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    The Wisconsin Supreme Court will hold public hearings on April 27 regarding Order 08-11 relating to adverse determination of a bar applicant’s character and fitness and Order 09-12 relating to communications in mediation as evidence. 
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    Vol. 83, No. 3, March 2010

    Adverse Determination of Bar Applicant’s Character and Fitness

    In the matter of the amendment of Supreme Court Rule 40.08 relating to adverse determination of a bar applicant’s character and fitness.

    Order 08-11

    On April 1, 2008, the Board of Bar Examiners by its former director, John E. Kosobucki, petitioned this court for an order amending Supreme Court Rule (SCR) 40.08 relating to adverse determination of a bar applicant’s character and fitness. An amended petition was filed on July 24, 2008.

    IT IS ORDERED that the public hearing on the petition is rescheduled and shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on Tuesday, April 27, 2010, at 2:00 p.m.

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

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

    Dated at Madison, Wis., this 1st day of February, 2010.

    By the court:

    David R. Schanker, Clerk of Supreme Court

    Petition

    The Board of Bar Examiners, by its director John E. Kosobucki, hereby petitions the Supreme Court of Wisconsin for an order amending SCR 40.08 as follows:

    PROPOSED AMENDMENTS:

    SCR 40.08 Adverse determination.

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

    (2) (Repealed)

    (3) Not less than 30 days prior to the hearing the board shall notify the applicant of the time and place thereof, the issues to be considered and that the applicant may be represented by counsel and present evidence.

    (4) If the determination of the board following a hearing is adverse to the applicant, the board shall mail a copy of the board’s findings of facts and conclusions of law to the applicant at the last address furnished by the applicant in writing to the board.

    (5) A petition to the supreme court for review of an adverse determination of the board under this rule shall be filed with the clerk of the supreme court within 30 days of the date on which written notice thereof was mailed to the applicant and a copy shall be filed with the board promptly thereafter. However, if the applicant petitions the board for reconsideration of an adverse determination, the deadline for seeking supreme court review shall be 30 days after written notice of the board’s disposition of the petition for reconsideration was mailed to the applicant.

    Justification: When the board makes a preliminary determination that proof is lacking of an applicant’s qualifications for admission, it now sends what is called an “intent-to-deny” letter. The terminology is unfortunate, for it suggests that the board has made up its mind to deny admission. The first proposed amendment to SCR 40.08(1) more accurately describes this always preliminary board determination as a notice that the application is at risk of being denied.

    The second amendment gives applicants who receive this notice thirty days, instead of twenty, to file a response and to request a hearing. The board believes this additional time will be useful to applicants without appreciably delaying the board’s final decision.

    The proposed repeal of SCR 40.08(2) is a largely insubstantial change. In practice, the board’s final determination as to an at-risk application usually turns on the applicant’s credibility. Consequently, a hearing at which the applicant can answer board members’ questions is usually necessary for fairness.

    The proposed amendments to SCR 40.08(5) deal with procedures after the board makes a final determination to deny a candidate’s application for admission. The first change requires candidates who appeal to this court to also file an informational copy of their challenge with the board. That will give the board an opportunity to ask to be heard if the board believes it can further assist the court in its review.

    The second amendment provides a window of opportunity for candidates who prefer to seek reconsideration from the board rather than immediately seeking review in this court. If the court adopts the latter amendment, board rules of procedure will provide for reconsideration when the applicant believes the board has made a material error of fact or law or believes he or she has discovered new evidence sufficient to change the board’s decision.

    Dated at Madison, Wis., this 31st day of March, 2008.

    By the Board of Bar Examiners:

    John E. Kosobucki, Director

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    Communications in Mediation as Evidence

    In the matter of amendment of Wis. Stat. § 904.085(4)(e) relating to communications in mediation as evidence.

    Order 09-12

    On Oct. 29, 2009, the Wisconsin Judicial Council by its staff attorney, April M. Southwick, petitioned this court for an order amending Wis. Stat. § 904.085(4)(e), Communications in mediation, to provide that the hearing contemplated under this section be held in camera. The petition and memorandum in support of the petition are available on this court’s Web site at http://wicourts.gov/supreme/petitions_audio.htm.

    IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on Tuesday, April 27, 2010, at 2:00 p.m.

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

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

    Dated at Madison, Wis., this 1st day of February, 2010.

    By the court:

    David R. Schanker,
    Clerk of Supreme Court 

    Introduction: The Wisconsin Judicial Council respectfully petitions the Supreme Court to amend Wis. Stat. § 904.085 (4) (e) to provide that the hearing contemplated in this section be held in camera.

    This petition is directed to the Supreme Court’s rule-making authority under Wis. Stat. § 751.12.

    PETITION

    For the reasons stated in the Memoradum in Support, filed herewith, the Judicial Council respectfully requests that the Supreme Court adopt the following rule:

    SECTION 904.085 (4) (e) of the statutes is amended to read:

    (e) In an action or proceeding distinct from the dispute whose settlement is attempted through mediation, the court may admit evidence otherwise barred by this section if, after an in camera hearing, it determines that admission is necessary to prevent a manifest injustice of sufficient magnitude to outweigh the importance of protecting the principle of confidentiality in mediation proceedings generally. 

    Conclusion: The granting of this petition will close a gap in the protections intended for communications in mediation which are critical to settlement. The amendment preserves the intended confidentiality until the court has determined that the prerequisites to disclosure have been met.

    Therefore, the Wisconsin Judicial Council respectfully requests that Wis. Stat. § 904.085 (4) (e) be amended as set forth above.

    Dated at Madison, Wis., Oct. 29, 2009.

    By the Wisconsin Judicial Council:

    April M. Southwick, Attorney

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