Sept. 14, 2009 – At its Sept. 11 - 12 board meeting, the State Bar of Wisconsin Board of Governors discussed several petitions currently pending before the Wisconsin Supreme Court related to judicial recusal, record retention, submission of evidence originating in a language other than English, and rules governing the reporting of audio recording in court proceedings. It also appointed a Nomination Committee and adopted a social networking policy, among other actions.

Gov. Thomas L. Schober, Green Bay, reports to the board on findings of a task force that studied petitions on potential conflicts of interest created when judges preside over cases involving campaign contributors.

Judicial Independence. Petitions currently pending before the Wisconsin Supreme Court fail to adequately consider the breadth of issues created when judges preside over cases involving their campaign contributors, the State Bar Board of Governors stated at its meeting.

The governors urged the justices to reject petition 08-16, filed by the League of Women Voters of Wisconsin Education Fund, and petition 08-25, filed by the Wisconsin Realtors Association, Inc., and study the matter further.

A contribution of $1,000 or more, or multiple contributions totaling $1,000 or more, within the preceding two years would be a basis for recusal under the League of Women Voters’ petition. Similarly, the League of Women Voters identify a party’s payment in full or in part for “a mass communication that was disseminated in support of the judge’s election” within the preceding two years to be a basis for recusal.

By contrast, the Wisconsin Realtors Association, petitioned for an amendment to the Code of Judicial Conduct providing that the receipt of a lawful campaign contribution by a judicial campaign committee or an endorsement of a candidate does not, by itself, warrant judicial recusal.

Over the summer, governors assigned to a task force examined the issue of judicial recusal. Gov. Thomas L. Schober, chair of that study committee, reported to the full board that neither petition properly addressed the matter.

Gov. Kimberly K. Haines, Delafield, attends board meeting.

Schober referred to a draft report authored by the ABA Standing Committee on Judicial Independence. The ABA report calls on states to provide greater guidance to judges on recusal and reduce reliance on the judge’s self-evaluation as the means to resolve disqualification questions. Within the report’s broader policy goals are detailed recommendations, including a recommendation for the adoption of peremptory challenges already codified in this state by Wis. Stat. 801.58, Schober said.

The supreme court has scheduled a public hearing for the two petitions for Oct. 28 at 9:30 a.m.

Director of State Court petitions. The board took the following actions on three petitions:

• The board voted to take no position on Petition 09-02 to revise SCR 72.01 regarding record retention. The proposed changes make the language more uniform or conforming to statutory changes that have occurred since the last major revision to the rule in 1997. The supreme court has set a public hearing for Nov. 2 at 9:45 a.m.

• The board voted to table its consideration of Petition 09-03 to create language that deals with the increase in material submitted to the various courts in the state that originates in a language other than English. The petition is submitted on behalf of the Committee to Improve Interpreting and Translation in the Wisconsin Courts. The rule is proposed as part of the Wisconsin Statutes Chapter 901, which addresses the rules of evidence in civil and criminal proceedings. This petition also requests a related change pertaining to translation of official court forms. The supreme court has set a public hearing for Nov. 2 at 9:45 a.m.

• The board supported Petition 09-05, which was filed in response to State v. Ruiz-Velez, 2008 WI App. 169. In Ruiz-Velez, the court of appeals ruled that audible statements contained in videotaped interviews of child sexual assault victims replayed for a jury must be transcribed by the court reporter. The court suggested that its ruling applies not only to child sexual assault but to any proceeding in the circuit court during which any audio- or video-recorded statement is replayed. The petition would amend SCR 71.01 to exclude from the requirement that all court proceedings are reported audio recordings of any type that are played in court and offered into evidence. The supreme court has set a public hearing for Oct. 29 at 9:30 a.m.

Governors Frederick B. Kaftan, West Bend, (foreground) and Nathaniel Cade, Milwaukee, listen to presentation at board meeting.

In other business, the governors took the following actions:

• The board adopted a Social Networking Policy. The policy applies to State Bar volunteers, sections, committees, divisions, and related programs or groups wishing to use the State Bar’s name and graphic identity in conjunction with the creation or maintenance of a social networking presence that identifies the entity as being sponsored by or affiliated with the State Bar.

• The Board approved President Doug Kammer’s Nomination Committee appointments for the 2010 elections. The committee will announce its slate of candidates by Dec. 15. Nomination Committee members are John B. Edmondson, Appleton; Kevin G. Klein, Phillips; Catherine A. La Fleur, Milwaukee; Frank D. Remington, Madison, Ms. Catherine Zimmerman, Fond du Lac; and Jeffrey Roy Zirgibel, Brookfield.

• Nathaniel Cade Jr. fills the Milwaukee District 2 board vacancy created when James M. Brennan was appointed board chair for fiscal year 2009-10.

• The board referred the Increasing Communication Effectiveness and Association Credibility Report to the Public Image Committee for review. The purpose of the project is to improve State Bar communications by creating a stronger, more clearly integrated and articulated message to members and the public.

 Minutes will be posted to WisBar after approval at the December meeting.