practice of law, professional responsibility or ethical obligations of lawyers.

    (c) A Except for repeated on-demand programs, a mechanically or electronically recorded activity will be approved only if a qualified instructor is available to comment and answer questions.

    (d) Continuing legal education CLE materials shall be prepared by and activities shall be conducted by an individual or group qualified by practical or academic experience.

    (e) Continuing legal education CLE activities shall be accompanied by thorough, well-organized and readable written materials which are available to attendees at the time of presentation unless otherwise permitted by the board.

    Section 11. Supreme Court Rules 31.07(3) and (5) are amended to read:

    31.07(3) The board may approve published legal writings for use toward the continuing legal education CLE requirement under rules it may adopt.

    (5) The board shall not approve any continuing legal education CLE for legal ethics and professional responsibility credit unless that education has a minimum component of at least one continuous hour devoted to legal ethics and professional responsibility.

    Section 12. Supreme Court Rule 31.08 (Title) and (1) and (2) are amended to read:

    31.08 (Title) Procedure for approval of continuing legal education CLE activities. (1) Any person desiring approval of a continuing legal education CLE activity shall submit all information required by the board.

    (2) Following the presentation of an approved continuing legal education CLE activity, each sponsor shall promptly transmit to the board a list of all lawyers in attendance.

    Section 13. Supreme Court Rule 31.11(3) is amended to read:

    31.11(3) Petition for reinstatement. The petition for reinstatement shall state in detail the manner in which the lawyer has complied with all requirements under this chapter. Only verified attendance at sufficient hours of approved continuing legal education CLE activities for the period of suspension shall be considered full compliance with the attendance requirements of this chapter.

    IT IS FURTHER ORDERED that effective the date of this order, the Appendix to Chapter 31 of the Supreme Court Rules, Rules of the Board of Bar Examiners, is amended as follows:

    Section 14. SCR Chapter 31 (Appendix) CLE 1.02, CLE 6.01, CLE 7.05, and 7.06(2)(c) are amended as follows:

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

    CLE 6.01 Compliance with continuing legal education CLE make up requirements shall be a prerequisite to reactivation of membership in the State Bar of Wisconsin.

    CLE 7.05 No continuing legal education CLE 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 CLE activity offered in conjunction with a meal.

    CLE 7.06 (2)(c) Written materials that are developed and distributed at continuing legal education CLE activities in accordance with SCR 31.07(2)(e).

    IT IS ORDERED that notice of this amendment of SCR Chapter 31 and the Appendix to SCR Chapter 31 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 3rd day of December, 2008.

    By the court:

    David R. Schanker, Clerk of Supreme Court

    Top of Page

    Noncompliance with CLE Requirements and Reinstatement

    In the matter of amendment of Supreme Court Rules 31.10(1) and 31.11 regarding notices of noncompliance with continuing legal education requirements and reinstatement. 

    Order 08-05

    On April 1, 2008, the Board of Bar Examiners by its director, John E. Kosobucki, petitioned this court for amendment of Supreme Court Rules 31.10 and 31.11 to broaden distribution of the notices of suspension and reinstatement. The court held a public hearing on Nov. 10, 2008, on the petition. Upon consideration of matters presented at the public hearing and submissions made in response to the proposed amendment, the court voted to adopt the petition, with modifications to the distribution lists.

    IT IS ORDERED that, effective the date of this order, Supreme Court Rules chapter 31 is amended as follows:

    Section 1. SCR 31.10(1) of the Supreme Court Rules is amended to read:

    31.10(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, all supreme court justices, all court of appeals and circuit court judges, all circuit court commissioners appointed under SCR 75.02(1) in this state, all circuit court clerks, all juvenile court clerks, all registers in probate, the executive director of the state bar of Wisconsin, the Wisconsin State Public Defender ‘s Office, and the clerks of the federal district courts in Wisconsin. A lawyer shall not engage in the practice of law in Wisconsin while his or her state bar membership is suspended under this rule.

    Section 2. SCR 31.11(1)(b) of the Supreme Court Rules is amended to read:

    31.11(1)(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, all supreme court justices, all court of appeals and circuit court judges, all circuit court commissioners appointed under SCR 75.02(1) in this state, all circuit court clerks, all juvenile court clerks, all registers in probate, the executive director of the state bar of Wisconsin, the Wisconsin State Public Defender’s Office, and the clerks of the federal district courts in Wisconsin.

