Wisconsin
Lawyer
Vol. 81, No. 2, February
2008
Supreme Court Orders
On March 14, the Wisconsin Supreme
Court will hold a public hearing on Order 01-14 regarding the Planning
and Policy Advisory Committee,
and Order 07-15 regarding dismissals of cases on appeal. At its open
administrative conference, the court also will discuss Order 07-09
regarding the definition of the practice of law.
On April 7, the court will hold a public hearing to discuss Order
08-01 regarding the management of juries. At its open
administrative conference, the court also will discuss Order 04-03
regarding paralegal licensure.
On April 8, at its open administrative conference, the court will
discuss Order 02-03 regarding state legislative redistricting, Order
06-07 regarding use of electronic signatures by court officials, and
Order 06-08 regarding electronic filing in the circuit courts.
The court has issued Order 05-05 amending Wis. Stat. §
802.12(5) relating to memorializing ADR settlements, Order 07-07
amending
SCR 32.01 regarding the composition of the Judicial Education
Committee, and Order 07-08 creating SCR 31.04 regarding comity for
continuing
legal education.
State Legislative Redistricting
In the matter of the adoption of procedures for original action
cases involving state legislative redistricting
Order 02-03
On Jan. 7, 2002, Assembly Speaker Scott R. Jensen and Senate Minority
Leader Mary E. Panzer, representing Assembly and Senate Republicans,
petitioned
this court for leave to commence an original action to declare the
existing legislative districts constitutionally invalid due to
population
shifts documented by the 2000 census. They further asked this court to
enjoin
the Wisconsin Elections Board from conducting the 2002 elections using
the
existing districts. Finally, claiming a legislative impasse, they asked
this court
to remap the state's Senate and Assembly districts in time for the
rapidly approaching 2002 election cycle. The Elections Board, by a 4-3
margin, supported the petition.
On Feb. 12, 2002, this court issued its per curiam opinion
denying
the petition without prejudice. Jensen v. Wisconsin Elections
Board, 2002 WI 13, 249 Wis. 2d 706, 639 N.W.2d 537.
In its opinion, this court emphasized that
the Wisconsin Constitution sets forth standards for redistricting and
commits
to the state legislature the authority and responsibility of drawing
state
Senate and Assembly district boundaries: "At its first session
after each
enumeration made by the authority of the United States, the legislature
shall apportion
and district anew the members of the senate and assembly, according to
the
number of inhabitants." Wis. Const. art. IV, § 3; see
id. at ¶6. This court stated:
"The framers in their wisdom entrusted this decennial
exercise to
the legislative branch because the give-and-take of the legislative
process, involving as it does representatives elected by the people to
make
precisely these sorts of political and policy decisions, is preferable
to any other."
Id. at ¶10.
At the time the Jensen petition was pending, it was well
into the
first legislative session following the 2000 census enumeration and not
far
(just three and a half months) from the official commencement of the
next
election season (nomination paper circulation begins June 1). Wis. Stat.
§ 10.72(2) (1999-2000). Id. at ¶12. A group of
Wisconsin citizens had commenced
a congressional reapportionment lawsuit in federal court over a year
before, pending in the United States District Court for the Eastern
District
of Wisconsin, which had been amended to include the issue of state
legislative redistricting. See Arrington v. Elections
Board, No. 01-C-121 (E.D. Wis. filed 2001). A three-judge panel,
established pursuant to 28 U.S.C. § 2284
(2000), had assumed jurisdiction over the federal case.
Id. at ¶14.
The timing of the Jensen petition did not permit the
court to exercise
its original jurisdiction in a way to do substantial justice. This court
explained:
"We have no established protocol for the adjudication of
redistricting litigation in accordance with contemporary legal
standards. A procedure
would have to be devised and implemented, encompassing, at a minimum,
deadlines
for the development and submission of proposed plans, some form of
factfinding
(if not a full-scale trial), legal briefing, public hearing, and
decision. We
are obviously not a trial court; our current original jurisdiction
procedures
would have to be substantially modified in order to accommodate the
requirements
of this case. See Wis. S.Ct. IOP § II.B.3 (May 24,
1984)."
"All this takes time, and there is precious little of that
left _
certainly not enough for back-to-back state and federal plenary
proceedings on a
matter as complex and consequential as this."
Id. at ¶21.
While this court denied the petition for leave to commence an
original action, it stated that it would initiate proceedings regarding
procedures
for original jurisdiction in future redistricting cases. Accordingly, as
a consequence of the Jensen petition and decision, on Nov. 25,
2003, this
court appointed a committee to review legislative redistricting, along
with rules
and procedures of other jurisdictions, and to propose procedural rules.
On Sept. 21, 2007, the committee submitted its report and
proposal, which
the court has posted to its Web site at:
http://wicourts.gov/news/archives/2007/docs/redistrictingreport.pdf. On
Sept. 24, 2007, the court invited
public comment on the report and stated that it would decide how to
further
proceed after receipt of comments. The court has received comments and
is still open
to receiving comments. The court has decided to discuss the matter at an
open administrative conference to decide any future steps.
IT IS ORDERED that on Tuesday, April 8, 2008, at 9:30 a.m., at
its
open administrative conference in the Supreme Court Room in the State
Capitol, Madison, Wis., the court shall discuss the committee's report
and
comments received.
IT IS FURTHER ORDERED that any interested persons may file with
the court
a written submission for the court's review at this conference,
preferably
no later than March 14, 2008. The court retains the entire file on this
matter
and interested persons are encouraged not to file duplicative
submissions. As
this matter is not presently scheduled for public hearing, general
public
testimony will not be entertained at the open conference at this time.
The court may,
in its discretion, direct questions to individuals present at the
conference
to aid the court's consideration of these matters.
IT IS FURTHER ORDERED that notice of the hearing be given by a
single publication of a copy of this order in the official state
newspaper 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.
Dated at Madison, Wis., this 4th day of January, 2008.
By the court: David R. Schanker, Clerk of Supreme Court
Top of page
Regulating Paralegals
In the matter of the Licensure and Regulation of Paralegals
Order 04-03
On Feb. 13, 2004, the Board of Governors of the State Bar of
Wisconsin filed
a petition for the establishment of a system for licensure and
regulation
of paralegals in Wisconsin. A public hearing was conducted by the court
on
Oct. 27, 2004, at which numerous persons appeared. At the ensuing
open administrative conference, the court took the matter under
advisement
pending its determination of certain issues, including ramifications for
the unauthorized practice of law, the court's authority to regulate
nonlawyers
and other matters.
IT IS ORDERED that on April 7, 2008, at 9:45 a.m., at its open
administrative conference in the Supreme Court Room in the State
Capitol, Madison, Wis.,
the court shall discuss this petition.
IT IS FURTHER ORDERED that any interested persons may file with
the court
a written submission regarding the subjects identified for this
conference
no later than March 7, 2008. The court retains the entire file on this
matter
and interested persons are encouraged not to file duplicative
submissions. As
this matter has already been the subject of a public hearing, general
public testimony will not be entertained at the open conference. The
court may, in
its discretion, direct questions to individuals present at the
conference to
aid the court's consideration of these matters.
IT IS FURTHER ORDERED that notice of the administrative
conference be
given by a single publication of a copy of this order and the petition
in
the official state newspaper 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.
Dated at Madison, Wis., this 4th day of January, 2008.
By the court:
David R. Schanker, Clerk of Supreme Court
Petition
The Board of Governors of the State Bar of Wisconsin, by R. George
Burnett, President of the State Bar of Wisconsin, hereby petitions this
Honorable
Court to establish a system for the licensure and regulation of
paralegals
in Wisconsin.
Petitioner respectfully requests that such licensure and
regulation
be conducted by one or more of the agencies of the Wisconsin Supreme
Court;
that all persons utilizing the title "paralegal" in Wisconsin
be subject to
such regulation and licensure; and that all such persons perform their
services under the supervision of an attorney licensed to practice law
in Wisconsin.
Attached to this petition as Exhibit "A" is the
supporting Final Report
of the State Bar of Wisconsin Paralegal Task Force dated December 2003.
[Editor's Note: Exhibit A is available online at
www.wisbar.org/Paralegal_Taskforce_Report.]
Respectfully submitted on behalf of the Board of Governors of
the State
Bar of Wisconsin this __ day of February, 2004.
R. George Burnett
President, State Bar of Wisconsin
Top of page
Memorializing ADR Settlements
In the matter of the Creation of Wis. Stat. § 802.12(5)
relating
to Memorializing Settlements Reached by Way of Alternative Dispute
Resolution
Order 05-05
On Feb. 16, 2005, Attorney Donald Leo Bach filed a petition seeking
to
amend Wis. Stat. § 807.05 and to create Wis. Stat.
§ 802.12(5), relating
to memorializing settlements reached by way of alternative dispute
resolution.
A public hearing was conducted on this petition on Oct. 25, 2005. At the
court's request, an amended petition was filed on Jan. 26, 2006. The
court
solicited public comment on the amended petition from a number of
interested parties.
At the Dec. 11, 2006, public hearing on the amended petition,
Attorney
Bach voluntarily dismissed the portion of the petition seeking to amend
§ 807.05, and spoke in support of the petition to amend
§ 802.12. The State Bar
of Wisconsin Board of Governors did not take a position on the petition.
The Alternative Dispute Resolution section and the Family Law section of
the
State Bar each appeared in opposition to the petition. The Litigation
section of
the State Bar and the Litigation section of the Wisconsin Department of
Justice generally favored the petition.
At the ensuing open administrative conference, the court
ascertained that
the concerns of all interested parties could be addressed by inclusion
of
comments to the relevant statutes, §§ 802.12 and 807.05,
and directed the
interested parties to propose language for the court's consideration.
The court
considered and approved proposed comments at its open administrative
conference on
March 21, 2007.
IT IS ORDERED that the following comment shall be published with
Wis.
Stat. § 802.12:
"See s. 805.07, formal requirements to render binding
agreements reached
in an action or special proceeding. In some cases, such as family law
cases,
court approval is required for an agreement to be effective."
IT IS FURTHER ORDERED that the following comment shall be
published with
Wis. Stat. § 807.05:
"This section also applies to agreements, stipulations, and
consents
reached as a result of alternative dispute methods outlined in s.
