Official Notices of Wisconsin Supreme Court and State Bar of Wisconsin Rules and Bylaws

On October 29, 2018, Daniel J. Hoff, President, Wisconsin Access to Justice Commission (WATJC), filed a rule petition asking the court to amend Supreme Court Rule (SCR) 14.03(2) to add one member to its board of directors, thereby increasing the number of members on its board from 17 to 18. WATJC would like the court to permit the President of the Wisconsin Tribal Judges Association to designate a member who will serve on the WATJC board. The court discussed this matter at a closed rules conference on November 12, 2018. The court notes that this court created the WATJC and has authority to adjust the number of board members, in its sole discretion.1 After discussion, the court concluded that the WATJC 1 The WATJC was created in 2009, in response to a petition from the State Bar of Wisconsin. See SCR Ch. 14 created pursuant to S. Ct. Order 08-17, 2009 WI 42 (issued June 5, 2009, eff. June 5, 2009). No. 18-05 2 would be well served by this addition, that no public comment or hearing is necessary, and the court voted to grant the petition. Therefore, IT IS ORDERED that, effective the date of this order: SECTION 1. Supreme Court Rule 14.03(2)(intro.) is amended as follows: SCR 14.03(2) The Commission shall consist of a 17-member an 18-member board of directors as follows: SECTION 2. Supreme Court Rule 14.03(2)(i) is created to read as follows: SCR 14.03(2)(i) One member designated by the President of the Wisconsin Tribal Judges Association. IT IS FURTHER ORDERED that notice of the above amendments be given by a single publication of a copy of this order in the official publications designated in SCR 80.01, including the official publishers' online databases, and on the Wisconsin court system's web site. The State Bar of Wisconsin shall provide notice of this order. Dated at Madison, Wisconsin, this 12th day of November, 2018.

On April 4, 2018, Attorneys William C. Gleisner, Vice Chair of the Wisconsin Judicial Council, and Thomas L. Shriner, Chair of the Wisconsin Judicial Council's Evidence and Civil Procedure Committee, filed a rule petition asking the court to amend Wis. Stat. § 806.02 pertaining to default judgment when an opposing party fails to serve a timely reply to or answer a claim. Wisconsin Stat. § 806.02 currently permits a plaintiff to obtain a default judgment against a defendant who fails to comply with Wis. Stat. § 802.06(1), but it does not permit any other party to obtain a default judgment when an opposing party fails to comply with Wis. Stat. § 802.06(1) by filing a response to a counterclaim or cross claim. This petition is intended to rectify that inconsistency. The court discussed the petition on June 15, 2018 at a closed conference and voted to solicit written comments on the petition. Letters were sent to the interested persons on August 6, 2018. No. 18-032 The court conducted a public hearing on October 11, 2018. Attorney Thomas L. Shriner presented the petition to the court on behalf of the Judicial Council. The Honorable Eugene Gasiorkiewicz, Racine County Circuit Court, also appeared and spoke in favor of the petition. The court discussed the petition at a closed administrative conference and voted to grant the petition. IT IS ORDERED that: SECTION 1. 806.02(1) is amended to read as follows: 806.02 (1) A default judgment may be rendered in favor of any party as provided in subs. (1) to (4) if no issue of law or fact has been joined on any claim asserted in a complaint, counterclaim, or cross claim and if the time for joining issue has expired. Any defendant appearing in an action shall be entitled to notice of motion for judgment. SECTION 2. A Judicial Council Committee Note to 806.02(1) of the statutes is created to read: JUDICIAL COUNCIL COMMITTEE NOTE Wis. Stat. s. 802.06(1) currently requires defendants to file an answer to the complaint. It also requires parties served with a counterclaim or a cross complaint to serve a reply to the counterclaim or an answer to the cross-claim. Wis. Stat. s. 806.02 currently permits a plaintiff to obtain a default judgment against a defendant who fails to comply with s. 802.06(1), but it does not permit any other party to obtain a default judgment when an opposing party fails to comply with s. 802.06(1) by filing a response to a counterclaim or cross claim. The Council could find no logical basis for this disparity in treatment. Furthermore, the Council noted that No. 18-03 3 Rule 55 of the Federal Rules of Civil Procedure allows any party to obtain judgment against another party who has failed to plead or otherwise defend against a complaint, counterclaim, or cross claim. SECTION 3. 806.02(2) is amended to read as follows: 806.02 (2) After filing the complaint, counterclaim, or cross claim and proof of service thereof of the summons on one or more of the defendants and after filing an affidavit that the defendant the party against whom judgment is sought is in default for failure to join issue, the plaintiff a party may move for judgment according to the demand of the complaint, counterclaim, or cross claim. If the amount of money sought was excluded from the demand for judgment, as required under s. 802.02(1m), the court shall require the plaintiff the moving party to specify the amount of money claimed and provide that information to the court and to the other parties appearing in the action prior to the court rendering judgment. If proof of any fact is necessary for the court to give render judgment, the court shall receive the proof. SECTION 4. 806.02(5) is amended to read as follows: 806.02 (5) A default judgment may be rendered against any defendant party who has appeared in the action but who fails to appear at trial. If proof of any fact is necessary for the court to render judgment, the court shall receive the proof. IT IS FURTHER ORDERED that the effective date of this order is January 1, 2019. IT IS FURTHER ORDERED that the Judicial Council Committee Note to Wis. Stat. § 806.02 is not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule. No. 18-03 4 IT IS FURTHER ORDERED that the rule adopted pursuant to this order shall apply to court proceedings commenced after the effective date of this rule and to any proceedings within a court proceeding then pending, except insofar as, in the opinion of the circuit court, application of the rule change would not be feasible or would work injustice, in which event the former rule applies. IT IS FURTHER ORDERED that notice of the above amendments be given by a single publication of a copy of this order in the official publications designated in SCR 80.01, including the official publishers' online databases, and on the Wisconsin court system's web site. The State Bar of Wisconsin shall provide notice of this order. Dated at Madison, Wisconsin, this 23rd day of October, 2018. BY THE COURT: Sheila T. Reiff Clerk of Supreme Court

On August 7, 2015, this court issued a rule order in the above-captioned matter, amending Supreme Court Rule (SCR) Chapter 80 (Publications of Opinions and Orders) and SCR 98.07 (Publication of Rule Orders) to establish guidelines for publication of supreme court orders and opinions issued in cases and orders issued in administrative rule matters. See S. Ct. Order 12-09, 2015 WI 86 (issued Aug. 7, 2015, eff. Aug. 7, 2015). In the final order, the court stated that "three years after the effective date of this order, the court shall schedule a conference to review these rules." The court discussed these rules in closed rules conference on September 6, 2018, and concluded that the amendments were operating as expected and that no action was required. Therefore, IT IS ORDERED that no action will be taken with respect to the amendments adopted pursuant to S. Ct. Order 12-09, 2015 WI 86. Dated at Madison, Wisconsin, the 7th day of September, 2018.

On April 4, 2018, Attorneys William C. Gleisner, Vice Chair of the Wisconsin Judicial Council, and Thomas L. Shriner, Chair of the Wisconsin Judicial Council's Evidence and Civil Procedure Committee, filed a rule petition asking the court to amend Wis. Stat. § 806. 02 to provide parties filing counterclaims or cross claims with the right to seek default judgment when an opposing party fails to serve a timely reply to a counterclaim or answer to a cross claim. The court discussed this petition at a closed rules conference on June 15, 2018 and voted to solicit public comment, and schedule a public hearing. IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wisconsin, on October 11, 2018, at 9:30 a.m. IT IS FURTHER ORDERED that notice of the hearing be given by a publication of a copy of this order and of the petition in the official state newspaper once each week for three consecutive weeks, No. 18-03 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. IT IS FURTHER ORDERED that the full text of the proposed rules, including changes, if any, in existing rules, shall be placed on the - Internet site maintained by the director of state courts for the supreme court. See www.wicourts.gov/scrules/pending.htm. Dated at Madison, Wisconsin, this 27th day of August, 2018.

On May 25, 2017, Attorneys John A. Birdsall and Henry R. Schultz filed a rule petition on behalf of the Wisconsin Association of Criminal Defense Lawyers, the Wisconsin Association of Justice, and a number of individuals. The petition asks this court to amend Supreme Court Rule (SCR) 81.02 (Compensation) to: (1) change the hourly rate of compensation for court-appointed lawyers from $70 to $100 per hour; (2) include a provision in SCR 81.02 indexing future compensation rates to annual cost of living increases; and (3)"include a provision specifying that any payment for legal services rendered pursuant to an appointment by the State Public Defender under Wisconsin statutes section 977.08 of an hourly rate less than the rate set forth in Supreme Court Rule 81.02 is unreasonable." The court discussed this petition at some length at open conference on June 22, 2017 and voted to request additional information from the petitioner, solicit public comment, and schedule a public hearing.1 After the court's discussion, the petitioners 1 Documents filed to date in this matter may be viewed on the court's rules website, https://www.wicourts.gov/scrules/1706.htm. No. 17-06 2 asked the court to schedule the public hearing in the spring of 2018. The public hearing has been scheduled in the Supreme Court Room in the State Capitol, Madison, Wisconsin, on May 16, 2018, at 9:30 a.m. Letters to interested parties were sent March 7, 2018, with comments due April 4, 2018. A request to extend the comment period has been received, considered by the court, and granted. IT IS ORDERED, that any comment to the rule petition should be filed by May 1, 2018, with the Clerk of Supreme Court, Attention: Deputy Clerk-Rules, P.O. Box 1688, Madison, WI 53701-1688. The petitioners may file any response to the comments by May 4, 2018. Dated at Madison, Wisconsin, this 17th day of April, 2018. BY THE COURT: Sheila T. Reiff Clerk of Supreme Court

On March 21, 2018, the Honorable D. Todd Ehlers, Door County Circuit Court, in his capacity as Chair of the Judicial Conduct Advisory Committee (JCAC), filed this rule petition asking the court to amend Supreme Court Rule (SCR) Chapter 60, Appendix A.(2) to facilitate the JCAC's performance of its duties. The petition proposes creation of the position of vice chair, to be appointed by the court, to assume the chair's responsibilities in the event the chair of the JCAC is unavailable. The Legislative Reference Bureau offered some technical suggestions, which the petitioner accepted. The court discussed this matter at a closed rules conference on April 12, 2018 and voted to solicit written comments on the petition and reserved the right to schedule a public hearing. Letters were sent to the interested persons on May 1, 2018. No comments were received.

On April 25, 2017, Attorney Steven Levine filed a rule petition asking the court to repeal and replace Supreme Court Rule (SCR) 10.03(5)(b) with a newly created SCR 10.03(5)(b)-(e) and to amend SCR 10.03(6). The proposed changes would require the State Bar of Wisconsin to establish a bifurcated annual budget. Under Attorney Steven Levine's proposal, "mandatory" dues could be used only for: (a) preparing for and participating in rulemaking proceedings before the Supreme Court; (b) administering the Fund for Client Protection, SCR Ch. 12; (c) administering a program to aid lawyers with addictions or other personal problems which may affect their practices and clients (i.e. WisLAP); (d) offering legal advice to Wisconsin lawyers concerning the requirements of SCR Ch. 20 and other ethical questions; and (e) other regulatory programs which may be specifically approved by the Supreme Court after hearing. All other State Bar activities would be "funded entirely by voluntary dues, user fees or other revenue sources." The proposal would maintain the existing arbitration provision available to members who challenge the No. 17-04 2 use of mandatory dues. The petition would also amend SCR 10.03(6) to permit license suspension only for non-payment of mandatory dues. As the petition explains, this proposal is modeled on similar change the Nebraska Supreme Court made to the Nebraska State Bar Association in 2013. See In Re Rule Change to Create a Voluntary State Bar of Nebraska, 286 Neb. 1018, 841 N.W.2d 167 (Neb. 2013). At an open administrative rules conference on June 21, 2017, the court voted to solicit public comment and schedule a public hearing. A letter to interested persons was sent on August 21, 2017. The State Bar of Wisconsin ("State Bar"), by its counsel, Attorney Roberta F. Howell, filed a written response dated September 15, 2017, opposing the petition. The Honorable Gary E. Sherman and Attorney Dean R. Dietrich each submitted a letter opposing the petition. The court received three written comments in support of the petition from Attorney John B. Edmondson; the Wisconsin Institute for Law & Liberty, by Attorney Richard M. Esenberg; and Attorney Theodore D. Kafkas. In its response, the State Bar identified a long list of services that it currently provides to citizens, bar members, and the court that could be adversely affected by this petition. The State Bar states: If insufficient voluntary dues are paid to fund the numerous activities and services that the Bar currently provides to the Court, the profession and, most importantly, to the public, the Court will have to provide them with its existing staff and/or seek additional funding from the state legislature to add staff necessary to replace the services currently provided by the State Bar; otherwise, these activities and services will cease to exist. No. 17-04 3 Attorney Steven Levine filed a reply to the State Bar's response. The court conducted a public hearing on October 30, 2017. Attorney Steven Levine presented the petition to the court. A number of individuals spoke including: Attorney Dean R. Dietrich (opposed), Attorney Douglas W. Kammer (supported), Attorney Richard M. Esenberg (supported), Attorney Paul G. Swanson (opposed), Attorney Roberta Howell (opposed), Attorney Michelle Behnke (opposed), Attorney George Burnett (opposed), Attorney Steven Sorenson (opposed), and Attorney Christopher Rogers (opposed). After the public hearing, the State Bar filed a brief document addressing certain questions raised during the hearing. The court discussed the petition in closed conference on October 30, 2017 and voted to hold the matter pending receipt of additional information. On December 8, 2017, a meeting was convened to discuss certain issues the court deemed relevant to the petition.1 The participants discussed the so-called Keller review process in considerable detail.2 They discussed how improved access to 1 The meeting was chaired by Justice Michael J. Gableman and attended by Justice Shirley S. Abrahamson; Justice Ann Walsh Bradley; Hon. Randy R. Koschnick, Director of State Courts; Hon. James A. Morrison, Circuit Court Judge for Marinette County, Chief Judge for District 8; Mr. Dean Stensberg, Deputy Director of State Courts; Attorney Paul G. Swanson, State Bar President; Attorney Chris Earl Rogers, State Bar President-elect; Attorney Larry Martin, State Bar Executive Director; Attorney Lisa M. Roys, State Bar Public Affairs Director; Attorney Roberta F. Howell, State Bar Counsel; Attorney Steven Levine, Petitioner and Past-State Bar President; Attorney Douglas Kammer, Past-State Bar President; and Attorney James Boll, Past-State Bar President. Julie Anne Rich, Supreme Court Commissioner, served as recorder. No. 17-04 4 information, particularly regarding staff salaries and bar expenditures, could ameliorate some negative perceptions of the State Bar. Throughout, Attorney Levine emphasized his perception that lawyers in Wisconsin want a voluntary bar. The State Bar was receptive to a number of the concerns articulated during this proceeding. On February 9, 2018, the State Bar's Board of Governors ("Board") unanimously adopted a new policy regarding the Keller dues rebate, the pro rata amount members can withhold from annual dues. The pro rata portion that members may withhold from annual dues will now reflect all expenditures for direct State Bar lobbying activity, "regardless of whether they would otherwise qualify as chargeable under a Wisconsin Keller dues analysis."3 In short, the State Bar will no longer use mandatory dues to fund direct lobbying activity. The Board also adopted amendments to its "access to records" policy, to provide its members with greater transparency. These amendments will allow members to receive information regarding the State Bar employee salary bands, as well as job titles within those bands. On February 12, 2018, Attorney Steve Levine submitted a letter requesting leave to respond to an expected filing from the State Bar. 2 Under Keller v. State Bar of California, 496 U.S. 1 (1990), and subsequent rulings, mandatory bar associations can use compulsory dues to fund activities "necessarily or reasonably related to the purposes of regulating the legal profession or improving the quality of legal services." Keller is codified in Wisconsin SCR 10.03(5)(b)1. 3 See https://www.wisbar.org/newspublications/insidetrack/pages/ article.aspx?Volume=10&Issue=3&ArticleID=26170. No. 17-04 5 On February 16, 2018, the State Bar responded, stating it did not intend to file anything further in this matter. The court discussed the matter in closed conference on February 22, 2018. As the foregoing summary reflects, the petition generated serious discussion on a myriad of topics. Many of the comments received perceived this petition as a challenge to the existence of a mandatory bar. However, the petition before the court would not eliminate the mandatory nature of the bar. Rather, it would restructure the State Bar's budget to limit and designate how mandatory bar dues could be used. The narrow question before the court was whether to adopt the amendments to SCR 10.03, as proposed by the petitioner. On balance, the court was not persuaded that granting this rule petition would serve the best interests of Wisconsin's citizens, the lawyers of this state, or the court. Therefore, IT IS ORDERED that the petition is denied. Dated at Madison, Wisconsin, this 12th day of April, 2018. BY THE COURT: Sheila T. Reiff Clerk of Supreme Court

No. 18-01 In the matter of REPEALING Wis. Stat. §§ 753.06(6) (title) and 757.60(6), and Supreme Court Rule 70.17(6), AMENDING Wis. Stat. §§ 13.525 (1)(e), 757.60(3), (4), (5), (7), and (9), and Supreme Court Rules 70.14(1)(c) and 70.17(3), (4), (5), (7), and (9), and RENUMBERING Wis. Stat. §§ 753.06 (3)(a), (5)(a), (6)(a) to (k), and (7)(a) FILED APR 11, 2018 Sheila T. Reiff Clerk of Supreme Court Madison, WI On January 9, 2018, the Honorable Randy R. Koschnick, Director of State Courts ("Director"), filed a rule petition that proposes redistributing the counties that presently constitute Wisconsin's sixth judicial administrative district.1 This requires amending Supreme Court Rules (SCRs) 70.14 and 70.17 and amending or repealing Wis. Stat. §§ 13.525, 753.06, and 757.60. Specifically, the petition proposes the court transfer: Dodge County to the third judicial administrative district; Green Lake, Marquette, and Waushara Counties to the fourth judicial administrative district; Columbia and Sauk Counties to the fifth judicial administrative district; Adams, Clark, and Juneau Counties to the seventh judicial administrative district; 1 The sixth judicial administrative district consists of Adams, Clark, Columbia, Dodge, Green Lake, Juneau, Marquette, Portage, Sauk, Waushara, and Wood Counties. No. 18-01 2 and Portage and Wood Counties to the ninth judicial administrative district. A number of individuals submitted comments regarding this proposal to the Director's office or to members of the court, directly. At the January 16, 2018 closed rules conference, the court voted to formally solicit written comments and reserved the right to hold a public hearing after reviewing all the written comments. On January 17, 2018, a letter was sent to the standard interested persons list and to all of the District Court Administrators. On February 15, 2018, an amended petition was filed, reflecting certain technical corrections. In response to the letter to interested parties, the court received written comments regarding the petition from: Robert J. Sivick, Administrator, County of Waushara; Honorable Paul S. Curran, Juneau County Circuit Court; Honorable Jeffrey A. Kremers, Milwaukee County Circuit Court; Susan Raimer, Columbia County Clerk of Court, on behalf of 10 circuit court clerks in the sixth judicial administrative district; and a Resolution in opposition to the petition submitted by the Waushara County Board of Supervisors. These written comments generally oppose the petition. Concerns were expressed about the process by which this proposal was introduced. Several interested persons specifically oppose reassigning Waushara County to the fourth judicial administrative district, noting the fourth judicial administrative district is a No. 18-01 3 more urban and populous district than rural Waushara County. Some expressed skepticism that dissolution of the sixth judicial administrative district would result in a net cost savings. Others recommended further study before making this change.2 As noted, comments were also submitted directly to the Director's office prior to or shortly after the rule petition was filed.3 The court was advised that, although support was not unanimous, nine of the ten chief judges have stated they support or do not oppose the proposal, and, of the ten judges from district six who formally commented on the proposal, five favored or did not oppose the proposal, and five registered opposition. The court discussed this matter at a closed rules conference on February 22, 2018. Currently, the State of Wisconsin is divided into ten judicial administrative districts. As the memorandum submitted in support of the petition explains, the Director's office has periodically considered consolidating the ten judicial administrative districts 2 The Director filed a response to an assertion that judges in District Six were not consulted about this proposal. He stated that the proposal was introduced at the Wisconsin Judicial Conference. The Honorable Paul S. Curran filed a response to this letter on February 26, 2018. 3 The proposal was presented at the December 8, 2017 meeting of the Committee of Chief Judges and District Court Administrators. The emails and written correspondence provided to the court will be filed in the official public file for rule petition 18-01 and are available on the court's rules website, https://www.wicourts.gov/ scrules/1801.htm. No. 18-01 4 into nine districts. The Director has determined the time is right to consolidate the districts. The Director proposes consolidating the sixth judicial administrative district for several reasons, including its geographically central location, such that its counties can be realigned to neighboring districts in a manner that minimizes disruption. The Director notes that geographically, most of the realigned counties will be within 50 miles of their district court administrator's office; all will be within 90 miles. The recommendation to consolidate districts now is also influenced by certain management and personnel factors, such as staff retirements and a scheduled lease expiration that will reduce the impact of this decision. The Director has determined that consolidating the districts will result in substantial cost savings without resulting in a significant increase in workload or collateral costs for those affected. The court appreciates the written comments it received and considered them carefully. Ultimately, the court was persuaded that the Director's petition should be granted, without the need for a public hearing. The court notes that the petition, as drafted, dissolves the sixth judicial administrative district, but does not renumber the remaining districts, such that if the Director were to determine that the sixth judicial administrative district should be reinstated, that remains an option. No. 18-01 5 Therefore, IT IS ORDERED that the petition is granted and that: Section 1. 13.525 (1)(e) of the statutes is amended to read: 13.525 (1)(e) A reserve judge who resides in the 1st, 2nd, 3rd, 4th, or 5th judicial administrative district and a reserve judge who resides in the 6th, 7th, 8th, 9th, or 10th judicial administrative district, appointed by the supreme court. Section 2. 753.06(3)(a) of the statutes is renumbered 753.06(3)(ar). Section 3. 753.06(5)(a) of the statutes is renumbered 753.06(5)(ar). Section 4. 753.06(6)(title) of the statutes is repealed. Section 5. 753.06(6)(a) of the statutes is renumbered 753.06(7)(ag). Section 6. 753.06(6)(am) of the statutes is renumbered 753.06(7)(ar). Section 7. 753.06(6)(b) of the statutes is renumbered 753.06(5)(ag). Section 8. 753.06(6)(c) of the statutes is renumbered 753.06(3)(ag). Section 9. 753.06(6)(d) of the statutes is renumbered 753.06(4)(bn). Section 10. 753.06(6)(e) of the statutes is renumbered 753.06(7)(em). No. 18-01 6 Section 11. 753.06(6)(f) of the statutes is renumbered 753.06(4)(cm). Section 12. 753.06(6)(g) of the statutes is renumbered 753.06(9)(im). Section 13. 753.06(6)(h) of the statutes is renumbered 753.06(5)(d). Section 14. 753.06(6)(j) of the statutes is renumbered 753.06(4)(dm). Section 15. 753.06(6)(k) of the statutes is renumbered 753.06(9)(m). Section 16. 753.06(7)(a) of the statutes is renumbered 753.06(7)(am). Section 17. 757.60(3) of the statutes is amended to read: 757.60(3) The 3rd district consists of Dodge, Jefferson, Ozaukee, Washington, and Waukesha counties. Section 18. 757.60(4) of the statutes is amended to read: 757.60(4) The 4th district consists of Calumet, Fond du Lac, Green Lake, Manitowoc, Marquette, Sheboygan, Waushara, and Winnebago counties. Section 19. 757.60(5) of the statutes is amended to read: 757.60(5) The 5th district consists of Columbia, Dane, Green, Lafayette and, Rock, and Sauk counties. Section 20. 757.60(6) of the statutes is repealed. Section 21. 757.60(7) of the statutes is amended to read: No. 18-01 7 757.60(7) The 7th district consists of Adams, Buffalo, Clark, Crawford, Grant, Iowa, Jackson, Juneau, La Crosse, Monroe, Pepin, Pierce, Richland, Trempealeau, and Vernon counties. Section 22. 757.60(9) of the statutes is amended to read: 757.60(9) The 9th district consists of Florence, Forest, Iron, Langlade, Lincoln, Marathon, Menominee, Oneida, Portage, Price, Shawano, Taylor and, Vilas, and Wood counties. Section 23. Supreme Court Rule 70.14(1)(c) is amended to read: 70.14(1)(c) Thirteen Twelve circuit judges, with one judge elected by the judges of each of judicial administrative districts 2 to 4 and 6 7 to 10, with 2 judges elected by the judges of judicial administrative district 5 and 3 judges elected by the judges of judicial administrative district 1. Section 24. Supreme Court Rule 70.17(3) is amended to read: 70.17(3) The 3rd district consists of Dodge, Jefferson, Ozaukee, Washington, and Waukesha counties. Section 25. Supreme Court Rule 70.17(4) is amended to read: 70.17(4) The 4th district consists of Calumet, Fond du Lac, Green Lake, Manitowoc, Marquette, Sheboygan, Waushara, and Winnebago counties. Section 26. Supreme Court Rule 70.17(5) is amended to read: 70.17(5) The 5th district consists of Columbia, Dane, Green, Lafayette and, Rock, and Sauk counties. Section 27. Supreme Court Rule 70.17(6) is repealed. No. 18-01 8 Section 28. Supreme Court Rule 70.17(7) is amended to read: 70.17(7) The 7th district consists of Adams, Buffalo, Clark, Crawford, Grant, Iowa, Jackson, Juneau, La Crosse, Monroe, Pepin, Pierce, Richland, Trempealeau, and Vernon counties. Section 29. Supreme Court Rule 70.17(9) is amended to read: 70.17(9) The 9th district consists of Florence, Forest, Iron, Langlade, Lincoln, Marathon, Menominee, Oneida, Portage, Price, Shawano, Taylor and, Vilas, and Wood counties. IT IS FURTHER ORDERED that a Wisconsin Comment to Wis. Stat. §§ 13.525 and 753.06 and to SCR 70.14 shall read: WISCONSIN COMMENT Pursuant to S. Ct. Order 18-01, 2018 WI 33 (issued April 11 2018, eff. July 31, 2018) the court redistributed the counties that constituted the 6th judicial administrative district into other judicial administrative districts. Accordingly, as of the effective date of that order, there is no 6th judicial administrative district. IT IS FURTHER ORDERED that the comment to Wis. Stat. §§ 13.525 and 753.06 and to SCR 70.14 is not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule. IT IS FURTHER ORDERED that the effective date of this order is July 31, 2018. IT IS FURTHER ORDERED that notice of the above amendments be given by a single publication of a copy of this order in the official publications designated in SCR 80.01, including the official No. 18-01 9 publishers' online databases, and on the Wisconsin court system's web site. The State Bar of Wisconsin shall provide notice of this order. Dated at Madison, Wisconsin, this 11th day of April, 2018. BY THE COURT: Sheila T. Reiff Clerk of Supreme Court