    IT IS ORDERED that notice of this amendment of SCR 31.10(1) and 31.11(1)(b) 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 6th day of January, 2009.

    By the court:

    David R. Schanker, Clerk of Supreme Court

    Top of Page

    Admission on Proof of Practice Elsewhere

    In the matter of amendment to Supreme Court Rule (SCR) 40.05 relating to admitting lawyers upon proof of practice elsewhere.

    Order 08-07

    On April 1, 2008, the Board of Bar Examiners, by its director, John E. Kosobucki, petitioned this court to amend Supreme Court Rule 40.05 relating to admitting lawyers upon proof of practice elsewhere. On July 24, 2008, an amended petition was filed to show a marked version of the proposed amendments to SCR 40.05. A public hearing was conducted on Nov. 18, 2008. At the ensuing open administrative conference the court voted to adopt the petition as set forth herein. Therefore,

    IT IS ORDERED that effective Jan. 1, 2009, Supreme Court Rule 40.05 is amended as follows:

    Section 1. SCR 40.05 (title) and (1)(b) of the Supreme Court Rules are amended to read:

    SCR 40.05 (title) Legal competence requirement: Proof of practice elsewhere.

    40.05(1)(b) Proof that the applicant has been primarily substantially engaged in the active practice of law in the courts of the United States or another a state or territory, the federal government or the District of Columbia for 3 years within the last 5 years prior to filing application for admission. A lawyer may satisfy this requirement by proof of practice in more than a single jurisdiction and under more than one provision of this rule.

    Section 2. SCR 40.05(1)(c) and (1m) of the Supreme Court Rules are repealed.

    Section 3. SCR 40.05(2) of the Supreme Court Rules is amended to read:

    40.05(2) Legal service as corporate counsel or legal service as a trust officer, or lawfully before the courts or administrative agencies of a state or territory, the federal government or the District of Columbia, if conducted in a state compliance with the rules where the applicant was admitted to practice law, may be deemed to be is the practice of law for the purposes of sub. (1)(b) and (c) this section.

    Section 4. SCR 40.05(2m) of the Supreme Court Rules is created to read:

    40.05(2m) Legal service as corporate counsel in Wisconsin under SCR 10.03(4)(f) is the practice of law for the purposes of sub. (1)(b). Provided a timely registration is filed, all such service conducted prior to filing the registration may be counted for purposes of sub. (1)(b).

    Section 5. SCR 40.05(3)(intro.) of the Supreme Court Rules is amended to read:

    40.05(3)(intro.) The following activities, whether or not conducted in a state or territory, the federal government or the District of Columbia where the applicant was admitted to practice law, may be deemed to be the practice of law for the purposes of sub. (1)(b) and (c):

    Section 6. SCR 40.05(6) of the Supreme Court Rules is repealed.

    IT IS ORDERED that notice of this amendment of Supreme Court Rule 40.05 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 6th day of January, 2009.

    By the court:

    David R. Schanker, Clerk of Supreme Court

    ¶1 DAVID T. PROSSER, J. (concurring in part, dissenting in part). In approving this petition, the Wisconsin Supreme Court adopts the most liberal standards in the United States for the admission of attorneys based on proof of practice in other American jurisdictions. The court repeals completely the longstanding reciprocity provisions in SCR 40.05(c) and (1m); and it trumpets this repeal as fair to bar applicants from states that set up barriers to the admission of Wisconsin attorneys, and beneficial to Wisconsin consumers. Because I believe the case for total repeal of reciprocity is meager and misleading, and because the consequences of this repeal may be adverse to Wisconsin law schools, members of the Wisconsin bar, and Wisconsin consumers, I respectfully dissent. As will be explained below, there are parts of Petition 08-07 that I support.

    I

    ¶2 The essence of Petition 08-07 is to amend SCR 40.05 by repealing reciprocity in the admission of attorneys on motion by proof of practice elsewhere. The petition also facilitates easier admission of corporate counsel and trust officers to the Wisconsin bar. I support the easier admission of corporate counsel and trust officers and will not discuss this element of the rule change. Other changes are discussed below.