802.12. In
some cases, such as family law cases, court approval is required for an
agreement
to be effective."
IT IS FURTHER ORDERED that the comments to Wis. Stat.
§§ 807.05 and
802.12 are not adopted but will be published and may be consulted for
guidance
in interpreting and applying the statutes.
IT IS FURTHER ORDERED that notice of publishing the comments to
Wis. Stat.
§§ 807.05 and 802.12 be given by a single publication of a
copy of this order
in the official state newspaper and in an official publication of the
State Bar
of Wisconsin.
Annette Kingsland Ziegler, J., did not participate.
Dated at Madison, Wis., this 11th day of January, 2008.
By the court: David R. Schanker, Clerk of Supreme Court
Top of page
Use of Electronic Signatures by Court Officials
In the matter of the Creation of a Court Rule Authorizing Use of
Electronic Signatures by Court Officials
Order 06-07
On Dec. 6, 2006, A. John Voelker, Director of State Courts, filed a
petition seeking to create a supreme court rule authorizing the use of
electronic
signatures by court officials. A public hearing was scheduled for March
2007,
but prior to the date of the hearing the court granted the petitioner's
request that the court postpone the matter until the 2007-2008 term.
IT IS ORDERED that a public hearing on the petition shall be
held in
the Supreme Court Room in the State Capitol, Madison, Wis., on Tuesday,
April
8, 2008, at 9:30 a.m.
IT IS FURTHER ORDERED that the court's conference in the matter
shall be
held promptly following the public hearing.
IT IS FURTHER ORDERED that notice of the hearing be given by a
single publication of a copy of this order and of the petition in the
official
state newspaper 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.
Dated at Madison, Wis., this 4th day of January, 2008.
By the court:
David R. Schanker, Clerk of Supreme Court
Petition
The Director of State Courts petitions this court to create a
supreme
court rule authorizing the use of electronic signatures by court
officials.
This petition is brought pursuant to the court's rulemaking authority
under
Wis. Stats. s. 751.12 and its administrative authority over all courts
conferred
by Article VII, s. 3 of the Wisconsin Constitution. This request is
supported
by the CCAP Steering Committee and the Records Management Committee. It
is consistent with the electronic filing petition but is intended to
stand independently.
Electronic signature technology has been developed by the
Consolidated
Court Automation Program (CCAP) as part of the court electronic filing
pilot
project. To use the technology, a court official logs onto the case
management
system, using his or her regular user name and password, and brings up a
form or
order to be reviewed. When the document is ready to be signed, the court
official indicates approval of the document, causing the official's name
to appear
on the signature line of the document. Court commissioners and clerks of
circuit court have been applying electronic signatures to small claims
judgments
and orders as part of the electronic filing pilot project since April
2005,
without any problem or objection.
Signing case-related documents. This petition requests
that
electronic signatures be approved for use by court officials outside the
context
of electronic filing. The technology can apply an electronic signature
to
any order or form generated by the CCAP case management system or the
Supreme Court/Court of Appeals (SCCA) case management system. This
petition
requests that electronic signatures be made available to circuit court
judges, clerks
of circuit court, registers in probate, juvenile clerks, and court
commissioners appointed under Wis. Stats. 757.68 and SCR 75.02(1), and
to the Supreme
Court, Court of Appeals, and the Clerk of the Supreme and Appellate
Courts, to
sign documents for case purposes. Electronic signatures will not
necessarily be
used for every electronic document, but they will be extremely useful
for the
common orders and forms that are generated many times a day.
Signing administrative documents. The same signature can
also be used
by CCAP users outside the CCAP and SCCA case management systems to sign
electronic documents for administrative purposes. Documents such as
certifications
of pending cases, requests for judicial assignment, and interpreter
reimbursements will no longer need to be faxed in order to preserve a
signature, and
their information may be stored electronically in lieu of paper copies.
This
petition requests electronic signatures for the court officials listed
above, plus
the Director of State Courts and his designees. Such signatures will be
authorized for administrative documents to the extent that programming
resources
are available and the business need is shown.
Electronic signature statutes. In 2003 Wisconsin Act 294,
the
Wisconsin legislature approved the use of electronic signatures in
government records
and commercial transactions by adopting provisions of the Uniform
Electronic Transactions Act (UETA). Wis. Stats. s. 990.01(38) defines a
"signature"
to include handwriting, the personal mark of one unable to write, and
an electronic signature.1 The heart of
UETA appears at s. 137.15:
Legal recognition of electronic records, electronic signatures,
and electronic contracts.
(1) A record or signature may not be denied legal effect or
enforceability solely because it is in electronic form.
(2) A contract may not be denied legal effect or enforceability
solely because an electronic record was used in its formation.
(3) If a law requires a record to be in writing, an electronic
record satisfies that requirement in that law.
(4) If a law requires a signature, an electronic signature
satisfies
that requirement in that law.
At the request of the Wisconsin Director of State Courts, the
UETA legislation exempted court filings from coverage to let the court
develop
its own technical and legal standards for court
documents.2 The proposed rule now
authorizes court officials to use electronic signatures on those
documents described in Wis. Stats. s. 137.12 (2m), as well as any other
documents
signed by the court.3
The electronic signature feature developed by CCAP meets the
security
and verifiability standards of UETA and meets national standards in
commercial
and government practice. CCAP has received many requests for a signature
technology from judges and clerks of circuit court. Enabling this
feature will
expedite the work of the courts without detriment to the security of the
signature
or the integrity of court documents.
Signing by designees. Under the proposed rule, a court
official's electronic signature is identified with the official
personally and can only
be applied through programs provided by CCAP. This rule also allows
designees
to apply an official's electronic signature when authorized to do so
through
the user security procedures of the case management
system.4 In the clerk's office, a deputy
clerk can be designated to sign those documents that are sent out
many times a day, such as small claims summonses, notices of entry of
judgment,
and satisfactions. For judges, the technology represents a more secure
and controllable version of a signature stamp. Since current practices
vary
widely with respect to signature stamps and delegated signing powers,
this rule
allows each court to develop a system that works most efficiently for
it and encourages the use of electronic processes by judges.
Appellate decisions have reasoned that counsel's personal
signature
is necessary to confer jurisdiction on the court, to assure that the
pleadings
are well-grounded in law and fact, and to prevent the unauthorized
practice of
law. See Schaefer v. Riegelman, 2002 WI 18, 250 Wis. 2d 494,
512-13; Novak v. Phillips, 2001 WI App. 156, 246 Wis. 2d 673,
680-81;
Jadair, Inc. v. U.S. Fire Insurance Co., 209 Wis. 2d 187, 211-12
(1997). No case has examined
the signature requirements for court officials, and the reasoning behind
these cases seems inapplicable. Under this rule, the court official
remains responsible for reviewing, revising and approving the document
before his
or her electronic signature is applied. The court official should be
held accountable as if the document had been signed personally and
should
be expected to take corrective action for any misuse of the signature.
Accordingly, the Director requests that a new section of SCR 70
be created
as follows:
SCR 70.__ Electronic Signatures.
(1) As used in this rule, "court official" means a circuit
court judge,
clerk of circuit court, register in probate, juvenile clerk, court
commissioner appointed under s. 757.68 and SCR 75.02(1), justice of the
Supreme Court,
judge of the Court of Appeals, and the Clerk of the Supreme and
Appellate
Courts. "Electronic signature" means an electronic sound,
symbol, or process
attached to or logically associated with a document and executed or
adopted by a
person with the intent to sign the document.
(2) Secure electronic signatures may be provided by the
Consolidated
Court Automation Program (CCAP) for use by court officials who sign
electronic documents. The electronic signature shall be treated as the
court
official's personal original signature for all purposes under Wisconsin
statutes and
court rules. An electronic signature may be used on all court documents,
including those documents described in Wis. Stats. s. 137.12(2m). The
official's
printed name shall be inserted in place of a handwritten signature.
(3) A court official may delegate the use of his or her
electronic
signature to an authorized designee, using the security procedures of
the CCAP
case management system or the Supreme Court/Court of Appeals (SCCA) case
management system. A court official is responsible for any use of his or
her
electronic signature by an authorized designee.
(4) An electronic signature shall be used only by the official
to whom it
is assigned and by such designees as the official may authorize. Upon
learning that the confidentiality of the electronic signature has been
compromised,
the court official shall immediately report it to CCAP.
(5) Court officials may use their electronic signatures for
administrative purposes. If the signature of a court official is
required on a document,
an electronic signature satisfies that requirement. Electronically
signed documents may be stored electronically for the proper retention
period.
(6) Electronic signatures may be provided to the Director of
State Courts
and such employees as the Director may designate for administrative
purposes.
At the discretion of the Director, an employee may be provided with his
or her
own electronic signature if appropriate for the conduct of official
business.
The electronic signature shall be treated as the person's original
signature.
(7) The chief justice, chief judges and Director of State Courts
may
use their electronic signatures for the assignment of judges pursuant to
SCR
70.23 and 70.24. A district court administrator may be the designee of
the
chief judges for purposes of judicial assignment.
Respectfully submitted this ___ day of ___, 2006.
A. John Voelker, Director of State Courts
Top of page
Electronic Filing in the Circuit Courts
In the matter of the Creation of a Court Rule Governing
Electronic Filing in the Circuit Courts
Order 06-08
On Dec. 6, 2006, A. John Voelker, Director of State Courts, filed a
petition asking this court to create a new rule implementing electronic
filing in
the Wisconsin circuit courts. A public hearing was scheduled for March
2007,
but prior to the date of the hearing the court granted the petitioner's
request that the court postpone the matter until the 2007-2008 term. On
Dec. 21,
2007, the petitioner filed an amended petition which reflects
programming
changes necessitated by budget considerations. Therefore,
IT IS ORDERED that a public hearing on the petition shall be
held in
the Supreme Court Room in the State Capitol, Madison, Wis., on Tuesday,
April
8, 2008, at 9:30 a.m.
IT IS FURTHER ORDERED that the court's conference in the matter
shall be
held promptly following the public hearing.
IT IS FURTHER ORDERED that notice of the hearing be given by a
single publication of a copy of this order and of the amended petition
in the
official state newspaper 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.