SUPREME COURT OF WISCONSIN No. 17-09, 08-17 In the matter of petition for amendment to Supreme Court Rule 10.03(4)(b)2 relating to pro hac vice applications FILED MAR 28, 2018 Sheila T. Reiff Clerk of Supreme Court Madison, WI On September 28, 2017, Attorney James A. Gramling Jr., President, Wisconsin Access to Justice Commission (Commission), filed a rule petition on behalf of the Commission. The petition asks this court to amend Supreme Court Rule (SCR) 10.03(4)(b)2, the "pro hac vice" rule, to increase the fee for admission pro hac vice from $250 to $300, and to allocate the $50 increase to the Commission.1 At a closed administrative conference on December 4, 2017, the court voted to solicit written comments and discuss the matter at a future conference. On December 6, 2017, a letter was sent to 1 Pursuant to the terms of the "pro hac vice" rule, SCR 10.03(4)(b), a court or judge in this state may allow nonresident counsel to appear and participate in a particular action or proceeding in association with an active member of the state bar of Wisconsin who appears and participates in the action or proceeding. A fee ($50) and an application for admission pro hac vice were first imposed in 2009. See S. Ct. Order 06-06, 2008 WI 109 (issued July 30, 2008, eff. Jan. 1, 2009). The initial fee was payable to the Office of Lawyer Regulation (OLR). Fees received by the OLR are remitted to the general fund and are used for the general operating requirements of the lawyer regulation system. No. 17-09, 08-17 2 interested persons seeking input. The court received a number of comments in support of the petition.2 The court also received a comment from the Menominee Indian Tribe of Wisconsin, by Attorneys Starlyn R. Tourtillott and Danica J. Zawieja, asking the court to create an exception to the pro hac vice rule for nonresident tribal counsel in cases brought pursuant to the federal Indian Child Welfare Act, 25 U.S.C. § 1911 et seq. (ICWA), codified in Wisconsin as the Wisconsin Indian Child Welfare Act (WICWA). Several interested persons wrote in support of this suggestion.3 2 The court received comments in support of the petition from: Paul G. Swanson, President, State Bar of Wisconsin; Margaret Raymond, Dean, University of Wisconsin Law School; Melissa Dalkert, President, Portage County Legal Aid Society, Inc.; Kevin J. Palmersheim, President, Wisconsin Trust Account Foundation; Robert A. Peterson, Jr., Executive Director, ABC for Health, Inc.; Mike Gonring, Executive Director, Legal Aid Society of Milwaukee; Kimberly Haas, Executive Director, Wisconsin Judicare, Inc.; Patti Seger, Executive Director, End Domestic Abuse; David Pifer, Executive Director, Legal Action of Wisconsin; Nicole J. Renouard, Executive Director, Centro Legal; and Daniel Idzikowski, Executive Director, Disability Rights Wisconsin. 3 The court received several comments in support of an exception for nonresident counsel in ICWA/WICWA cases. Some also noted support for the proposed fee increase. The court received comments from: Nicole M. Homer, Ho-Chunk Nation Department of Justice; Sarah Stahelin, Tribal Attorney, Leech Lake Band of Ojibwe (also supporting the fee increase); Kathryn E. Fort, Director, Indian Law Clinic, Michigan State University; Angelica Ramirez, Assistant General Counsel, St. Croix Chippewa Indians of Wisconsin (also supporting the fee increase); Amanda L. WhiteEagle, Attorney General, Ho-Chunk Nation; and Eugene L. White-Fish, President, Wisconsin Tribal Judges Association (noting general support for funding the Commission). No. 17-09, 08-17 3 On February 5, 2018, the Commission filed a response to all the comments and endorsed the proposed exception for nonresident counsel in ICWA/WICWA cases. The court discussed this petition extensively at a closed conference on February 22, 2018. The petition asks the court to raise the pro hac vice fee from $250 to $300 and to allocate the proposed $50 fee increase to the Commission. The court ultimately voted to deny the petition.4 We recognize the Commission's funding situation is precarious. Indeed, since its inception, funding has been a critical concern for the Commission.5 In the 2008 rule petition asking this court to create the Commission, the State Bar offered to fund the Commission for three years, drawing the funds from a reserve fund established to support access to justice initiatives. See Petition for Creation of Access to Justice Commission, at 8, (July 7, 2008), https://www.wicourts.gov/scrules/0817.htm. The order creating the Commission reflected the initial funding commitment, stating: "In accordance with the offer of the State bar, the Commission shall be 4 The court has directed its staff to contact the Menominee Indian Tribe of Wisconsin and advise counsel that they may file an independent rule petition asking the court to create the requested exception to the pro hac vice rule for nonresident tribal counsel in cases brought pursuant to the federal Indian Child Welfare Act. 5 We created the Commission by order dated June 5, 2009. See S. Ct. Order 08-17, 2009 WI 42 (issued June 5, 2009, eff. June 5, 2009). No. 17-09, 08-17 4 funded and staffed by the State bar for at least three years." SCR 14.04. The State Bar envisioned that "[w]hen the Commission is fully operational it should be funded by contributions from the Legislature, the Court and the State bar." See Petition for Creation of Access to Justice Commission at 8. Since its implementation, the court has monitored the Commission's efforts and its funding. In 2014, we agreed to a request to increase the fee imposed on out-of-state lawyers seeking admission pro hac vice and allocated a portion of that fee increase to the Commission. See S. Ct. Order 13-11, 2014 WI 42 (issued June 20, 2014, eff. July 1, 2014).6 With this action we generated approximately $30,000 in annual revenue for the Commission. In January 2016, at the Commission's request, the court unanimously asked the Wisconsin Legislative Council to create a committee to study access to legal services in civil matters.7 The Wisconsin Legislative Council agreed, forming the 2016 Joint Legislative Council Study Committee on Access to Civil Legal Services (Study Committee), tasked with reviewing the need for legal services 6 Pursuant to that order, we raised the fee from $50 to $250 and distributed the fees as follows: $100 to the OLR, $100 to Wisconsin Trust Account Foundation, Inc., (WisTAF) and $50 to the Commission. Fees received by WisTAF and the Commission support those programs which seek to improve access to civil legal services for unrepresented low-income Wisconsin residents. 7 See http://wisatj.org/wp-content/uploads/SCT-Access-to-Justice- Letter.pdf. No. 17-09, 08-17 5 by indigent civil litigants; identifying additional non-GPR ("general purpose revenue") sources of revenue to provide civil legal services for the indigent; and reviewing current operations. Also in 2016, we undertook a formal review of the Commission, as required by court rule, and voted to continue the Commission. See S. Ct. Order 08-17A, 2016 WI 73 (issued July 19, 2016). As the concurrence to this order observed, however, our order was silent about funding; the Commission has been unable to establish a stable, annual source of funding sufficient to meet its current budget. In February 2017, the Wisconsin Legislative Council voted to accept the Study Committee's detailed report and recommendations, which included proposed legislation, intended to foster certain specific access to justice initiatives, but did not recommend a general allocation of funds for civil legal services. See Joint Legislative Council's Report of the Study Committee on Access to Civil Legal Services, at 10 (March 13, 2017), https://docs.legis.wisconsin.gov/misc/lc/study/2016/1492/070_joint_le gislative_council_recommendations_to_the_2017_18_legislature/jlcr_201 7_08. The Commission has explained that its current budget anticipates revenue from three sources: a grant from the State Bar's Family Law Section ($5,000), an in-kind contribution from the State Bar ($20,000), and pro hac vice fees ($30,000). The Commission's expenses are approximately $66,564, leaving a projected deficit. The No. 17-09, 08-17 6 Commission emphasizes that it has pared down its budget significantly, and many members of the Commission forgo submitting expense reimbursement requests. The court remains deeply concerned about the extensive, unmet need in Wisconsin for greater attorney representation for low-income residents in civil cases when human needs are at stake. We ultimately determined however, that we will not approve the Commission's request for another increase in the pro hac vice fee. In so deciding, several members of the court emphasize that it is the fee increase that is opposed, not the Commission. Rather, the court concludes that it is time to consider other ways to further the important mission of the Commission, which is to "develop and encourage means of expanding access to the civil justice system for unrepresented low income Wisconsin residents." SCR 14.02(2). This may entail restructuring the Commission to better enable it to effectively advance these critically important objectives. The court welcomes input from the dedicated members of the Commission who know, firsthand, the challenges inherent in the task we have assigned them. Our rules provide that we meet with the members of the Commission annually. SCR 14.05. Our next meeting is scheduled in April 2018. We look forward to a productive discussion with the members of the Commission about how to advance our shared goal of improving the administration of justice by supporting civil legal services for those who need but cannot afford them. No. 17-09, 08-17 7 Therefore, IT IS ORDERED that the petition is denied. Dated at Madison, Wisconsin, this 28th day of March, 2018. BY THE COURT: Sheila T. Reiff Clerk of Supreme Court No. 17-09, 08-17.ssa 8 ¶1 SHIRLEY S. ABRAHAMSON, J. (dissenting). The court denies the petition for financial support to the Wisconsin Access to Justice Commission. In the same breath as the denial, the court professes its support for the Wisconsin Access to Justice Commission and its deep concern about Wisconsin's extensive, unmet need for legal representation for low-income residents in civil cases when human needs are at stake. The court's order promises that "productive discussion" will follow. ¶2 Talk, talk, talk! No action! ¶3 The court also denies the request of the Menominee Indian Tribe of Wisconsin that the court direct that the pro hac vice rule not apply for nonresidential tribal counsel in cases brought pursuant to the federal Indian Child Welfare Act, codified in Wisconsin as the Wisconsin Indian Child Welfare Act (WICWA). In denying the Tribe's request, the court directs court staff to advise the Tribe that it may draft another petition submitting this request to the court once again.8 Why can't the court grant the request now? Why demand another petition? ¶4 Here is what I propose: 1. The court should hold a public hearing on the petition in April 2018 before its meeting with the Wisconsin Access to Justice Commission. Many are working for improved access to justice. They should be given an opportunity to offer concrete 8 See note 4 of the order. No. 17-09, 08-17.ssa 9 suggestions to the court and the Commission for ways in which the court and Commission can help ensure equal justice for all, including funding of the Commission. An order on the petition would be issued on or before June 30, 2018. 2. The court should immediately grant the request of the Menominee Indian Tribe of Wisconsin that the court create an exception to the pro hac vice rule for nonresident tribal counsel in cases brought pursuant to the federal Indian Child Welfare Act, codified as the Wisconsin Indian Child Welfare Act (WICWA). The Wisconsin Access to Justice Commission (and many others) supports this request. The court should therefore issue an order immediately directing circuit courts to allow nonresident tribal counsel to appear in WICWA cases. Just denying the petition and directing court staff to advise the Tribe that it may file yet another rule petition and undertake yet another lengthy rule petition process to accomplish its goal (a process that may not end until sometime in 2019, if then) is, in my opinion, unacceptable. Native American children should get timely justice without further delay. ¶5 For these reasons, I dissent. No. 17-09, 08-17.ssa 10 ¶6 I am authorized to state that Justice ANN WALSH BRADLEY joins this dissenting opinion. No. 17-09, 08-17.akz 1 ¶1 ANNETTE KINGSLAND ZIEGLER, J. (dissenting). I respectfully dissent. I would grant the petition filed by the Wisconsin Access to Justice Commission ("Commission") and raise the fee for admission pro hac vice in Wisconsin from $250 to $300, allocating the additional $50 to the Commission. These additional funds are needed if the Commission is to continue its work supporting access to civil legal services for those who cannot afford them. ¶2 I would also grant the unopposed request of the Menominee Tribe of Wisconsin and amend SCR 10.03(4) to exempt out-of-state lawyers representing Indian tribes in ICWA/WICWA cases from the requirements of the pro hac vice rule. As an alternative, I would support a public hearing on this matter. ¶3 For the foregoing reasons, I respectfully dissent. ¶4 I am authorized to state that Justice ANN WALSH BRADLEY joins this dissent. No. 17-09, 08-17.akz 1

SUPREME COURT OF WISCONSIN No. 17-10 In the matter of the petition to amend Board of Bar Examiners Rule 6.02 (BA 6.02) FILED MAR 8, 2018 Sheila T. Reiff Clerk of Supreme Court Madison, WI On December 7, 2017, Attorney Aaron Jeramie Loudenslager filed an administrative rule petition asking this court to amend Board of Bar Examiners (BBE) Rule 6.02 (BA 6.02) to "bring Wisconsin's character and fitness investigations with regard to prospective lawyers' mental health into compliance with the Americans with Disabilities Act (ADA)." On December 21, 2017, BBE Director Jacquelynn Rothstein filed a response to the petition, asking the court to dismiss the rule petition and refer the matter to the BBE for further consideration. The court discussed this petition at closed administrative conference on January 18, 2018. The court voted to dismiss the rule petition and to refer the matter to the BBE as set forth herein. The ultimate responsibility for regulating admission to the practice of law in Wisconsin rests with this court. The Supreme Court Rules (SCR) governing admission to the bar are found in SCR Ch. 40 and are administered by the BBE. Persons seeking admission to the Wisconsin bar must, among other requirements, file an application for a character and fitness certification with the BBE. SCR 40.06(3m). The purpose of the character and fitness requirement is to limit admission to those applicants found to have the qualities of character and fitness needed to assure to a reasonable degree of certainty the integrity and the competence of services performed for clients and the maintenance of high standards in the administration of justice. SCR 40.06(1). As part of this process, the applicant must provide certain information to the BBE and complete and submit to the BBE a lengthy "Applicant Questionnaire and Affidavit". The BBE conducts an investigation and, if it concludes the applicant has met his or her burden of establishing the requisite qualities of character and fitness (as well as the other requirements for bar admission), the Board will certify a qualifying applicant to the supreme court for admission to the bar. Pursuant to SCR 40.11, the court has delegated to the BBE the authority to promulgate its own rules necessary to carry out the intent and purpose of SCR Ch. 40. The BBE has thus implemented a number of rules that inform applicants of various aspects and requirements of the bar admission process, such as how long an incomplete bar application will be maintained (BAs 4.03, 5.01, 6.06), and certain application deadlines (BA 14.04). Several of these rules, including BA 6.02, pertain to the character and fitness requirement (BAs 6.01-6.06). As such, BA 6.02 is the BBE's rule; it is not a rule this court would typically amend pursuant to a rule petition. Moreover, it is not clear that the proposed amendment to BA 6.02 would effectively accomplish the petitioner's objective. Bar Admission Rule 6.02 consists of a list of 12 items that the BBE "should" treat "as cause for further inquiry before the Board decides whether the applicant possesses the character and fitness to practice law." These are wide ranging and include matters such as evidence that the applicant has engaged in academic misconduct, neglect of financial responsibilities, or been the subject of prior professional discipline.1 The petition proposes amending item (i) as follows: 1 BA 6.02 provides that the revelation or discovery of any of the following should be treated as cause for further inquiry before the Board decides whether the applicant possesses the character and fitness to practice law: (a) unlawful conduct (b) academic misconduct (c) false statements by the applicant, including concealment or nondisclosure (d) acts involving dishonesty or misrepresentation (e) abuse of legal process (f) neglect of financial responsibilities (g) neglect of professional obligations (h) violation of an order of a court (i) evidence of mental or emotional impairments substantial enough to affect the applicant's ability to practice law (j) evidence of drug or alcohol dependency (k) denial of admission to the bar in another jurisdiction on character and fitness grounds (cont.) (l) disciplinary action by a lawyer disciplinary agency or other professional disciplinary agency of any jurisdiction "(i) evidence of mental or emotional impairments substantial enough to that currently affect the applicant's ability to practice law in a competent and professional manner." The memorandum filed in support of the petition explains that the petitioner believes that one question on the BBE's Applicant Questionnaire and Affidavit contravenes the ADA. 2 Question 35(a) states: Do you currently have any condition or impairment (including, but not limited to, substance abuse, alcohol abuse or a mental, emotional or nervous disorder or condition) which in any way currently affects, or if untreated could affect, your ability to practice law in a competent and professional manner? The petitioner asserts that an applicant's affirmative response to this question triggers more scrutiny than other applicants as they are required to describe the mental disorder and how it has been treated. See BBE's Applicant Questionnaire and Affidavit, Question 35(b). To the extent the petitioner seeks clarification or revision of Question 35(a), it is not clear the proposed amendment to BA 6.02(i) would accomplish the desired result. That said, Attorney Loudenslager's petition does present an important question. In August 2014, the United States Department of Justice (DOJ), the agency charged with enforcing Title II of the ADA, announced that it had entered into a settlement agreement with the 2 As relevant here, Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132 (1990). No. 17-10 5 Louisiana Supreme Court resolving a DOJ investigation into Louisiana court's policies, practices, and procedures for evaluating bar applicants with mental health disabilities. The DOJ noted that it had also "raised issues about unnecessary bar application questions related to mental health disabilities with the states of Vermont and Connecticut and with the National Council of Bar Examiners (NCBE) [and the] NCBE revised two of its questions about mental health on February 24, 2014." Press Release 14-860, Department of Justice Reaches Agreement with the Louisiana Supreme Court to Protect Bar Candidates with Disabilities, U.S. Dep't of Justice (Aug. 15, 2014). 3 In the wake of this announcement, a number of states reviewed the manner in which they inquire about and consider mental health information in their screening process for bar applicants. In 2015, the American Bar Association (ABA) adopted a resolution urging state and territorial bar licensing entities to: [E]liminate from applications required for admission to the bar any questions that ask about mental health history, diagnoses, or treatment and instead use questions that focus on conduct or behavior that impairs an applicant's ability to practice law in a competent, ethical, and professional manner. Notably, the ABA further resolved that: 3 See also Letter from Jocelyn Samuels, Acting Assistant Attorney General, U.S. Department of Justice, Civil Rights Division, to the Honorable Bernette J. Johnson, Chief Justice, Louisiana Supreme Court; Elizabeth S. Schell, Executive Director, Louisiana Supreme Court Committee on Bar Admissions; and Charles B. Plattsmier, Chief Disciplinary Counsel, Louisiana Attorney Disciplinary Board Office of Disciplinary Counsel, The United States' Investigation of the Louisiana Attorney Licensure System Pursuant to the Americans with Disabilities Act, DJ No. 204-32M-60, 204-32-88, 204-32-89 (Feb. 5, 2014). No. 17-10 6 [S]tate and territorial bar licensing entities are not precluded from making reasonable and narrowly-tailored follow-up inquiries concerning an applicant's mental health history if the applicant has engaged in conduct or behavior that may otherwise warrant a denial of admission and a mental health condition either has been raised by the applicant as, or is shown by other information to be, an explanation for such conduct or behavior. ABA Resolution No. 102, Aug. 2015. In recounting this information, we make no legal determination here as to either BA 6.02 or Question 35(a). However, Attorney Loudenslager's question warrants consideration and we thus accept the BBE's offer to revisit its rules and procedures, including the questions on the Applicant Questionnaire and Affidavit, to ensure compliance with the ADA. Therefore, IT IS ORDERED that rule petition 17-10 is dismissed. IT IS FURTHER ORDERED that the issues presented in this petition are referred to the Board of Bar Examiners for its review and consideration. The Board of Bar Examiners is directed to confer with the Wisconsin Department of Justice and with any other entity it deems appropriate, and to submit a written report advising this court whether Board of Bar Examiners rules or procedures, including questions on the Board of Bar Examiners' Applicant Questionnaire and Affidavit, should be revised to ensure compliance with the Americans with Disabilities Act. IT IS FURTHER ORDERED that the Board of Bar Examiners shall file its written report on or before July 1, 2018, advising the court of the result of its review, or providing a status report with an anticipated completion date for the report. The Board of Bar Examiners' report, together with any interim status reports, will be made available to the public on the court's website at https://www.wicourts.gov/scrules/supreme.htm. Dated at Madison, Wisconsin, this 8th day of March, 2018. BY THE COURT: Sheila T. Reiff Clerk of Supreme Court

SUPREME COURT OF WISCONSIN No. 17-07 In re proposed amendments to Wisconsin Statutes §§ 809.15, 809.19, 809.30, 809.32, and 885.42 FILED JAN 24, 2018 Diane M. Fremgen Acting Clerk of Supreme Court Madison, WI On May 26, 2017, Attorney April M. Southwick filed a rule petition on behalf of the Wisconsin Judicial Council asking this court to amend several rules of appellate procedure: Wis. Stats. §§ 809.15 (Record on Appeal), 809.19 (Briefs and Appendix), 809.30 (Appeal Procedure), 809.32 (No merits), and 885.42 (Videotape procedure; when available). The proposed amendments are intended to provide better clarity regarding supplementing or correcting the record on appeal, sealing of documents, preparation of transcripts, access to presentence investigation reports (PSIs), and inclusion of PSIs in the appellate record. The court discussed this petition at open administrative rules conference on June 21, 2017 and voted to schedule a public hearing. On October 31, 2017, a letter was sent to interested persons seeking input. The court received one response dated November 27, 2017 from Jennifer Andrews, Court of Appeals Chief Staff Attorney. On December 15, 2017, the Judicial Council submitted a letter No. 17-07 2 responding to certain changes suggested by the Legislative Reference Bureau. The court conducted a public hearing on January 16, 2018. Attorney Jennifer Andrews presented the petition to the court on behalf of the Judicial Council. Attorney Jeremy Perri, Appellate Division, State Public Defender's Office, also appeared and spoke in favor of the petition. At the ensuing closed rules conference, the court voted to deny the petition. The court was not persuaded that these changes were necessary to improve the clarity of the appellate rules. Accordingly, IT IS ORDERED the petition is denied. Dated at Madison, Wisconsin, this 24th day of January, 2018. BY THE COURT: Diane M. Fremgen Acting Clerk of Supreme Court No. 17-07.ssa 3 ¶1 SHIRLEY S. ABRAHAMSON, J. (dissenting). I would not deny or dismiss this petition. I would grant it. The changes proposed by the petition improve the clarity of the appellate rules. Furthermore, in the interest of transparency of court proceedings, the text of an order should reflect any dissent, because sometimes the order is printed or summarized without any reference to a dissent that accompanies the order. ¶2 I am authorized to state that Justice ANN WALSH BRADLEY joins this dissenting opinion. No. 17-07.ssa 1