    A.

    ¶3 The court modifies the title of SCR 40.05 so that it reads, “Legal competence requirement: Proof of practice.” The word “elsewhere” is eliminated from the title. I support this change.

    B.

    ¶4 The court modifies subsection (1)(b) of SCR 40.05 by substituting the word “substantially” for the word “primarily.” The court also strikes the word “active” in the phrase “active practice of law.” These changes will reduce the practice requirements for attorneys in other jurisdictions seeking to qualify for admission to our bar. In general, I support these changes.

    ¶5 The revised SCR 40.05(1) will now read as follows:

    1. An applicant shall satisfy the legal competence requirement by presenting to the clerk certification of the board [Board of Bar Examiners] that the applicant has provided all of the following:

    (a) Proof of admission to practice law by a court of last resort in any other state or territory or the District of Columbia.

    (b) Proof that the applicant has been substantially engaged in the practice of law in the United States or another state or territory or the District of Columbia for 3 years within the last 5 years prior to filing application for admission. A lawyer may satisfy this requirement by proof of practice in more than a single jurisdiction and under more than one provision of this rule. 

    C.

    ¶6 The court repeals all reciprocity requirements in the former rule by striking out (1)(c) and (1m). Subsection (1m) is the more important provision. Former (1m)(a) provided:

    (1m) Eligibility for admission under this rule shall be limited as follows:

    (a) An applicant who proposes to satisfy sub. (1)(b) by practice in a jurisdiction that does not grant bar admission to attorneys licensed in Wisconsin on the basis of practice in Wisconsin shall not be eligible for admission on proof of practice elsewhere. (Emphasis added.)

    ¶7 What paragraph (a) addressed was the prohibition in some jurisdictions against admitting Wisconsin attorneys to practice except by way of a bar examination in those jurisdictions. A Wisconsin attorney could be admitted to practice here – for many years – by qualifying for the diploma privilege (SCR 40.03), by taking a Wisconsin bar examination (SCR 40.04), or by satisfying the requirements for proof of practice elsewhere (SCR 40.05), see SCR 40.02, but these indicia of competence are deemed insufficient in 17 jurisdictions.1 The discriminating jurisdictions are Arizona, California, Delaware, Florida, Hawaii, Louisiana, Maine, Maryland, Mississippi, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, South Carolina, and Puerto Rico. The former (1m)(a) required attorney applicants from these jurisdictions to satisfy the same requirements for admission to the Wisconsin bar as these jurisdictions impose on Wisconsin attorneys. In short, it afforded equal treatment.

    ¶8 Former subsection (1m)(b) read:

    (b) An applicant who proposes to satisfy sub. (1)(b) by practice in a jurisdiction that does not grant bar admission on the basis of practice to attorneys licensed in Wisconsin under SCR 40.03 shall not be eligible for admission on proof of practice elsewhere.

    ¶9 Paragraph (b) addressed jurisdictions that admit attorneys on proof of practice elsewhere – except attorneys from Wisconsin who were admitted under the diploma privilege. The following states have rules that discriminate against graduates of Marquette University Law School and the University of Wisconsin Law School: Alabama, Alaska, Georgia, Idaho, Kansas, New Hampshire, Ohio, Tennessee, Utah, Virginia, and Wyoming. These states will now be able to discriminate freely against Wisconsin diploma privilege attorneys with no consequences to their own attorneys and law school graduates.

    ¶10 I strongly oppose these changes. The free movement of attorneys from one jurisdiction to another might be a desirable objective if every jurisdiction played by the same rules. But they do not. This court gave no consideration to any strategy or plan to attack existing barriers to Wisconsin attorneys set up by other jurisdictions.

    D.

    ¶11 The court also repeals subsection (1)(c). This subsection read as follows:

    (c) If any state, territory or the District of Columbia practice in which is proposed to satisfy the requirement of sub. (b) has, as of the date of the filing of the application, requirements for bar admission in that jurisdiction on the basis of practice in Wisconsin other than those set forth in subs. (a) and (b), proof that the applicant has satisfied those requirements of that state, territory or the District of Columbia. (Emphasis added.)