Dated at Madison, Wis., this 4th day of January, 2008.
By the court:
David R. Schanker, Clerk of Supreme Court
Amended Petition
On Dec. 6, 2006, the Director of State Courts petitioned this court
to create
a new rule implementing electronic filing in the Wisconsin circuit
courts.
The Director now submits this amended petition in lieu of the earlier
petition,
to reflect programming changes necessitated by budget considerations.
This petition is brought at the request of the Consolidated Court
Automation
Program (CCAP) Steering Committee.
The e-filing rule is proposed as part of Wisconsin Statutes
Chapter 801,
the general rules of procedure and practice that govern commencement of
action, service and filing, form of papers, time for filing, filing by
facsimile,
and similar matters. The provisions of Chapter 801 were adopted by the
Supreme Court pursuant to its rulemaking authority under Wis. Stats. s.
751.12 and
its administrative authority over all courts conferred by Article VII,
s. 3 of
the Wisconsin Constitution. An electronic filing rule may be created by
the
court under that same authority.
This petition is supported by the amended report of a special
committee
of the Director of State Courts, attached as Exhibit A, describing the
genesis
of the rule and the technology to be used. The amended language of the
proposed rule is attached to this petition as Exhibit B. The notes
accompanying the
rule are intended to be published for guidance. Additional comments not
intended
for publication are found in italics. [Editor's Note: Exhibit A is
published in
the full amended petition, available at
www.wicourts.gov/supreme/docs/0608petitionamend.pdf
.]
Respectfully submitted this 26th day of December, 2007.
A. John Voelker, Director of State Court
Exhibit B
Proposed Wis. Stats. 801.20, electronic filing.
§1 Definitions.
§2 Scope.
§3 Registration requirements.
§4 Time & effect of electronic filing.
§5 Commencement of action.
§6 Filing and service of documents of subsequent documents.
§7 Payment of fees.
§8 Format & content of documents.
§9 Official record.
§10 Authentication.
§11 Notarization and oaths.
§12 Signatures of registered users.
§13 Court official signatures.
§14 Confidential information.
§15 Technical failures.
The Director of State Courts requests that new Wis. Stats. 801.20,
Electronic Filing, be created to read:
(1) Definitions. In this section:
(a) "CCAP" means the Consolidated Court Automation
Programs, an office of
the Wisconsin Director of State Courts Office.
(b) "Clerk of court" means the official circuit court
record keeper for
the case in question, which may be the clerk of circuit court, juvenile
clerk,
or register in probate for that county.
(c) "Compromised" means inadvertently or improperly
disclosed.
(d) "Document" means a pleading, form, notice, motion,
order,
affidavit, paper exhibit, brief, judgment, writ of execution, or other
filing.
For purposes of this rule, a document includes the transmittal page
submitted
with the filing.
(e) 1. "Electronic filing system" means a web-based
program established
by CCAP for the purpose of filing documents with a circuit court and
automatically integrating them into the CCAP case management system.
2. "Electronic filing" does not include submission by
electronic
mail, facsimile, floppy disks, or other electronic methods.
(f) "Electronic filing system administrator" means an
individual appointed
by CCAP to receive information and take action as necessary to run the
electronic filing system.
(g) "Electronic signature" means an electronic sound,
symbol, or
process attached to or logically associated with a document, that can be
executed
or adopted by the user with the intent to sign the document.
(h) "Initiating document" means a summons and
complaint,
petition, application, citation, criminal complaint, or any other
document filed
to commence a court action.
(i) "Traditional methods" means those methods of
filing and
serving documents, other than electronic filing, currently provided
under
Wisconsin statutes and local rules.
(j) "Transmittal page" means a page generated by the
electronic filing
system containing the case management information necessary to transmit
and file
a document.
(2) Scope. (a) The Director of State Courts, through
CCAP, shall
implement an electronic filing system for the Wisconsin circuit courts.
(b) Use of the electronic filing system is voluntary. Parties or
their attorneys may choose to participate in the electronic filing
system or
may request traditional service of paper documents.
(c) Any action that may be brought in circuit court may be
brought
using electronic filing, subject to the ability of the electronic filing
system
to accept the documents. This section does not guarantee anyone the
right to
file electronically.
(d) The procedures set forth in this section shall be
interpreted in a
manner consistent with existing procedural rules.
(3) Registration requirements. (a) The following users
may register
for access to the electronic filing system:
1. Licensed Wisconsin attorneys.
2. Attorneys appearing pursuant to SCR 10.03 (4).
3. Parties to an action who are not represented by an attorney.
4. Full-time employees authorized under s. 799.06 (2).
(b) Registered users of the electronic filing system shall be
individuals, not law firms, agencies, corporations, or other groups.
(c) Users shall register through the electronic filing system
website
by executing a user agreement governing the terms of use of the
electronic
filing system. To register, users must have the capability to produce,
file,
and receive electronic documents meeting the technical requirements of
the electronic filing system. By registering, users agree to file all
documents electronically to the extent the electronic filing system can
accept them.
(d) Upon completion of a properly executed user agreement, the
electronic filing system shall assign to the user a confidential, secure
access code.
The access code shall be used only by the user to whom it is assigned
and by
any agents or employees that the user authorizes. Upon learning that
the confidentiality of the access code has been compromised, the
registered
user shall immediately report it through the electronic filing system
website.
(e) Registered users shall notify the electronic filing system
within 10
days of any change in the information provided for registration.
Attorneys
shall notify the electronic filing system within 10 days of beginning
representation of a formerly self-represented user.
(f) Nonresident attorneys may register following court approval
of a
motion to appear pro hac vice under SCR 10.03 (4).
(g) The same access code shall be used for all cases on which
the user is
an attorney or a party. The user's access code will expire 6 months from
the
last activity on any case for which the user is registered. The
electronic
filing system may reset access codes and electronic signatures as needed
for administrative and security purposes.
(h) Registered users who wish to stop using ("opt out
of") the
electronic filing system must do so through the electronic filing system
website.
The electronic filing system will generate a notice to all parties that
traditional service must be used for this party for future filings.
(i) The electronic filing system may provide a method for
submitting
reports by individuals who are not parties to the case, such as
presentence investigators and social workers.
(4) Time and effect of electronic filing.
(a) The electronic filing system is an agent of the circuit court
for purposes of electronic
filing, receipt, service, and retrieval of electronic documents.
(b) When a document is submitted by a party to the electronic
filing
system, the electronic filing system shall transmit it to the
appropriate clerk
of court in the county where the case is filed. The electronic filing
system
shall issue a confirmation that submission to the electronic filing
system
is complete.
(c) The clerk of court may review the document to determine if
the
document should be accepted for filing.
1. If the clerk accepts the document, it shall be considered
filed with
the court at the time the original submission to the electronic filing
system
was complete. Upon acceptance, the electronic filing system shall issue
a confirmation with the date and time of the original submission to
serve
as proof of filing.
2. If the clerk rejects the document following review, the
document will
not become part of the court record and the filer will receive
notification of
the rejection. The filer may be required to refile the documents.
(d) The date of filing shall be determined by the regular
designated
business hours of the clerk of court. Any document submitted to the
electronic
filing system before the close of regular business hours shall be
considered filed
on that date, so long as it is subsequently accepted by the clerk upon
review.
A document submitted after the close of regular business hours shall
be considered filed the next business day.
(e) Whenever a party has the right or duty to do some act within
a
prescribed period after the service of a document upon the party, 1 day
shall be added
to the prescribed period if the document is served through the
electronic
filing system between 5 p.m. and midnight.
(f) The calculation of time for reply under other statutes and
rules
is neither expanded nor contracted by this section.
(g) The electronic filing system will receive electronic filings
24 hours
per day except when undergoing maintenance or repair.
Note: Sub. (4) is intended to be consistent with the
rules for
facsimile transmissions under ss. 801.15 and 801.16.
(5) Commencement of action. (a) If the clerk of court
accepts
an initiating document for filing, the clerk of court shall assign a
case
number and authenticate the document as provided under this section. The
electronic filing system shall send a notice to the filer that the
filing has
been accepted and is available on the electronic filing system website.
(b) Initiating documents shall be served by traditional methods
as
provided by Wisconsin statutes and local rules, unless the responding
party
has consented in writing to accept electronic service or service by some
other method. Initiating documents shall be served together with a
notice to
the responding party stating that the case has been electronically filed
and
giving instructions for how to use the electronic filing system if the
responding party chooses to do so.
(c) A responding party or attorney for a responding party may
register to
use the electronic filing system as provided by this section. After
registering
to use the electronic filing system, the responding party or attorney
must
also register ("opt in") as a user on the particular case. A
notice indicating
the new user will be sent to the other registered users on the case.
(6) Filing and service of subsequent
documents. (a) Filing of documents other than initiating documents
through the electronic filing system
shall cause a notice of activity to be sent to the electronic mail
account of
the other registered users on that case. Registered users shall access
filed documents through the electronic filing system website.
1. For documents that do not require personal service, the
notice of
activity is valid and effective service on the other registered users
and shall have
the same effect as traditional service of a paper document, except as
provided
in sub. (b).
2. Documents requiring personal service must be served by
traditional
methods as provided by Wisconsin statutes and local rules unless the
responding
party has consented in writing to accept electronic service or service
by some
other method.
(b) If a notice of activity sent to a registered user's
electronic
mail account is rejected or returned undeliverable, the electronic
filing
system will automatically notify the filing party. The filing party must
then
serve the document on that user by traditional methods. The party whose
electronic mail account rejected the notice will be treated as a
nonregistered party
until the party corrects the problem and re-registers with the
electronic
filing system.
(c) Unrepresented parties or attorneys who are not registered
users shall
be served by traditional methods. The clerk shall maintain a list
indicating
which unrepresented parties or attorneys are to be served electronically
and
which are to be served by traditional methods.
(d) An unrepresented party or attorney may submit a request to
the clerk
of court to begin electronic filing of documents at any time while the
case
is pending. The decision to allow electronic filing of documents after
the
case has been commenced is in the sole discretion of the clerk of court.
If
the request is granted, the requester shall register as provided by this
section and shall send a notice to the other parties by traditional
methods
stating that the case has been electronically filed and giving
instructions for how
to use the electronic filing system if the other parties choose to do
so.
