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  • InsideTrack
  • November 17, 2021

    State Bar Board May Act on Pending Court Petitions at December Meeting

    At its Dec. 3 meeting, the State Bar of Wisconsin's Board of Governors may take action on two petitions currently pending before the Wisconsin Supreme Court, one related to the "location of courts" and another on juvenile shackling.
    Justice mural in Wisconsin State Capitol

    Nov. 17, 2021 – At its Dec. 3 meeting, the State Bar of Wisconsin’s Board of Governors may take action on two petitions currently pending before the Wisconsin Supreme Court, one related to the “location of courts” and another on juvenile shackling.

    In the normal course, the board receives a report on certain issues that it may be called upon to decide. The reported item is then placed on the agenda for discussion at a subsequent board meeting, and may be considered as an action item later, at a separate meeting.

    The process ensures board members are fully informed on all matters before taking action, and has taken action only after an opportunity for a full discussion. In some instances, however, the board must move quickly on issues of interest to the bar.

    The board is expected to take action on two petitions, without engaging in discussion at a prior meeting, because it is anticipated that the supreme court will either consider or hold a public hearing on the petitions prior to the board’s next board meeting in February.

    Taking immediate action at the Dec. 3 meeting, following a discussion, will ensure the State Bar’s position is recorded on Petition 21-03 and Petition 21-04.

    Petition 21-03 (Location of Court)

    Director of State Courts, Judge Randy Koschnick, filed a petition in late August “to update and clarify the rules related to the location of court,” which would coincide and relate to another petition (forthcoming) on videoconferencing in the courts.

    The petition (21-03) responds to the continuing COVID-19 pandemic and seeks “flexibility to effectively respond when court needs to be adjourned to another location in an emergency situation or for other compelling reasons.”

    “This petition proposes the court update and clarify rules regarding court location in order to provide clear authority to allow for holding court in alternative locations, including certain alternatives to in-person proceedings with the use of videoconferencing technology,” a supporting memo states.

    “The proposed changes ensure that rights of litigants, victims, other participants, and the public are protected in their ability to participate in and attend court proceedings.”

    Specifically, a new statute would be created to establish authority for holding court remotely using video conferencing technology. The State Bar’s Board of Governors will likely decide whether to weigh in on the petition at its Dec. 3 meeting.

    Petition 21-04 (Juvenile Shackling)

    The State Bar’s board is also expected to consider a petition “that would end the practice of indiscriminately shackling children in juvenile court.” Circuit court judges from Milwaukee, La Crosse, Dane, Marathon, and Eau Claire counties filed Petition 21-04.

    A supporting memo says children ages 10 to 17 are often brought to juvenile courtrooms as a matter of routine and not based on a specific determination that it is necessary. The petition would create a presumption against juvenile shackling.

    “It would authorize the juvenile court to make a discretionary determination whether shackling is necessary, using the criteria set forth in this court’s decision in State v. Grinder, 190 Wis. 2d 541, 527 N.W. 2d 326 (1995).

    The State Bar’s Children and the Law Section has advocated for legislation to end juvenile shackling in Wisconsin’s juvenile courts.

    At the section’s request, the State Bar’s Board of Governors in 2019 voted on a policy position against indiscriminate juvenile shackling, which allowed the State Bar lobbyists to engage on the issue on behalf of the State Bar as whole (not just the section).

    Petition 21-04, however, asks the supreme court to create a presumption against indiscriminate juvenile shackling under the court’s rulemaking authority.

    Specifically, petitioners cite the court’s authority to promulgate rules to “maintain order, decorum, and safety in the courtroom” as well as “regulate pleading, practice, and procedure in court proceedings.”

    The petitioners note that certain counties, including Milwaukee, Dane, La Crosse, Marathon, and Eau Claire, have successfully implemented county-level presumptions against juvenile shackling. But Wisconsin would join 33 other states if the supreme court were to impose a statewide presumption against shackling in juvenile courts.

    The State Bar’s Board of Governors will consider the petition at its Dec. 3 meeting.

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