    ¶12 Paragraph (c) imposed an additional requirement for admission to our bar. The best example of an additional “requirement” is the requirement that an attorney admitted on proof of practice elsewhere has practiced 5 years, instead of “3 years within the last 5 years.” See SCR 40.05(1)(b). The following states admit out-of-state attorneys on motion but they require 5 years of practice: Alabama, Alaska, Arkansas, Colorado, Connecticut, the District of Columbia, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, New York, Ohio, Oklahoma, Pennsylvania, South Dakota, Tennessee, Texas, Vermont, Virginia, West Virginia, and Wyoming. Of course, nine of these states will not admit a diploma privilege graduate from Marquette or Wisconsin no matter how long the attorney has practiced unless the attorney takes and passes a bar exam.

    ¶13 Two states, North Carolina and North Dakota, require four years of practice instead of “3 years within the last 5 years.” This leaves only two states – Michigan and Washington – that have roughly the same requirements for admission on motion by proof of practice as Wisconsin. Attorneys from these two states seeking admission to the Wisconsin bar will gain nothing from the repeal of reciprocity.

    ¶14 The number of years of practice in another jurisdiction is only one of the numerous qualifications that states can impose on admission by motion. For instance, Illinois requires an applicant to provide proof of definite plans to practice law for a minimum of 500 hours per year on an ongoing basis while physically in Illinois. Iowa requires a certificate showing that an applicant has practiced “five full years while licensed” and still holds a license as well as an affidavit “showing a bona fide intent to practice law in Iowa.” Minnesota requires applicants to have taken a multistate bar examination within 24 months of applying in Minnesota. Michigan demands that motion applicants be graduates of an ABA-approved law school.

    ¶15 Wisconsin has traditionally imposed on motion applicants the same requirements that other states have imposed on Wisconsin attorneys. By the repeal of (1)(c), all such additional requirements are eliminated. I support this change but not the repeal of subsection (1m). Because Washington maintains reciprocity provisions that do not affect Wisconsin attorneys and Michigan admits on motion only graduates of ABA-approved law schools, Wisconsin now has the most liberal admission standards in the United States.

    II

    ¶16 Proponents of these changes made a number of arguments to support the repeal of reciprocity. In his filing on behalf of the Board of Bar Examiners, the Director of the Board, John Kosobucki, wrote:

    “Wisconsin welcomes competent lawyers from twenty states and the District of Columbia upon proof that they have practiced elsewhere.2 Lawyers from other states and territories are not eligible for admission here unless they first pass the Wisconsin bar examination. The disparate treatment of foreign lawyers … depends not on their competence or their usefulness to Wisconsin consumers of legal services, but on whether their home jurisdictions admit Wisconsin lawyers without examination.

    ....

    “SCR 40.05(1m) and (1)(c) should be repealed because Wisconsin consumers of legal services are better served where there are no artificial barriers to the admission of capable lawyers. If competent lawyers from California or Ohio (states that do not admit foreign lawyers without examination) are welcomed here on the same basis as those from Illinois and Indiana (states that do), Wisconsin residents will have wider choices when they need legal services.”

    ¶17 There are a lot of holes in this explanation. First, the explanation fails to acknowledge that some states refuse to admit any attorneys without a bar examination, regardless of their competence, and that this barrier discriminates against Wisconsin attorneys. The explanation fails to acknowledge that 11 states discriminate directly against diploma privilege attorneys from Wisconsin. The explanation also fails to acknowledge that attorneys from 47 states, the District of Columbia, and Puerto Rico will now be treated more favorably here than those jurisdictions treat Wisconsin attorneys.

    ¶18 Second, the explanation makes an argument for “wider choices” for Wisconsin residents who need legal services. Given the fact that there are already more than 18,500 active members of the Wisconsin bar able to practice law – more than 14,000 of whom live in Wisconsin – the “need” for more choices, on any widespread basis, has not been made.3 In any event, individual attorneys from outside Wisconsin are often admitted here pro hac vice. SCR 10.03(4).

    ¶19 Under the old reciprocity provisions, attorneys from only Michigan and Washington were admitted on motion based upon three years of practice. When the new rule takes effect, however, attorneys from 49 states, the District of Columbia, and Puerto Rico will be admitted on motion after three years of practice. This could produce a flood of new attorneys and damage the job market for recent graduates of Marquette and Wisconsin law schools.