(e) Subpoenas may be electronically generated consistent with s.
805.07
and ch. 885, and may bear the electronic signature of the issuing
attorney or
court official. Subpoenas shall be served by traditional methods unless
the responding party has consented in writing to accept electronic
service
or service by some other method.
(f) Discovery materials may not be electronically exchanged
through
the electronic filing system, consistent with s. 804.01 (6).
Note: Sub. (6) does not apply the general rule that most
documents
are considered served when they are mailed. Although documents are
considered
filed when they are accepted by the clerk and posted to the electronic
filing website, the parties are notified of the posting by a notice sent
to
a electronic mail accounts. Because electronic mail is not yet as
reliable as
the United States Post Office; this subsection requires the filing party
to
revert to traditional service if the electronic mail notice is returned
as undeliverable.
(7) Payment of fees. (a) Registered users shall make any
payment due
to the clerk of court through the electronic filing
system unless otherwise ordered by the court or unless
special arrangements are made with the clerk
of court. Documents that require payment of a fee are not considered
filed
until the fee is paid or a waiver of the fee is granted. The electronic
filing
system shall establish one or more methods for electronic payment.
(b) Users may submit a request for waiver of fees under s.
814.29 (1),
using the form provided by the electronic filing system for that
purpose.
(c) The electronic filing system shall deposit the fees due to
the clerk
of court in the clerk's account.
(d) Users may be charged a convenience fee for use of the
electronic
filing system, as provided by s. 758.19(4m).
Note: Sub. (7) provides that most routine fees be paid
electronically, including filing, motion, and docketing fees, fines and
forfeitures,
court costs, and court-ordered attorney fees. Larger fees and deposits,
such
as condemnation awards, may be paid by other methods if ordered by the
court
or agreed to by the clerk of court. Attorneys should consult the Rules
of Professional Conduct, SCR 20:1.15(e), with respect to the
restrictions
on electronic transactions from trust accounts.
(8) Format and content of
documents. (a) All electronically filed documents shall, to the
extent practicable, be formatted in accordance
with Wisconsin Statutes and local rules governing formatting of paper
documents, including page limits.
(b) Registered users shall provide any case management
information needed
to transmit and file the document. The electronic filing system will
reject
the document for failure to include information in any one of the
mandatory
fields identified by the system.
(c) The electronic filing system may set limits on the length or
number
of exhibits. Exhibits rejected by the system for this reason may be
filed
by traditional methods.
Note: Under sub. (8), users should maintain the original
of
each electronically filed document in electronic form until final
disposition of
the case and expiration of all time for appeal.
(9) Official record. (a) Electronically filed documents
have the
same force and effect as documents filed by traditional methods.
(b) For documents that have been electronically filed, the
electronic
version constitutes the official record. No paper copy of an
electronically
filed document shall be sent to the court.
(c) The clerk of court may maintain the official court record in
electronic format or in a combination of electronic and traditional
formats. If a
document submitted by traditional methods is not of sufficient graphical
quality to
be legible when electronically scanned into the electronic filing
system,
the clerk shall maintain the document in paper format.
(d) Any official court record containing electronically filed
documents
must meet the operational standards set by SCR 72.05 for electronic
records.
(e) The clerk of court shall make the public portions of the
electronic record available through the public access terminal located
in the
clerk's office. The clerk of court shall charge for copies of pages from
the
electronic record as provided by ss. 814.61 (10) and 814.66 (1) (h).
(f) Certified copies of an electronic record shall be
available through
the clerk of court's office by traditional methods, as provided by s.
889.08.
(g) Documents submitted by traditional methods will be
electronically
scanned and made part of the official record. The clerk of court may
discard the
paper copy immediately, notwithstanding SCR 72.03(3). If a document is
filed
by traditional methods, the submitting party shall file a copy of that
document and not the original paper document. The court may require the
submitting
party to produce the original paper document if validity of the
signature or
document is challenged.
Note: Sub. (9) requires parties filing documents by
traditional
methods, such as by hand delivery or by mail, to submit copies instead
of
original documents, to allow the clerk to eliminate the paper file.
Discarding the
paper copy is consistent with the rule governing facsimile copies, s.
801.16(2)(e), which provides that the faxed copy is the official record,
and the original,
if received, should be discarded. The rule does not require the
submitting
party to retain original paper documents. If there is likely to be a
challenge to
the validity of a signature or exhibit, parties may be well-advised to
keep
the original paper document. For a high-volume law practice, the
economics may
not support keeping paper originals when the remainder of the file is
electronic, and parties may prefer to assume the risk of failure of
proof.
SCR 72.03(3) provides that even when the clerk of court has
electronically stored a court file, the clerk may not destroy the paper
file until one
year after entry of a final order in the case. In contrast, the
electronic
filing rule anticipates that there may not even be a paper file for the
case, so
the clerk should be allowed to discard the paper copy as soon as it
is electronically scanned and the clerk has confirmed that the
electronic copy
is legible, complete, and properly saved to the file.
(10) Authentication. Electronic placement of the clerk's
filing stamp
and case number on each copy of an initiating document constitutes
authentication under the Wisconsin Statutes and rules of court. An
authenticated copy may
be printed from the CCAP case management system by the clerk of court or
from
the electronic filing system by the filing party.
Note: Sub. (10) provides that electronic authentication
satisfies
the authentication requirements of Wisconsin Statutes, including ss.
801.02, 801.09(4), and 909.02(8). Statutory authentication requirements
must be
met upon filing of the summons and complaint in order to confer
jurisdiction on
the court. American Family Mut. Ins. Co. v. Royal Ins.
Co., 167 Wis.2d 524, 534 (1992). The purpose of
authentication is to give assurance by the clerk
that copies served are true copies of filed documents and to provide the
case
number for future reference. J.M.S. v.
Benson, 91 Wis.2d 526, 532 (Ct. App. 1979),
rev'd on other grounds, 98 Wis.2d 406 (1980). The security and
verifiability provided by the electronic filing system satisfy the
purposes of
the authentication requirements under statutes and case law.
(11) Notarization and oaths. (a) If a law requires a
document
be notarized, acknowledged, verified, or made under oath, the
requirement
is satisfied if the electronic signature of the person authorized to
administer the oath or to make the notarization, acknowledgment, or
verification,
together with all other information required to be included by other
applicable law,
is attached to or logically associated with the document. A physical or
electronic image of a stamp, impression, or seal need not accompany the
electronic signature. The electronic signature and notary seal may be
applied to
the document's transmittal page.
(b) The electronic filing system may provide an electronic
signature
and notary seal for notaries public who hold valid appointments under
ch.
137. Expiration or renewal of the electronic signature and notary seal
shall
be concurrent with the notary's commission with the Secretary of State.
The Director of State Courts Office may enter into an agreement with the
Secretary of State governing notarization within the court electronic
filing system.
(c) Notaries public may register with the electronic filing
system
for authorization to notarize electronically filed documents. To
register,
notaries must be able to meet the technical requirements of the system.
Upon receipt
of a properly executed notary agreement, the system shall assign to the
notary
a confidential electronic signature and seal. The notary signature and
seal
shall be used only by the notary to whom it is assigned. Upon learning
that
the confidentiality of the signature and seal have been compromised, the
registered notary shall immediately report it through the electronic
filing
system website.
(d) Documents notarized by traditional methods may be filed
through
the electronic filing system if a handwritten signature and physical
seal appear
on the original document. The user shall submit a scanned copy of the
notarized document to the electronic filing system, and the court shall
maintain
the scanned document as the official court record. The court may require
the submitting party to produce the original paper document if validity
of
the notarization is challenged.
(e) Other officers authorized by law to perform notarial acts
may do so
by application of their electronic signatures if those signatures are
already provided through the electronic filing system under this
section.
(f) The electronic signature and seal provided for notaries
public by
the electronic filing system satisfy the self-authentication
requirements of
s. 909.02.
Note: Sub. (11) is intended to satisfy the standards for
electronic notarization set by Wis. Stats. s. 137.19 (the Uniform
Electronic
Transactions Act) and §706.25(2)(c) (the Uniform Real Property
Electronic Recording
Act). The rule should be interpreted flexibly to the extent that
technical
standards for electronic notarization evolve.
The function of the notary is to witness the signature
and to administer
an oath when one is required. See ss. 706.07; 887.01; 887.03;
Kellner v. Christian, 197 Wis.2d 183, 191 (1995). Notarial acts
as defined by
s. 706.07(1)(c) include the ability to administer oaths, take
acknowledgments
and verifications, and authenticate or certify documents. These
functions may
be performed not only by notaries public but also by a judge, clerk or
deputy clerk of a court of record, or a court commissioner under s.
706.07(3).
This section provides that the electronic signature of one of these
officials may
be applied to a certificate of notarial acts certifying that the
function
was performed.
This section does not require the submitting party to retain
original
paper documents or exhibits bearing the notary's seal and signature. If
there
is likely to be a challenge to the validity of the notarization, parties
may
be well-advised to keep the paper copies. The court may require a party
to
produce the original paper document if validity of the notarization is
challenged.
Additional committee comment in support of this section:
Notarization is required on documents such as affidavits and
small
claims verifications so they can be relied upon as sworn evidence in
court. Notarization is also required on a number of probate forms that
are subsequently filed with the register of deeds. Since these documents
can
be electronically signed, they also need to be electronically notarized,
to
avoid printing the documents for the sole purpose of applying the notary
seal
and signature.
Electronic notarization in Wisconsin was approved in concept by
the
Uniform Electronic Transactions Act (UETA), 2003 Wisconsin Act 294, now
s.137.19.
The legislature also recently passed the Uniform Real Property
Electronic
Recording Act (URPERA), 2005 Wisconsin Act 421, now s. 15.01(4) and
revised ch.
706, which authorizes electronic recording and notarization for real
property instruments.
The technology for electronic notarization is still under
development.
The process for electronic recording of real property instruments is
expected
to rely on proprietary software purchased by banks and real estate
firms; notarization will be performed by employees with notary
commissions using
an electronic signature incorporated in the software. The Secretary of
State
and Department of Administration may at some point provide Wisconsin
notaries
with a electronic notary seal and signature for use in any type of
electronic transaction, but a timetable for development has not been
set.
