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  • WisBar News
    September 23, 2019

    State Bar Board Takes Position Against Indiscriminate Juvenile Shackling

    At its recent meeting in Delavan, the Board of Governors also voted to oppose a pending petition that would allow law licenses to be permanently revoked with no opportunity for reinstatement, and took other actions.
    Kori Ashley

    Kori Ashley, chairperson of the Board of Governors, conducts her first meeting of the fiscal year.

    Visit the State Bar’s Facebook page for more photos of this event, or click here.

    Sept. 23, 2019 – The State Bar of Wisconsin’s Board of Governors, which represents the membership through elected seats in 16 districts, has voted unanimously to support a policy position against the indiscriminate shackling of juveniles in juvenile court.

    Specifically, the State Bar now supports a no-shackling presumption but recognizes that judges would retain authority to order shackling if necessary, as a matter of safety.

    “The State Bar believes the practice [of shackling juveniles] impedes the attorney-client privilege, chills juveniles’ constitutional right to due process, runs counter to the presumption of innocence, and draws into question the rehabilitative ideals of the juvenile court,” the State Bar’s adopted policy position states.

    Rebecca Kiefer

    Attorney Rebecca Kiefer, chair of the State Bar of Wisconsin's Children and the Law Section Board, encouraged the board's support for a proposed policy against indiscriminate juvenile shackling in juvenile courts. The board unanimously supported the policy.

    No Shackling Presumption

    Rebecca Kiefer, chair of the Children and the Law Section, and section member Alaina Fahley presented on the issue of juvenile shackling in Wisconsin, noting that the decision to restrain kids who enter juvenile court, which has jurisdiction over children under the age of 17, occurs at the county level. There is no statewide rule or policy.

    “The indiscriminate shackling of youth unnecessarily humiliates, stigmatizes, and traumatizes them,” Kiefer told the board. She noted that data from across the country shows that shackling is not necessary to maintain courtroom safety.

    “The constitutional and psychological implications of shackling tips the scales in favor of ending the practice of indiscriminate shackling of children,” said Kiefer, noting that 32 states have limited the automatic shackling of children in court proceedings.

    Juvenile shackling policies differ by county. Some counties adhere to indiscriminate shackling; juveniles are always shackled. In others, there is a presumption that a juvenile should be shackled unless the sheriff or judge is convinced it’s not necessary.

    But some counties, such as La Crosse County, now have a presumption against shackling without good cause, and that is the policy the State Bar supports.

    Fahley said shackling not only traumatizes kids in court, but it may also create a presumption in the mind of the fact finder that the child is dangerous.

    “We see some kids as young as 10 being shackled without any previous determination that they are dangerous or likely to flee,” Fahley said.

    A number of states, including the Midwestern states of Illinois, Indiana, Iowa, Ohio, and North Dakota, have placed statewide limitations on juvenile shackling.

    For instance, the North Dakota Supreme Court, in 2017, imposed a rule that restraints cannot be used on children “unless a party or the detention, transport or juvenile court office staff request a finding by the court that the child poses an immediate and serious risk of dangerous or disruptive behavior or of escape or flight.”

    Board Opposes Petition on Permanent Revocation

    The board opposed (32-9) a pending petition that would allow the Wisconsin Supreme Court to permanently revoke a lawyer’s license.

    Currently, a lawyer whose law license is “revoked” may petition the Wisconsin Supreme Court for reinstatement after five years. The supreme court can deny reinstatement petitions, but there is no rule that allow law licenses to be permanently revoked.

    The pending petition (19-10) would allow permanent revocation of an attorney’s law license, with no opportunity for reinstatement. The board voted to oppose the petition.

    The Wisconsin Supreme Court, in 2016, appointed an Office of Lawyer Regulation (OLR) Procedure Review Committee to review OLR procedures and structure, and to report back to the supreme court “recommendations that would increase efficiency, effectiveness, and fairness of the OLR process.”

    Various subcommittees explored different OLR procedures. In October 2018, the OLR Procedure Review Committee issued a final report with numerous recommendations, including a recommendation to allow permanent disbarment if warranted.

    The State Bar’s Policy Committee and the Professional Ethics Committee reviewed the OLR committee’s final report and recommendations and raised various comments for consideration by the State Bar board, which discussed the issues in February 2019.

    In June, the board asked Dean Dietrich, chair of the State Bar’s Professional Ethics Committee, to prepare a brief on permanent revocation before the FY 2020 board revisited the issue. Dietrich submitted his brief, which highlighted various perspectives.

    Discussing the matter, board members raised various points. Nonresident Lawyer Division representative Erik Guenther, who favors a rule that would allow permanent revocation in egregious cases, suggested the board take no position.