    ¶20 Clearly, attorneys who practice in Wisconsin courts practice Wisconsin law. A lawyer who has practiced three years in another jurisdiction may know nothing about Wisconsin law when he or she is admitted here on motion.4 An experienced lawyer is likely to know how to make the adjustment to a new system; an inexperienced lawyer may not. Flooding Wisconsin with inexperienced attorneys may not work to the benefit of consumers, but it will likely affect the practice of law.

    ¶21 Third, the explanation implies that bar examinations are “artificial barriers” to the admission of “capable lawyers.” If this were true, then recent law graduates from out-of-state law schools should be admitted immediately without bar examinations. However, such openness would seriously undermine Wisconsin’s two law schools and completely disregard the valuable study of Wisconsin law in those two law schools.

    ¶22 Attorney Steve Levine offered additional reasons for the change in the rule. Mr. Levine said that reciprocity provisions penalize individual attorneys who have no control over the bar admission rules of their states. He claimed the reciprocity provisions did not accomplish the purposes they were theoretically intended to accomplish. He asserted that the old rule hurt the Wisconsin bar and the Supreme Court, and that the rule was probably unconstitutional.

    ¶23 Arguments that focus on the hardships faced by individual out-of-state attorneys who are required to take a Wisconsin bar examination apply to recent law graduates as well as attorneys who have practiced for three to five years or more. Those hardships would be eliminated only if Wisconsin never required a bar exam. This appears to be Mr. Levine’s ultimate goal. However, like the Board of Bar Examiners, Mr. Levine’s narrow focus fails to discuss the hardships on Wisconsin attorneys who might like to practice in states other than Michigan or Washington. He offers no plan to address the disparate treatment of Wisconsin attorneys. He also fails to address the effect that opening the floodgates to out-of-state attorneys will have on Wisconsin practice. 

    ¶24 Mr. Levine’s argument that “Wisconsin loses the contributions of … lawyers who want to join and participate in the Bar, want to pay Bar dues, and want to pay Supreme Court assessments” is more amusing than persuasive. His claim that present rules are “probably unconstitutional” disregards more stringent barriers in other states and fails to address how to ameliorate those barriers for Wisconsin attorneys.

    ¶25 The Director of the Board of Bar Examiners tantalizes the court with the proposition that additional attorneys would mean additional trust accounts earning additional interest for the Wisconsin Trust Account Foundation (WisTAF). The problem with this theory is that attorneys who practice from border states are not required to maintain a trust account in Wisconsin so long as the financial institution that holds the account agrees to the overdraft notification requirements in Wisconsin’s trust account rule. In other words, deposits from Wisconsin in the trust accounts of non-resident bar members may enrich the trust account foundations of states other than Wisconsin.

    ¶26 In my view, the change in the reciprocity provisions was pushed through without adequate documentation and without serious consideration of the consequences. The fact that the petition was formally supported by the State Bar of Wisconsin raises questions about whether the bar leadership has lost touch with its members. At the risk of offending political correctness, I respectfully dissent.

    1Statements in this opinion describing the bar admission requirements of other American jurisdictions are based on the Comprehensive Guide to Bar Admission Requirements 2008, published by the National Conference of Bar Examiners. National Conference of Bar Examiners & American Bar Association Section of Legal Education and Admissions to the Bar, Comprehensive Guide to Bar Admission Requirements 2008, http://www.ncbex.org/fileadmin/mediafiles/downloads/Comp_Guide/CompGuide.pdf [hereinafter Comprehensive Guide]. The National Conference of Bar Examiners is headquartered in Madison, Wisconsin.

    2Based on information from the National Conference of Bar Examiners, Wisconsin should presently admit attorneys from the following states on motion by proof of practice: Arkansas, Colorado, Connecticut, the District of Columbia, Illinois, Indiana, Iowa, Kentucky, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, New York, North Carolina, North Dakota, Oklahoma, Pennsylvania, South Dakota, Texas, Vermont, Washington, and West Virginia. Comprehensive Guide, supra note 1.

    3The statistics cited in this sentence were obtained from the State Bar of Wisconsin.