Rather than wait for such a development or rely on expensive
vendor
software, CCAP will build an electronic notarization feature to be used
by
duly commissioned notaries within the electronic filing system, a
"registered notary" category of users. The Secretary of State
is creating a database of
all Wisconsin notaries which the electronic filing system can use to
validate
the notary's commission at the time the document is notarized. This
system
should work well for law offices, court offices, and litigants with
notaries on
staff. The committee recognizes that the system will not always be
efficient for
self-represented users, but traditional paper notarizations can be
scanned in
where necessary. CCAP will work with other state offices and the
Wisconsin
Register of Deeds Association to make sure court standards are
compatible with the
other systems as they are developed.
Although electronic notarization can be accomplished by the use
of a
single electronic signature and does not call for a separate electronic
seal under
s. 706.25, the committee decided that public comfort would be increased
if
an image of a seal was applied to make it clear on paper copies that the
document has been notarized. The security features of the electronic
filing system,
not the picture, will reveal if a notary seal or signature has been
tampered with.
No specific disciplinary provisions are provided for misuse of
an
electronic notary seal and signature. Notaries are subject to punishment
for
misconduct under s. 137.01(8), and attorneys and self-represented
parties are subject
to discipline under the signature provisions of this section.
(12) Signatures of registered
users. (a) Registered users shall be provided with an electronic
signature that can be executed by the user with
the intent to sign a document. The electronic signature shall be treated
as
the registered user's personal original signature for all purposes under
Wisconsin statutes and court rules. Each document electronically signed
shall bear
that person's name, mailing address, telephone number, and State Bar
number
if applicable. If a statute requires a signature at a particular
location on
a form, the user shall insert the user's printed name and an indication
that
the document has been electronically signed. The electronic signature
may
be applied to the document's transmittal page.
(b) A summons and complaint, petition, or other initiating
document that
is electronically signed in compliance with this section bears a
sufficient signature under s. 802.05.
(c) An electronic signature shall be used only by the user to
whom it
is assigned. Upon learning that the confidentiality of the electronic
signature has been compromised, the registered user shall immediately
report it
through the electronic filing system.
(d) Attorneys are responsible for electronically filed documents
to the
same extent as for paper filings, with similar consequences for missing
or
improper signatures. Attorneys using the electronic filing system are
subject
to sanctions under s. 802.05 and contempt procedures under ch. 785, and
are subject to discipline for any violation of a duty to the court under
the Supreme Court Rules.
(e) Self-represented parties are responsible for electronically
filed documents to the same extent as for paper filings, with similar
consequences for missing or improper signatures. Self-represented
parties using
the electronic filing system are subject to sanctions under s. 802.05
and
contempt procedures under ch. 785.
(f) Documents containing signatures of third parties, such as
affidavits,
may be filed through the electronic filing system if a handwritten
signature appears on the original document. The user shall submit a
scanned copy of
the signed document to the electronic filing system, and the court shall
maintain the scanned signature as the official court record. The court
may require
the submitting party to produce the original paper document if validity
of
the signature is challenged.
(g) If a document bearing a signature is filed by traditional
methods,
the filing party shall file a copy of that document and not the original
paper document, as provided by sub. (8).
Note: Sub. (12) adopts the definition of electronic
signature appearing
in ss. 137.11 (8) and 706.25(1)(d). Consistent with s. 137.15(4), it
provides
that if a law requires a signature, an electronic signature applied
through
the electronic filing system satisfies that requirement.
The Wisconsin legislature has affirmed the trend toward
acceptance
of electronic signatures in government records and commercial
transactions. At
the request of the Wisconsin Director of State Courts, 2003 Wisconsin
Act 294
(the Uniform Electronic Transactions Act) exempted court filings from
coverage
in order to allow the court to develop its own technical and legal
standards.
This section now allows the electronic signing and filing of those
documents described in s. 137.12 (2m), as well as all other documents
filed with
the court.
Compliance with this section satisfies the signature
requirements of
ss. 801.09(3), 802.05(1), and 805.07(4)(a), as well as all other
statutes and
rules relating to court documents. Appellate decisions have reasoned
that
counsel's personal signature is necessary to confer jurisdiction on the
court, to
assure that the pleadings are well-grounded in law and fact, and to
prevent
the unauthorized practice of law. See Schaefer v. Riegelman,
2002 WI 18, 250 Wis.2d 494, 512-513; Novak v.
Phillips, 2001 WI App. 156, 246 Wis.2d 673,
680-81; Jadair, Inc. v, U.S. Fire Insurance
Co., 209 Wis.2d 187, 211-212 (1997). For registered users of the
electronic filing system, the
identification procedures, security, and personal accountability
provided by these rules
are deemed to satisfy the purposes of a handwritten signature and all
other signature requirements.
The intent of this section is to make attorneys and
self-represented
parties responsible for electronic filings to the same extent they are
responsible
for paper filings. For that reason, the rule does not include a
provision
allowing attorneys to reveal their electronic signatures to office staff
so the
staff can apply the signature; the attorney must review each
electronically
filed document and apply his or her electronic signature personally. The
courts
and the Office of Lawyer Regulation have a range of sanctions and
disciplinary measures that will serve as an adequate deterrent to any
misuse of
electronic signatures.
This section does not require the submitting party to retain
original
paper documents bearing handwritten signatures. If there is likely to be
a
challenge to the validity of the signature, the submitting party may be
well-advised
to keep the original document.
(13) Signatures of court officials.
(a) If the signature of a court official is required on a document,
the signature may be
applied electronically. The electronic signature shall be treated as the
court official's personal original signature for all purposes under
Wisconsin statutes and court rules. Where a signature appears on a
particular
order, form, letter, or other document, the official's printed name
shall be inserted.
(b) The electronic signature of a court official shall be used
only by
the official to whom it is assigned and by such designees as the
official
may authorize. The court official is responsible for any use of his or
her electronic signature by an authorized designee.
(c) A court official may delegate the use of his or her
electronic
signature to an authorized designee pursuant to the security procedures
of the CCAP
case management system. Upon learning that the confidentiality of the
electronic signature has been compromised, the court official shall
immediately report
it to CCAP.
Note: Sub. (13) provides electronic signatures for those
court
officials whose duties require them to sign documents in circuit court
case
files, including circuit court judges, clerks of circuit court,
registers in
probate, juvenile clerks, and circuit court commissioners appointed
under s. 757.68
and SCR 75.02(1). Electronic signatures may also be provided for the
chief
justice and the director of state courts to use for assignment of judges
pursuant
to SCR 70.23 and 70.24. A district court administrator may be the
designee of
a chief judge for purposes of judicial assignment.
Under this section, court officials may allow an authorized
staff member
to apply the official's electronic signature at the official's specific
direction. Appellate decisions have reasoned that counsel's personal
signature
is necessary to confer jurisdiction on the court, to assure that the
pleadings
are well-grounded in law and fact, and to prevent the unauthorized
practice of
law. No case has examined the signature requirements for court
officials, and
the reasoning behind previous decisions seems inapplicable. Each court
official remains responsible for reviewing, revising and approving the
document
before the electronic signature is applied, and should be held
accountable as if
the document were signed personally.
Additional committee comment in support of this section:
The committee concluded that allowing court officials to
delegate use
of their electronic signatures will foster the use of electronic
processes
by judges and will allow each court to develop a system that works
most efficiently for it. As long as the court official remains
responsible
for reviewing, revising and approving the document before his or her
electronic signature is applied, the purpose of the signature is met.
The committee decided that no comment was needed with respect to
the consequences that may follow if a court official's electronic
signature
is misused. With respect to an errant employee, the consequences are
likely
to include personnel action and criminal prosecution, just as with
forgery of
a paper signature. With respect to the affected case, the judge will
need
to vacate any order mistakenly or fraudulently entered and otherwise
rectify
the mistake. Since judges already have the power and duty to do so if
their signatures are miused on paper, no specific provisions are
necessary
for electronic signatures.
The user security procedures of the CCAP case management system
will
be applied to the signatures of authorized designees. Court officials
will identify each authorized designee and record the effective date
of authorization, and the expiration date if needed. Documents will be
grouped into categories based on the type of document. The court
official will
identify which categories of documents each designee is authorized to
sign, so that
the system can block application of the official's signature outside the
range
of the designee's authority. Since current practices vary widely with
respect
to use of signature stamps and delegated signing powers, the committee
decided that it was not advisable to make a centralized decision about
which
documents could or could not be signed by an authorized staff member.
For assignment of judges pursuant to SCR 70.23 and 70.24, the
signature
of the chief justice, the director of state courts, or the chief judge
of
a judicial district is required. These signatories may authorize
designees
to apply their signatures.
(14) Confidential information. (a) The confidentiality of
electronic records is the same as for equivalent paper records. The
electronic
filing system may permit access to confidential information only to the
extent provided by law. No person in possession of a confidential
electronic
record may release the information to any other person except as
provided by law.
(b) If a document is made confidential by statute, it shall be
identified
as confidential by the submitting party when it is filed. The electronic
filing system may require registered users to enter certain information,
such
as social security numbers, in confidential fields. The clerk of court
is
not obligated to review documents to determine if confidential
information
is contained within them.
(c) If a registered user seeks court approval to make a
document confidential, the registered user may electronically file the
document
under temporary seal pending court approval of the user's motion to
seal.
(d) The electronic filing system will place a visible mark on
documents identified as confidential.
Note: Sub. (14) provides that the electronic filing
system shall
protect those case types made confidential by statutes. Within an open
case
type, certain documents may be sealed by statute, such as presentence
reports, financial disclosure forms, psychological evaluations, and
certain health
care records. This section places the burden on the submitting party to
identify those documents as confidential. Confidential information may
also be
contained within an otherwise open document, such as a trade secret; the
burden is on
the filing party to move to seal those documents. As an added
protection,
the electronic filing system will mark confidential documents in a way
that will
be visible on the computer screen and when the documents are printed.
(15) Technical failures. (a) A registered user
whose filing is
made untimely as a result of a technical failure may seek appropriate
relief
from the court as follows:
1. If the failure is caused by the court electronic filing
system, the
court shall grant appropriate relief upon satisfactory proof of the
cause.