2017 WI 108 SUPREME COURT OF WISCONSIN NOTICE This order is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 17-03 In re proposed amendments to Wisconsin Statutes §§ 803.08 and 426.110 FILED DEC 21, 2017 Diane M. Fremgen Clerk of Supreme Court Madison, WI On March 16, 2017, Attorney April M. Southwick filed a rule petition on behalf of the Wisconsin Judicial Council asking this court to repeal and replace Wis. Stat. § 803.08, (Class Actions), create Wis. Stat. § 426.110 (4m), (Class actions; injunctions; declaratory relief), repeal Wis. Stat. § 426.110(5) through 13, and amend Wis. Stat. § 426.110(16). The proposed amendments are intended to align Wis. Stats. §§ 803.08 and 426.110 with the federal class action rule, Fed. R. Civ. P. 23. The court discussed this petition at open administrative rules conference on April 20, 2017 and voted to schedule a public hearing and request additional information from the Judicial Council. On June 27, 2017, the court asked the Judicial Council to describe the concerns relating to class actions that the 2003 amendments to Fed. R. Civ. P. 23 were intended to address and provide No. 17-03 2 relevant federal Advisory Committee notes. The Judicial Council responded by letter dated August 18, 2017. On August 21, 2017, a letter was sent to interested persons seeking input. The court received a memo in support of the petition from Robert Fassbender, Executive Director of the Wisconsin Civil Justice Council, Inc., dated September 2, 2016, which he previously provided to the Judicial Council's Evidence & Civil Procedure Committee. The court conducted a public hearing on October 30, 2017. Attorney Thomas L. Shriner, Chair of the Judicial Council's Evidence and Civil Procedure Committee, presented the petition to the court on behalf of the Judicial Council. The Honorable Michael R. Fitzpatrick, Court of Appeals District IV, and Attorney William C. Gleisner, III, representative of the Judicial Council, also appeared and spoke in favor of the petition. At the ensuing closed rules conference, the court discussed the petition and voted unanimously to grant the petition and revise the rules as requested by the petitioner. IT IS ORDERED that: SECTION 1. 803.08 of the statutes is repealed and recreated to read: 803.08. Class actions. (1) PREREQUISITES. One or more members of a class may sue or be sued as representative parties on behalf of all members only if the court finds all of the following: (a) The class is so numerous that joinder of all members is impracticable. No. 17-03 3 (b) There are questions of law or fact common to the class. (c) The claims or defenses of the representative parties are typical of the claims or defenses of the class. (d) The representative parties will fairly and adequately protect the interests of the class. (2) TYPES OF CLASS ACTIONS. A class action may be maintained if sub. (1) is satisfied and if the court finds that any of the following are satisfied: (a) Prosecuting separate actions by or against individual class members would create a risk of either of the following: 1. Inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class. 2. Adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests. (b) The party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole. (c) The court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the No. 17-03 4 controversy. The matters pertinent to these findings include all of the following: 1. The class members' interests in individually controlling the prosecution or defense of separate actions. 2. The extent and nature of any litigation concerning the controversy already begun by or against class members. 3. The desirability or undesirability of concentrating the litigation of the claims in the particular forum. 4. The likely difficulties in managing a class action. (3) CERTIFICATION ORDER. (a) Time to issue. At an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action. (b) Defining the class; appointing class counsel. An order that certifies a class action must define the class and the class claims, issues, or defenses, and must appoint class counsel under sub. (12). (c) Altering or amending the order. An order that grants or denies class certification may be altered or amended before final judgment. (4) NOTICE. (a) For sub. (2)(a) or (b) classes. For any class certified under sub. (2)(a) or (b), the court may direct appropriate notice to the class. (b) For sub. (2)(c) classes. For any class certified under sub. (2)(c), the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The No. 17-03 5 notice must clearly and concisely state in plain, easily understood language, all of the following: 1. The nature of the action. 2. The definition of the class certified. 3. The class claims, issues, or defenses. 4. That a class member may enter an appearance through an attorney if the member so desires. 5. That the court will exclude from the class any member who requests exclusion. 6. The time and manner for requesting exclusion. 7. The binding effect of a class judgment on members under sub. (5). (5) JUDGMENT. Whether or not favorable to the class, the judgment in a class action must do one of the following: (a) For any class certified under sub. (2)(a) or (b), include and describe those whom the court finds to be class members. (b) For any class certified under sub. (2)(c), include and specify or describe those to whom the notice under sub. (4) was directed, who have not requested exclusion, and whom the court finds to be class members. (6) PARTICULAR ISSUES. Notwithstanding ss. 805.05 (2) and 805.09 (2), when appropriate, an action may be brought or maintained as a class action with respect to particular issues. (7) SUBCLASSES. When appropriate, a class may be divided into subclasses that are each treated as a class under this rule. (8) CONDUCTING THE ACTION. No. 17-03 6 (a) In General. In conducting an action under this section, the court may issue orders that do any of the following: 1. Determine the course of proceedings or prescribe measures to prevent undue repetition or complication in presenting evidence or argument. 2. Require--to protect class members and fairly conduct the action--giving appropriate notice to some or all class members of any of the following: a. Any step in the action. b. The proposed extent of the judgment. c. The members' opportunity to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or to otherwise come into the action. 3. Impose conditions on the representative parties or on intervenors. 4. Require that the pleadings be amended to eliminate allegations about representation of absent persons and that the action proceed accordingly. 5. Deal with similar procedural matters. (b) Combining and amending orders. An order under sub. (8)(a) may be altered or amended from time to time and may be combined with an order under s. 802.10. (9) SETTLEMENT, VOLUNTARY DISMISSAL, OR COMPROMISE. The claims, issues, or defenses of a certified class may be settled, voluntarily dismissed, or compromised only with the court's approval. All of the following procedures apply to a proposed settlement, voluntary dismissal, or compromise: No. 17-03 7 (a) The court must direct notice in a reasonable manner to all class members who would be bound by the proposal. (b) If the proposal would bind class members, the court may approve it only after a hearing and on finding that it is fair, reasonable, and adequate. (c) The parties seeking approval must file a statement identifying any agreement made in connection with the proposal. (d) If the class action was previously certified under sub. (2)(c), the court may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual class members who had an earlier opportunity to request exclusion but did not do so. (e) Any class member may object to the proposal if it requires court approval under sub. (9); the objection may be withdrawn only with the court's approval. (10) DISPOSITION OF RESIDUAL FUNDS. (a) In this subsection: 1. "Residual Funds" means funds that remain after the payment of all approved class member claims, expenses, litigation costs, attorney fees, and other court-approved disbursements in an action under this section. 2. "WisTAF" means the Wisconsin Trust Account Foundation, Inc. (b) 1. Any order entering a judgment or approving a proposed compromise of a class action that establishes a process for identifying and compensating members of the class shall provide for disbursement of any residual funds. In class actions in which residual funds remain, not less than 50 percent of the residual funds shall be disbursed to WisTAF to support direct delivery of legal No. 17-03 8 services to persons of limited means in non-criminal matters. The circuit court may disburse the balance of any residual funds beyond the minimum percentage to WisTAF for purposes that have a direct or indirect relationship to the objectives of the underlying litigation or otherwise promote the substantive or procedural interests of members of the certified class. 2. This subsection does not prohibit the trial court from approving a settlement that does not create residual funds. (11) APPEALS. The court of appeals may permit an appeal from an order granting or denying class-action certification under s. 808.03 (2), if a petition is filed with the court of appeals as provided in s. 809.50. (12) CLASS COUNSEL. (a) Appointing class counsel. Unless a statute provides otherwise, a court that certifies a class must appoint class counsel. (b) 1. In appointing class counsel, the court must consider all of the following: a. The work counsel has done in identifying or investigating potential claims in the action. b. Counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action. c. Counsel's knowledge of the applicable law. d. The resources that counsel will commit to representing the class. 2. In appointing class counsel, the court may do any of the following: No. 17-03 9 a. Consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class. b. Order potential class counsel to provide information on any subject pertinent to the appointment and to propose terms for attorney fees and nontaxable costs. c. Include in the appointing order provisions about the award of attorney fees or nontaxable costs under sub. (13). d. Make further orders in connection with the appointment. (c) Standard for appointing class counsel. When one applicant seeks appointment as class counsel, the court may appoint that applicant only if the applicant is adequate under sub. (12)(a) and (d). If more than one adequate applicant seeks appointment, the court must appoint the applicant best able to represent the interests of the class. (d) Interim counsel. The court may designate interim counsel to act on behalf of a putative class before determining whether to certify the action as a class action. (e) Duty of class counsel. Class counsel must fairly and adequately represent the interests of the class. (13) ATTORNEY FEES AND NONTAXABLE COSTS. In a certified class action, the court may award reasonable attorney fees and nontaxable costs that are authorized by law or by the parties' agreement. All of the following procedures apply: (a) A claim for an award must be made by motion, subject to the provisions of this subsection, at a time the court sets. Notice of the motion must be served on all parties and, for motions by class counsel, directed to class members in a reasonable manner. No. 17-03 10 (b) A class member, or a party from whom payment is sought, may object to the motion. (c) The court may hold a hearing and must find the facts and state its legal conclusions under s. 805.17 (2). (d) The court may refer issues related to the amount of the award to a referee, as provided in s. 805.06. (14) PROHIBITION AGAINST CERTAIN CLASS ACTIONS. No claim may be maintained against the state or any other party under this section if the relief sought includes the refund of or damages associated with a tax administered by the state. Judicial Council Committee Notes By S. Ct. Order 17-03, [Public Domain Citation Number] (issued [Month, Day, Year], eff. July 1, 2018) the supreme court repealed and recreated s. 803.08. Recreated s. 803.08 is based on Rule 23 of the Federal Rules of Civil Procedure. Federal Rule 23 was adopted in its modern form in 1966, and it has been the subject of decades of careful review by the federal Advisory Committee on Civil Rules. The Judicial Council's intent was to craft a Wisconsin class action rule that tracks as closely as possible federal practice so that Wisconsin courts and practitioners can look to the well-developed body of federal case law interpreting Rule 23 for guidance. Additionally, the federal Advisory Committee Notes accompanying Rule 23 are instructive, though not binding, and should be consulted. To the extent that the language of s. 803.08 differs from federal Rule 23, the Committee's intent was to conform the federal rule to Wisconsin statutory drafting standards without changing the substantive meaning of any provision. Subsection (6), Particular issues. In Waters ex rel. Skow v. Pertzborn, 243 Wis. 2d 703 (2001), the Wisconsin Supreme Court held that the circuit court was barred by statute from ordering separate trials before different juries on the issues of liability and damages arising from No. 17-03 11 the same claim. The court's holding was based on Wis. Stats. ss. 805.05 (2) and 805.09 (2). Without deciding whether these rules would preclude a court from permitting a class action with respect to particular issues, the Committee has added the introductory phrase to this section to make it clear that such class actions are permitted. The inability to bring or maintain a class action with respect to particular issues would create an undesirable difference between Wisconsin practice and practice in the federal courts under Fed. R. Civ. P. 23(c)(4). Moreover, the Wisconsin Legislature has already adopted a former version of Rule 23(c)(4) as part of the procedure for class actions brought under the Wisconsin Consumer Act, in current s. 426.110 (10). (The procedures for class actions under that act are proposed for repeal as unnecessary after the adoption of revised s. 803.08.) Subsection (10), Disposition of residual funds, and sub. (14), Prohibition against certain class actions, are the only provisions in recreated s. 803.08 that depart from the federal rule. Federal Rule 23 does not contain a provision comparable to sub. (10), which was originally adopted by the Wisconsin Supreme Court as s. 803.08 (2), effective January 1, 2017. Federal Rule 23 also does not contain a provision comparable to sub. (14), which was added by 2011 Wis. Act 68 to prohibit class action suits against the state seeking tax refunds, effective March 1, 2012. Subsection (11), Appeals. Subsection (11) is modeled on F.R.C.P. 23(f). Interlocutory appeals specific to class certifications present unique considerations as compared to other appeals. The federal Advisory Committee Note 1998 amendment is instructive, though not binding, and should be consulted. SECTION 2. 426.110 (4m) of the statutes is created to read: 426.110 (4m) Actions commenced under this section shall be conducted under the procedures set forth in s. 803.08. Judicial Council Committee Note Repealed subs. (5) through (13) were procedural rules modeled on a previous version of Rule 23 of the Federal Rules of Civil Procedure. Recreated s. 803.08 is modeled No. 17-03 12 on the current version of Rule 23. The procedural provisions in s. 426.110 were repealed and replaced with the new procedures in s. 803.08 to maintain consistency in the statutes and to reflect current law. SECTION 3. 426.110 (5) through (13) of the statutes are repealed. SECTION 4. 426.110 (16) of the statutes is amended to read: (16) The administrator, whether or not a party to an action, shall bear the costs of notice except that the administrator may recover such costs from the defendant as provided in sub. (11). IT IS FURTHER ORDERED that these amendments to Wis. Stats. §§ 803.08 and 426.110 are effective July 1, 2018. IT IS FURTHER ORDERED that the rule adopted pursuant to this order shall apply to court proceedings commenced after the effective date of this rule and to any proceedings within a court proceeding then pending, except insofar as, in the opinion of the circuit court, application of the rule change would not be feasible or would work injustice, in which event the former rule applies. IT IS FURTHER ORDERED that the Judicial Council Committee Notes above are not adopted, but will be published and may be consulted for guidance in interpreting and applying these rules. IT IS FURTHER ORDERED that notice of the above amendments be given by a single publication of a copy of this order in the official publications designated in SCR 80.01, including the official publishers' online databases, and on the Wisconsin court system's web site. The State Bar of Wisconsin shall provide notice of this order. Dated at Madison, Wisconsin, this 21st day of December, 2017. BY THE COURT: Diane M. Fremgen Clerk of Supreme Court No. 17-03 13

2017 WI 109 SUPREME COURT OF WISCONSIN NOTICE This order is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 17-11 In the matter to amend SCRs 32.001, 32.02, and 32.04 (Continuing Education for Wisconsin Judiciary) FILED DEC 21, 2017 Diane M. Fremgen Clerk of Supreme Court Madison, WI The court, on its own motion, has determined that it is appropriate to amend Supreme Court Rules (SCR) 32.001, 32.02, and 32.04 pertaining to continuing education for appellate court judges and justices. In 1976, Supreme Court Rules set out requirements of continuing education for judges. At that time, the Supreme Court was the only appellate court in Wisconsin. In 1978, Wisconsin court reorganization created the Court of Appeals. Supreme Court Rule ch. 32 addresses judicial education today. Supreme Court Rule 32.02 requires a judge to earn 60 credits over a term of six years from approved educational programs, approximately ten credits per year. Supreme Court Rule 32.05 requires that five of those credits each year come from in-state educational programs. Typically, a judge can obtain two judicial education credits for attending an entire day of programing. No. 17-11 2 The duties of a circuit court judge and those of a justice or a Court of Appeals judge differ considerably. In that regard, only the Supreme Court has "superintending and administrative authority over all courts." Wis. Const. Art. VII, Section 3(1). Accordingly, justices would benefit from education that informs justices in assessing the court's effectiveness in those tasks. The Supreme Court "has appellate jurisdiction over all courts," Wis. Const. Art. VII, Section 3(2), and the Court of Appeals has appellate jurisdiction. Wis. Const. Art. VII, Section 5(3). Justices and Court of Appeals judges would benefit from programs that increase appellate judging skills. The duties mentioned above are just a few of the functions that a justice or Court of Appeals judge performs that circuit court judges do not. Those who serve the people of Wisconsin as appellate judges need judicial education that will assist them in completing the duties assigned to them by the Wisconsin Constitution. However, almost all of the judicial education programs offered by the Office of Judicial Education are focused on circuit court judging. This is understandable; there are 249 circuit court judges but only 23 appellate judges. In addition, during our in-state judicial education programs, justices often have to leave the presentation because a case being discussed is pending before the Supreme Court, either as a petition for review or as the result of the court having granted review. We value a skilled and knowledgeable judiciary, as do members of the State Bar of Wisconsin and the citizens whom we all serve. Our recent amendments set out below support, not undercut, that interest. No. 17-11 3 We amend SCR ch. 32 because taking time away from the tasks for which we justices and appellate judges were elected to perform in order to attend continuing educational programs that do not bear upon our judicial duties is neither a satisfactory approach to judicial education nor to judicial time management. The amendment does not mean that justices and appellate judges are no longer required to meet benchmarks for maintaining professional competence. All justices and judges must "maintain professional competence in" the law, as required by the Code of Judicial Conduct, SCR 60.04(1)(b); see also SCR ch. 60, Preamble to the Code of Judicial Conduct. Accordingly, IT IS ORDERED that, effective the date of this order, SECTION 1. Supreme Court Rule 32.001 is amended to read: 32.001 In this chapter, "judge" means a justice of the supreme court, judge of the court of appeals or judge of a court of record but not a justice of the supreme court or a judge of the court of appeals. SECTION 2. Supreme Court Rule 32.02 (3) is created to read: (3) Justices and appellate judges are encouraged but not required to attend and participate in national and in-state educational activities. SECTION 3. Supreme Court Rule 32.04 is amended to read: 32.04 During each 6-year period, a judge shall attend at least once the Wisconsin judicial college, the criminal law-sentencing institute and the prison tour. Credit earned for attendance at these programs is to be included as part of the required 60 credits. This rule does not apply to appellate judges. No. 17-11 4 IT IS ORDERED that notice of these amendments of Supreme Court Rules 32.001, 32.02, and 32.04 be given by a single publication of a copy of this order in the official publications designated in SCR 80.01, including the official publishers' online databases, and on the Wisconsin court system's web site. The State Bar of Wisconsin shall provide notice of this order. Dated at Madison, Wisconsin, this 21st day of December, 2017. BY THE COURT: Diane M. Fremgen Clerk of Supreme Court No. 17-11.ssa 5 SHIRLEY S. ABRAHAMSON, J. (dissenting). Judicial education requirements for all state court judges were originally adopted by this court on June 29, 1976, effective January 1, 1977.1 Why? Because all judges must "maintain professional competence in" the law. SCR 60.04(1)(b); see also SCR ch. 60, Preamble to the Code of Judicial Conduct. Hereafter, Supreme Court justices and Court of Appeals judges no longer are required to meet this benchmark for maintaining professional competence. They are not subject to any judicial education requirements whatsoever. All circuit court judges remain subject to the education requirements of SCR chapter 32, namely 60 credits per six-year period. See SCR 32.02. Commissioners of the Supreme Court and staff attorneys of the Court of Appeals remain subject to the 1 See In the Matter of a Supreme Court Rule Requiring Continuing Education for Wisconsin's Judiciary, 73 Wis. 2d xxvii. "Judge" as used in the 1976 Rule "means a justice of the Supreme Court, a judge of a court of record, and a commissioner of the Supreme Court." Rule 2. In 1976, the state court system consisted of a Supreme Court, circuit courts, and county courts. There was no court of appeals. For rules governing continuing judicial education for municipal court judges, see Supreme Court Rules (SCR) ch. 33, adopted on January 21, 1985, effective July 1, 1985, and amended thereafter. The Supreme Court Rules (SCR) appear in volume 6 of the 2015-16 Wisconsin Statutes. No. 17-11.ssa 6 same education requirements of SCR chapter 32 as circuit court judges. Justice requires that a judge keep pace with changes and developments in substantive and procedural law. That fact has not changed, yet today's court order does not explain why eliminating continuing judicial education requirements for justices of the Supreme Court and judges of the Court of Appeals is necessary or wise. I have concerns about the process the Court used for adopting this order and the substance of the order. The order to which this dissent is addressed was adopted by seven justices meeting in a closed conference room, talking and listening only to each other. Five justices voted in favor of the order——Chief Justice Patience D. Roggensack, Justice Annette K. Ziegler, Justice Michael Gableman, Justice Rebecca G. Bradley, and Justice Daniel Kelly. Two justices, Justice Ann Walsh Bradley and I, dissented. Before adoption of the order, the court did not consult with those who would be affected by the order, those knowledgeable about the history of judicial education and the effect of the order, or those who may have had other suggestions for the continuing education of Wisconsin Supreme Court justices and Court of Appeals judges such as the Judicial Education Committee.2 2 For composition of the Judicial Education Committee, see SCR 32.01. No. 17-11.ssa 7 The chances of enacting a wise order are, in my opinion, significantly decreased when the decision-making process rests on poor or inadequate information, and the court fails to consult with knowledgeable and concerned persons. I am not convinced that the seven justices have a monopoly on wisdom. With regard to the substance of the order, the order is not well thought out. The court has not carefully considered this order in the larger context of judicial education for all persons included in SCR chapter 323 and the financial implications of exempting justices and Court of Appeals judges.4 This court and the court of appeals review the work of circuit courts and should be aware of new issues Wisconsin courts are facing as well as new variations of old issues. The 3 If appellate judges, including appellate judges who have no prior trial or appellate judicial experience, cannot benefit from judicial education, why are staff to appellate judges required to comply with the same educational requirements as circuit judges? If appellate judges are no longer required to participate in Wisconsin continuing judicial education, why should the chief justice of the Supreme Court (or his or her designee) and the chief judge of the Court of Appeals (or his or her designee) continue as members of the Judicial Education Committee? See SCR 32.01. 4 One wonders whether the five justices plan to fund out-ofstate travel and course fees for out-of-state judicial education for justices and court of appeals judges with funds saved by the Court's elimination of per diem compensation to reserve judges for their required judicial education? See S. Ct. Order 17-08, 2017 WI 87 (issued Sept. 15, 2017, eff. Sept. 15, 2017) (Abrahamson, J., dissenting). At the recent judicial conference, the chief justice publicly stated that the saved funds could be used for the children's court improvement program, which is federally funded. No. 17-11.ssa 8 existing judicial education rule assists us in accomplishing this goal. On the basis of my experience with Wisconsin and out-ofstate sponsored judicial education, I conclude that the Wisconsin judicial education curriculum is important for all Wisconsin judges and justices and that the order errs in exempting Supreme Court justices and Court of Appeals judges from Wisconsin judicial education requirements. I have attended Wisconsin judicial education programs since I joined the Wisconsin Supreme Court in September 1976. Wisconsin judicial education is excellent for all judges and compares favorably to other states' and national judicial education programs. I am familiar with judicial education programs across the country. I favor the exposure of Wisconsin judges to education programs in other states, and I favor giving Wisconsin judges the opportunity to meet with judges from other states. We can learn from each other. But I note that programs for judges of trial and appellate courts sponsored by the National Judicial College and other educational institutions overlap with Wisconsin judicial education programs. For many years I have taught at the New Appellate Judges Seminar sponsored by New York University Law School's Institute of Judicial Administration. This annual one-week program offered to state, federal, and military judges serving in appellate courts across the country includes sessions on opinion writing, ethics, statutory interpretation, review of recent case No. 17-11.ssa 9 law, and alerts to new issues in the law——subjects also examined in Wisconsin judicial education programs. In sum, I do not consider myself or any member of the Supreme Court or Court of Appeals too smart or too experienced to stop learning. The court has seriously erred in adopting this order! Unfortunately, this precipitous order quickly follows on the heels of two other precipitous court orders issued in the last two months. Since the five justices closed administrative and rule-making conferences to the circuit court judges, court staff, and the public, they have adopted three orders without even attempting to obtain relevant and available information, without consulting those affected by the order and those knowledgeable about likely consequences of the order, and without giving any reasoned explanation for the order: (1) The order refusing to use funds appropriated to the court system to compensate staff of the Judicial Council, causing the termination of employment of the able staff.5 (2) The order immediately terminating per diem compensation for reserve judges fulfilling their judicial education requirement.6 5 See order dated Aug. 17, 2017 (Ann Walsh Bradley, J., dissenting). 6 See S. Ct. Order 17-08, 2017 WI 87 (issued Sept. 15, 2017, eff. Sept. 15, 2017) (Abrahamson, J., dissenting). No. 17-11.ssa 10 (3) This order immediately exempting Supreme Court justices and Court of Appeals judges from judicial education requirements. I am dismayed that the flawed and secretive process used in adopting these three orders has become the preferred way this court performs its administrative functions. It does not bode well for the future of the Wisconsin judicial system. For the foregoing reasons, I write separately. I am authorized to state that Justice ANN WALSH BRADLEY joins this dissent. No. 17-11.ssa 1

On May 4, 2017, Attorney April M. Southwick filed this rule petition on behalf of the Wisconsin Judicial Council. The petition asks the court to amend Wis. Stats. §§ 809.107 and 809.19 to clarify some ambiguity in the current rules of appellate procedure relating to the size, number, and timing of briefs in multiparty cases, including cases involving guardians ad litem. The court discussed this petition at open administrative rules conference on June 21, 2017 and voted to schedule a public hearing. On September 6, 2017, a letter was sent to interested persons seeking input. The court conducted a public hearing on November 6, 2017. Jennifer D. Andrews, Chief Staff Attorney for the Wisconsin Court of Appeals, presented the petition to the court on behalf of the Judicial Council. Diane M. Fremgen, Clerk of the Supreme Court and Court of Appeals, also appeared and spoke in favor of the petition. No. 17-05 2 At the ensuing closed rules conference, the court discussed the petition and voted unanimously to grant the petition and revise the rules as requested by the petitioner. IT IS ORDERED that: SECTION 1. 809.107 (6)(b) of the statutes is amended to read: 809.107 (6)(b) Respondent's brief. The respondent shall file a brief within 10 days after the service of the later of the appellant's brief or the guardian ad litem's brief, if the guardian ad litem takes the position of the appellant. SECTION 2. 809.107 (6)(c) of the statutes is amended to read: 809.107 (6)(c) Appellant's reply brief. The appellant shall file within 10 days after the service of the later of the respondent's brief or the guardian ad litem's brief, if the guardian ad litem takes the position of the respondent, a reply brief or statement that a reply brief will not be filed. SECTION 3. 809.107 (6)(d) of the statutes is amended to read: 809.107 (6)(d) Guardian ad litem's brief. If the guardian ad litem appointed under s. 48.235 (1)(c) for the child who is the subject of the proceeding takes the position of the appellant, the guardian ad litem's brief shall be filed within 15 days after the filing of the record on appeal with the court of appeals. If the guardian ad litem takes the position of a respondent, the guardian ad litem's brief shall be filed within 10 days after service of the appellant's brief. If the guardian ad litem chooses not to participate in an appeal, the guardian ad litem shall file with the court a statement of reasons for not participating under s. 48.235 (7) within 15 days of the filing of the notice of appeal. No. 17-05 3 SECTION 4. 809.19 (5) (title) of the statutes is amended to read: 809.19 (5) (title) CONSOLIDATED, AND JOINT, AND MULTIPLE PARTY APPEALS. SECTION 5. 809.19 (5) of the statutes is renumbered 809.19 (5)(a) and amended to read: 809.19 (5)(a) Each appellant in consolidated appeals or a joint appeal and each co-appellant may file a separate brief or a joint brief with another appellant or co-appellant. Appellants and coappellants represented by the same counsel shall file a joint brief. A joint brief must not exceed the page allowance for a single appellant. SECTION 6. 809.19 (5)(b) to (d) of the statutes are created to read: 809.19 (5)(b) In appeals involving more than one respondent, including consolidated cases, each respondent may file a separate brief or a joint brief with another respondent. Respondents represented by the same counsel shall file a joint brief. A joint brief must not exceed the page allowance for a single respondent. (c) When multiple appellants' briefs have been filed, only a single respondent's brief is allowed by each respondent or by respondents filing a joint brief. When multiple respondents' briefs have been filed, only a single reply brief is allowed by an appellant or co-appellant or by appellants and co-appellants who filed a joint brief. (d) If separate briefs are filed by multiple appellants or coappellants, the time for filing and serving the respondent's brief shall not commence until all briefs on behalf of all appellants and co-appellants have been filed. If separate briefs are filed by No. 17-05 4 multiple respondents, the time for filing and serving the reply brief shall not commence until all briefs on behalf of all respondents have been filed. SECTION 7. 809.19 (6)(g) of the statutes is created to read: 809.19 (6)(g) Subsection (5) applies to appeals involving multiple appellants-cross respondents or respondents-cross appellants. SECTION 8. 809.19 (8m) of the statutes is amended to read: 809.19 (8m) GUARDIAN AD LITEM BRIEF. If the guardian ad litem chooses to participate in an appeal and takes the position of an appellant, the guardian ad litem's brief shall be filed within 40 days after the filing in the court of the record on appeal. If the guardian ad litem chooses to participate in an appeal and takes the position of a respondent, the guardian ad litem's brief shall be filed within 30 days after service of the appellant's brief. In an appeal related to the termination of parental rights, a guardian ad litem shall follow the filing procedures set forth under s. 809.107(6)(d). If an unpublished opinion is cited under s. 809.23(3) (a) or (b), a copy of the opinion shall be provided in an appendix to the brief. If the guardian ad litem chooses not to participate in an appeal of an action or proceeding, the guardian ad litem shall file with the court a statement of reasons for not participating within 20 days after the filing of the appellant's brief. The time for filing and serving the brief due after the guardian ad litem's brief shall not commence until all briefs of the parties in the position taken by the guardian ad litem have been filed. No. 17-05 5 IT IS FURTHER ORDERED that these amendments to Wis. Stat. §§ 809.107 and 809.19 are effective July 1, 2018 and shall apply to appeals filed on or after the effective date of this rule. IT IS FURTHER ORDERED that notice of the above amendments be given by a single publication of a copy of this order in the official publications designated in SCR 80.01, including the official publishers' online databases, and on the Wisconsin court system's web site. The State Bar of Wisconsin shall provide notice of this order. Dated at Madison, Wisconsin, this 9th day of November, 2017. BY THE COURT: Diane M. Fremgen Clerk of Supreme Court