    4For what it is worth, some states have no mandatory continuing legal education (CLE) requirements for their attorneys. According to the Comprehensive Guide to Bar Admission Requirements 2008, Alaska, Connecticut, the District of Columbia, Hawaii, Maryland, Massachusetts, Michigan, Nebraska, and South Dakota have no mandatory CLE. Comprehensive Guide, supra note 1.

    Top of Page

    Conditional Admission to the Bar

    In the matter of creation of Supreme Court Rule SCR 40.075 Relating to Conditional Admission to the Bar

    Order 08-13

    On May 1, 2008, the Board of Bar Examiners, by its director, John E. Kosobucki, filed a petition requesting this court create a supreme court rule pertaining to conditional admission to the bar. The proposed new rule would allow applicants with issues such as substance abuse problems, mental health conditions, financial management difficulties, or criminal history, to be admitted conditionally to the State Bar of Wisconsin under terms and conditions established by the Board of Bar Examiners.

    IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on Monday, March 9, 2009, at 9:45 a.m.

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

    IT IS FURTHER ORDERED that notice of the hearing be given by a single publication of a copy of this order in the official state newspaper and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.1

    Dated at Madison, Wis., this 6th day of January, 2009.

    By the court:

    David R. Schanker, Clerk of Supreme Court 

    1Notice of the hearing appeared in the December 2008 Wisconsin Lawyer, the official publication of the State Bar of Wisconsin, 84 days prior to the hearing rather than the required maximum of 60 days, due to the State Bar’s publication schedule. Notice of the hearing will also appear in the February 2009 Wisconsin Lawyer 22 days prior to the hearing rather than the required minimum of 30 days, due to the State Bar’s publication schedule. Pursuant to its rule-making authority under Wis. Stat. § 751.12 and its Internal Operating Procedures, the court exercises its discretion to allow this unavoidable deviation from the requirements.

    The petition is available on the Wisconsin Supreme Court Web site at http://wicourts.gov/supreme/docs/0813petition.pdf.

    Top of Page

    E-filing in the Appellate Courts

    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 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. The court held a public hearing on Oct. 28, 2008, on the petitions. Upon consideration of matters presented at the public hearing and submissions made in response to the proposed amendments, the court voted to adopt the petition. The effective date of the amendments adopted herein will be July 1, 2009. Therefore,

    IT IS ORDERED that effective July 1, 2009:

    Section 1. 809.19(8)(a)4. of the statutes is created to read:

    809.19(8)(a)4. In addition to the copies required in subds. 1., 2., and 3., all parties represented by counsel shall file one electronic copy of each brief as provided in s. 809.19(12) and may file one electronic copy of each appendix as provided in s. 809.19(13).

    Section 2. 809.19(12) of the statutes is created to read:

    809.19(12) Electronic briefs. (a) General Rule. An attorney filing a brief under these rules shall file with the court a copy of the brief in electronic form. A self-represented party is not required to file an electronic copy of the brief, but may do so as provided for in this subsection. Notwithstanding s. 801.17 (9), the paper copy of the brief remains the official court record.

    (b) Process. Attorneys and self-represented parties filing an electronic brief shall use the electronic filing system under s. 801.17.

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

    (d) Filing. The date on which the paper brief is filed under s. 809.80(3)(b) shall be the official date of filing of the brief. The electronic copy of the brief shall be electronically transmitted on or before the date that the paper brief is filed under s. 809.80(3)(b). An electronic copy of a brief submitted to the electronic filing system before the close of regular business hours shall be considered transmitted on that date, provided it is subsequently accepted by the clerk upon review. An electronic brief submitted after the close of regular business hours shall be considered transmitted the next business day.

    (e) Corrections. If corrections are required to be made, both the paper and electronic copies shall be corrected.

    (f) Certification. In addition to the form and length certification required under s. 809.19(8)(d), attorneys and self-represented parties shall certify that the text of the electronic copy of the brief is identical to the text of the paper copy of the brief.

    (g) Motion for relief. An attorney who lacks technological capability to comply with this subsection may file a motion under s. 809.14 for relief from the electronic filing requirements at the time the attorney files the paper brief. An attorney shall show good cause why it is not feasible to file a copy of the brief electronically.

