The Wisconsin Legislature has passed and sent to Gov. Doyle Senate Bill 383, a comprehensive revision of Wis. Stat. chapters 755 and 800. These chapters regulate the creation and operation of the state’s 252 municipal courts. Most changes will take effect Jan. 1, 2011.

Chapter 755: Creating municipal courts

Towns, villages, and cities currently are empowered to create municipal courts under chapter 755. In addition, municipalities can band together to create a joint court. Nearly half of the current judges are nonattorneys. The changes to chapter 755 are designed to make certain that the courts are independent from other branches of government and meet minimum standards for their operation. A new declaration set forth in section 755.01(1) makes this clear: “A municipal court created under this section is a coequal branch of the municipal government, subject to the superintending authority of the supreme court, through the chief judge of the judicial administrative district.” Other provisions address specific issues:

• A municipality will have to notify the director of state courts when a court is created and must receive a certification from the chief judge that the court meets new standards set by the bill before it can begin operation.

• The court’s budget will have to be separate from the budgets of other municipal departments.

• Unlike current law that allows the municipality to select, by ordinance, a two-, three-, or four-year term for the judge, all terms shall be four years. The municipality will be permitted to set a two- or three-year term by the more difficult charter amendment process.

• The judge will have greater control over setting the court hours and over the hiring, termination, hours of employment, and work responsibilities of court personnel.

• The municipality will be required to provide at least one court clerk, a prosecuting attorney at trial, a separate telephone number or extension for the court, an office or work space for the judge, and a courtroom and clerk work space separate from the police department.

• Court records will have to be stored in appropriate areas where access can be restricted to meet legal requirements, and any new electronic records management system used by the court will have to be approved by the judge.

• Court clerks for the first time will be required to participate in continuing education. This is believed important because all but two of the courts have part-time judges, and the clerks therefore have considerable responsibility for day-to-day court operation.

• Apparel will be statutorily regulated for the first time: clerks will be prohibited from performing municipal court functions while wearing anything that implies they work in law enforcement, and judges will be required to wear black robes while presiding in court unless “exceptional circumstances” exist.

Chapter 800: Modernizing court procedures

Chapter 800, which delineates the procedures used in the state’s municipal courts, was last revised in 1987. The changes made to this chapter by SB 383 are designed to modernize procedures and provide the courts with a workable way to process cases in courts big and small. The changes include:

• Municipalities will be able to obtain jurisdiction over defendants with first-class mailed service of the charging document, a method the current statute does not permit. However, because this method does not offer assurance the defendant actually received the document, the court is limited to collecting the forfeiture through methods other than a warrant or license suspension.

• Judges will have the authority to mandate a personal appearance by defendants in given cases.

• The amendment of charges is changed to require notice to defendants when it occurs before the initial appearance, and to allow an opportunity to present additional evidence when it occurs at trial.

• Courts will be limited to holding defendants in custody for only up to 48 hours when they are held before trial.

• When substitutions or recusals occur, the judge to whom the case is assigned shall determine in which court the case will be heard, the prosecutor of the transferring court will be responsible for prosecuting in the new court, and the judgment, if any, shall be payable to the transferring court.

• When a judge is absent from the court (for example, for vacation or continuing education), a judge from anywhere in the state will be eligible to perform the absent judge’s duties.

• With regard to discovery, defendants will be required to show cause only if the request is made more than 30 days after the initial appearance.

• The judge will be able to order testimony at any hearing by telephone or audiovisual means if the parties so stipulate or the judge finds good cause after considering the factors set forth in Wis. Stat. section 807.13(2).

• Courts will be required to advise defendants that they have the right to request community service in lieu of payment of the forfeiture if they cannot pay it due to their poverty.

• When a court orders restitution under Wis. Stat. section 800.093, the monetary limit will be set at the limit for small claims court actions and the types of cases in which it can be ordered will be expanded to include all nontraffic cases and driving under the influence cases.

• When license suspensions are ordered for nonpayment of traffic forfeitures, they will be allowed to run consecutive, can be terminated based on a defendant’s inability to pay, and can be followed by other collection efforts when completed.

• Defendants will not be able to be incarcerated for nonpayment unless the judge makes one of four findings, and, if incarcerated, they will receive credit against the forfeiture at the rate of $50 per day.

• Wage assignments will be permitted as a means of collection.

• Prosecutors will have the right to move to reopen judgments.

• Contempt of court findings will be limited to two situations: misconduct in the presence of the court, and refusal of a witness to appear without reasonable excuse.

• Appeals will be permitted from decisions on motions to reopen and on indigence determinations as well as from judgments; appeals will specifically be prohibited from default judgments. Defendants claiming an inability to pay appeal, transcript, or jury fees, or the cost of a bond will be able to petition for a waiver.

An article taking a more in-depth look at SB 383 changes to municipal courts, focusing on the practical implications of the changes, will appear in the July or August issue of Wisconsin Lawyer.

James A. Gramling Jr., U.W. 1971, was a municipal judge in Milwaukee for 21 years, retiring in 2007. He chaired a committee of the Wisconsin Municipal Judges Association, which has worked on the legislation since May 2006 and other stakeholders and legislative sponsors to develop the final bill. He currently is a volunteer attorney at the Center for Driver’s License Recovery and Employability in Milwaukee.