2017 WI 92 SUPREME COURT OF WISCONSIN NOTICE This order is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 16-02A In the matter to amend Wisconsin Statutes §§ 901.07, 906.08, 906.09 and create Wisconsin Statute § 906.16 FILED OCT 11, 2017 Diane M. Fremgen Clerk of Supreme Court Madison, WI This order pertains to an amended rule petition. On April 19, 2016, Attorney April M. Southwick filed a rule petition on behalf of the Wisconsin Judicial Council asking this court to amend Wis. Stats. §§ 901.07 (Remainder of or related writings or recorded statements), 906.08 (Evidence of character and conduct of witness), and 906.09 (Impeachment by evidence of conviction of crime or adjudication of delinquency), and to create Wis. Stat. § 906.16 (a new "Bias rule").1 1 This rule petition derives from a multi-year study of Wisconsin's Rules of Evidence conducted by the Wisconsin Judicial Council. The Judicial Council tasked its Evidence & Civil Procedure Committee with the project. [cont.] No. 16-02A 2 The court conducted a public hearing on October 24, 2016. The court discussed the petition before voting to return the petition to the Judicial Council for revisions, by order dated January 20, 2017. That order sets forth several of the court's specific questions and concerns. On March 23, 2017, the Wisconsin Judicial Council filed this amended rule petition in response to the court's questions and concerns. The amended petition was accompanied by a supporting memorandum that attached, as Appendix 1, a memorandum to the Judicial In February 2015, the Judicial Council circulated proposed amendments to and sought feedback from potentially interested groups, including: the State Bar of Wisconsin; Milwaukee County Bar Association; Dane County Bar Association; Western District of Wisconsin Bar Association; Eastern District of Wisconsin Bar Association; Wisconsin Association for Justice; Wisconsin Defense Counsel; Wisconsin State Public Defender's Office; Wisconsin Department of Justice; Wisconsin Committee of Chief Judges; Wisconsin Judicial Conference Legislative Committee; Wisconsin Court of Appeals Judges; Wisconsin Association of Criminal Defense Attorneys; Wisconsin District Attorneys Association; Wisconsin Association of State Prosecutors; Professor Keith A. Findley, University of Wisconsin Law School; and Professor Daniel D. Blinka, Marquette University Law School. The State Bar also published an article on the proposed changes to the evidence rules, including a notice to its readership that public feedback and comments were invited by the Wisconsin Judicial Council. No objections to the proposed amendments were received. A question from the Committee of Chief Judges resulted in a recommendation to make an additional minor amendment to one of the rules. This petition, as amended, is the culmination of part of the Judicial Council's project. No. 16-02A 3 Council from Professor Daniel D. Blinka, Marquette University Law School. The court discussed the amended petition at an open administrative rules conference on May 18, 2017, and voted to schedule a public hearing. On July 18, 2017, the court sent a letter to interested persons seeking input. On August 15, 2017, the court issued an order scheduling this matter for a public hearing. The court conducted a public hearing on September 25, 2017. Attorney Thomas L. Shriner, Chair of the Judicial Council's Evidence and Civil Procedure Committee, presented the petition to the court on behalf of the Judicial Council. At the ensuing closed rules conference, the court discussed the petition and voted unanimously to grant the amended petition and revise the rules as requested by the petitioner.2 The court recognizes the extensive work this petition entailed and expresses its appreciation to the Judicial Council and to all who offered comment or otherwise contributed to this matter. Therefore, IT IS ORDERED that: SECTION 1. 901.07 (title) of the statutes is amended to read: 901.07. Remainder of or related writings or recorded statements. SECTION 2. 901.07 of the statutes is amended to read: 901.07. Remainder of or related writings or statements. When any part of a writing or recorded statement or part thereof, whether 2 The vote to approve the proposed amendment to Wis. Stat. § 901.07 was 5:2. Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley stated they would delete "whether recorded or unrecorded" as undefined terms that might cause confusion. No. 16-02A 4 recorded or unrecorded, is introduced by a party, an adverse party may require the party at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it to provide context or prevent distortion. SECTION 3. Judicial Council Note to 901.07 of the statutes is created to read: JUDICIAL COUNCIL NOTE This amendment is consistent with State v. Eugenio, 219 Wis. 2d 391, 410, 579 N.W.2d 642, 651 (1998), which acknowledged that the rule of completeness is applicable to oral testimony, and with State v. Anderson, 230 Wis. 2d 121, 600 N.W.2d 913 (Ct. App. 1999), review denied, 230 Wis. 2d 275, 604 N.W.2d 573 (1999), which provided guidance on how, and when, to apply the rule of completeness. "The rule of completeness, however, should not be viewed as an unbridled opportunity to open the door to otherwise inadmissible evidence. Under the rule of completeness the court has discretion to admit only those statements which are necessary to provide context and prevent distortion. The circuit court must closely scrutinize the proffered additional statements to avert abuse of the rule ... '[A]n out-of-court statement that is inconsistent with the declarant's trial testimony does not carry with it, like some evidentiary Trojan Horse, the entire regiment of other out-of-court statements that might have been made contemporaneously.'" Eugenio, 219 Wis. 2d at 412 (citations omitted). SECTION 4. 906.08 (2) of the statutes is amended to read: 906.08 (2) SPECIFIC INSTANCES OF CONDUCT. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness's credibility character for truthfulness, other than a conviction of a crime or an adjudication of delinquency as provided No. 16-02A 5 in s. 906.09, may not be proved by extrinsic evidence. They may, however, subject to s. 972.11 (2), if probative of truthfulness or untruthfulness and not remote in time, be inquired into on crossexamination of the witness or on cross−examination of a witness who testifies to his or her character for truthfulness or untruthfulness. SECTION 5. 906.08 (3) of the statutes is amended to read: 906.08 (3) TESTIMONY BY ACCUSED OR OTHER WITNESSES. The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the privilege against self-incrimination when examined with respect to matters which relate only to credibility character for truthfulness. SECTION 6. Judicial Council Note to 906.08 of the statutes is created to read: JUDICIAL COUNCIL NOTE The following federal Advisory Committee Note regarding the 2003 amendment to Fed. R. Evid. 608 is instructive, though not binding, in understanding the scope and purpose of the amendments to s. 906.08 (2) and (3). The Rule has been amended to clarify that the absolute prohibition on extrinsic evidence applies only when the sole reason for proffering that evidence is to attack or support the witness' character for truthfulness. See United States v. Abel, 469 U.S. 45 (1984); United States v. Fusco, 748 F.2d 996 (5th Cir. 1984) (Rule 608(b) limits the use of evidence "designed to show that the witness has done things, unrelated to the suit being tried, that make him more or less believable per se"); Ohio R.Evid. 608(b). On occasion the Rule's use of the overbroad term "credibility" has been read "to bar extrinsic evidence for bias, competency and contradiction impeachment since they too deal with credibility." American Bar Association Section of Litigation, Emerging Problems Under the Federal Rules of No. 16-02A 6 Evidence at 161 (3d ed. 1998). The amendment conforms the language of the Rule to its original intent, which was to impose an absolute bar on extrinsic evidence only if the sole purpose for offering the evidence was to prove the witness' character for veracity. See Advisory Committee Note to Rule 608(b) (stating that the Rule is "[i]n conformity with Rule 405, which forecloses use of evidence of specific incidents as proof in chief of character unless character is in issue in the case ... "). By limiting the application of the Rule to proof of a witness' character for truthfulness, the amendment leaves the admissibility of extrinsic evidence offered for other grounds of impeachment (such as contradiction, prior inconsistent statement, bias and mental capacity) to Rules 402 and 403. See, e.g., United States v. Winchenbach, 197 F.3d 548 (1st Cir. 1999) (admissibility of a prior inconsistent statement offered for impeachment is governed by Rules 402 and 403, not Rule 608(b)); United States v. Tarantino, 846 F.2d 1384 (D.C. Cir. 1988) (admissibility of extrinsic evidence offered to contradict a witness is governed by Rules 402 and 403); United States v. Lindemann, 85 F.3d 1232 (7th Cir. 1996) (admissibility of extrinsic evidence of bias is governed by Rules 402 and 403). It should be noted that the extrinsic evidence prohibition of Rule 608(b) bars any reference to the consequences that a witness might have suffered as a result of an alleged bad act. For example, Rule 608(b) prohibits counsel from mentioning that a witness was suspended or disciplined for the conduct that is the subject of impeachment, when that conduct is offered only to prove the character of the witness. See United States v. Davis, 183 F.3d 231, 257 n.12 (3d Cir. 1999) (emphasizing that in attacking the defendant's character for truthfulness "the government cannot make reference to Davis's forty-four day suspension or that Internal Affairs found that he lied about" an incident because "[s]uch evidence would not only be hearsay to the extent it contains assertion of fact, it would be inadmissible extrinsic evidence under Rule 608(b)"). See also Stephen A. Saltzburg, Impeaching the Witness: Prior Bad Acts and Extrinsic Evidence, 7 Crim. Just. 28, 31 (Winter 1993) ("counsel should not be permitted to circumvent the no-extrinsic-evidence provision by tucking a third person's opinion about prior acts into a question asked of the witness who has denied the act"). No. 16-02A 7 For purposes of consistency the term "credibility" has been replaced by the term "character for truthfulness" in the last sentence of subdivision (b). The term "credibility" is also used in subdivision (a). But the Committee found it unnecessary to substitute "character for truthfulness" for "credibility" in Rule 608(a), because subdivision (a)(1) already serves to limit impeachment to proof of such character. SECTION 7. 906.09 (1) of the statutes is amended to read: 906.09 (1) GENERAL RULE. For the purpose of attacking the credibility character for truthfulness, of a witness, evidence that the witness has been convicted of a crime or adjudicated delinquent is admissible. may be asked whether the witness has ever been convicted of a crime or adjudicated delinquent and the number of such convictions or adjudications. The party cross-examining the witness is not concluded by the witness's answer. If the witness's answers are consistent with the previous determination of the court under sub. (3), then no further inquiry may be made unless it is for the purpose of rehabilitating the credibility of the witness witness's character for truthfulness. SECTION 8. 906.09 (2) of the statutes is renumbered 906.09 (2) (intro.) and amended to read: (2) EXCLUSION. Evidence of a conviction of a crime or an adjudication of delinquency may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Factors for a court to consider in evaluating whether to admit evidence of prior convictions for the purpose of attacking a witness's truthful character include: SECTION 9. 906.09 (2) (a) to (f) of the statutes are created to read: No. 16-02A 8 (a) The lapse of time since the conviction. (b) The rehabilitation or pardon of the person convicted. (c) The gravity of the crime. (d) The involvement of dishonesty or false statement in the crime. (e) The frequency of the convictions. (f) Any other relevant factors. SECTION 10. 906.09 (3) of the statutes is amended to read: (3) ADMISSIBILITY OF CONVICTION OR ADJUDICATION. No question inquiring with respect to a conviction of a crime or an adjudication of delinquency, nor introduction of evidence with respect thereto, shall be permitted until the judge court determines pursuant to s. 901.04 whether the evidence should be excluded. SECTION 11. Judicial Council Note to 906.09 of the statutes is created to read: JUDICIAL COUNCIL NOTE The amendment to sub. (1) is intended to conform the rule more closely to current practice. It is consistent with Nicholas v. State, 49 Wis. 2d 683, 183 N.W.2d 11 (1971) and State v. Bailey, 54 Wis. 2d 679, 690, 196 N.W.2d 664, 670 (1972). The following federal Advisory Committee Note regarding the 2006 amendment to federal Rule 609 is instructive. The amendment also substitutes the term "character for truthfulness" for the term "credibility" in the first sentence of the Rule. The limitations of Rule 609 are not applicable if a conviction is admitted for a purpose other than to prove the witness's character for untruthfulness. See, e.g., United States v. Lopez, 979 F.2d 1024 (5th Cir. No. 16-02A 9 1992) (Rule 609 was not applicable where the conviction was offered for purposes of contradiction). The amendment to sub. (2) continues to recognize the longstanding principle that this statutory exclusion is a "particularized application" of s. 904.03, State v. Gary M.B., 2004 WI 33, ¶21, 270 Wis. 2d 62, 81, 676 N.W.2d 475, 485, and codifies the holding in Gary M.B. that circuit courts are required, in determining whether to admit or exclude prior convictions, to examine a number of factors. Majority op., ¶21; Chief Justice Abrahamson's dissent, ¶56; Justice Sykes' dissent, ¶85, State v. Kuntz, 160 Wis. 2d 722, 752, 467 N.W.2d 531 (1991); State v. Kruzycki, 192 Wis. 2d 509, 525, 531 N.W.2d 429 (Ct. App. 1995); State v. Smith, 203 Wis. 2d 288, 295-96, 553 N.W.2d 824 (Ct. App. 1996). However, the committee recognizes that in conducting the balancing test, the circuit court need only consider those factors applicable to the case. Kuntz, 160 Wis. 2d at 753, 467 N.W.2d 531. Subsection (2) does not include expungement because evidence of a conviction expunged under Wis. Stat. § 973.015(1) is not admissible under this rule. State v. Anderson, 160 Wis. 2d 435, 437 (Ct. App. 1991). In State v. Gary M.B., the majority observed that "in the future, it would be prudent for circuit courts to explicitly set forth their reasoning in ruling on § 906.09(2) matters in order to demonstrate that they considered the relevant balancing factors applicable in the case before them." 2004 WI 33, ¶35, 270 Wis. 2d 62, 87-88, 676 N.W.2d 475, 488. Chief Justice Abrahamson noted, "[t]he purposes of requiring a circuit court to perform this process on the record are many. The process increases the probability No. 16-02A 10 that a circuit court will reach the correct result, provides appellate courts with a more meaningful record to review, provides the parties with a decision that is comprehensible, and increases the transparency and accountability of the judicial system." Chief Justice Abrahamson's dissent, ¶48. SECTION 12. 906.16 of the statutes is created to read: 906.16. Bias of witness. For the purpose of attacking the credibility of a witness, evidence of bias, prejudice, or interest of the witness for or against any party to the case is admissible. SECTION 13. Judicial Council Note to 906.16 of the statutes is created to read: JUDICIAL COUNCIL NOTE This rule is adopted from the Uniform Rules of Evidence 616, which codifies United States v. Abel, 469 U.S. 45, 105 S. Ct. 465, 83 L.Ed.2d 450 (1984). The rule codifies the common law in Wisconsin. See State v. Long, 2002 WI App 114, ¶18, 255 Wis. 2d 729, 647 N.W.2d 884 ("Wisconsin law is in accordance with the principle set forth in Abel."). The committee viewed codification of the rule as useful, however, to reiterate that bias, prejudice, or interest of a witness is a fact of consequence under Wis. Stat. § 904.01. Further, the rule should make it clear that bias, prejudice, or interest is not a collateral matter, and can be established by extrinsic evidence. State v. Williamson, 84 Wis. 2d 370, 383, 267 N.W.2d 337, 343 (1978) ("The bias or prejudice of a witness is not a collateral issue and extrinsic evidence may be used to prove that a witness has a motive to testify falsely. . . . The extent of the inquiry with No. 16-02A 11 respect to bias is a matter within the discretion of the trial court."). IT IS FURTHER ORDERED that the effective date of this order is January 1, 2018. IT IS FURTHER ORDERED that the Judicial Council Notes to Wis. Stats. §§ 901.07, 906.08, 906.09 and 906.16 are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule. IT IS FURTHER ORDERED that the rule adopted pursuant to this order shall apply to court proceedings commenced after the effective date of this rule and to any proceedings within a court proceeding then pending, except insofar as, in the opinion of the circuit court, application of the rule change would not be feasible or would work injustice, in which event the former rule applies. IT IS FURTHER ORDERED that notice of this amendment of Wis. Stats. §§ 901.07, 906.08, 906.09 and creation of Wis. Stat. § 906.16 be given by a single publication of a copy of this order in the official publications designated in SCR 80.01, including the official publishers' online databases, and on the Wisconsin court system's web site. The State Bar of Wisconsin shall provide notice of this order. Dated at Madison, Wisconsin, this 11th day of October, 2017. BY THE COURT: Diane M. Fremgen Clerk of Supreme Court No. 16-02A 12

2017 WI 88 SUPREME COURT OF WISCONSIN NOTICE This order is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 16-09 In the matter of the petition to amend SCR 40.05 FILED SEP 27, 2017 Diane M. Fremgen Clerk of Supreme Court Madison, WI On November 25, 2016, the Stockbridge-Munsee Community (SMC) by President Shannon Holsey, filed a rule petition asking the court to amend Supreme Court Rule (SCR) 40.05 to allow any legal services with any federally recognized Indian tribe be "counted" for purposes of SCR 40.05, the supreme court rule governing admission to practice law in Wisconsin based on an applicant's admission to practice law and active practice of law in a qualifying jurisdiction. The issue, essentially, is that the plain language of the existing rule refers to the practice of law "in a state or territory, the federal government or the District of Columbia." It does not explicitly encompass federally recognized Indian tribes. See also In re Admission of Helgemo, 2002 WI 57, 253 Wis. 2d 82, 644 N.W.2d 912. The court discussed the petition at open rules conference on January 12, 2017, and voted to seek additional information from the petitioner and written comment from the Board of Bar Examiners (BBE), No. 16-09 2 the agency that administers SCR 40.05. Those responses were filed on March 10, 2017 and April 24, 2017. The BBE supported the petition in concept, but suggested different language. The court sent letters soliciting public comment on March 21, 2017. The court discussed the matter in open administrative conference on May 18, 2017, raised some additional questions, and voted to extend the period for written comment and schedule a public hearing. Another letter seeking additional comment was sent July 18, 2017. The court has received letters in support of the petition: from Wisconsin Governor Scott Walker; Francis Deisinger, then President of the State Bar of Wisconsin, and the State Bar's Indian Law Section; Attorney Michael S. Hines; and the Honorable Eugene Whitefish, President of the Wisconsin Tribal Judges Association. In addition, on April 13, 2017, the Honorable Neal A. Nielsen III, Chair of the Wisconsin State-Tribal Justice Forum (Forum), filed a response expressing support for the petition and on July 21, 2017, sent a letter proposing an amendment to the petition to include service as a tribal judge. The BBE and the SMC considered the court's questions, accepted the Forum's suggestion, and reached agreement on revised language for the proposal. This agreement was memorialized in a letter dated August 10, 2017, which was placed on the court's rules website. The court conducted a public hearing on the petition on September 25, 2017. Attorney Dennis Puzz, Jr., General Counsel, SMC, presented the petition to the court. BBE Director Jacquelynn Rothstein and Attorney Nicole M. Homer, Chair, Indian Law Section, State Bar of Wisconsin, also appeared in support of the petition. Following the No. 16-09 3 public hearing the court discussed the matter in closed conference and voted to grant the petition, subject to the revisions agreed upon by the SMC and the BBE, and some additional changes approved by the court. IT IS ORDERED that: SECTION 1. Supreme Court Rule 40.05(1)(b) is amended to read: (b) Proof that the applicant has been substantially engaged in the practice of law in a state or territory, the federal government,or the District of Columbia, or a federally recognized Indian tribe for 3 years within the last 5 years prior to filing application for admission. A lawyer may satisfy this requirement by proof of practice in more than a single jurisdiction and under more than one provision of this rule. SECTION 2. Supreme Court Rule 40.05(2) is amended to read: (2) Legal service as corporate counsel or legal service as a trust officer, or lawfully before the courts or administrative agencies of a state or territory, the federal government,or the District of Columbia, or a federally recognized Indian tribe, if conducted in compliance with the rules where the applicant was admitted to practice law, is the practice of law for the purposes of this section. SECTION 3. Supreme Court Rule 40.05(3)(e) is created to read: (e) Legal service in any federally recognized Indian tribe. SECTION 4. Supreme Court Rule 40.05(3)(f) is created to read: (f) Service as a judge for any federally recognized Indian tribe. No. 16-09 4 SECTION 5. A Comment to Supreme Court Rule 40.05 is created to read: COMMENT Supreme Court Rule 40.05 was amended by S. Ct. Order 16-09, 2017 WI 88 (issued Sep. 27, 2017, eff. Sep. 27, 2017) to broadly include, for purposes of this rule, legal practice associated with federally recognized Indian tribes. The amendment encompasses and is not limited to: counsel employed by a federally recognized Indian tribe; and counsel who are not necessarily employed by a tribe but represent tribal members, practice lawfully before tribal courts, or serve as a judge for a federally recognized Indian tribe. IT IS FURTHER ORDERED that these amendments to SCR 40.05 are effective the date of this order and shall apply, to the extent practicable, to bar applications pending on this date. IT IS FURTHER ORDERED that the Comment above is not adopted, but will be published and may be consulted for guidance in interpreting and applying this rule. IT IS FURTHER ORDERED that notice of the above amendments be given by a single publication of a copy of this order in the official publications designated in SCR 80.01, including the official publishers' online databases, and on the Wisconsin court system's web site. The State Bar of Wisconsin shall provide notice of this order. Dated at Madison, Wisconsin, this 27th day of September, 2017. BY THE COURT: Diane M. Fremgen Clerk of Supreme Court No. 16-09 5