    Section 3. 809.19(13) of the statutes is created to read:

    809.19(13) Electronic Appendix. (a) General Rule. An attorney filing an appendix under these rules may file with the court a copy of the appendix in electronic form. A self-represented party is not required to file an electronic copy of the appendix, but may do so as provided for in this subsection. Notwithstanding s. 801.17(9), the paper copy of the appendix remains the official court record.

    (b) Process. Attorneys and self-represented parties filing an electronic appendix shall use the electronic filing system under s. 801.17.

    (c) Format. An electronic appendix shall be in Portable Document Format (PDF). An electronic appendix shall be filed as a document or documents separate from the brief.

    (d) Filing. The date on which the paper appendix is filed under s. 809.80(3)(b) shall be the official date of filing of the appendix. The electronic copy of the appendix shall be electronically transmitted on or before the date that the paper appendix is filed under s. 809.80(3)(b). An electronic copy of an appendix submitted to the electronic filing system before the close of regular business hours shall be considered transmitted on that date, provided it is subsequently accepted by the clerk upon review. An electronic appendix submitted after the close of regular business hours shall be considered transmitted the next business day. 

    (e) Corrections. If corrections are required to be made, both the paper and electronic copies shall be corrected.

    (f) Certification. In addition to the certification required under s. 809.19(2)(b) and (3)(b), attorneys and self-represented parties shall certify that the content of the electronic copy of the appendix is identical to the content of the paper copy of the appendix.

    Section 4. The following Comment to Wis. Stat. §§ (Rule) 809.19(12) and 809.19(13) is not adopted but will be published and may be consulted for guidance in interpreting and applying the statute. 

    Comment, 2008. 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 under 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.

    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 to the court as a text-searchable Portable Document Format (PDF) document. “PDF” is a universal file format that preserves the fonts, formatting, pagination, and graphics of a source document. A text-searchable brief is created by electronically converting the original word processing file to a PDF document. An electronic appendix may be submitted as a non-text-searchable PDF document. A non-text-searchable appendix is created by scanning the paper document to create a PDF document.

    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 5. 809.32(1)(fm) of the statutes is created to read:

    809.32(1)(fm) Electronic no-merit report and supplemental no-merit report. An attorney filing a no-merit report or the optional supplemental no-merit report under this rule shall file with the court a copy of the no-merit report and supplemental no-merit report, if any, in electronic form, using the procedure under s. 809.19(12). The date on which the paper no-merit report or supplemental no-merit report is filed shall be the official date of filing of the no-merit report or supplemental no-merit report. The electronic copy of the no-merit report and supplemental no-merit report shall be electronically transmitted on or before the date that the paper no-merit report and supplemental no-merit report is filed. An electronic copy of a no-merit report or supplemental no-merit report submitted to the electronic filing system before the close of regular business hours shall be considered transmitted on that date. An electronic no-merit report or supplemental no-merit report submitted after the close of regular business hours shall be considered transmitted the next business day. The attorney shall certify that the text of the electronic copy of the report is identical to the text of the paper copy of the report. Notwithstanding s. 801.17(9), the paper copy of the no-merit report or supplemental no-merit report remains the official court record. An attorney who lacks technological capability to comply with this subsection may file a motion under s. 809.14 for relief from the electronic filing requirements at the time the attorney files the paper no-merit report or supplemental no-merit report. An attorney shall show good cause why it is not feasible to file a copy of the report electronically.

    Section 6. 809.62(4) of the statutes is renumbered 809.62(4)(a).

    Section 7. 809.62(4)(b), (c), and (d) of the statutes are created to read:

    809.62(4)(b) Electronic petition for review. An attorney filing a petition for review under this rule shall file with the clerk of the supreme court a copy of the petition for review or response in electronic form using the procedure under s. 809.19(12) and may file a copy of an appendix to the petition for review or response in electronic form using the procedure under 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. Notwithstanding s. 801.17(9), the paper copy of the petition for review or response remains the official court record. An attorney who lacks technological capability to comply with this subsection may file a motion under s. 809.14 for relief from the electronic filing requirements at the time the attorney files the paper petition for review. An attorney shall show good cause why it is not feasible to file a copy of the petition of review electronically.

    (c) Effect of electronic filing. Except as provided in s. 809.80(3)(e), the date on which the clerk receives the paper copies of the petition for review shall be the official date of filing of the petition for review. Transmitting the electronic copy of a petition for review does not satisfy the filing requirements of this section.

