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Rotunda Report
  • Rotunda Report
    April 26, 2017

    Proposed Elimination of Judicial Council Creates Void and Unintended Consequences

    Cale Battles


    April 26, 2017 – For the second straight budget, the Wisconsin Judicial Council is facing elimination. The proposal would have a wide ranging impact on the effectiveness and efficiencies of the justice system.

    History of the Judicial Council

    The state Legislature created the Judicial Council in 1951 to advise the state Supreme Court and the Legislature on issues affecting the administration of justice. The council recommends legislation to change the procedure, jurisdiction or organization of the courts. The council also studies the rules of pleading, practice and procedure and advises the Supreme Court on how to simplify procedures to promote the speedy resolution of litigation.

    The 21-member Judicial Council is defined in statute and is comprised of: a supreme court justice; a court of appeals judge; four circuit court judges; one district attorney; three members of the board of governors of the state bar; two citizen members; and all of the following individuals (or their designees): the Director of State Courts, the chairs of the Senate and Assembly standing committees with jurisdiction over judicial affairs, the Attorney General, the chief of the Legislative Reference Bureau, the deans of the law schools of the University of Wisconsin and Marquette University, the State Public Defender, and the president-elect of the State Bar. The council is currently chaired by Attorney Thomas Bertz, a State Bar of Wisconsin appointee.

    Several council members serve at the pleasure of their appointing authorities. The four circuit judges selected by the Judicial Conference serve four-year terms. The three members of the council from the State Bar are selected through an election of the membership and the two citizen members appointed by the governor serve three-year terms.

    During the 1995-97 biennial budget, two staff positions were eliminated from the council’s budget and all of the staff support duties were reassigned to the Judicial Commission. The council languished during this time as the Judicial Commission was already operating with a limited budget and wasn’t able to devote the time nor resources to the council’s ongoing or requested projects.

    Return of Funding – Leads to Successes

    The Legislature restored staff support to the Judicial Council in the 2007-09 biennial budget and the invigorated council found many successes over the last 10 years. Under the direction of Judicial Council Staff Attorney, April Southwick, the Council was able to pass a number of legislative proposals during the 2009-10 legislative session on various changes to the rules of appellate procedure.

    Cale BattlesCale Battles is a government relations coordinator with the State Bar of Wisconsin. He can be reached at org cbattles wisbar wisbar cbattles org, or by phone at (608) 250-6077.

    In 2009, the Supreme Court approved a Judicial Council petition, which permitted the citation of unpublished appellate decisions. More recently, the Judicial Council petitioned the Supreme Court to make changes to the Rules of Evidence and the repeal of the Deadman’s statute. In a memo to the Joint Finance Committee, the Council listed 23 accomplishments all of which have occurred during the last 10 years.

    Even with these achievements, funding for the staffing of the council has been in jeopardy over the last several state budgets. In the 2013-15 biennial budget, members of the Joint Finance Committee eliminated funding for the council. The funding was later restored, but the cost was split between General Purpose Revenue and revenue from the Director of State Courts. Governor Scott Walker again proposed the elimination of funding for the council in his 2015-17 biennial budget. Members of the Joint Finance Committee restored funding once again, but funded the position entirely out of the Director of State Courts budget.

    Judicial Council’s Future Relies on Restoration of Funding

    Once again, Governor Walker’s 2017-19 biennial budget proposal includes the elimination of funding for the Judicial Council for this upcoming fiscal year. The reason stated for the elimination of funding was contained in the Governor’s Executive Budget Summary, stated “The Governor recommends eliminating the council as a separate entity and transferring position authority to the Supreme Court. The Supreme Court has the authority to create and support such an advisory council if it so chooses.”

    The Judicial Council’s proposed agency budget request was $111,400 which generally isn’t considered out of line when you consider that the current budget proposal includes over $76 billion in all funds spending. Members of the Council have lamented in previous meetings that maybe the Judicial Council name is at the root of the budget issue. While the Judicial Council does work with judicial and court issues, the body’s primary purpose, studying issues that impact the justice system, is a task no other agency or body has the ability, time or expertise to take on. The Council’s work often takes years of study and engages other legal stakeholders to gather input.

    In her testimony before the Joint Finance Committee regarding the Courts’ proposed budget, Chief Justice Pat Roggensack encouraged members of the state’s budget writing committee to preserve the Judicial Council as an independent agency. The Chief Justice indicated in her remarks that any oversight of the Judicial Council by the courts would create conflicts of interest and that the proposed change would do little to save the state money. The State Bar of Wisconsin also strongly supports the continued independence and funding for the Judicial Council.

    The Joint Finance Committee will begin voting on provisions contained in the budget on May 1.


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