2017 WI 87 SUPREME COURT OF WISCONSIN NOTICE This order is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 17-08 In the matter of the amendment to SCR 32.08 (Reserve Judges) FILED SEP 15, 2017 Diane M. Fremgen Clerk of Supreme Court Madison, WI The court, on its own motion, has determined that it is appropriate to amend Supreme Court Rule (SCR) 32.08(2) pertaining to reserve judges. Accordingly, IT IS ORDERED that, effective the date of this order, Supreme Court Rule 32.08(2) is amended to read as follows: (2) A reserve judge is entitled to the payment of a per diem and reimbursement of expenses incurred in attending judicial education programs as required or permitted by sub. (1) or approved under sub. (3), as well as in attending the annual meeting of the Wisconsin Judicial Conference during the calendar year of actual service, whether or not judicial education credits for attending the annual meeting are claimed. IT IS FURTHER ORDERED that notice of this amendment be given by a single publication of a copy of this order in the official publications designated in SCR 80.01, including the official No. 17-08 2 publishers' online databases, and on the Wisconsin court system's web site. The State Bar of Wisconsin shall provide notice of this order. Dated at Madison, Wisconsin, this 15th day of September, 2017. BY THE COURT: Diane M. Fremgen Clerk of Supreme Court No. 17-08.ssa 3 ¶1 SHIRLEY S. ABRAHAMSON, J. (dissenting). Hereafter, retired judges are not to be compensated for attending judicial education courses that this court requires them to attend to be eligible for appointment as a reserve judge. See order amending SCR 32.08(1).1 Retired judges are assigned as reserve judges when additional judges are needed to serve as circuit court judges.2 ¶2 The rule change stated in the order was adopted in a closed conference without consultation with those currently affected by the order and those currently knowledgeable about the likely consequences of the order. ¶3 The court requires judicial education for retired judges who will be assigned to judicial functions because our legal system is based on the principle of a competent judiciary. The Code of Judicial Conduct explicitly requires that a judge shall "maintain professional competence in" the law. SCR 60.04(1)(b); see also SCR ch. 60, Preamble to the Code of Judicial Conduct. Indeed, justice requires that a judge keep pace with changes and developments in substantive and procedural law. 1 The Supreme Court Rules (SCR) appear in volume 6 of the 2015-16 Wisconsin Statutes. 2 Reserve judges also may take part in the court of appeals. No. 17-08.ssa 4 ¶4 Thus, this court requires a retired judge to earn a minimum of 5 credits of judicial education per year, that is, to attend 15 hours of judicial education programs per year, to be eligible to perform judicial assignments as a reserve judge. This court requires active judges to earn 10 judicial education credits each year. ¶5 As a result of this order, a retired judge will not be compensated with per diem payments for time spent attending judicial education programs required to qualify for judicial assignment as a reserve judge. ¶6 It appears these per diem payments were adopted by the court in the early 1990s on the recommendation of a reserve judge committee. When the legislature reduced appropriations to the court system (and imposed an $11 million lapse), the thenchief judges and the then-Director of State Courts apparently favored in 2014 the elimination of the per diem payments. ¶7 And how did the supreme court's elimination of the per diem payments come about in late 2017 when no lapse exists? In a closed conference room, with the seven justices talking and No. 17-08.ssa 5 listening only to themselves, five justices adopted this amendment reducing the compensation of retired judges.3 ¶8 In adopting this order, the justices have not consulted with others in the judicial system who by nature of their positions have currently useful information or are currently explicitly charged with participating with the court in fiscal matters. These include:  The Director of State Courts.4  The Deputy Director of Management Services.  District Court Administrators.  Chief Judges.5  The Committee of Chief Judges.  The presiding judge in each county.  Circuit Court Judges.  The Planning and Policy Advisory Committee (PPAC).6  The Supreme Court Finance Committee.7 3 Indeed, these five justices (over my dissent and that of Justice Ann Walsh Bradley) changed court procedure to avoid public input on administrative matters and to bar the public from court decision-making on judicial administrative matters. See IOP IV. B. (revised June 21, 2017). 4 See SCR 70.01(2)(a),(b), (e),(f)). 5 See SCR 70.193(a). 6 See SCR 70.14(4)(6), 7 See SCR 70.12(5)(6), SCR 70.125. No. 17-08.ssa 6  The Trial Judges' Association.  The Reserve Judges' Association. ¶9 The justices could easily have waited to discuss this matter of per diem reserve judge compensation with reserve and active judges at the judicial conference meeting to be held in November 2017, a few weeks from now.8 ¶10 As I have explained above, my primary concern is with the process used in adopting this order. The chances of making a wise order are, in my opinion, significantly decreased when the decision making process rests on poor or inadequate information. ¶11 Unfortunately, this order quickly follows on the heels of a court order issued on August 17, 2017, barring court funds to support the Judicial Council. That August 17, 2017 order was "precipitous," "made on impulse and without full knowledge of the facts," and made without "consultation with the Judicial Council."9 Two orders issued within a month of each other based on poor or inadequate information! ¶12 In addition to process, I am concerned about the substance of the order, that is, I am concerned about the 8 See SCR 70.15. 9 See Supreme Court Order addressed to Secretary Scott Neitzel, Secretary Department of Administration, dated August 17, 2017, Justice Ann Walsh Bradley dissenting. No. 17-08.ssa 7 beneficial and deleterious effects of this order on the litigants seeking justice in our courts. I would think the best course of action would be a court study and analysis first and action thereafter. ¶13 All existing judicial programs should be evaluated for continued usefulness, and expenditures of taxpayer funds should be decreased to the extent possible. To this end, the court should determine whether the money saved by eliminating the per diem compensation of reserve judges will be used to accomplish a better public purpose than is accomplished by the payment of a per diem. ¶14 Adopting this order with the benefit of adequate facts and after consultation with knowledgeable, concerned persons would avoid any perception that the order is a retaliatory measure taken by the five justices against reserve judges for their bringing Rule Petition 17-01 to this court seeking a change in the rules governing recusal of justices and judges in adjudicating matters.10 ¶15 It appears that monies saved by not funding existing programs may be used to increase the compensation of justices 10 Recusal is a very controversial topic in this court. The rule petition on recusal was rejected without a public hearing, contrary to the court's usual procedure. No. 17-08.ssa 8 and judges.11 For example, the legislature has been requested to allow funds allotted for salary increases for court staff to be used instead for judicial salary increases.12 ¶16 In sum, in a one-month period the court has adopted two orders without getting available information and without consulting with those affected by the order and those knowledgeable about the likely consequences of the order. ¶17 The process used in adopting these two orders is not a sign of good things to come! I am dismayed to think that this flawed process might become the way this court will perform its administrative functions in the future. ¶18 For the foregoing reasons, I write separately. ¶19 I am authorized to state that Justice ANN WALSH BRADLEY joins this dissent. 11 To be clear, the court system over the years has made a good case for increased judicial compensation. 12 The chief justice requested the legislature "to use any general wage adjustment funding calculated for non-judicial court staff [to be used] instead for judicial salary increase." See Legislative Fiscal Bureau Paper #590 to Joint Committee on Finance at 13-14 (May 1, 2017). No. 17-08.ssa 1