    (d) Timing of electronic filing. The electronic copy of the petition for review and response shall be electronically transmitted on or before the date that the paper petition for review and response is filed.

    Section 8. The following Comment to Wis. Stat. §§ (Rule) 809.62(4) is not adopted but will be published and may be consulted for guidance in interpreting and applying the statute.

    Comment, 2008. The electronic copy of a petition for review, response, or appendix is in addition to and not a replacement for the paper copies required under this rule. The filing requirement is satisfied only when the requisite number of paper copies is filed; the transmittal of an electronic copy does not satisfy requirements for a timely filing. A petition for review shall be physically received in the clerk’s office within 30 days of the date of the decision of the court of appeals to invoke this court’s appellate jurisdiction. St. John’s Home v. Continental Casualty Co., 150 Wis. 2d 37, 441 N.W.2d 219 (1989), per curiam. 

    Section 9. 809.80(3)(a) of the statutes is amended to read:

    809.80(3)(a) 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 paper documents 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.

    Section 10. 809.80(5) of the statutes is created to read:

    809.80(5) Electronic Briefs and No-Merit Reports. (a) Clerk review. 1. The clerk shall review the electronic copy of the brief, no-merit report, or supplemental no-merit report to determine if the electronic document should be accepted for filing.

    2. If the clerk accepts the electronic copy of the brief, no-merit report, or supplemental no-merit report under subd. 1., the electronic copy shall be considered transmitted to the court at the time the original transmission to the electronic filing system was complete. Upon acceptance of the electronic copy, the electronic filing system shall issue a confirmation with the date and time of the original transmission. The confirmation receipt shall serve as proof of the electronic transmission only. The filing date for the document remains the date on which the paper document is filed.

    3. If the clerk rejects the electronic copy of the document following review under subd. 1., the filer will receive notification of the rejection. The filer may be required to resubmit the electronic copy of the document.

    (b) Effect of noncompliance. Failure to transmit the electronic copy of the brief, no-merit report, or supplemental no-merit report on or before the date that the paper document is filed may result in the document being considered untimely, in the absence of leave of the court.

    IT IS ORDERED that notice of the creation of Wis. Stat. §§ (Rule) 809.19(8)(a)4., 809.19(12), 809.19(13), 809.32(1)(fm), and 809.80(5), and the amendment of Wis. Stat. §§ (Rule) 809.62(4) and 809.80(3) 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 6th day of January, 2009.

    By the court:

    David R. Schanker,
    Clerk of Supreme Court

    Top of Page

    Special Responsibilities of a Prosecutor

    In the matter of amendment of Supreme Court Rules Chapter 20, Rules of Professional
    Conduct for Attorneys

    Order 08-24

    On Sept. 19, 2008, the Wisconsin District Attorney’s Association, through its president, Ralph Uttke, District Attorney for Langlade County, filed a petition requesting this court modify Supreme Court Rule SCR 20:3.8 to adopt the substance of recent changes to the American Bar Association Model Rule 3.8 relating to special responsibilities of a prosecutor.

    IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on Monday, March 9, 2009, at 9:45 a.m.

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

    IT IS FURTHER ORDERED that notice of the hearing be given by a single publication of a copy of this order in the official state newspaper and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.1

    Dated at Madison, Wis., this 6th day of January, 2009.  

    By the court:

    David R. Schanker, Clerk of Supreme Court 

    1Notice of the hearing appeared in the December 2008 Wisconsin Lawyer, the official publication of the State Bar of Wisconsin, 84 days prior to the hearing rather than the required maximum of 60 days, due to the State Bar’s publication schedule. Notice of the hearing will also appear in the February 2009 Wisconsin Lawyer 22 days prior to the hearing rather than the required minimum of 30 days, due to the State Bar’s publication schedule. Pursuant to its rule-making authority under Wis. Stat. § 751.12 and its Internal Operating Procedures, the court exercises its discretion to allow this unavoidable deviation from the requirements.

    The petition is available on the Wisconsin Supreme Court Web site at http://wicourts.gov/supreme/docs/0824petition.pdf.   

    Top of Page




To view or add comment, Login