2. If the failure is not caused by the court electronic filing
system,
the court may grant appropriate relief upon satisfactory proof of the
cause. Parties are responsible for timely filing of electronic documents
to the
same extent as filing of paper documents, with similar consequences for
missed deadlines.
(b) This section shall be liberally applied to avoid prejudice
to any
person using the electronic filing system in good faith.
Note: Sub. (15) addresses technical failures of the
court's
electronic filing system or the user's electronic systems. Technical
failures may
include an error in the transmission of the document to the electronic
filing system
or to a served party, a failure to process the document upon receipt by
the electronic filing system, or erroneous exclusion of a party from the
service list by the electronic filing system.
Correction of technical failures should generally be allowed in
order
to encourage the use of the electronic filing system. Correction should
be automatic where the user can demonstrate that the problem was caused
by
the court's electronic filing system. The electronic filing system will
generate
a report if needed for a user to document the problem. Where the failure
is caused by the user's electronic systems (such as electronic mail,
word processing, or a database program) or by external forces (such as
problems
with the user's Internet service provider or power outages), the court
has
the discretion to correct the problem. The court should consider what
consequences would follow a missed deadline for traditional filings,
caused by forces
such as malfunctioning equipment or traffic delays. The committee
considered limiting the court's discretion to correct technical errors
in the filing
of initiating documents, where untimely filing is a jurisdictional
issue,
but decided against creating a bright-line rule because of occasional
exceptions such as St. John's Home of Milwaukee v. Continental
Casualty
Co., 147 Wis.2d 764, 788-89 (Ct. App. 1988) and
Granado v. Sentry Ins., 228 Wis.2d 794, 799 (Ct. App. 1999).
Top of page
Judicial Education Committee
In the matter of the Amendment of Supreme Court Rule 32.01
Order 07-07
On June 13, 2007, the Wisconsin Association of Judicial Court
Commissioners
and the Wisconsin Family Court Commissioners Association filed a
petition
proposing to amend Supreme Court Rule 32.01 pertaining to the
composition of the
Judicial Education Committee. A public hearing was held on Nov. 27,
2007. Family
Court Commissioner Darcy McManus presented the petition on behalf of
both
the Wisconsin Association of Judicial Court Commissioners and the
Wisconsin
Family Court Commissioners Association. In addition, the Director of
State
Courts submitted a memorandum on behalf of the Judicial Education
Committee in
support of the proposal, but with modifications.
At the ensuing open administrative conference, the court voted
unanimously
to adopt the petition, with modifications. Accordingly, effective the
date of
this order, Supreme Court Rule 32.01 is amended as follows:
SCR 32.01 Judicial education committee.
A judicial education committee is created consisting of the
chief justice
of the supreme court or his or her designee, the chief judge of the
court
of appeals or his or her designee, the director of state
courts, 2 circuit court commissioners appointed by the supreme
court, 8 circuit court judges
appointed by the supreme court, and the deans of the university of
Wisconsin
and Marquette law schools or their designees. The circuit
court judge and circuit court commissioner
members shall serve staggered 2-year terms and may serve
not more than two successive 2-year terms. The dean of the Wisconsin
Judicial College is a member ex officio of the committee and has voting
privileges.
IT IS ORDERED that notice of this amendment of Supreme Court
Rule 32.01
be given by a single publication of a copy of this order in the official
state newspaper and in an official publication of the State Bar of
Wisconsin.
Dated at Madison, Wis., this 14th day of December, 2007.
By the court:
David R. Schanker, Clerk of Supreme Court
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Comity Rule for Continuing Legal Education
In the matter of Amendment to Supreme Court Rule SCR 31.04 Relating
to Creation of a Comity Rule for Continuing Legal Education
Order 07-08
On June 18, 2007, the Board of Bar Examiners (BBE) filed a petition
proposing to amend SCR 31.04 to create a subparagraph (3) relating to
comity for
nonresident Wisconsin-licensed attorneys who meet the continuing legal
education
requirements of their home jurisdiction. A public hearing was held on
Nov.
27, 2007. John Kosobucki, Director of the BBE, presented the petition.
Other
appearances were made by James Huston, Chair, BBE Rules Committee;
Thomas
J. Basting Sr., President, State Bar of Wisconsin; Attorney Steven
Levine;
and four nonresident members of the Wisconsin State Bar: Attorney Donna
M. Jones
of Atlanta, Ga.; Attorney Paul E. Conrad of Washington, D.C.; Attorney
Wendy
D. Calvert of Chicago, Ill.; and Attorney Jon Erik Kingstad of Oakdale,
Minn.
At the ensuing open administrative conference, the court voted
to deny
the petition as presented and to request that interested persons submit
arguments supporting or opposing a "pure comity" rule rather
than a "conditional
comity" rule regarding the proposed CLE exemption. The court
requested these
arguments by Dec. 7, 2007, for discussion at its open administrative
conference
on Monday, Dec. 10, 2007. On Dec. 6, 2007, the Board of Bar Examiners,
by
its director, John E. Kosobucki, submitted a letter indicating that it
had voted
to make no further comment. On Dec. 7, 2007, the State Bar of Wisconsin,
by
its president, Thomas J. Basting Sr., submitted a letter and memorandum
supporting a "pure comity" rule.
At the open administrative conference on Dec. 10, 2007, the
court voted
to adopt a "pure comity" version of the proposed amendment,
which will be
in effect for the CLE reporting period ending Dec. 31, 2008.
Accordingly, effective the date of this order, Supreme Court Rule
31.04(3) is created
to read:
SCR 31.04
(3) A lawyer whose practice is principally in
another jurisdiction that
has mandatory continuing legal education requirements and who is current
in
meeting those requirements is exempt from the attendance requirement of
SCR 31.02,
but shall comply with the reporting requirement of SCR 31.03.
IT IS ORDERED that SCR 31.04(3), as created by this order, shall
first
apply to those lawyers who have a continuing legal education reporting
period
ending Dec. 31, 2008.
IT IS FURTHER ORDERED that notice of this amendment of Supreme
Court
Rule 31.04 be given by a single publication of a copy of this order in
the
official state newspaper and in an official publication of the State Bar
of Wisconsin.
Dated at Madison, Wis., this 11th day of January, 2008.
By the court:
David R. Schanker, Clerk of Supreme Court
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Definition of the Practice of Law
In the matter of the Definition of the Practice of Law and the
Administration of a Rule Defining the Practice of Law
Order 07-09
On June 19, 2007, the Board of Governors of the State Bar of
Wisconsin filed
a petition asking the court to create a new court rule to define the
practice
of law and to create a system to administer the rule, subject to
supervision
and control by the court. A public hearing was conducted on Dec. 10,
2007.
Attorney Thomas R. Basting Sr., President of the State Bar of Wisconsin,
presented
the petition to the court. Numerous interested persons appeared at the
hearing
or submitted written comments. At the ensuing administrative conference,
the
court discussed the matter and directed court staff to conduct certain
research
and to invite the various professional organizations that appeared in
opposition
to the petition to submit draft language to the court for its
consideration.
IT IS ORDERED that on March 14, 2008, at 9:30 a.m., at its
open administrative conference in the Supreme Court Room in the State
Capitol, Madison, Wis., the court shall discuss this matter together
with
proposed amendments. As this petition has already been the subject of a
public
hearing, general public testimony will not be entertained at the open
conference.
The court may, in its discretion, direct questions to individuals
present at
the conference to aid the court's consideration of these matters.
IT IS FURTHER ORDERED that notice of the administrative
conference be
given by publication of a copy of this order in the official state
newspaper
once each week for three consecutive weeks 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.
Dated at Madison, Wis., this 4th day of January, 2008.
By the court:
David R. Schanker, Clerk of Supreme Court
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Planning and Policy Advisory Committee
In the matter of the Amendment to SCR 70.14(2) formalizing
vice-chairperson position on the Planning and Policy Advisory
Committee (PPAC)
Order 07-14
On Oct. 31, 2007, A. John Voelker, Director of State Courts,
petitioned
this court on behalf of the Planning and Policy Advisory Committee
(PPAC) for
an amendment to SCR 70.14(2) to formalize the position of PPAC
vice-chairperson
in SCR 70.14, which outlines the membership and role of PPAC.
IT IS ORDERED that a public hearing on the petition shall be
held in
the Supreme Court Room in the State Capitol, Madison, Wis., on Friday,
March
14, 2008, at 9:30 a.m.
IT IS FURTHER ORDERED that the court's conference in the matter
shall be
held promptly following the public hearing.
IT IS FURTHER ORDERED that notice of the hearing be given by a
single publication of a copy of this order and of the petition in the
official
state newspaper 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.1
Dated at Madison, Wis., this 4th day of January, 2008.
By the court:
David R. Schanker, Clerk of Supreme Court
Petition
The Director of State Courts hereby petitions this court to amend SCR
70.14, pursuant to the court's rulemaking authority under Wis. Stats.
s. 751.12.
This petition is submitted on behalf of the Planning and Policy
Advisory
Committee (PPAC) of the Wisconsin Supreme Court, which is the court's
advisory
committee on planning initiatives, the administrative structure of the
court system
and the expeditious handling of judicial matters. The purpose of this
proposed amendment is to amend language in SCR 70.14, Section (2), to
formalize
the position of PPAC vice-chairperson.
The position of vice-chairperson of PPAC has existed informally
for over
a decade. In the absence of the formal chairperson (Chief Justice or
his/her designee), the vice-chairperson acts as chairperson by leading
PPAC
meetings, and/or representing PPAC's interests at other engagements in
the absence of
the chairperson, and serves as an ex-officio member on the PPAC
Planning Subcommittee. For this reason, PPAC proposes the following
language
to formalize the position of vice-chairperson in SCR 70.14, which
outlines
the membership and role of PPAC.
PPAC proposes the following amended language to SCR 70.14 (2).
(2) The chief justice, or his or her designee,
or such other member as the chief justice shall appoint
will act as chairperson of the planning and
policy advisory committee. The chairperson shall appoint an existing
judicial member
of the planning and policy advisory committee to serve as
vice-chairperson.