SUPREME COURT OF WISCONSIN No. 17-01 In re rule for recusal when a party or lawyer has made a large campaign contribution. FILED JUN 30, 2017 Diane M. Fremgen Clerk of Supreme Court Madison, WI On January 11, 2017, a rule petition was filed asking the court to amend SCR Chapter 60 (Judicial Code) to change the standard for which judicial recusal or disqualification is required, based on campaign contributions or assistance to the judge from a party, lawyer or through an organization making an independent expenditure. The petition also sought Supreme Court assistance in obtaining amendments of the Wisconsin Constitution so that Court of Appeals judges or retired Supreme Court justices could replace Supreme Court justices who were required to recuse or were disqualified under the proposed amendments to SCR Chapter 60. The petition was initially placed on the court's March 16, 2017 open rules conference agenda. On March 14, 2017, the court received correspondence from the Wisconsin Institute for Law & Liberty, Inc. (WILL), requesting the court remove the matter from the agenda to afford WILL an opportunity to provide a substantive comment on the petition, prior to the court's initial discussion. Several other written comments also were filed. The matter was removed from the No. 17-01 2 March 16, 2017 agenda and, on March 21, 2017, a letter was sent to the standard list of interested persons, advising them that the petition would be placed on the court's April 20, 2017 open rules conference agenda for preliminary discussion. The court stated that it would accept and consider written comments on the petition received by April 7, 2017. The court received written comments in support of the petition from: Wisconsin Justice Initiative, Campaign Legal Center, Brennan Center for Justice, Wisconsin Democracy Campaign, One Wisconsin Now, American Civil Liberties Union of Wisconsin, Common Cause of Wisconsin, Wisconsin Voices, League of Women Voters of Wisconsin, and correspondence from individual citizens. The court received written comments in opposition to the petition from: Curtis LaSage, Jr., retired Justice Jon P. Wilcox on behalf of retired members of the Wisconsin judiciary, and the Wisconsin Bankers Association. WILL filed a 30 page response addressing numerous constitutional concerns affected by the proposed amendment to SCR Ch. 60. The petitioners also filed a responsive statement as well as a response to technical and drafting comments made by the Legislative Reference Bureau. On Thursday, April 20, 2017, the court met in open administrative rules conference to discuss the petition. Justice Shirley S. Abrahamson moved to schedule a public hearing, seconded by Justice Ann Walsh Bradley. The court discussed the motion. It failed on a vote of 5:2 (Chief Justice Patience Drake Roggensack, Justices Annette Kingsland Ziegler, Michael J. Gableman, Rebecca No. 17-01 3 Grassl Bradley, and Daniel Kelly opposed). Justice Ann Walsh Bradley then moved to adopt the petition without holding a public hearing, seconded by Justice Shirley S. Abrahamson. The court discussed the motion. The motion failed on a vote of 5:2 (Chief Justice Patience Drake Roggensack, Justices Annette Kingsland Ziegler, Michael J. Gableman, Rebecca Grassl Bradley, and Daniel Kelly opposed). Justice Annette Kingsland Ziegler then moved to deny the petition, seconded by Justice Rebecca Grassl Bradley, which motion was based in part on constitutional concerns caused by the petition's proposed amendment to the Wisconsin Constitution over which the court has no control and the real potential that granting the petition could preclude Supreme Court review in some cases. Additionally, the petition presumes, as a categorical matter, that the judges and justices of this state are incapable of fulfilling their oaths to "administer justice without respect to persons" and to "faithfully and impartially discharge the duties of [their] office." This is an entirely unwarranted presumption and we will not entertain it. After an hour of discussion, the court denied the petition by a vote of 5:2 (Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley opposed). IT IS ORDERED that the petition is denied. Dated at Madison, Wisconsin, this 30th day of June, 2017. BY THE COURT: Diane M. Fremgen Clerk of Supreme Court No. 17-01.ssa 4 ¶1 SHIRLEY S. ABRAHAMSON, J. (dissenting). More than fifty1 retired Wisconsin judges, with combined trial and appellate judicial experience of over one thousand years (in addition to their law practice experience), filed Rule Petition 17-01 seeking to amend the Code of Judicial Conduct. Petition 17-01 proposes rules governing recusal2 of a judge or justice on the basis of campaign contributions.3 Courts in other states have adopted rules tying judicial disqualification to campaign contributions.4 1 This number of retired judges supporting the petition has increased since the petition was filed. Two of the petitioners were former state supreme court justices. 2 I use the words "recusal" and "disqualification" interchangeably. 3 One editorial summarized the Petition this way: "Take the 'For Sale' sign off Wisconsin Courts." Editorial, State's Courts Shouldn't Be for Sale, Racine J. Times (Jan. 22, 2017). Attachment 1 is a copy of the Petition's proposed language for the Code of Judicial Conduct. Attachment 2 is the present rule governing recusal and campaign contributions. The rule was drafted by the Wisconsin Realtors Association and Wisconsin Manufacturers and Commerce and adopted by the court in 2010 by a 4-3 vote. Justices David T. Prosser, Patience D. Roggensack, Annette K. Ziegler, and Michael J. Gableman voted in favor of the rule. Chief Justice Shirley S. Abrahamson and Justices Ann Walsh Bradley and N. Patrick Crooks dissented. 4 For a multistate survey (including the text of the rules cited below), see the National Center for State Courts, Judicial Disqualification Based on Campaign Contributions (updated Nov. 2016), http://www.ncsc.org/~/media/Files/PDF/Topics/Center%20for%20Judicial%20Ethics/Disqualificationcontributions.ashx. No. 17-01.ssa 5 ¶2 Five justices voted to dismiss Petition 17-01. At an open public conference on Rule Petition 17-01 on April 20, 2017, Chief Justice Patience D. Roggensack and Justices Annette K. Ziegler, Michael J. Gableman, Rebecca G. Bradley, and Daniel Kelly joined to adopt Justice Ziegler's motion, seconded by Justice Rebecca G. Bradley, to dismiss5 Rule Petition 17-01 without a hearing. ¶3 Contrary to the court's past practice of holding a public hearing on a rule petition relating to judicial ethics and at times appointing a committee to further explore a Five states have adopted a disqualification rule setting forth a specific amount or percentage of a campaign contribution. See Ala. Code § 12-24-3 (2017); A.R.S. Sup. Ct. Rules, Rule 81, Code of Jud. Conduct, Rule 2.11 (Ariz. 2017); Cal. Civ. Proc. Code § 170.1 (West 2017) and Cal. Code of Jud. Ethics, Canon 3E(5)(j) (West 2017); Miss. Code of Jud. Conduct, Canon 3E(2) (West 2017); Utah Judicial Administration Code, Canon 2, Rule 2.11(A)(4) (2017). Eleven states have adopted disqualification rules that do not have specific triggers relating to campaign contributions but expressly or impliedly incorporate the Caperton decision. Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868 (2009). See, e.g., Ark. Code of Jud. Conduct, Rule 2.11, Comment 4 (2017); I.C.A., Rule 51:2.11(A)(4) (Iowa 2017); New Mexico Code of Jud. Conduct, Rule 21.211, Comment [6] (2017); Tenn. Sup. Ct. Rules, Code of Jud. Conduct, Rule 2.11(A)(4) (2017); Wash. Code of Jud. Conduct, Rule 2.11(D) (2017). 5 Although "dismiss" and "deny" have different meanings in appellate practice, the words were used interchangeably in the justices' discussion. No. 17-01.ssa 6 Petition,6 the five justices dismissed Petition 17-01 out of hand, without a public hearing or further study. Justice Ann Walsh Bradley and I voted against the motion of dismissal. ¶4 Justice Ann Walsh Bradley urged that a public hearing be held: What's so threatening about a public hearing? Retired Judge William Foust commented in the media: "I'm surprised they wouldn't even talk about why they wouldn't hold a public hearing on this."7 ¶5 The court received more comments (from both in-state and out-of-state correspondents) on Rule Petition 17-01 than it has ever received regarding any other petition.8 The vast majority of comments favored adoption of the Petition. The 6 Justice Ann Walsh Bradley sets forth the history of proposals in this court relating to recusal and campaign contributions in her dissent to S. Ct. Order 08-16, 08-25, 09-10, and 09-11, 2010 WI 73, (issued July 7, 2010, eff. July 7, 2010), available at https://www.wicourts.gov/sc/rulhear/DisplayDocument.pdf?content=pdf&seqNo=51874. 7 See Matthew Rothschild, Wisconsin's High Court Does Hack Job on Recusal Petition, Capital Times (Apr. 20, 2017). "A public hearing on these questions . . . is more than justified, given significant changes to Wisconsin's campaign financing system in recent years." Editorial, State Must Ensure Justice Isn't For Sale, Wis. State J. (Feb. 1, 2017). 8 "The petition received support from Wisconsin editorial boards, bipartisan campaign finance reform groups, and voters." Billy Corriher, Wisconsin Supreme Court Rejects Request from 56 Judges To Address Judicial Campaign Cash, ThinkProgress (Apr. 20, 2017). No. 17-01.ssa 7 comments are available to the public on the Wisconsin court system's website at https://www.wicourts.gov/scrules/1701.htm.9 ¶6 I take this opportunity for an aside. The same five justices who voted to dismiss Petition 17-01 on April 20, 2017, voted on June 21, 2017, to close court conferences to the public when the court is deliberating on rules petitions. Court conferences on rules petitions have been open to the public since 1995.10 The court's deliberations have been televised, 9 The proponents of the Petition believe "Wisconsin's recusal rules must be strengthened if we expect justice to be blind, not biased." Mike Lucci, Bias Is Not Justice, Superior Telegram (May 5, 2017). 10 Beginning in 1989, I often wrote in favor of opening the court's deliberations on rule petitions to the public. After turning down Attorney Steven Levine's petition on the topic, in 1992 the court on its own motion adopted a one-year pilot program opening the deliberations. In 1993, the court extended open deliberation conferences on rule petitions indefinitely. In 1999, the court, on motion of Justices Crooks and Bablitch, extended open court deliberations to all administrative matters. We proudly proclaimed ourselves to be first court in the nation to openly deliberate in public on administrative matters. In 2012 began a movement to close court deliberations to the public. On motion of Justice Patience Roggensack, Justices Roggensack, Prosser, Ziegler, and Gableman voted to close deliberations on administrative matters other than rule petitions. Justices Ann Walsh Bradley, N. Patrick Crooks, and I voted against this motion to close court deliberations on administrative matters. No. 17-01.ssa 8 shown live and archived on the Wisconsin Eye Public Affairs Network. As a result of the five justices' vote, when next this court takes up ethical rules (and other rule matters), the court will discuss the matter privately. ¶7 Some may wonder whether the critical public reaction to the court's dismissal of Petition 17-01 and the justices' reasoning stimulated the sudden, unexpected motion by Justice Gableman, adopted by the other four justices, to close future court deliberations on rule petitions.11 Justice Ann Walsh Bradley and I voted against the closure motion. ¶8 Let me summarize the comments the court received on Rule Petition 17-01. The court received e-mails from individuals and communications from the following entities, The movement to close all court deliberations to the public culminated on June 21, 2017. On motion of Justice Gableman, joined by Chief Justice Patience Roggensack and Justices Ziegler and Daniel Kelly, the deliberations on rule petitions were closed to the public. Justice Rebecca G. Bradley was not present for the conference and did not voice in any way her position on other matters raised that day. She did voice her vote on the motion to close deliberations on rule petitions. Justice Gableman read a text message from her stating that she joined in Justice Gableman's motion. Justice Ann Walsh Bradley and I (apparently the only justices who did not have advance notice of Justice Gableman's motion) asked that the motion be held for further discussion. It was not. I tried to make a motion that Justice Gableman's motion be put on for a public hearing. I could not get recognized to put my motion to a vote. 11 See, e.g., Matthew Rothschild: Wisconsin Supreme Court Shuts Public Out, Capital Times, June 25, 2017. No. 17-01.ssa 9 including thoughtful constitutional analyses supporting the Petition: the Wisconsin Justice Initiative, the Campaign Legal Center, the Brennan Center for Justice, the Wisconsin Democracy Campaign, One Wisconsin Now, American Civil Liberties Union of Wisconsin, Common Cause of Wisconsin, Wisconsin Voices, and the League of Women Voters. ¶9 Director Richard Kyte of the Viterbo University D.B. Reinhart Institute for Ethics and Leadership commented in the media: "I find it remarkable that engineers, nurses and dieticians all have much higher standards for eliminating conflict of interest than judges do."12 ¶10 So why did five justices dismiss out of hand the carefully crafted Petition (supported by two excellent memoranda)? You will not find an answer to this question in the court order. ¶11 The court order makes a feeble and somewhat misleading attempt to justify the dismissal. Why feeble and somewhat misleading? Probably because the justifications proffered by the justices themselves and the commentators favoring dismissal are, in my opinion, unsubstantiated and misguided. But readers can judge for themselves. Here are the claims for dismissal without a hearing and the counterarguments. 12 John Davis, Retired Judge: New Judicial Recusal Rules Could Restore Faith In Wisconsin Supreme Court, Wis. Public Radio (Feb. 9, 2017). No. 17-01.ssa 10 The Claim: The Petition is An Unconstitutional Violation of the First Amendment.13 ¶12 The Wisconsin Institute for Law & Liberty, Inc. requested the court delay a public hearing on the Petition on the promise of a constitutional analysis of the Petition.14 And so the court delayed scheduling a public hearing. ¶13 Unfortunately the Institute's filing in this court cites no federal or state case declaring, directly or indirectly, expressly or subliminally, or in any other way, that recusal on the basis of campaign contributions violates any constitutional provision. The cases cited and arguments made 13 " We're fierce advocates for First Amendment rights. But this has little to do with free speech and much to do with the court's integrity. . . . [H]iding behind the Constitution . . . is nothing but a dodge from the real issue: Big Money donors who seem to believe they can buy the court." David D. Haynes, Editorial: Supreme Court Justices Let Down Wisconsin Citizens, Milwaukee J. Sentinel (Apr. 20, 2017). "This argument is a dramatic expansion of the free speech principles defined in cases like Citizens United and it misapplies and misconstrues U.S. Supreme Court precedent regarding conflicts and recusals articulated in cases like Caperton." Peg Lautenschlager, Op-Ed Misconstrues Supreme Court's Ruling on Judicial Campaign Cash, Wispolitics (May 17, 2017). 14 "We believe based upon our legal and empirical work that the petition is without merit. We intend to show the Court that, given the Court's action on this same issue in 2010 and the constitutional issues involved, the petition should be dismissed without a further and wasteful investment of judicial and public resources." E-mail from Brian W. McGrath of the Wisconsin Institute for Law and Liberty, Inc. (Mar. 14, 2017), available at https://www.wicourts.gov/scrules/1701/htm. No. 17-01.ssa 11 deal mostly with the validity of limitations on campaign contributions. The Petition does not limit contributions; it relates only to recusal.15 ¶14 No one has cited any case (and I cannot find any) holding or even hinting that judicial recusal requirements violate a campaign donor's or a voter's (or anyone else's) First Amendment (or any other) rights. ¶15 Attorney Esenberg of the Wisconsin Institute for Law & Liberty. Inc. wrote (without citing any authority) that the court "quite sensibly" declined to adopt the petition because the petition would "burden participation in the electoral process and . . . this raises substantial First Amendment concerns." See Rick Esenberg, State Supreme Court Was Right to Reject Change in Recusal Rules, Milwaukee J. Sentinel, May 1, 2017.16 15 Nevertheless, the Institute wrote: "Money is speech, or more accurately, speech requires money. When the state restricts the ability of people to spend money on expression, it is restricting expression itself." Memorandum of Wisconsin Institute for Law & Liberty. Inc., Apr. 7, 2017 at 11. 16 See also the Institute's press release entitled "WILL Files Response to Recusal Petition with State Supreme Court, posted April 7, 2017, in Press Release, Wisconsin Institute for Law & Liberty News, at the Institute's website at http://www.will-law.org/tag/recusal/. Attorney Esenberg is quoted as follows: "The petition is nothing more than hyperbole. Mechanisms already exist which allow litigants at the circuit court level to substitute on a judge. And as we explained, petitioners have utterly failed in establishing campaign contributions have the type of negative affect [sic] on judges and justices they argue is rampant throughout the judicial system." No. 17-01.ssa 12 ¶16 Justice Annette K. Ziegler, in moving to dismiss Petition 17-01, stated: "I believe as a matter of law [the petition] cannot withstand constitutional or structural scrutiny. . . . For me, the issue is the law. . . . " She continued in this vein: The petitioners have asked us, I think, to do something that does not comport with the Constitution as I view it. I also take a look at, boy, is there The petitioners in Rule Petition 17-01, the Conference of Chief Justices, and the United States Supreme Court disagree with Attorney Esenberg's view that campaign contributions do not have a corrosive effect on the public's perception of judicial integrity. The Conference of Chief Justices' amicus brief filed in the United States Supreme Court in Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868 (2009), and cited with approval by the United States Supreme Court in its Caperton decision, underscored that campaign abuses threaten public confidence in the judiciary and that the Codes of Judicial Conduct are "'[t]he principal safeguard against judicial campaign abuses' that threaten to imperil 'public confidence in the fairness and integrity of the nation's elected judges.'" Brief for Conference of Chief Justices as Amicus Curiae at 4, 11; Caperton, 556 U.S. at 889. The Caperton Court, 556 U.S. at 889, further declared that public confidence in an impartial judiciary is a "vital state interest": Courts, in our system, elaborate principles of law in the course of resolving disputes. The power and the prerogative of a court to perform this function rest, in the end, upon the respect accorded to its judgments. The citizen's respect for judgments depends in turn upon the issuing court's absolute probity. Judicial integrity is, in consequence, a state interest of the highest order. Republican Party of Minn. v. White, 536 U.S. 765, 793, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002) (KENNEDY, J., concurring). No. 17-01.ssa 13 precedent? Does that support this somehow? Have I missed something? And the answer to me is no, it simply doesn't support the petition as I view it. . . . But as I see it, and I mean this as respectfully as humanly possible, as I see it, as a matter of law and structural integrity, the petition can't stand. So that's why I voted the way I did, and I just want to be clear on that, and that's why I made the motion that I have, to be clear on that. It's not a matter of disrespect. It is a matter of the law.17 ¶17 Justice Ziegler referenced no constitutional provision (or "structural" whatever). Justice Ziegler offered no "scrutiny" or authority or explanation to support her position. Justice Ziegler can be charged with an ipse dixit, that is, making an assertion without proof. ¶18 Justice Daniel Kelly, unequivocally and without dilly-dallying, adopted "the comments made by Justice Ziegler . . . ." ¶19 Justice Ann Walsh Bradley and I turned to pronouncements of the United States Supreme Court supporting the constitutionality of the Petition and demonstrating that Wisconsin's current rule on recusal is at odds with the United States Supreme Court's instructions on recusal. Many United States Supreme Court cases were referenced in the material filed with the court upon which we relied. We saw nothing in the 17 Justice Ziegler's, Justice Rebecca G. Bradley's, Justice Gableman's, and Justice Kelly's comments are printed in full in Attachment 3. The full cite to the Donohoo case referred to in Justice Ziegler's comments is Donohoo v. Action Wis., Inc., 2008 WI 110, 314 Wis. 2d 510, 754 N.W.2d 480. Justice Roggensack also referred to Donohoo in her concurrence to S. Ct. Order 08-16, 08-25, 09-10, and 09-11, 2010 WI 73, (issued July 7, 2010, eff. July 7, 2010) (see Attachment 4). No. 17-01.ssa 14 Wisconsin Constitution or the United States Constitution that barred the Wisconsin Supreme Court from adopting reasonable recusal rules. ¶20 Justice Michael Gableman and Justice Daniel Kelly were not impressed by our references to United States Supreme Court cases. ¶21 Justice Gableman's rebuttal to my discussion of United States Supreme Court cases was as follows: You can take language——we all know, and the judges who are here, the lawyers who are here, and the judges——the justices at this table know, you can extract language from any case which could be as broadly or as narrowly——OK, thank you, I appreciate your willingness to listen to my position. ¶22 Justice Kelly was dismissive of the cases that were cited: I think the cases that Justice Abrahamson and Justice Ann Walsh Bradley have cited demonstrate why such a rule is not necessary and not appropriate. None of these cases have indicated that a bright-line rule is necessary or warranted requiring recusal upon a contribution of any specific amount. What they say is that there are certain unusual circumstances that Caperton described as extraordinary and occurring under extreme facts, that could potentially indicate that a justice or a judge is unable to discharge the duties that he swore to uphold. Those are unusual circumstances, and they're to be addressed on a case-by-case basis when facts suggest they need to be raised. ¶23 Here are the pronouncements of the United States Supreme Court that Justice Ann Walsh Bradley and I——and various commentators——view as supportive of Petition 17-01: No. 17-01.ssa 15 • In Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868 (2009), the Court recognized that judicial independence requires monetary independence. It held that judges must recuse themselves under the Due Process Clause not merely when there is actual bias on the part of the judge, but when the degree of campaign spending is such that the "probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable." Caperton, 556 U.S. at 877. • All the Justices of the United State Supreme Court agree that "States may choose to 'adopt recusal standards more rigorous than due process requires'" without noting any First Amendment concerns.18 Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 889 (2009). See also Williams v. Pennsylvania, 136 S. Ct. 1899, 1908 (2016) (a state court remains free to impose more rigorous standards for recusal through its ethics rules).19 Indeed the Court has recommended the states adopt rules and Codes of Judicial Conduct that provide more protection than due process requires. Williams, 136 S. Ct. at 1908. • The United States Supreme Court recently reiterated that the relevant question for recusal is "not whether a judge harbors an actual, subjective bias, but instead whether, as an objective matter, 'the average judge in his position is "likely" to be neutral, or whether there is an unconstitutional "potential for bias."'" Williams v. Pennsylvania, 136 S. Ct. 1899, 1905 (2016) (quoted source omitted). 18 Chief Justice Roberts wrote in dissent: "States are, of course, free to adopt broader recusal rules than the Constitution requires——and every State has——but these developments are not continuously incorporated into the Due Process Clause." Caperton, 556 U.S. at 893 (Roberts, C.J., dissenting). 19 Williams v. Pennsylvania, 136 S. Ct. 1899 (2016), involved a state supreme court justice participating in a case in which many years previously he played a role as a prosecutor. No. 17-01.ssa 16 • In March 2017, in Rippo v. Baker, 137 S. Ct. 905, 908 (2017), the United States Supreme Court vacated a decision of the Nevada Supreme Court that applied an actual bias standard instead of applying the objective appearance-of-bias standard. The Court declared that those requesting recusal need not point to any facts suggestive of actual bias. • The United States Supreme Court has recognized that "[t]he judiciary's authority . . . depends in large measure on the public's willingness to respect and follow its decisions." Williams-Yulee v. Florida Bar, 135 S. Ct. 1656, 1666 (2017). Recusal standards are necessary to foster the public's willingness to respect the judiciary. The Court declared that "even if judges were able to refrain from favoring donors, the mere possibility that judges' decisions may be motivated by the desire to repay campaign contributions is likely to undermine the public's confidence in the judiciary. . . . [In the public's mind, large donations or expenditures] could result (even unknowingly) in a 'possible temptation . . . which might lead [the judge] to not to hold the balance nice, clear and true.'" Williams-Yulee v. Florida Bar, 135 S. Ct at 1667 (internal quotation marks and citations omitted).20 • In Citizens United v. Federal Election Commission, 130 S. Ct. 876, 910 (2010), the United States Supreme Court noted that mandatory recusal rules do not abridge First Amendment rights: Caperton held that a judge was required to recuse himself "when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent." The remedy of recusal was based on a litigant's due process right to a fair trial before an unbiased judge. See Withrow v. Larkin, 421 U.S. 20 In Williams-Yulee v. Florida Bar, 133 S. Ct. 1656 (2017), the Court upheld Florida's prohibition on judicial candidates personally soliciting campaign contributions. No. 17-01.ssa 17 35, 46 (1975). Caperton's holding was limited to the rule that the judge must be recused, not that the litigant's political speech could be banned. ¶24 Several commentators have noted that concern about judicial integrity and the appearance of bias has become particularly pronounced in Wisconsin in light of this court's recent John Doe decisions and the change in the Wisconsin statutes allowing Wisconsin candidates to control or otherwise coordinate with outside groups on "issue advocacy."21 The argument advanced is that these changes undermine this court's stated reasoning behind its 2010 recusal rule (that a judge need not recuse herself or himself based solely on independent expenditures or issue advocacy communications) because neither the judge nor the judge's campaign has any control over these expenditures.22 ¶25 In the 2015 John Doe decisions, this court held that a candidate may control or otherwise coordinate issue advocacy 21 State ex rel. Three Unnamed Petitioners v. Peterson, 2015 85, 363 Wis. 2d 1, 866 N.W.2d 165, reh'g den., 2015 WI 103, 365 Wis. 2d 351, 875 N.W.2d 49. 22 For an example of illegal collusion before the change in the law between a candidate and an issue advocacy group in Wisconsin, see Cary Segall, Wilcox Accepts Burden in Campaign Money Case; Supreme Court Justice to Pay Fine for Committee, Wis. State J., Mar. 6, 2001, at A1. No. 17-01.ssa 18 communications,23 and the legislature overhauled the Wisconsin statutes regulating campaigns. See 2016 Wis. Act 117. ¶26 The concern expressed is that expenditures for "issue advocacy" in coordination with and on behalf of judicial candidates have the potential to create the reality or appearance of bias. ¶27 Issues of campaign contributions, money, recusal, and judicial integrity are not limited to elected state court judges. These issues are surfacing in the context of appointed federal judges as special interest groups are spending large sums of money publicly campaigning in support of the appointment of certain individuals as federal judges.24 23 State ex rel. Three Unnamed Petitioners v. Peterson, 2015 85, 363 Wis. 2d 1, 866 N.W.2d 165, reh'g den., 2015 WI 103, 365 Wis. 2d 351, 875 N.W.2d 49 (referencing the First Amendment 24 times). A more recent United States Supreme Court decision has been interpreted as reaffirming that the First Amendment does not limit campaign finance regulation to express advocacy. See Indep. Inst. v. Fed. Election Comm'n, 26 F. Supp. 3d 176, 186-188 (D.D.C. Nov. 3, 2016), Indep. Inst. v. F.E.C., 137 S. Ct. 1204 (Feb 27, 2017). 24 See Stephanie Francis Ward, PAC Ad Supports Law Professor's Nomination to 3rd Circuit Seat, ABA Journal (June 20, 2017) (reporting that online ads placed by a PAC urging readers to tell their senators to confirm Stephanos Bibas for a federal judgeship has caused speculation that the ad may give rise to a recusal obligation.) See http://www.abajournal.com/news/article/pac_ad_supports_law_professors_nomination_to_3rd_circuit_seat. No. 17-01.ssa 19 The Claim: The Petition Violates the Voters' Right to Vote For A Judicial Candidate of One's Choice. ¶28 The Wisconsin Institute for Law & Liberty, Inc. mentioned voters' rights but did not discuss the rights of voters, explaining that there was no need for discussion because the court had relied on this claim in adopting the 2010 recusal rules drafted by the Wisconsin Realtors Association and Wisconsin Manufacturers and Commerce and denying other proposals in 2010 tying recusal to campaign contributions.25 ¶29 Justice Rebecca G. Bradley backed this claim about voters, seconding Justice Ziegler's motion and stating that the Petition infringes on the people's First Amendment right to speak out in judicial races. She stated: [The Petition] asks us to infringe the First Amendment rights of the people of Wisconsin who wish to participate in judicial elections, either through supporting a candidate directly or speaking out on issues in a judicial race. The people of Wisconsin, like everybody else in this country, have a First Amendment Right to do that. They have a First Amendment right to speak out in favor of the judges they support, and in opposition to the judges they oppose, without being penalized for exercising their free speech rights. . . . In my mind, this petition is somewhat shocking in its disregard for the Wisconsin Constitution and the United States Constitution, particularly the First Amendment. ¶30 Justice Rebecca Bradley offered no authority or explanation or about how a person's free speech was affected by 25 Memorandum of Wisconsin Institute for Law and Liberty, Inc., Apr. 7, 2017, at 2 n.1: No. 17-01.ssa 20 the Petition. She offered no legal support.26 Justice Rebecca Bradley can also be charged with an ipse dixit. She too made an assertion without proof. ¶31 Justice Daniel Kelly, unequivocally and without dilly-dallying, adopted "the comments made by . . . Justice Rebecca G. Bradley . . . ." ¶32 The argument that the petition violates the voters' right to vote for the judicial candidate of one's choice was championed at the open conference on the Petition by Chief Justice Patience D. Roggensack. She had previously endorsed this idea in her writing in a newspaper piece in 200927 and in her writing in the court in 2010.28 She too offered no authority. Three ipse dixits in a row (plus Justice Kelly). In 2010 this Court explained an additional reason why the Petition should be denied in its decision In the matter of amendment of Wis. Stat. § 757.19. In that decision, this Court detailed how a similar proposed rule interfered with the right to vote. Because this Court fully explained the right to vote in its previous decision, WILL does not believe it necessary to repeat that explanation here. 26 A transcript of Justice Rebecca Bradley's full remarks appears in Attachment 3. 27 See Patience Drake Roggensack, The Vote Was About Protecting State's Voters, Milwaukee J. Sentinel (Dec. 5, 2009), available at archive.jsonline.com/news/opinion.78556262.html/. 28 See S. Ct. Order 08-16, 08-25, 09-10, & 09-11, 2010 WI 73, (issued July 7, 2010, eff. July 7, 2010) (Roggensack, J., concurring), available at https://www.wicourts.gov/sc/rulhear/DisplayDocument.pdf?content=pdf&seqNo=51874. For the convenience of the reader, the concurrence is attached as Attachment 4. No. 17-01.ssa 21 ¶33 This "voter rights" argument was neither validated nor defensible in 2009 and 2010 and it isn't now. Judicial recusal is unrelated to a citizen's casting a vote or any person (other than a judge) speaking in a judicial election.29 Citizens do not have a constitutional right to have a judge of their choice (whether the judge is elected or appointed) sit on their case.30 If they did, could an elected justice ever refuse to participate in a case? The Claim: The Adoption of the Proposal Requires a Constitutional Amendment Providing That a Disqualified Justice Be Temporarily Replaced by Another Judge. ¶34 The order, like some discussion at the open conference, somewhat misleadingly states or implies that the Petition cannot be adopted without an amendment to the Wisconsin Constitution. ¶35 Justice Rebecca G. Bradley tied the Petition to the need for a state constitutional amendment in this way: "With respect to the Wisconsin Constitution, the petitioners 29 See S. Ct. Order 08-16, 08-25, 09-10, & 09-11, 2010 WI 73 (issued July 7, 2010, eff. July 7, 2010) (Bradley, J., dissenting), available at https://www.wicourts.gov/sc/rulhear/DisplayDocument.pdf?content=pdf&seqNo=51874. 30 "Everybody is entitled to a fair and impartial judge. . . . They're not necessarily entitled to the one that they contributed all that money to," said Retired Judge John Perlich. John Davis, Retired Judge: New Judicial Recusal Rules Could Restore Faith In Wisconsin Supreme Court, Wis. Public Radio (Feb. 9, 2017). No. 17-01.ssa 22 acknowledge that the Wisconsin Constitution would have to be amended in order for their proposal to work. They know that we don't have the power to do this. That power remains with the people. To further consider this petition would essentially require us to disregard or even violate the Wisconsin Constitution." ¶36 Chief Justice Patience Roggensack commented at the hearing about the need for a constitutional amendment. She reinforced the notion that the Petition was inescapably tied to such a constitutional amendment in an interview with Steve Walters on Wisconsin Eye on April 28, 2017. Their conversation went like this: PDR: . . . [T]he petition . . . would have required a constitutional amendment before you could ever have the kind of recusal that was suggested—— Steve Walters: So it's not a rule that the court could have adopted. Excuse me for interrupting. PDR: No, I don't believe it was a rule we could have adopted. . . . . . . . PDR: . . . [Y]ou could end up with a Supreme Court that couldn't function. We need four people to have a quorum. . . . [Y]ou have to have four justices to go forward . . . . So you would have to have amended the constitution to follow through on what they were asking us to do. You couldn't just do one part of it. No. 17-01.ssa 23 And I do think that the judges who filed this petition recognize that. That's why they put them together.31 ¶37 Adoption of the Petition does not require a constitutional amendment. ¶38 Rather, the narrative in the Petition about a constitutional amendment is an attempt to respond to the court's 2010 Comment in adopting the present recusal rule, stating that it did not favor recusals inasmuch as a non-participating supreme court justice cannot be replaced with another judge.32 ¶39 The ban on replacing a Wisconsin justice who does not participate in a case dates back to the 1848 constitution. This court's hearing cases with the participation of fewer than seven justices participating is nothing new. ¶40 Since 1848, this court has decided cases with fewer than the allotted number of justices for a variety of reasons. I found more than 140 cases decided from 1848 through 2017 in which one or more justices did not participate and in which the 31 For an instance when the court issued an order without a quorum, see the court's Sept. 20, 2016 order in the John Doe trilogy, Nos. 2013AP2504-2508-W, 2014AP296-OA, and 2014AP417-421-W. The September 20 order states that only Chief Justice Patience D. Roggensack, Justice Annette K. Ziegler, and Justice Michael J. Gableman approved the order. Justices Shirley S. Abrahamson, Ann Walsh Bradley, Rebecca G. Bradley, and Daniel Kelly did not participate. Thus, the court took action when only three justices (not a quorum) participated. 32 See Attachment 2. No. 17-01.ssa 24 court evenly divided.33 In many more cases, one or more justices did not participate, and the court did not equally divide. I did not do a survey of cases of all the cases for the last 169 years since 1848. I did survey cases in the last 10 years (2007-2017). In this 10-year period I found that in more than 50 cases, fewer than seven justices participated.34 No recusals, to the best of my recollection, related to campaign contributions. ¶41 Whether to replace disqualified justices is an issue independent of Petition 17-01. Deciding cases with fewer than seven justices sometimes does raise difficulties. The court has attended to the difficulties and will do so in the future regardless of Petition 17-01. ¶42 The legislature has also tried to deal with the issue of the court's deciding cases without seven justices participating. Several State Assembly resolutions have been proposed since 2000 to amend the Wisconsin Constitution to allow a disqualified justice to be replaced with another judge to 33 For a list of the cases, see my concurrence in Smith v. Kleynerman, 2017 WI 22, ¶¶3-8, 374 Wis. 2d 1, 892 N.W.2d 734 (Abrahamson, J., concurring) (regarding the court's changing its practice to no longer reveal how each justice voted in a tie vote case). 34 I did a Westlaw search to find these cases. The court does not collect aggregate data on disqualification/recusal activity, e.g., motions filed, self recusals, asserted bases, dispositions, and reasons given. No. 17-01.ssa 25 avoid the court's sitting without a full complement of seven justices or failing to have a quorum.35 ¶43 Deciding cases with fewer than seven justices sometimes introduces complications, but deciding cases with justices who are challenged on grounds of bias or the appearance of bias raises even more complications.36 It is not necessary, however, to adopt a constitutional amendment to ensure that 35 See, e.g., 2015 Assembly Joint Resolution 88, 2013 Assembly Joint Resolution 18, 2011 Assembly Joint Resolution 128, 2003 Assembly Joint Resolution 44, 1999 Assembly Joint Resolution 96. 36 Campaign contributions to justices' elections have stimulated recusal motions and media stories. The online docket for the John Doe trilogy, Nos. 2013AP2504-2508-W, 2014AP296-OA, and 2014AP417-421-W, contains numerous references to the parties' motions and various justices' writings regarding recusals related to campaign contributions. See https://wscca.wicourts.gov/appealHistory.xsl;jsessionid=20F7D006B7C7F1316486990396C49AA1?caseNo=2013AP002504&cacheId=9BEA5888D9A7A39FDC4C4FB75AB1D17C&recordCount=1&offset=0&linkOnlyToForm=false&sortDirection=DESC. See also Patrick Marley, John Doe Prosecutor Asks One or More Justices To Step Aside, Milwaukee J. Sentinel (Feb. 13, 2015), http://archive.jsonline.com/news/statepolitics/john-doe-prosecutor-asks-one-or-more-justice-to-step-aside-b99444515z1-291866271.html/; Patrick Marley and Mary Spicuzza, Wisconsin Supreme Court Ends John Doe Probe into Scott Walker's Campaign, Milwaukee J. Sentinel (July 16, 2015), http://archive.jsonline.com/news/statepolitics/wisconsin-supreme-court-ends-john-doe-probe-into-scott-walkers-campaign-b99535414z1-315784501.html; Gerald C. Nichol, Big Donations to Judges Should Require Recusal, Wis. State J. (June 5, 2017), http://host.madison.com/wsj/opinion/column/gerald-c-nichol-big-donations-to-judges-should-require-recusal/article_a5fce986-42b4-5c60-aab8-b2aa8b304654.html. No. 17-01.ssa 26 seven justices will sit on every case in order to adopt Rule Petition 17-01 on recusal. The Claim: Adopting the Petition Violates a Justice's or Judge's Oath of Office. ¶44 Here is the oath of office each justice and judge in this state is required to take upon entering office: I, [Name], who have been elected (or appointed) to the office of ...., but have not yet entered upon the duties thereof, do solemnly swear that I will support the constitution of the United States and the constitution of the state of Wisconsin; that I will administer justice without respect to persons and will faithfully and impartially discharge the duties of said office to the best of my ability. So help me God.37 ¶45 Justice Rebecca G. Bradley maintained that the Petition asks judges to violate and disregard the oath: [W]e cannot consider the petition further, because to do so would violate the oath that each of us took when we undertook our office, and I want to be very clear about the oath. . . . The oath that we took is to support the Constitution of the United States and the Constitution of the State of Wisconsin. We also swear solemnly to administer justice without respect to persons, and to faithfully and impartially discharge the duties of this office to the best of our ability, so help us God. . . . [T]he petition asks us to disregard that oath, in my mind. . . . One would think the petitioners who tout their 1,100 years of combined service in the judiciary would understand that this court cannot act on this petition without violating our oaths to uphold our Constitution. 37 The oath is set forth in Wis. Stat. § 757.02. No. 17-01.ssa 27 ¶46 I have addressed the argument that the Rule Petition is an unconstitutional violation of First Amendment rights at ¶¶12-33, supra. I disagree with Justice Rebecca Bradley's assertion that the adoption of this rule would be a violation of our oath to support the constitution. ¶47 Justice Kelly claimed that the Petition was not only unnecessary but was also inappropriate and casts aspersions on the oath. His remarks are as follows: [To adopt the bright-line hard and fast rule in the Petition requiring recusal upon contribution of a specific amount] declaring to all the world that we cannot trust the judges of this state to uphold their oath to support the Constitution, to discharge their responsibilities to apply law to facts and come to a good, true, and just judgment, is to cast aspersions on the oath they took. I think that would be a manifestly inappropriate thing for this court to do, and for that reason I support the motion to dismiss and deny the petition. ¶48 If this reasoning is accepted, and I do not accept it, then in all likelihood no code of judicial conduct will ever be needed because the oath in general terms already prohibits much (if not all) the conduct specifically prohibited in the Code. I conclude that a Code of Judicial Conduct that provides more specific direction for judges than does the oath serves judges and the public well. The Claim: The Petition is an Insult to the Judges and Justices of this State. ¶49 This claim was framed by the justices in a number of different ways. No. 17-01.ssa 28 ¶50 Justice Rebecca G. Bradley illuminated the "insult" argument as follows: Every judge and justice in the State of Wisconsin should be highly offended by this petition, because it attacks their integrity and their character, and I today defend every justice and judge in this state in rejecting this petition. I practiced law for over 16 years, I've served at every level of the judiciary, and I know that the judges and justices in this state strive every day to render impartial justice, setting aside their own personal feelings about cases and the people involved in those cases to render decisions in accordance with the law. And if any judge fails to do so, if a judge does not act with impartiality and integrity, that judge will answer to the people of Wisconsin on their election day. And that's the beauty of our system of an elected judiciary, which our state has had for about 170 years. Every one of us who serve the people of Wisconsin as a member of the judiciary is directly accountable to the people.38 ¶51 Attorney Casey Hoff called this comment a "head scratch[er]." He wrote: "Using Justice Rebecca Bradley's logic, no judge, nor any attorney for that matter, should ever be held to any ethics rules because to impose any rules on an attorney or a judge would be 'highly offensive' and an attack on 38 The Beloit Daily News remarked in response to Justice Rebecca Bradley's comments: "Seriously? Come on." Editorial, Money First, at the Supreme Court, Beloit Daily News (Apr. 24, 2017). Retired Judge Mike Lucci wrote: "[A]s voters we should all remember this important issue and what just transpired in Madison when the next Supreme Court election rolls around." Mike Lucci, Bias Is Not Justice, Superior Telegram (May 5, 2017). No. 17-01.ssa 29 their integrity. Her argument is, in essence, 'just trust us.'"39 ¶52 An editorial responded: "The judge involved may indeed judge the case fairly and honestly——we have no doubt that the vast majority would——but the appearance of a conflict of interest can be just as damaging to the public's trust as an actual conflict."40 ¶53 Justice Daniel Kelly phrased the claim of "insult" to judges this way: The question presented by the petition is not whether or not we should recuse under certain circumstances. The question is whether we ought to tell judges in this state that we do not trust them to make that judgment on their own. I think that's a caustic and inappropriate and unnecessary thing for us to do. ¶54 Recusal standards are, in my opinion, no more of an insult to judges and justices than it is an insult to all law-abiding people to have laws governing ethics for public officials; laws governing criminal and tortious conduct; laws protecting our rivers, lakes, and streams; laws regulating the quality of dairy products; and so on and so forth. ¶55 Unfortunately, judges and justices, like all people, even very good people, need guidance and make mistakes. Members of the judiciary have violated the Code of the Judicial Conduct. 39 Casey Hoff, USA Today Network-Wis., Wisconsin Supreme Court's Troubling Move, Sheboygan Press (Apr. 28, 2017). 40 Editorial, Judge Recusal Proposal Make Sense, Milwaukee J. Sentinel (Jan. 14, 2017). No. 17-01.ssa 30 Justices and judges are not above the law; they are governed by law. See Annual Report of the Judicial Commission. ¶56 In a perfect world, we would not need a Code of Judicial Conduct, and we would not need many of the statutes that now cover six hefty volumes of the Wisconsin Statutes. Counterclaim: Overwhelming Public Support for the Petition and Opposition to the Dismissal ¶57 Editorial support, op-ed pieces, letters to the editor, cartoons, and miscellaneous commentary have overwhelmingly supported the court's granting a hearing on the Petition, have overwhelmingly supported adoption of the Petition, and have overwhelmingly expressed disagreement with the dismissal of Petition 17-01 by five justices. I reference these writings here. The very titles of the writings tell a story: • Editorial, Judge Recusal Proposal Make Sense, Milwaukee J. Sentinel (Jan. 14, 2017).41 • Editorial, State's Courts Shouldn't Be for Sale, Racine J. Times (Jan. 22, 2017).42 • Editorial, State Must Ensure Justice Isn't For Sale, Wis. State J. (Feb. 1, 2017).43 41 Available at http://www.jsonline.com/story/opinion/editorials/2017/01/14/editorial-judge-recusal-proposal-make-sense/96561330/. 42 Available at http://journaltimes.com/news/opinion/editorial/journal-times-editorial-state-s-courts-shouldn-t-be-for/article_ad1a4d2a-44ec-5e3a-af4f-1ce257d15e84.html. No. 17-01.ssa 31 • Tanya Arditi, Statement: Wisconsin Supreme Court Missed an Opportunity to Address Its Ethical Shortcomings, Says CAP's Michele L. Jawando, Center for Am. Progress (Apr. 20, 2017).44 • David D. Haynes, Editorial: Supreme Court Justices Let Down Wisconsin Citizens, Milwaukee J. Sentinel (Apr. 20, 2017).45 • Billy Corriher, Wisconsin Supreme Court Rejects Request from 56 Judges To Address Judicial Campaign Cash, ThinkProgress (Apr. 20, 2017).46 • Matthew Rothschild, Wisconsin's High Court Does Hack Job on Recusal Petition, Capital Times (Apr. 20, 2017).47 • Phil Hands, Hands on Wisconsin: Supreme Court Justices Refuse to Recuse, Wis. State J. (Apr. 23, 43 Available at http://host.madison.com/wsj/opinion/editorial/editorial-state-must-ensure-justice-isn-t-for-sale/article_a3759af4-00ff-5f2d-b1cf-dc82a4785174.html. 44 Available at https://www.americanprogress.org/press/statement/2017/04/20/430883/statement-wisconsin-supreme-court-missed-opportunity-address-ethical-shortcomings-says-caps-michele-l-jawando/. 45 Available at http://www.jsonline.com/story/opinion/blogs/real-time/2017/04/20/editorial-supreme-court-justices-let-down-wisconsin-citizens/100697616/. 46 Available at https://thinkprogress.org/wisconsin-supreme-court-campaign-finance-23d81ba9889f. 47 Available at http://host.madison.com/ct/opinion/column/matthew-rothschild-wisconsin-s-high-court-does-hack-job-on/article_f88f744c-ccf4-5cb6-b6c2-96130523c923.html. No. 17-01.ssa 32 2017).48 (political cartoon titled "The 'Best' Legal Minds in Our State," depicting a Wisconsin Supreme Court Justice sitting in the pocket of a campaign donor and saying, "Recusals? We don't need no stinkin' recusals!" as he tears a document labeled "New Rules."). • Editorial, Money First, at the Supreme Court, Beloit Daily News (Apr. 24, 2017).49 • John Nichols, The Scorching Shamelessness of the Wisconsin Supreme Court, Capital Times (Apr. 25, 2017).50 • Casey Hoff, USA Today Network-Wis., Wisconsin Supreme Court's Troubling Move, Sheboygan Press (Apr. 28, 2017).51 • Editorial, Fat Wallets Plunked on the Scales of Justice, Racine J. Times (May 4, 2017).52 48 Available at http://host.madison.com/wsj/opinion/cartoon/hands-on-wisconsin-supreme-court-justices-refuse-to-recuse/article_8e94d406-a677-581c-b5b3-dedce6568533.html. 49 Available at http://www.beloitdailynews.com/article/20170424/ARTICLE/170429897. 50 Available at http://host.madison.com/ct/opinion/column/john_nichols/john-nichols-the-scorching-shamelessness-of-the-wisconsin-supreme-court/article_fd17869c-f857-5373-8454-20e43028d557.html. 51 Available at http://www.sheboyganpress.com/story/opinion/2017/04/28/wisconsin-supreme-court-recusal-rules-public-hearing-rebecca-bradley-roggensack/101024858/. 52 Available at http://journaltimes.com/news/opinion/editorial/journal-times-editorial-fat-wallets-plunked-on-the-scales-of/article_0c9bfaff-d612-5e02-9bc7-549d356a9c45.html. No. 17-01.ssa 33 • Mike Lucci, Bias Is Not Justice, Superior Telegram (May 5, 2017).53 • Peg Lautenschlager, Op-Ed Misconstrues Supreme Court's Ruling on Judicial Campaign Cash, Wispolitics (May 17, 2017).54 • Gerald C. Nichol, Big Donations to Judges Should Require Recusal, Wis. State J. (June 5, 2017).55 ¶58 In the words of the Racine Journal Times: "The fat wallets of special interest spending have been placed on the scales of justice."56 ¶59 Retired Judge Mike Skwierawski summed it up: "At some level, you have to hope that the integrity of the court system becomes the highest priority for the Supreme Court. Not just keep the money flowing."57 ¶60 And Retired Judge Sarah O'Brien stated: "I just feel sad. The people believe that large campaign contributions can 53 Available at http://www.superiortelegram.com/opinion/4261448-bias-not-justice. 54 Available at https://www.wispolitics.com/2017/peg-lautenschlager-op-ed-misconstrues-supreme-courts-ruling-on-judicial-campaign-cash/. 55 Available at http://host.madison.com/wsj/opinion/column/gerald-c-nichol-big-donations-to-judges-should-require-recusal/article_a5fce986-42b4-5c60-aab8-b2aa8b304654.html. 56 Editorial, Fat Wallets Plunked on the Scales of Justice, Racine J. Times (May 4, 2017). 57 Editorial: Judge Recusal Proposal Make Sense, Milwaukee J. Sentinel (Jan. 14, 2017). No. 17-01.ssa 34 influence judges, but the justices refuse to acknowledge that. It's what we expected, but it's no less heartbreaking."58 ¶61 I want to thank the retired judges who signed Petition 17-01. Even in retirement they continue their commitment to the Wisconsin judicial system, a fair, neutral, impartial and non-partisan judiciary, and the people of this state. I too am sad and disappointed that the five justices dismissed the Petition. I therefore write in dissent. ¶62 I am authorized to state that Justice ANN WALSH BRADLEY joins this dissent. 58 Matthew Rothschild, Wisconsin's High Court Does Hack Job on Recusal Petition, Capital Times (Apr. 20, 2017). No. 17-01.ssa 35 ATTACHMENT 1 Rule Petition 17-01: Proposed Supreme Court Rule No. 17-01.ssa 36 No. 17-01.ssa 37 No. 17-01.ssa 38 No. 17-01.ssa 39 No. 17-01.ssa 40 ATTACHMENT 2 No. 17-01.ssa 41 No. 17-01.ssa 42 ATTACHMENT 3 No. 17-01.ssa 43 No. 17-01.ssa 44 No. 17-01.ssa 45 No. 17-01.ssa 46 ATTACHMENT 4 No. 17-01.ssa 47 No. 17-01.ssa 48 No. 17-01.ssa 49 No. 17-01.ssa 50 No. 17-01.ssa 51 No. 17-01.ssa 1

