August 2004
Board holds first meeting of fiscal year 2004-05
At its first 2004-05 meeting in July, the Board of Governors approved
a request to file a section amicus on frivolous findings, adopted a
public policy position in support of legislation to overturn the Federal
Communications Commission's proposed "no fax" rules, and discussed the
Ethics 2000 Committee draft report (see article), among other
actions.
Frivolous findings amicus. The board unanimously
approved the Appellate Practice Section's request to file a section
amicus brief in Howell v. Denomie (03-0979), pending before the
Wisconsin Supreme Court.
At issue in the case is what procedures the court of appeals must
employ before finding an appeal frivolous under Wis. Stat. section
809.25(3).
"The Appellate Practice Section board advocates a 'bright line' rule,
which would require a respondent who contends that an appeal is
frivolous to present his argument in a separate motion," Michael
Heffernan, section chair-elect, told the board.
"The appellant would be given an opportunity to respond, and the
court of appeals would be required to make specific findings regarding
frivolousness. This rule would also apply to the situation where the
court of appeals is reviewing a trial court finding of frivolousness,"
said Heffernan. "In other words, the court of appeals could no longer
declare an appeal per se frivolous simply by affirming the trial court's
finding of frivolousness."
A reply brief was due Aug. 4. At press time, the case had not yet
been scheduled for oral argument.
"No fax" rules public policy position. The board
adopted a public policy position in opposition to the Federal
Communications Commission's (FCC) proposed rules, scheduled to become
effective Jan. 1, 2005. The rules would require associations to obtain
individual written consent of each of their members before sending
unsolicited facsimiles containing information about products or services
that could be characterized as advertising.
The proposed rules eliminate the "established business relationship"
exception to the "do-not-fax" rule under the Telephone Consumer
Protection Act. Although the State Bar seldom faxes information of this
type, the State Bar administration requested that the board adopt a
public policy position in opposition to these rules and in support of
legislation to overturn these rules.
Other actions. Due to in-state membership rising
above 14,000, the State Bar is eligible to elect a fifth delegate to the
ABA House of Delegates. The board approved the addition. President
Behnke will appoint a committee to study the funding, selection process,
and reporting requirements of State Bar delegates. The two-year term for
the fifth position begins at the end of this year's ABA convention in
August.
The board approved the appointment of Robert Goepel, Racine, to the
Wisconsin Trust Account Foundation (WisTAF) board. WisTAF, which manages
the state's Interest on Lawyers Trust Account program, provides
financial support for the delivery of legal services to Wisconsin's
poor.
The board approved a resolution to recognize Rep. David Obey
(D-Wausau) for his contributions to legal reform and the administration
of justice. In 2003, Obey, a long-time supporter of the Legal Services
Corporation (LSC), successfully advocated before Congress on behalf of
LSC to protect funding. LSC provides low-income persons with access to
legal representation.
Nicholas Zales, Milwaukee, will fill the Board vacancy created by the
election of D. Michael Guerin as president-elect.
The minutes will be posted on WisBar after approval at the September
meeting.
Inside the Bar