The vice-chairperson will act in a leadership capacity in the absence of
the chairperson and will serve in this capacity at the discretion of
the chairperson.
Based on the foregoing, the Director of State Courts requests
that
the Supreme Court amend SCR 70.14 as proposed.
Respectfully submitted:
A. John Voelker, Director of State Courts
[Editor's Note: Attachment A of the petition, SCR 70.14 Planning
and
policy advisory committee, is available on the court's Web site at
www.wicourts.gov/supreme/docs/0714petition.pdf.
]
Top of page
Voluntary Dismissals of Cases on Appeal
In the matter of the Proposed Amendment to Wis. Stat.
§ (Rule)
809.18 (Voluntary Dismissal)
Order 07-15
On Nov. 27, 2007, the Wisconsin Court of Appeals by Chief Judge
Richard
S. Brown, filed a petition to amend Wis. Stat. § (Rule) 809.18
governing
voluntary dismissals of cases on appeal and creating a subsection which
requires
the parties to immediately notify the court that the matter has been
compromised
or settled.
IT IS ORDERED that a public hearing on the petition shall be
held in
the Supreme Court Room in the State Capitol, Madison, Wis., on Friday,
March
14, 2008, at 9:30 a.m.
IT IS FURTHER ORDERED that the court's conference in the matter
shall be
held promptly following the public hearing.
IT IS FURTHER ORDERED that notice of the hearing be given by
publication of
a copy of this order and of the petition in the official state newspaper
once
a week for three consecutive weeks 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.1
Dated at Madison, Wis., this 4th day of January, 2008.
By the court:
David R. Schanker, Clerk of Supreme Court
Petition
The Court of Appeals respectfully petitions the Supreme Court to amend
Wis. Stat. Rule 809.18 as follows:
809.18(1). An appellant may dismiss a filed appeal by filing a
notice
of dismissal in the court or, if the appeal is not yet filed, in the
circuit court. The dismissal of an appeal by the appellant or by
agreement of
the parties or their counsel does not affect the status of a lower court
decision, the status of a cross-appeal, or the right of a respondent to
file a
cross-appeal.
(2) If the parties compromise or otherwise settle the matter
in
litigation while the appeal is pending, the parties shall immediately
inform the
court that the matter has been compromised or settled. Upon receipt of
such information, the court shall dismiss the appeal in accordance with
sub. (1).
This petition is directed to the Supreme Court's rule-making
authority
under Wis. Const., art. VII, sec. 3(1) and Wis. Stat. § 751.12.
Respectfully submitted:
Richard S. Brown, Chief Judge, Wisconsin Court of Appeals
Top of page
Management of Jurors in the Circuit Courts
In the matter of the Amendment of Rules of Pleading, Practice and
Procedure: Wis. Stat. § Ch. 756, Juries
Order 08-01
On Jan. 3, 2008, A. John Voelker, Director of State Courts,
petitioned
this court on behalf of the Committee of Chief Judges and the Chief
Judge Subcommittee on Juror Treatment and Selection for an amendment to
Chapter
756 of the Wisconsin Statutes relating to juries. The petition states
that the
goal of the rule petition "is to improve and clarify provisions
governing
the management of jurors in the circuit courts."
IT IS ORDERED that a public hearing on the petition shall be
held in
the Supreme Court Room in the State Capitol, Madison, Wis., on April 7,
2008,
at 9:45 a.m.
IT IS FURTHER ORDERED that the court's conference in the matter
shall be
held promptly following the public hearing.
IT IS FURTHER ORDERED that notice of the hearing be given by
publication of
a copy of this order and of the petition in the official state newspaper
once each week for three consecutive weeks, 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.
Dated at Madison, Wis., this 4th day of January, 2008.
By the court:
David R. Schanker, Clerk of Supreme Court
Petition
The Director of State Courts hereby petitions the Supreme Court to
amend
Wis. Stats. ch. 756, Juries, pursuant to the court's rulemaking
authority under
Wis. Stats. s. 751.12. This petition is submitted on behalf of the
Committee
of Chief Judges and the Chief Judge Subcommittee on Juror Treatment and
Selection. The goal of this rule change is to improve and clarify
provisions governing
the management of jurors in the circuit courts.
Background
In 1994, the Supreme Court requested the Judicial Council to identify
what changes in rule or statute would be required to implement the
American
Bar Association Standards Relating to Juror Use and Management and to
bring Wisconsin practice into compliance with current theories of best
practices. Three petitions were submitted to the Supreme Court, all of
which were
adopted, effective July 1, 1997, (Orders 95-11, 96-05, 96-08). The
petitions significantly reworked ch. 756 and created SCR 73. The new
rule set forth
a requirement that each court annually evaluate the jury system using
five measures. The amendments to ch. 756 focused on modernizing the
terminology
and structure, changing the period jurors are eligible to serve and the
length
of service, preparing prospective juror lists, selecting jurors, and
renumbering and revising the provisions for grand jury and inquest jury
selection
and service.
In 1998, on the recommendation of the Wisconsin Records
Management
Committee, the Director of State Courts presented another petition to
the Supreme
Court. This petition would have provided for increased confidentiality
of
juror personal identifying information by referring to jurors by number
alone and
no longer permitting counsel to elicit personal identifying information
from jurors during voir dire. Although the petition was denied, Order
98-08 contained the following language: "
the court stated
that while it decided
to deny the petition as filed, it would consider alternatives to address
issues
of confidentiality of personal identifying information of
jurors
"
In 2000, a delegation from Wisconsin attended the National
Association
for Court Management conference in Kansas City, returning with a number
of
jury-related topics of concern. Included was the problem of how address
errors
in the source list provided by the state Department of Transportation
might
result in the potential for bias in the selection process. The Chief
Judge Subcommittee on Juror Treatment and Selection was formed and its
action
plan was approved by the Judicial Conference on Sept. 8, 2000; to assist
judges
and clerks through education and guidance to implement reforms and
improve administration, to work with CCAP and the Records Management
Committee
to improve automation support and forms, and to monitor innovations in
other states to suggest application in Wisconsin where appropriate.
The Subcommittee reported back to the Committee of Chief Judges
in
June, 2006. The report again reviewed current practices and measured
them against
ABA Standards and reforms being implemented in courts across the
country.
It recommended: 1) implementing means and methods of increasing
minority representation in those jurisdictions where it may be a
concern, either
through rule, policy or legislation; and 2) developing a plan for
improved
juror privacy. The Subcommittee researched existing Wisconsin law on
these topics
and relevant laws in selected other states, conferred with jury
management
experts in the National Center for State Courts and solicited feedback
from clerks
and judges about areas where current law is not clear. The resulting
changes
were adopted by the Committee of Chief Judges on Nov. 30, 2007 and are
now
presented in this petition.
Highlight of Changes
For the revised chapter to read in a comprehensible, logical manner,
many provisions were reordered into a new sequence. A definitions
section has
been added for the first time and the new definitions used throughout
the chapter.
The petition does not request substantive changes in:
- State policy on the obligation and opportunity to serve;
- Juror qualifications;
- Excuse and deferral provisions;
- Insufficient jurors;
- Oaths and affirmations;
- Juror fees and mileage reimbursements;
- Juror leaves of absence from work;
- Length of service and periods of eligibility; or
- Summons, when and how issued.
- The petition does request substantive changes to:
- Penalties;
- Jury selection;
- Juror lists, how compiled and maintained; and
- Juror privacy.
Penalties: In the penalties section (Wis. Stats. s.
756.30), the fine of
$40 for failure to appear when summoned (unchanged since at least 1969)
has
been increased to match the existing $500 forfeiture for failure to
return
a questionnaire or willfully misrepresent information on the
questionnaire.
The section on fraud, s. 756.30(2), has not been changed but merely
moved into
a separate section. The new language clarifies how the forfeiture is to
be imposed (by the court) and to where payments are directed (to the
clerk
of court to offset juror fees). Over the years there has been much
discussion among judges and clerks as to who had, or did not have, the
authority to
apply these sanctions. Some judges felt a District Attorney or
Corporation
Counsel must initiate action to prosecute before the penalties could be
applied,
while others felt this was within the authority of the court. The
purpose of
this change is to provide courts clear direction on this process to
maintain
the integrity of the jury summoning process and treat citizens
consistently
across counties.
Jury selection: The jury selection section (Wis. Stats.
s. 756.06) has
been modified to reflect the decision of the court in
State v Hansford, 219 Wis. 2d 226 (1998), which held that a
six-person jury in a misdemeanor case
was unconstitutional. Therefore 756.06(2)(am) is changed to a 12-person
jury.
Juror lists: Much of the Subcommittee's discussion has
revolved
around meeting the mandate of SCR 73.01(1), to ensure that the juror
list used
is representative and inclusive of the population of each circuit. This
petition proposes to address this issue by improving the accuracy of the
addresses
of potential jurors to decrease undeliverable returns and thereby
increase
the level of representation for each cognizable group. A comparison of
demographic characteristics between the United State's Census and the
list of
potential jurors, as provided by the Department of Transportation to
each circuit
court under current rules, demonstrates that the current source list
adequately reflects the population in each county. But after the
qualification
and summoning process, counties with a measurable percentage of racial
minority groups show a drop in the level of those groups. This does not
appear to
be wholly due to disproportionate disqualification pursuant to
eligibility requirements, nor did the Subcommittee find any deliberate
policy decisions
or operational mechanisms resulting in bias. The reduced representation
occurs primarily through return of undeliverable mail and failures to
appear.
To correct this, two approaches were considered. The first is
stratified,
or targeted, summoning. This process identifies geographic areas
believed to
have a higher concentration of the under-represented minority group. A
proportionate increase in mailings is then sent to that area to obtain
the appropriate
number of responses. This process has been used in some jurisdictions
across
the country, where allowed by law, including the Eastern District of
Wisconsin federal court. It has been criticized for violating the tenets
of
maintaining an equal opportunity to be selected and randomness in
selection. It is
also lacking in exactness, as zip code identifiers needed to target
mailing do
not precisely track with the boundaries of minority neighborhoods. A
second
method, proposed in the petition, is to improve the currency of the
addresses used
on the original mailings. Improving the currency of the source list
was recommended by the National Center for State Courts, rather than the
use
of stratified or targeted summoning.