2017 WI 68 SUPREME COURT OF WISCONSIN NOTICE This order is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 17-02 In the matter of the petition to amend SCR 33.04 regarding judicial education for municipal judges FILED JUN 27, 2017 Diane M. Fremgen Clerk of Supreme Court Madison, WI On March 7, 2017, the Office of Judicial Education by Todd E. Meurer, Municipal Court Education Manager, filed this rule petition asking the court to make two changes to Supreme Court Rule (SCR) 33.04: (1) to make the judicial education schedule for municipal judges consistent with the calendar year, and (2) to add the word "or appointed" to the rule to ensure that newly appointed municipal judges commence their judicial education during their first year in office, rather than their second year, which is permitted under the current wording of the rule. The court discussed the petition at open rules conference on April 20, 2017 and voted to solicit written comments on the petition. Letters were sent to the interested persons on April 21, 2017. The court received one response, from the Wisconsin Association of Municipal Judges, supporting the petition. No. 17-02 2 The court further discussed the petition at open rules conference on June 21, 2017. The court opted not to conduct a public hearing and, after discussion, the court voted unanimously to adopt the petition. Therefore, IT IS ORDERED that: SECTION 1. Supreme Court Rule 33.04(1) is amended to read: (1) Each newly-elected or appointed municipal judge shall attend the earliest municipal judge orientation institute offered following his or her election or appointment, unless a period of extension is granted by the committee upon prior application by the municipal judge. SECTION 2. Supreme Court Rule 33.04(2) is amended to read: (2) Each municipal judge shall earn at least 4 credits in each 365-day period after commencement of the term for which elected or appointed calendar year at a municipal judge orientation institute, review institute or graduate institute developed by the judicial education office. A municipal judge who holds office for less than 5 months during any calendar year is exempt from this subsection. IT IS FURTHER ORDERED that the effective date of this order is January 1, 2018. IT IS FURTHER ORDERED that notice of the above amendments be given by a single publication of a copy of this order in the official publications designated in SCR 80.01, including the official publishers' online databases, and on the Wisconsin court system's web site. The State Bar of Wisconsin shall provide notice of this order. No. 17-02 3 Dated at Madison, Wisconsin, this 27th day of June, 2017. BY THE COURT: Diane M. Fremgen Clerk of Supreme Court No. 17-02 4

SUPREME COURT OF WISCONSIN No. 13-05A In the matter of the Petition to Create a Procedure for Enforcement of Supreme Court Disciplinary Orders. FILED MAY 22, 2017 Diane M. Fremgen Clerk of Supreme Court Madison, WI This rule petition has a long procedural history. On May 29, 2013, the State Bar of Wisconsin, the Chair of the Board of Administrative Oversight, and the Director of the Office of Lawyer Regulation (OLR) filed a rule petition asking the court to create a supreme court rule providing a procedure for enforcement of Supreme Court disciplinary orders. The issue giving rise to the petition emerged in the context of lawyer disciplinary cases. Supreme Court Rule 20:8.4(f) provides that it is professional misconduct for a lawyer to violate a supreme court order or supreme court decision regulating the conduct of lawyers. Thus, a lawyer's failure to comply with a supreme court order is grounds for the OLR to commence a separate disciplinary complaint against the lawyer. See In re Disciplinary Proceedings Against Lister, 2012 WI 102, ¶19, 343 Wis. 2d 532, 817 N.W.2d 867. However, this can be a cumbersome process. So, the OLR has occasionally filed a motion with the supreme court, asking the court to enforce an order pursuant to its inherent constitutional authority to enforce its disciplinary No. 13-05A 2 orders. See, e.g., In re Disciplinary Proceedings Against LeSieur, 2013 WI 39, 347 Wis. 2d 190, 832 N.W.2d 67. In Lister the court noted that there are no provisions in the court's rules governing (1) the ability of the OLR to file a motion in the original disciplinary proceeding to impose sanctions on an attorney for failing to comply with a prior disciplinary decision, or (2) the procedure by which such a motion should be filed and resolved. The court directed the OLR to file a rule petition proposing such a procedure. Id., ¶29. This rule petition was the result. Upon receipt of the rule petition, the court requested additional information and solicited public comment. The Supreme Court Commissioners Office filed a comment expressing concerns with the petition and proposing a number of amendments to the petition. On October 25, 2013 the court conducted a public hearing on the petition. The OLR Director Keith Sellen presented the petition to the court. He indicated the petitioners agreed with some, but not all of the supreme court commissioners' recommendations. No other comments were received. At the court's ensuing open rules conference, the court discussed the petition. The court determined that there were issues that warranted further consideration including: whether the rule should be limited to a lawyer's willful failure to comply with a disciplinary order, whether additional procedural requirements are warranted such as a right of appeal, whether the rule should include motions for contempt, and the appropriate burden of proof. The court directed the OLR to confer with the supreme court commissioners and No. 13-05A 3 other interested entities to prepare a revised proposal for the court. See S. Ct. Order 13-05 (issued June 24, 2014). The OLR and the supreme court commissioners submitted a revised proposal to the court on March 5, 2015. The court discussed the revised proposal at the December 14, 2015 open rules conference. The court was dissatisfied with different aspects of this proposal and Justice David T. Prosser offered to undertake another review of the rule. Since that time, the court has appointed the OLR Procedure Review Committee, which has a subcommittee dedicated to considering changes in the OLR process. At the April 20, 2017 open rules conference, the court discussed the petition again. The court determined that this complex issue would benefit from study and review by the OLR Procedure Review Committee.1 The court voted to dismiss the petition and refer the matter to the OLR Procedure Review Committee. IT IS ORDERED that rule petition 13-05 is dismissed. IT IS FURTHER ORDERED that the OLR Procedure Review Committee is asked to evaluate and include in its report to the court a recommendation as to whether follow-up action is warranted in the wake of this court's decision to dismiss this petition and, if so, propose a procedural mechanism by which the OLR may file and the court decide a motion filed by the OLR in the original disciplinary 1 It is the mission of the OLR Procedure Review Committee to review OLR procedures and structure, and to report to the Wisconsin Supreme Court recommendations that would increase the efficiency, effectiveness, and fairness of the OLR process. No. 13-05A 4 proceeding to impose sanctions on an attorney for failing to comply with a prior supreme court order. Dated at Madison, Wisconsin, this 22nd day of May, 2017. BY THE COURT: Diane M. Fremgen Clerk of Supreme Court No. 13-05A 5

2017 WI 33 SUPREME COURT OF WISCONSIN NOTICE This order is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 16-05 In re creation of a pilot project for dedicated trial court judicial dockets for large claim business and commercial cases FILED APR 11, 2017 Diane M. Fremgen Clerk of Supreme Court Madison, WI On October 26, 2016, Attorney John A. Rothstein, on behalf of the Business Court Advisory Committee appointed by Chief Justice Patience Drake Roggensack, petitioned the Wisconsin Supreme Court requesting authorization for a three-year pilot project to create dedicated trial court judicial dockets for large claim business and commercial cases in Waukesha County and in the circuit courts of the Eighth Judicial Administrative District (pilot project). The petition also proposes an interim commercial court rule and creation of guidelines applicable to the pilot project. The court discussed the petition at open rules conference on November 7, 2016, and voted to approve the pilot project by a vote of 5:2 (Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley opposed, preferring to defer a decision until after a public hearing). The court also voted to solicit written comment and to No. 16-05 2 conduct a public hearing to obtain additional input regarding the pilot project. On December 19, 2016, a letter was sent to interested persons seeking input. The court received written responses from: Rose Oswald Poels, President and CEO, Wisconsin Bankers Association; Randal J. Brotherhood, Chair, Business Law Section, State Bar of Wisconsin; and the Honorable Lisa K. Stark, Wisconsin Court of Appeals. The petitioner filed a response on January 30, 2017, attaching several documents, including communications with business courts in other states, and a copy of a letter to Governor Scott Walker from several business entities expressing support for the petition. The court conducted a public hearing on February 16, 2017. Attorney John A. Rothstein presented the petition to the court. The court also heard testimony in support of the petition from: the Honorable Michael J. Aprahamian, Circuit Court Judge, Waukesha County; Attorney Laura A. Brenner, Reinhart Boerner Van Dueren S.C.; Attorney Lucas T. Vebber, Wisconsin Manufacturers & Commerce; the Honorable Michael R. Fitzpatrick, Circuit Court Judge, Rock County; Michael A. Crowley, Waukesha County Board of Supervisors; Francis W. Deisinger, President, State Bar of Wisconsin; Attorney Lon E. Roberts, Secretary, Wisconsin Department of Financial Institutions; Attorney Randal J. Brotherhood, Chair, Business Law Section, State Bar of Wisconsin; Attorney Brick N. Murphy, Conway, Olejniczak & Jerry, S.C., and Board of Directors of State Bar of Wisconsin Business Law Section; and the Honorable James A. Morrison, Chief No. 16-05 3 Judge of the 8th Judicial Administrative District of Wisconsin and Chief Judge of Marinette County. At the ensuing open rules conference, the court discussed the petition, the proposed interim commercial court rule, and proposed guidelines. The court expressed support for the stated purpose of the petition, that it is in the public interest to ensure that large claim cases involving Wisconsin employers or businesses, or which involve complicated commercial disputes, are resolved expeditiously and with the least amount of costs so as to: (a) improve the quality and predictability of justice in connection with business disputes; (b) improve parties' access to justice; (c) make repeat disputes less likely to occur due to guidance provided by ongoing decisions; and (d) make Wisconsin a desirable forum for resolving business disputes. A majority of the court voted to approve the interim commercial court rule, subject to certain amendments,1 and to authorize the Business Court Advisory Committee to amend the rule as provided herein and to create guidelines for the pilot project, which shall be 1 In addition to technical amendments recommended by the Legislative Reference Bureau which the petitioner did not oppose, the Wisconsin Bankers Association recommended and the court agreed that the definition of "business organization" in proposed interim commercial court rule, section 3(a), include banks, savings banks and savings and loan associations, and that the statutes identified in proposed interim rule section, 4(a), include chapters governing state chartered financial institutions. The court declined the Wisconsin Bankers Association's proposal to add the term "employees" to proposed interim rule, section 4(a), and emphasized that the pilot project is generally not intended to encompass litigation brought by individuals against their employers or against financial institutions. No. 16-05 4 made available on the Wisconsin court system website. The court will review the operation of this pilot project three years after the effective date. Therefore, IT IS ORDERED that the Waukesha County Circuit Court and the circuit courts of the Eighth Judicial Administrative District shall, as a pilot project, establish large claim commercial case dockets for the assignment of commercial cases as defined in the interim commercial court rule set forth in Appendix A, attached hereto. IT IS FURTHER ORDERED that the Waukesha County Circuit Court and the circuit courts of the Eighth Judicial Administrative District may commence the pilot project beginning July 1, 2017, or as soon thereafter as reasonably practicable. The pilot project shall run for a period of three years, unless rescinded, modified, or extended by future order of the court. IT IS FURTHER ORDERED that the Chief Justice will select the circuit court judges who will be assigned to the commercial court docket from the counties and judicial administrative districts participating in the pilot project. IT IS FURTHER ORDERED that this court shall review the pilot project three years after the effective date. IT IS FURTHER ORDERED that a Business Court Advisory Committee appointed by the Chief Justice may provide guidance during the pilot project and may adopt, and make publicly available on the Wisconsin court system website, guidelines for the pilot project. The Business Court Advisory Committee that filed this rule petition consisted of: the Honorable Michael J. Aprahamian, Attorney Michael B. Brennan, Attorney Laura A. Brenner, the Honorable Michael R. Fitzpatrick, No. 16-05 5 Attorney Nora E. Gierke, the Honorable James A. Morrison, Lon E. Roberts, Secretary, Wisconsin Department of Financial Institutions, and Attorney John A. Rothstein, Chair. These individuals have been invited to continue to serve on the Committee during the pilot project. In addition, the Deputy Director of Court Operations, Wisconsin Director of State Courts Office, Sara Ward-Cassidy, is hereby appointed to the Business Court Advisory Committee. IT IS FURTHER ORDERED that the interim commercial court rule set forth in Appendix A, attached hereto, shall apply to cases in the pilot project. The interim commercial court rule is subject to amendment by a Business Court Advisory Committee submitting proposed amendments to the supreme court. IT IS FURTHER ORDERED that a Business Court Advisory Committee, in collaboration with the judges assigned to the pilot project and with assistance from the Court Operations, Wisconsin Director of State Courts Office, will monitor the pilot project during its three-year term, and on or before December 1 of calendar years 2018 and 2019, shall submit a progress report to the Wisconsin Supreme Court that addresses the following: a. Circuit court data regarding cases assigned to the pilot project; b. Levels of litigant satisfaction with the pilot project; c. Views of judges and attorneys concerning the effectiveness and benefits of the pilot project relating to the stated goals of the pilot project; d. Recommendations concerning eligibility criteria for assignment of cases to the pilot project, adoption of additional No. 16-05 6 measurements to evaluate the performance of this pilot project, and proposed changes to rules and forms; and e. Any other matter that should be brought to the attention of the Wisconsin Supreme Court. IT IS FURTHER ORDERED that notice of this decision be given by a single publication of a copy of this order in the official publications designated in SCR 80.01, including the official publishers' online databases, and on the Wisconsin court system's web site. The State Bar of Wisconsin shall provide notice of this order. Dated at Madison, Wisconsin, this 11th day of April, 2017. BY THE COURT: Diane M. Fremgen Clerk of Supreme Court No. 16-05 1 Appendix A Interim Rule for Pilot Project for Dedicated Trial Court Judicial Dockets for Large Claim Business and Commercial Cases; Assignment and Management of Business and Commercial Cases 1. Purpose, authority. a) The purpose of this interim rule (Rule) is to authorize a pilot project to implement a specialized docket for commercial cases in Wisconsin circuit courts. The commercial court docket is designed to operate within the framework of the existing Wisconsin court system with minimal impact on the balance of court operations. It is intended to leverage judicial expertise in commercial law and disputes with commercial litigants' desire to tailor case management practices best suited for resolving substantial business disputes fairly and expeditiously. b) This Rule is adopted pursuant to the Supreme Court's rulemaking authority under s.751.12, stats., and the Court's superintending and administrative authority over all courts conferred by Article VII, §3 of the Wisconsin Constitution. This Rule is temporary and is subject to change as the needs of the pilot project dictate. c) This Rule shall be known and cited as the Commercial Court Rule, or CCR. d) This Rule is intended to supplement, not supplant, the rules of the Wisconsin Supreme Court and the Wisconsin statutes. Should any conflict be deemed to exist between this Rule and any other supreme court rules or statutes, the other rules or statutes shall control. 2. Scope, effective dates. a) This Rule applies in counties and judicial administrative districts that have established specialized dockets for commercial cases, which are referred to in this interim Rule as the "Commercial Court." b) The pilot project will begin and end as authorized by order of the Supreme Court. See S. Ct. Order 16-05, 2017 WI 33 (issued Apr. 11, 2017, eff. July 1, 2017). The approximate duration of the project will be from July 2017 to July 2020. c) No case filed before the inception date of the pilot project will be included in this pilot project. d) The circuit courts for Waukesha County and in the Eighth Judicial Administrative District are hereby designated as the initial locations for the Commercial Court dockets. e) The Chief Justice shall select the circuit court judges in the counties and judicial administrative districts participating in the pilot plan who will be assigned to the Commercial Court docket. Selection of a judge for the Commercial Court docket shall not preclude the judge from continuing work on any other assigned docket. The Chief Justice shall select no fewer than three circuit court judges in Waukesha County and no fewer than four circuit court judges within the Eighth Judicial Administrative District. No. 16-05 2 f) The pilot project may be expanded or extended by order of the Supreme Court upon the recommendation of the Director of State Courts. This Rule is subject to revision by order of the Supreme Court as the pilot project progresses. 3. Application; definitions. For purposes of this Rule: a) "Business organization" includes a sole proprietorship, corporation, partnership, limited liability company, limited partnership, professional association, service corporation, joint venture, bank, savings bank, savings and loan association, or business trust. A "business organization" excludes an individual, a family trust, or a political subdivision or government entity. b) "Consumer contract or transaction" is a consumer contract or transaction that is primarily for personal, family, or household purposes. 4. Mandatory Assignment of Cases to the Commercial Court Docket. Any case that is one of the following types of cases that is filed in a circuit court in which a Commercial Court docket has been established shall be assigned to the Commercial Court docket as provided under section 7, and the Commercial Court shall have jurisdiction over any of the following types of cases: a) Cases involving the governance or internal affairs of business organizations, including claims between or among owners or constituents of a business organization; claims against officers, directors or managers of a business organization; claims involving the indemnity of owners, officers, directors, or managers of a business organization; claims involving the interpretation of the rights and obligations under the law governing the business organization, such as chs. 178, 179, 180, 181,183, 185, 214, 215, 221, 222, & 223, stats., or any similar statue or law from another jurisdiction; claims involving the interpretation of the rights and obligations under the agreements governing the business organization, such as the articles of incorporation, bylaws, operating agreements, membership agreement, or partnership agreement of the business organization; b) Cases involving tortious or statutorily prohibited business activity, unfair competition or antitrust, including claims under ch. 133, stats.; claims under s.100.30(5m) or (5r), stats.; claims under s.134.01, stats.; claims of tortious interference with a business organization; claims involving restrictive covenants and agreements not to compete or solicit; claims involving confidentiality agreements; c) Cases involving the sale, consolidation, or merger of a business organization, conversion, share exchange or the sale of substantially all of the assets of a business organization; d) Cases involving the sale of securities, including claims for securities fraud under ch. 551, stats., or any similar statute or law from another jurisdiction; e) Cases involving intellectual property rights, including claims to determine the use, ownership, or status of trademarks, trade secrets, or copyrights; claims under s.134.90, stats.; claims involving any agreement relating to the licensing of any intellectual property right, including patent rights; f) Cases involving the relationship between a franchisor and franchisee or similar distribution relationship, including claims arising from ch. 135, stats., or any similar statute from another jurisdiction; claims arising from s.134.93, stats., or any similar No. 16-05 3 statute from another jurisdiction; claims arising from ch. 553, stats., or any similar statute from another jurisdiction; g) Cases involving claims or disputes under chs. 402, 403, 404, 405, or 409, or any similar statute or law from another jurisdiction, when the amount in controversy exceeds $100,000, exclusive of interest, costs, and attorney fees. 5. Discretionary Assignment of Cases to the Commercial Court Docket. In addition to the cases identified above in section 4 above, and which are not otherwise excluded under section 6, parties may jointly move the chief judge of the judicial administrative district in which the Commercial Court sits for discretionary assignment of a case to the Commercial Court docket. If the motion for discretionary assignment is granted, the case may be assigned to the Commercial Court docket. In deciding a motion for discretionary assignment of a case to the Commercial Court docket, the chief judge of the judicial district shall consider the parties to the dispute, the nature of the dispute, the complexity of the issues presented, and whether the Commercial Court's resolution of the case will provide needed guidance to influence future commercial behavior or assist in resolving future disputes. The decision granting or denying a motion for a discretionary assignment of a case to the Commercial Court docket is final and non-appealable. 6. Ineligible Case Types. The following cases will not be assigned to the Commercial Court docket: a) Cases involving small claims under ch. 799, stats.; b) Cases involving a governmental entity or political subdivision seeking to enforce a statutory or regulatory restriction or prohibition; c) Cases involving consumer contracts or transactions; landlord/tenant disputes; domestic relations claims; labor claims; receivership, insolvency, or liquidation cases; malpractice claims; personal injury claims; product liability claims; civil rights claims; tax disputes; cases seeking to compel arbitration or to affirm or disaffirm an arbitration award; construction claims; or environmental claims unless the claim or dispute identified in this section is ancillary and incidental to a case assigned to the Commercial Court under section 4. 7. Identification and Assignment of Cases to Commercial Court Docket. a) Plaintiff's duties. At the time of the filing of the complaint under s. 801.02(1) stats., the plaintiff in a civil action shall state on the face of the complaint whether the case qualifies for the Commercial Court docket under section 4. b) Clerk of court duties. In Waukesha County, upon the filing of a case qualifying for the Commercial Court docket, the clerk of court shall assign the case to the Commercial Court docket and to one of the judges designated for the commercial court docket. In the event of a request for judicial substitution, the case shall be transferred to the next Waukesha County circuit court judge who is assigned to the Waukesha County Commercial Court docket. In the Eighth Judicial Administrative District, for cases filed in any county in which a circuit court judge in that county has already been assigned a Commercial Court docket, the same procedures shall apply. In counties of the Eighth Judicial Administrative District in which no circuit judge has been assigned to the Commercial Court docket, upon the filing of a qualifying No. 16-05 4 case, the clerk of court shall notify the chief judge of the Eighth Judicial Administrative District who shall assign one of the Commercial Court docket judges from the other counties in the Eighth Judicial Administrative District. The chief judge's selection shall be made pursuant to s.751.03(3), stats. In the event a request for substitution is filed against the judge chosen by the chief judge of the Eighth Judicial Administrative District, the chief judge shall then assign another judge from the Eighth Judicial Administrative District who has been appointed for Commercial Court cases. c) Omission by plaintiff; defendant's and third-party defendant's rights and prerogatives of the circuit court. In the event the duties set forth in subsection 7(a) are not met, the circuit court may, sua sponte, or upon a motion filed by the defendant or third party with his or her or its responsive pleading or responsive motion, order the transfer of a case to the Commercial Court docket if that judge determines that the case meets the mandatory criteria of section 4. d) On assignment of any matter to the Commercial Court docket, the matter shall retain the civil action number assigned to it by the clerk of court upon the filing of the complaint. 8. Disputes Regarding Assignments of Cases to the Commercial Court Docket. a) Contesting the assignment of a case to the Commercial Court docket. After assignment of a case to the Commercial Court docket, the judge assigned to the case may sua sponte, or upon motion of any party, reconsider whether assignment of that case to the Commercial Court docket is appropriate under the requirements of section 4. Any party filing a reconsideration motion under this section 8 shall file the motion not later than 20 days after the case is assigned to the Commercial Court docket. If the assigned Commercial Court judge concludes that the case does not qualify for assignment to the Commercial Court docket, the judge shall return the case to the general civil case docket. b) Review. Any party aggrieved on the outcome of a motion for reconsideration under subsection 8(a) may request the chief judge of the judicial administrative district in which the Commercial Court sits to review the reconsideration decision. A decision by the chief judge of the judicial district resolving the question of which docket shall be assigned the case is final and non-appealable. 9. Processing of Remaining Civil Cases Not Qualifying for the Commercial Court Docket. Civil cases not qualifying for assignment to the Commercial Court docket under section 4, or for which a joint motion for discretionary assignment has been denied under section 5, shall be assigned to the docket of the general civil court. No. 16-05.ssa 1 ¶1 SHIRLEY S. ABRAHAMSON, J. (dissenting). I begin by thanking the Committee for its work in bringing forth this petition and for agreeing to continue its work. I also offer my best wishes for the success of the circuit court dockets dedicated to "large business and commercial cases," popularly known as business courts. I cannot, however, join in the adoption of the petition because we do not have the evidence to evaluate the need, if any, for these specialized courts; their structure; and the counties best suited for a pilot program. Moreover, the proposal has the unfortunate potential to cause mischief. ¶2 A significant mischief inherent in the proposal is its message that circuit court judges are not capable of handling complex civil cases and that business, above all, deserves the fastest, most cost-effective, most predictable and fairest disposition of cases. This message is false and undermines confidence in the judicial system. The true message, in my opinion, is that the mission of the courts is that all people should have access to the courts and deserve to have their disputes resolved in a fast, cost-effective, predictable and fair way. ¶3 The defective process used to adopt the business court petition has already had an effect on the way other pending petitions are being processed. Petitioners and opponents, beware! No. 16-05.ssa 2 ¶4 In adopting the business court petition, the court, for the first time in institutional memory, adopted a substantive petition without public input, without any hearing, and without discussion.1 After the court adopted the petition, the court requested comments and held a hearing. ¶5 This process has affected the process used in Rule Petition 17-01, relating to recusal. The recusal petition was filed January 11, 2017 by 54 retired Wisconsin judges asking the court to set objective recusal standards for judges who received campaign contributions from a party to a case. Preliminary discussion of the petition had been set for March 16, 2017 at open court conference. The agenda for the conference was released on March 3, 2017, and included Rule Petition 17-01. ¶6 The first discussion of a rule petition ordinarily involves matters such as whether to schedule a hearing on the petition, whether to invite comments from interested parties, etc. It does not typically involve a vote on whether to adopt or dismiss the petition. ¶7 On March 13-14, 2017, the court received communications from the Wisconsin Institute for Law and Liberty asking the court to postpone its preliminary discussion of Rule Petition 17-01 until the Institute could, within 30 days, submit its opposition to the petition. 1 The court has adopted, over my objection, a petition seeking technical amendments to a petition already adopted without comment or hearing. No. 16-05.ssa 3 ¶8 Perhaps there was some concern by the Institute that the petition might, like the business court petition, be quickly adopted on March 16 without discussion, a hearing, or an opportunity for public comment. Or perhaps the Institute hopes that the Institute's comments will persuade the court to dismiss the petition without further comments or hearing. ¶9 In any event, the preliminary discussion of Rule Petition 17-01 was removed from the March 16 open rules petition conference agenda without any explanation. The court public information officer advised the media that Rule Petition 17-01 will be placed on the April 20 open conference agenda. ¶10 The petitioners have not been advised of this change except through postings of the Institute's communications on the court website. They too may want to make a submission to the court in support of their petition. Otherwise, they might risk their petition being dismissed without further opportunity for discussion. ¶11 Thus, the procedure used for the business court petition is having an effect on the procedure for other petitions before the court. ¶12 I move from procedure for hearing and deciding rules petitions to the substance of the petition creating business courts. ¶13 With regard to the proposal itself, first and foremost, the petition does not achieve the results for which it was adopted. This state of affairs is cause for concern. Three reasons for adoption of this petition were given in the No. 16-05.ssa 4 petition, in written responses, and at the public hearing. None is achieved by the present proposal. 1. The prime reason given for the petition is that the proponents want judges familiar with these kinds of "large claim2 commercial cases" to preside in these cases for quality and predictability. Over and over again, the court heard that if any costs are to be saved by the litigants or if any delay in dispute resolution is to be avoided, and if predictability in decisions is to be achieved, it would be because the presiding judges would know what they were doing and would not need as much education from the lawyers.3 Yet neither the petition nor the order describes the experience or education that the business court judges should have.4 2. A second reason the proponents offered for the petition was that the decisions of the business court would provide guidance throughout the state. Yet the petition does not set forth a method of "publishing" the case law developed by the business (circuit) 2 Despite the hype, the petition does not limit jurisdiction to cases involving large sums of money. 3 It is the lawyers' time and effort to educate judges that increases the costs and causes delay, according to the written comments and testimony. 4 Indeed, some of the justices thought it advisable that the judges be able to learn on the job and not be case hardened. No. 16-05.ssa 5 courts or giving effect to these business (circuit) court decisions that have no precedential or persuasive effect under the present law. Nor do the proponents or the petition consider appellate review and the business training and experience (or lack thereof) of appellate judges. 3. The petition proclaims that no costs are involved. Not true! The petition involves significant costs; it is far from a free program.5 For example, the petition suggests enlisting an expert in the evaluation process. Such an evaluation process is a significant expense. Furthermore, the evaluation process should be part of the creation of the business courts. It is not. The evaluation is at best an expensive afterthought. Shouldn't this court compare the costs for this project with the costs of other projects the court might undertake, like pilot programs to improve access to justice for middle-class and indigent persons? ¶14 Second, and importantly, the process for adoption of the petition was defective. The defect was the failure to vet the project. The proposal was not discussed with staff, chief 5 Costs are everywhere: judges will need to be trained; the Office of Court Operations will need to analyze and report data; clerks of circuit court will have additional duties; and CCAP, already on over-load with mandatory e-filing and decreased revenue, will have additional responsibilities. No. 16-05.ssa 6 judges, the bar, and others. Poor process is apt to end in a poorly planned and managed project. ¶15 The usual process is the court sets a time for a hearing (or for written comments, or for both written comments and a hearing), reads the comments, listens to testimony at the hearing, discusses the proposal in open conference, and then votes on the petition. ¶16 Adoption of this petition was a pre-orchestrated "done deal," without any opportunity for real, meaningful input by others; a real, meaningful hearing; or a real, meaningful discussion by the justices. What kind of fair, open-minded process is that? As a result, the court heard nothing from the chief judges of the state; the circuit court judges, including the Trial Judges Association; court staff; consumer groups; or justices who attempted to make any suggestion to improve the proposal. 'Twas no use to come forth. The ship had already left the dock. ¶17 The errors resulting from the defective process were summarized in a letter by Judge Lisa Stark, presently a court of appeals judge and Dean of the Judicial College and formerly a practicing lawyer with a substantial business litigation practice and a circuit court judge. It is a very thoughtful letter that is a must-read for anyone who wants to change the way courts do business——and there are many ways we should be changing to improve our system for the litigants and public. ¶18 Judge Stark demonstrates an understanding of the various components of the court system and undertaking pilot, No. 16-05.ssa 7 experimental programs, an understanding that would have assisted the Advisory Committee. ¶19 Judge Stark's critical comments evaluating the petition fit into three categories: • The evidentiary bases for creation of commercial case dockets are missing. • The effectiveness of the pilot project cannot be evaluated because the present status of business/commercial cases is unknown and no provision is made to seriously evaluate the status of the business/commercial dockets as the pilot project goes forth. • The effect of this specialized docket on the rest of the cases in the county and the judges across the state has not been considered. ¶20 I attach Judge Stark's excellent letter as Attachment A. Her letter is on the rules portion of the court's website. I attach her letter for a fuller discussion than I present here. Judge Stark does not write in opposition to the petition. Her letter wisely asks for Wisconsin-based research evidencing the problem to be resolved (e.g., a delay in handling complex commercial litigation cases? excessive costs? a lack of predictable results? any unfair handling of such cases at the trial or appellate levels?); a study of solutions to the problems to be resolved; and benchmark data to compare business court cases before, during, and after the adopted solution. No. 16-05.ssa 8 ¶21 The final mischief I address is that the formation of business courts seems to be tied in some fashion to financial support of the pilot business courts by business interests (whose cases are to be before the business courts) and increased judicial compensation. Attachment B is a letter (referenced at the hearing and on the court's website) submitted by 20 different business constituencies to Governor Walker indicating that these constituencies would consider financially supporting the business courts and that they favor increased judicial compensation for judges. ¶22 Again, let me be clear. At this time I oppose the creation of the business courts. The process for their creation was defective, and the plans for creating the business courts reflect the defective process. We do not know what problems, if any, business interests currently face in the courts; what solution(s), if any, should be created; and how any solution should be evaluated. ¶23 I hope this pilot project does not prove to be taxpayers' money down the drain. I wish the Committee and court had offered a business-like approach to this project and a cost-benefit analysis. ¶24 For the reasons set forth, I write separately. ¶25 I am authorized to state that Justice ANN WALSH BRADLEY joins this dissenting opinion. No. 16-05.ssa 1 ATTACHMENT A No. 16-05.ssa 2 No. 16-05.ssa 3 No. 16-05.ssa 4 No. 16-05.ssa 5 No. 16-05.ssa 6 ATTACHMENT B No. 16-05.ssa 7 No. 16-05.ssa 1