    “There’s logic and passion on both sides of the issue,” he said. “It’s one for which this body is too close to call.” On this issue, he said the bar’s responsibility to maintain the integrity of the profession conflicts with its responsibility to individual members.

    But Dist. 2 Gov. Margaret Hickey said the board should take a position either way. “What could matter more to us than whether the supreme court has such a huge authority,” she said. “I urge this group to please take a position. That is our job.”

    Public board member Jim Marshall, a supreme court appointee to the board, urged the board to consider how the public would react if permanent revocation is opposed. If the board opposes the petition, he said, it should articulate its reasons for doing so.

    State Bar President Jill Kastner, who moved to oppose the petition (19-10), said the State Bar would be opposing this specific proposal, at this time. “We are not taking a position that there could never be a permanent revocation,” said Kastner.

    “We are saying there shouldn’t be a permanent revocation as provided for under 19-10, which would create a permanent revocation without providing specific guidelines and specific items for which someone could be permanently revoked,” she said.

    “You can be in favor of permanent revocation, under certain criteria, but be opposed to petition 19-10, because it does not annunciate what those specific criteria would be.”

    Dist. 6 Gov. Jesse Blocher, Waukesha, said if the State Bar does not vote to oppose the  petition, “that is saying that we as a body do not believe in the concept of rehabilitation.”

    The petition is scheduled for a hearing before the supreme court on Oct. 29, 2019. The State Bar will file a communication to the court that the board opposes the petition, and will have an opportunity to address the court to articulate why the board opposes it.

    Erik Guenther

    Erik Guenther, Las Vegas, a Nonresident Lawyer Division (NLRD) member of the board, said he supported a petition that would allow law licenses to be permanently revoked in egregious cases but questioned whether the board should take any position on the divided issue.

    Board Discusses Recommendations on State Bar Policy Positions

    The board briefly discussed whether to reaffirm, amend, or sunset State Bar policy positions as drafted in the 2019 State Bar of Wisconsin Policy Positions Handbook, but ultimately remanded the matter to the board’s Policy Committee for a second look on the specific policy related to the collateral source rule, which the State Bar supports. 

    The Policy Committee recommended that 51 policy positions be reaffirmed in the areas law practice regulations, delivery of legal services, administration of justice, funding the justice system, criminal practice and procedure, and civil practice and procedure.

    The Policy Committee recommended amendments to 10 policy positions in the areas of law practice regulations, funding of the justice system, and criminal and civil practice and procedure. The committee also recommends elimination of three positions, two relate to justice system funding and one opposing legislative efforts to change civil and practice procedure rules relating to expert and lay witness testimony.

    Dean Dietrich

    Dean Dietrich, Wausau, a member of the State Bar’s Professional Ethics Committee, fields questions on a proposed petition, submitted by an OLR committee, that would allow law licenses to be permanently revoked with no opportunity for reinstatement.

    Board Approves Nomination Committee Appointments

    The board approved State Bar President Jill Kastner’s appointments to the Nomination Committee for the April 2020 election.

    The Nomination Committee makes recommendations on potential candidates for State Bar president-elect, Secretary, and Judicial Council candidates.

    The 2020 Nomination Committee includes: State Bar President-elect Kathy Brost (chair), former State Bar President Michelle Behnke, Dist. 9 Gov. Laura Skilton Verhoff, Neenah attorney Grant Birtch, and Madison attorney Josh Kindkeppel.

    Board Approves Appellate Practice Section Request to File a Rule Petition

    The board approved the Appellate Section’s request to file a rule petition with the Wisconsin Supreme Court to amend rule Wis. Stat. section 809.86, which relates to identification of victims and others in responses and petitions filed with the court.

    The purpose of the proposed amendment is to clear the way for the supreme court to allow petitions for review and responses to petitions for review to be posted publicly on the Court’s web site with greater privacy protections for those named within.

    The proposed amendments would specifically include “petitions for review” and “responses” to petitions for review in the requirement to identify victims by initials or pseudonyms (presently the rule only applies to briefs).

    Treasurer Andrews Elected to the State Bar’s Executive Committee

    The board elected State Bar Treasurer Eric Andrews, Milwaukee, to the State Bar’s Executive Committee to replace Brittany Grayson.

    Grayson was recently appointed to the Milwaukee County Circuit Court. Wisconsin Supreme Court rules prohibit judicial members from serving on the Board of Governors.

    Thus, Grayson can no longer serve on the Executive Committee, which exercises all the powers and performs the duties of the board between meetings.

    Other Business

    • The board approved the requests of various sections to carry over more than $10,000 in their operating budgets into the 2020 fiscal year.

    • The board approved the date and location of the State Bar of Wisconsin’s 2024 Annual Meeting and Conference. It will be held June 19-21, 2024, at the Hyatt Regency and KI Center in Green Bay.

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