2017 WI 25 SUPREME COURT OF WISCONSIN NOTICE This order is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 16-03 In the Matter of the Petition to Amend SCRs 40.075 and 22.28 FILED MAR 21, 2017 Diane M. Fremgen Clerk of Supreme Court Madison, WI On September 15, 2016, the Board of Bar Examiners (BBE), by its director, Jacquelynn B. Rothstein, filed a rule petition asking the court to amend SCR 40.075, the "conditional admission" rule. The petition also proposed amending SCR 22.28 to include a mechanism to reinstate a lawyer whose license to practice law was suspended or revoked for failure to comply with the terms of conditional admission. The court discussed this petition at open rules conference on November 7, 2016 and voted to schedule a public hearing. On December 19, 2016, a letter was sent to interested persons seeking input. On January 24, 2017, the State Bar of Wisconsin submitted a letter stating that the Board of Governors supports the petition. The court conducted a public hearing on February 16, 2017. Jacquelynn B. Rothstein, director, appeared and presented the petition on behalf of the BBE. No. 16-03 2 At the ensuing open rules conference, the court discussed the petition and voted (5–2) to approve the petition with certain changes. Specifically, the court discussed its original intent when adopting the conditional admission rule and voted to remove references to suspension of a law license for failure to comply with the terms of conditional admission. Justice Shirley S. Abrahamson and Justice Rebecca Grassl Bradley opposed, stating they favored retaining reference to both suspension and revocation. The court discussed the petition again at open rules conference on March 16, 2016, and Justice Ann Walsh Bradley stated her intent to write separately. Therefore, IT IS ORDERED that: SECTION 1. Supreme Court Rule 40.075 (7) is amended to read: (7) FAILURE. A conditionally admitted lawyer's license to practice law is expressly conditioned upon compliance with the terms of the conditional admission agreement. If the board determines that a conditionally admitted lawyer has failed Failure of a conditionally admitted lawyer to fulfill the terms of a conditional admission agreement the board may result in a modification, extension, or revocation of the modify, extend or revoke the conditional admission agreement, or take such other action as may be appropriate, including notice to the office of lawyer regulation. SECTION 2. Supreme Court Rule 40.075 (7m) is created to read: (7m) REVOCATION OF CONDITIONAL ADMISSION AGREEMENT. Upon the board's decision to revoke a conditional admission agreement, the board shall file a motion with the supreme court requesting the court to order the conditionally admitted lawyer to show cause why his or her No. 16-03 3 license to practice law should not be revoked for failure to fulfill the terms of the conditional admission agreement. The conditionally admitted lawyer may file a response to the motion within 20 days after the filing of the board's motion. The court may decide the matter on written submissions without a hearing. The court may, in its discretion, refer the matter to a referee. SECTION 3. Supreme Court Rule 40.075 (9)(h) is created to read: (h) When the court issues an order revoking a conditionally admitted lawyer for failure to fulfil the terms of a conditional admission agreement. SECTION 4. Supreme Court Rule 40.075 (12) is created to read: (12) REINSTATEMENT. A conditionally admitted lawyer whose license to practice law is revoked for failure to fulfill the terms of a conditional admission may file a petition for reinstatement under SCR 22.29. SECTION 5. Supreme Court Rule 22.28 (3) is amended to read: (3) The license of an attorney that is revoked or suspended for misconduct for six months or more, or revoked for failure to fulfill the terms of a conditional admission agreement under SCR 40.075, shall be reinstated pursuant to the procedure set forth in SCR 22.29 to 22.33 and only by order of the supreme court. IT IS FURTHER ORDERED that that the amendment adopted pursuant to this order shall be effective as of July 1, 2017, and shall apply to proceedings commenced after the effective date of this rule and, insofar as is just and practicable, to proceedings pending on the effective date. No. 16-03 4 IT IS FURTHER ORDERED that notice of this amendment of Supreme Court Rules 40.075 and 22.28 be given by a single publication of a copy of this order in the official publications designated in SCR 80.01, including the official publishers' online databases, and on the Wisconsin court system's web site. The State Bar of Wisconsin shall provide notice of this order. Dated at Madison, Wisconsin, this 21st day of March, 2017. BY THE COURT: Diane M. Fremgen Clerk of Supreme Court Rule 16-03.awb 5 ¶1 ANN WALSH BRADLEY, J. (concurring). SCR 40.075(7m) and 22.28(3) state that upon revocation of the conditional admission agreement, the court may revoke the license of the attorney. These provisions don't tell the full story. ¶2 I write separately to emphasize that this court retains supervisory authority over the bar in Wisconsin and can always exercise that authority as the facts of a particular case dictate, including allowing for a waiting period before admission or admission with conditions. ¶3 Although this order is consistent with the intent upon adoption of conditional admission, I remain hesitant to inexorably tie the court's hands in unique factual circumstances. ¶4 Accordingly, I respectfully concur. ¶5 I am authorized to state that Justices SHIRLEY S. ABRAHAMSON and REBECCA GRASSL BRADLEY join this concurrence. Rule 16-03.awb 1

2017 WI 23 SUPREME COURT OF WISCONSIN NOTICE This order is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 16-06 In the matter of the petition to amend SCRs 31.02 and 31.05 relating to the continuing legal education requirements FILED MAR 20, 2017 Diane M. Fremgen Clerk of Supreme Court Madison, WI On November 2, 2016, the Wisconsin Board of Bar Examiners (BBE), by its director, Jacquelynn B. Rothstein, filed this rule petition asking the court to expand the scope of acceptable continuing legal education (CLE) topics under SCR 31.02 and to amend SCR 31.05 to increase the number of on-demand credits that a lawyer may use in a CLE reporting cycle and to permit use of some on-demand credits for reinstatement, readmission, or reactivation of a law license. The court discussed the petition at open rules conference on December 1, 2016 and voted to solicit written comments on the petition before deciding whether to schedule a public hearing. Letters were sent to the interested persons on December 7, 2016. The court received one response, from the State Bar of Wisconsin, supporting the petition. The State Bar's CLE Committee (CLE Committee) suggests that there should be no limit to the number of credits a lawyer may claim from courses based on the new topics for No. 16-06 2 which CLE credit may be obtained. The BBE responded, indicating it does not support this recommendation. The court further discussed the petition at open rules conference on March 16, 2017. The court opted not to conduct a public hearing and, after discussion, the majority of the court voted to adopt the petition. The court declined to expand the proposed rule as suggested by the CLE Committee. Therefore, IT IS ORDERED THAT: SECTION 1. SCR 31.02 (3), (4), and (5) are created to read: (3) A lawyer may attend a maximum of six (6) hours of the 30 hours required under sub. (1) on subjects designed to enhance a lawyer's awareness and understanding of substance abuse/dependence disorders, mental illness, stress management, and work/life balance relating to the practice of law. (4) A lawyer may attend a maximum of six (6) hours of the 30 hours required under sub. (1) on the subject of law practice management, which may include topics such as client communications, trust accounting, record keeping, applications of technology, and other subjects essential to the practice of law. Courses or portions of courses dealing primarily with profit enhancement or marketing of services will be denied credit. (5) A lawyer may not claim credit for attending the same course more than one time during a reporting cycle. SECTION 2. SCR 31.05(5)(b) is amended to read: (b) No more than 105.0 credits may be claimed for repeated ondemand programs during a lawyer's reporting period. SECTION 3. SCR 31.05(5)(d) is amended to read: No. 16-06 3 (d) Repeated on-demand programs may not be used for For reinstatement, readmission, or reactivation, no more than 50 percent of a lawyer's CLE may come from repeated on demand programs. IT IS FURTHER ORDERED that the effective date of this order is July 1, 2017. IT IS FURTHER ORDERED that notice of the above amendments be given by a single publication of a copy of this order in the official publications designated in SCR 80.01, including the official publishers' online databases, and on the Wisconsin court system's web site. The State Bar of Wisconsin shall provide notice of this order. Dated at Madison, Wisconsin, this 20th day of March, 2017. BY THE COURT: Diane M. Fremgen Clerk of Supreme Court No. 16-06 4

2017 WI 13 SUPREME COURT OF WISCONSIN NOTICE This order is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 16-01 In the Matter to Amend Wisconsin Statutes §§ 885.16, 885.17, 885.205, and 906.01 FILED FEB 21, 2017 Diane M. Fremgen Clerk of Supreme Court Madison, WI On April 19, 2016, Attorney April M. Southwick filed a petition on behalf of the Wisconsin Judicial Council requesting that the court repeal the so-called "Deadman's statutes," Wis. Stats. §§ 885.16 (Transactions with deceased or insane persons) and 885.17 (Transactions with deceased agent), and amend Wis. Stat. § 906.01 (General Rule of Competency) to remove references to the Deadman's statutes. The petition also proposes repeal of Wis. Stat. § 885.205 (Privileged communications) which appears to create a privilege for communications between a student and dean of students or a school psychologist. The court discussed this petition at open rules conference on May 12, 2016, and voted to schedule a public hearing. On September 6, 2016, a letter was sent to interested persons seeking input. Attorneys Jonathan R. Ingrisano and Jonathan T. Smies, both attorneys at Godfrey and Kahn, S.C., submitted a letter in support of the No. 16-01 2 petition. The State Bar of Wisconsin submitted a response stating it would take no position on the petition. The court conducted a public hearing on October 24, 2016. Attorney April M. Southwick appeared and presented the petition on behalf of the Wisconsin Judicial Council, joined by Attorney Thomas L. Shriner. Attorney Jonathon R. Ingrisano and Attorney Jonathan T. Smies testified in support of the aspect of the petition relating to repeal of the Deadman's statutes. Attorney Jeff A. Goldman, State Bar of Wisconsin Board of Governors, also testified, providing additional context for proposed repeal of the Deadman's statutes, but took no position on the petition. At the ensuing open rules conference, the court discussed the petition. The court discussed whether aspects of the proposal, particularly the proposal to repeal Wis. Stat. § 885.205 of the statutes, transcend the court's authority under Wis. Stat. § 751.12 and determined that it would not further consider the proposed repeal of Wis. Stat. § 885.205. Upon further discussion the court indicated it was satisfied that the Deadman's statutes, which this court retained as part of its adoption of the Wisconsin Rules of Evidence in 1973, 59 Wis. 2d R1 (1973), are procedural and fall within the court's rule-making authority. The court voted unanimously to repeal the Deadman's statutes.1 After some additional discussion as to how 1 On January 11, 2017, Attorney S.A. Schapiro filed a motion asking the court to reconsider its decision to repeal the Deadman's statutes. Attorney Schapiro contends they were legislatively enacted, substantive, and are not within the purview of s. 751.12. The court considered these issues, as reflected in its discussion in open rules conference on October 24, 2016, and the motion is denied. No. 16-01 3 it should amend Wis. Stat. § 906.01 (General Rule of Competency) to remove references to the Deadman's statutes, the court voted to make the change, as requested by the petitioner. Therefore, IT IS ORDERED that: SECTION 1. 885.16 of the statutes is repealed. SECTION 2. 885.17 of the statutes is repealed. SECTION 3. 906.01 of the statutes is amended to read: 906.01 General rule of competency. Every person is competent to be a witness except as provided by ss. 885.16 and 885.17 or as otherwise provided in these rules. IT IS FURTHER ORDERED that the effective date of this order is July 1, 2017. IT IS FURTHER ORDERED that the rule adopted pursuant to this order shall apply to court proceedings commenced after the effective date of this rule and to any proceedings within a court proceeding then pending, except insofar as, in the opinion of the circuit court, application of the rule change would not be feasible or would work injustice, in which event the former rule applies. IT IS FURTHER ORDERED that notice of this amendment of Wis. Stats. §§ 885.16, 885.17, and 906.01 be given by a single publication of a copy of this order in the official publications designated in SCR 80.01, including the official publishers' online databases, and on the Wisconsin court system's web site. The State Bar of Wisconsin shall provide notice of this order. No. 16-01 4 Dated at Madison, Wisconsin, this 21st day of February, 2017. BY THE COURT: Diane M. Fremgen Clerk of Supreme Court No. 16-01.ssa 5 ¶1 SHIRLEY S. ABRAHAMSON, J. (concurring). I join most of the order repealing the "deadman's statutes." I write to discuss two provisions of the order: the effective date of the rule and the applicability of the rule after the effective date of the rule. ¶2 These two provisions have given the court pause in a number of orders, and the court is not consistent in its language relating to the applicability provision. ¶3 I write to clarify and memorialize the issues for the future. The Legislative Reference Bureau has had a great deal of experience with drafting effective date and applicability provisions in statutes, and I rely on chapter 6 of the Wisconsin Bill Drafting Manual 2017-2018, along with other materials, for my comments. ¶4 The effective date of a rule (like the effective date of a statute) is the date when the change becomes operative. The effective date of Rule 16-01, issued in January 2017, is July 1, 2017. This rule adopted by the court will appear in the Wisconsin Statutes as § 906.01. Sections 885.16 and 885.17 of the Statutes will be shown in the statutory history as repealed by the court. ¶5 Two reasons justify the delayed effective date of this rule. First and foremost, this rule (although it fails to so state) was issued pursuant to Wis. Stat. § 757.12, which provides that the effective dates for all rules adopted by the court shall be January 1 or July 1. See Wis. Stat. § 751.12(1). No. 16-01.ssa 6 Second, the delayed effective date gives the bench and bar time to learn of and adapt to the change. ¶6 The applicability provision of the rule (like the applicability provision of a statute) specifies the event or series of events in a temporal sequence that the change will govern after the effective date of the order. Although the rule becomes effective on July 1, 2017, its application after that date may be limited to certain events. ¶7 The order adopting the rule declares that the rule applies "to court proceedings commenced after the effective date of this rule and to any proceeding within a court proceeding then pending, except insofar as, in the opinion of the circuit court, application of the rule change would not be feasible or would work injustice, in which event the former rule applies." ¶8 The phrases "court proceedings" (used once) and "court proceeding" (used once) and the word "proceeding" (used once) are not defined in the rule. These phrases and words are apparently used in the Wisconsin Statutes more than one hundred times, and they do not always have the same meaning. The rule does not adopt any particular usage of the phrases or words. ¶9 Because the text of the applicability provision is not clear, I write separately. ¶10 Privy to the discussions of the applicability provision at open rules conferences and in e-mails by the justices and staff, I think I understand the court's intent in No. 16-01.ssa 7 adopting the applicability provision. I conclude that the court can express its intent better and more clearly. ¶11 Accordingly, I offer the following language to be adopted as the applicability provision and a comment. I think this language is clearer than that adopted and expresses the intent of the court: The rule applies fully and without limitation to any action commenced after July 1, 2017. For any action commenced before July 1, 2017, but continuing thereafter, the rule applies to all events in the action except to the extent that the circuit court determines that application of the rule change would not be feasible or would work injustice. COMMENT: The deadman's statute governs testimony in "any civil action or proceeding." See Wis. Stat. § 885.16. The words "civil action or proceeding" are not defined in § 885.16. The phrase "action commenced" is used herein to describe the commencement of a civil action as set forth in Wis. Stat. §§ 801.01 and 801.02 (2015-16). The phrase "events in the action" is used herein to refer to any matter in which a party or person may be examined pursuant to Wis. Stat. §§ 885.16 and 885.17 (2013-14). For a discussion of the word "action," including "special proceedings," used in Wis. Stat. § 801.01, the history of this terminology, and the commencement of civil actions, see Charles D. Clausen and David P. Lowe, The New Wisconsin Rules of Civil Procedure: Chapters 801-803, 59 Marq. L. Rev. 1. 2-9 (1976). ¶12 For the reasons set forth, I write separately. ¶13 I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion. No. 16-01.ssa 1