The Department of Transportation (DOT) list is inherently
inclusive; it
has more names across social and economic lines than any other list
the Subcommittee could identify. To improve the currency of addresses,
this petition proposes that the court supplement the DOT list with other
state
lists having better currency. A number of lists have more current
addresses
because they require more frequent renewal or provide some incentive for
keeping
in touch with the agency. The suggested lists are:
1. a list of registered voters provided by the State Elections
Board.
2. a list of all natural persons filing a state tax form
provided by
the Department of Revenue.
3. a list of child support payors and payees provided by the
Department
of Workforce Development.
4. a list of recipients of unemployment compensation provided by
the Department of Workforce Development.
5. a list of persons residing in Wisconsin approved or licensed
by
the Department of Natural Resources.
Under the proposed rule, the DOT list will be used as the base
list. If
a potential juror does not appear on the DOT list the name will be
added. If
a potential juror appears on the DOT list and a supplemental list, the
address from the list with better currency will be used. Duplicate names
will
be screened out. The merger will be implemented by decision of the
Director
of State Courts, done at the state level, and performed by the
Consolidated
Court Automation Program (CCAP).
Because formatting differences between potential additional
source
lists makes accurate matching of names difficult based on currently
available
data fields of address, name and birth date, a unique piece of
identifying information is needed for each potential juror to make sure
they are not
used more than once. The social security number has been selected as
being common
to multiple lists, but authorization to use the social security number
is required. Protection of the confidentiality of the social security
number
is included in the proposal.
Juror privacy: There are increasing concerns in society
concerning the
use and release of personal identifying information such as home
address,
phone numbers, employers and information on family members. A court must
obtain
the information necessary to legally qualify a potential juror for
service.
Some courts in Wisconsin, although not all, have developed the tradition
of requesting supplemental information such as noted above for use by
attorneys during voir dire. The petition allows for the collection of
this
information and its use by attorneys during voir dire, but protects the
privacy of
jurors by returning the information to the court at the conclusion of
voir dire.
Once voir dire is complete, all qualification forms and any supplemental
information a court requests of potential jurors shall be confidential
and released
only upon the order of the court upon a showing of good cause. This is
in
compliance with Principle 7.A.8 of the ABA Principles Relating to
Juries and Jury
Trials (2005).
Unlike elected officials and other government employees who
choose a
career in public service, jurors are private citizens summoned to
participate
in public service. In its report on The State of the States Survey of
Jury Improvement Efforts, the National Center for State Courts,
Center for
Jury Studies says, "They (jurors) do not, therefore, automatically
surrender expectations of privacy. In particular, they have a right to
expect
that personal information will be disclosed only to those individuals
with
a legitimate need for it. To meet those expectations, courts have
increasingly placed restrictions on the information that prospective
jurors are required
to disclose and to whom that information may be subsequently
released." The
Center for Jury Studies states that more than one-third of courts report
they do
not even provide attorneys with a full street address. More than
one-quarter
report they provide no address information on jurors at all. This
petition
provides attorneys in voir dire full information, but joins the trend to
increased privacy by limiting the public list of jurors to name, and
village, town
or city of residence.
Conclusion
The proposed provisions changing Chapter 756 will give the courts the
tools
to improve the administration of the jury system and better serve the
citizens called to serve. The authorization permitting better, merged
source lists
can decrease undeliverable returns, increasing participation by minority
groups. Clarifying the penalties for failure to comply will make the
sanctions consistent and protects the integrity of the summoning
process. The plan
for protecting the privacy of jurors' personal information will enhance
the likelihood of honest participation, without hindering the voir dire
process.
Respectfully submitted:
A. John Voelker, Director of State Courts
CHAPTER 756
JURIES
756.001 State policy on jury service; opportunity and obligation to
serve
as juror.
756.01 Definitions.
756.02 Juror qualifications.
756.03 Excuse; deferral.
756.04 Prospective juror lists; number; how compiled.
756.05 Jury summons, when and how issued.
756.06 Jury selection.
756.07 Insufficient jurors.
756.08 Oaths and affirmations.
756.25 Juror fees and mileage.
756.255 Leave of absence.
756.28 Length of juror service; periods of required availability.
756.30 Penalties.
756.31 Clerk of circuit court fraud.
756.001 State policy on jury service; opportunity and obligation
to serve as juror. (1) Trial by jury is a cherished constitutional
right.
(2) Jury service is a civic duty.
(3) No person who is qualified and able to serve as a
juror may be
excluded from that service in any court of this state on the basis of
sex, race,
color, sexual orientation as defined in s. 111.32 (13m), disability,
religion, national origin, marital status, family status, lawful source
of income, age
or ancestry or because of a physical condition.
(4) All persons selected for jury service shall be
selected at random
from the population of the area served by the circuit court. All
qualified
persons shall have an equal opportunity to be considered for jury
service in this
state and the obligation to serve as jurors when summoned under this
chapter for
that purpose. Any manual or automated method of selection that provides
each qualified person with an equal probability of selection for jury
service
or that provides each prospective juror with an equal opportunity for
assignment to a particular trial may be used.
(5) The presiding judge of each circuit court, or, if
there is none,
the circuit judge designated by the chief judge to supervise the jury
system,
shall be responsible for administering the jury system in that court and
shall discharge that duty in an efficient, equitable and cost-effective
manner,
in accordance with this chapter. The clerk of circuit court, if
delegated by
and under the supervision of the judge responsible for administering the
jury system, may select and manage juries under policies and rules
established
by the judges in that circuit court.
756.01 Definitions.
(1) "Jury array" means the annual list of
prospective jurors in each
county qualified as eligible to serve under s. 756.02.
(2) "Jury venire" means the jurors summoned for a
date-specific term
of service.
(3) "Jury panel" means the jurors present for voir
dire in a specific case.
(4) "Jury" means the jurors and alternates sworn to
hear a trial.
756.02 Juror qualifications. Every resident of the area
served by
a circuit court who is at least 18 years of age, a U.S. citizen and able
to understand the English language is qualified to serve as a juror in
that circuit unless that resident has been convicted of a felony and has
not had
his or her civil rights restored.
756.03 Excuse; deferral. (1) EXCUSE. The court to which a
person
is summoned for jury service may excuse the person from jury service if
the
court determines that the person cannot fulfill the responsibilities of
a juror.
The court shall not consider any structural limitations of a facility
when
making that determination.
(2) DEFERRAL. The court to which a person is summoned for
jury service
may, upon request of that person, defer to a later date set by the court
the
period in which the person must serve if the court determines that
service as a
juror would entail undue hardship, extreme inconvenience or serious
obstruction
or delay in the fair and impartial administration of justice.
(3) CLERK AUTHORIZED TO GRANT. The judge responsible for
administering
the jury system in the circuit court may authorize the clerk of circuit
court
to grant excuses or deferrals under this section. The authorization may
limit
the grounds on which the clerk of circuit court may grant the excuse or
deferral and may require persons seeking an excuse or deferral to
document the basis
for any excuse or deferral.
756.04 Prospective juror lists; number; how compiled.
(1)In this section:
(a) "Department" means the department of
transportation.
(b) "Department list" means a compilation of
information prepared by
the department that includes the name, address, date of birth, race and
gender
of each person who is licensed as a motor vehicle operator under ch. 343
or
who has received an identification card under s. 343.50 or
343.51.
(c) "Race" means African American, American
Indian or Alaskan Native,
Asian or Pacific Islander, Caucasian, Hispanic, or other racial
category.
(2)
(1) Jurors for all circuit courts shall be selected
under ss. 756.04
to 756.07.
(2) (a) Each year, the Director of State Courts Office shall
compile a
master list of potential jurors for use by the circuit courts of each
county
during the coming year. The master list shall be compiled as described
in this
section and in a manner designed to meet the goals set forth in Supreme
Court
Rule 73.01.
(b) Each year, on a date agreed upon with the Director of
State
Courts Office, the Department of Transportation shall compile a list
that includes
the name, address, county, date of birth, race, gender, social security
number, license number and renewal date of each person residing in the
state who
is licensed as a motor vehicle operator under ch. 343 or who has
received
an identification card under s. 343.50 or 343.51. The Director of State
Courts Office shall establish the format of the list by agreement with
the
department. The Department of Transportation shall transmit the list to
the Director
of State Courts Office, without charge.
(c) The Director of State Courts Office may use any of the
following lists
in addition to the Department of Transportation list in order to create
the
master list of potential jurors. The Director may request the following
lists
from their custodians each year:
1. a list of registered voters provided by the State
Elections Board.
2. a list of all natural persons filing a state tax form
provided by
the Department of Revenue.
3. a list of child support payors and payees provided by the
Department
of Workforce Development.
4. a list of recipients of unemployment compensation provided
by
the Department of Workforce Development.
5. a list of persons residing in Wisconsin approved or
licensed by
the Department of Natural Resources.
(d) If the records listed in (c) are requested, the Director
of State
Courts shall enter into a record sharing agreement with the custodian of
the
records. Any record sharing agreement shall be in writing for a
prescribed period
of time and shall identify data that would allow for a match of
personally identifiable information on the list maintained by that
custodian
with personally identifiable information in the master list of potential
jurors
to the extent required to identify duplicate names and to determine
current addresses of prospective jurors. The agreement shall establish
the format
of the list and date of transmission of the list.89
(e) The Director of State Courts shall enter into an
agreement with
the custodian of the records listed in (b) and (c) to match personally
identifiable information on the list maintained by that custodian with
personally identifiable information in the master list of potential
jurors to the
extent required to identify duplicate names and to determine current
addresses
of prospective jurors.
(f) No social security number shall be included in the lists
of
prospective jurors provided to the clerks of circuit court. All social
security
numbers shall be kept secure from unauthorized access and shall not be
open to
the public.
(3)
Annually, on a date established by the secretary of
transportation,
the department shall transmit, without charge, to each clerk of circuit
court
a department list of persons residing in the area served by that circuit
court. The department shall establish, by rule, uniform specifications
regarding
the size, format and content of computer tapes or other media used to
prepare
the department list.
(4)
The clerk of circuit court shall compile the list of
prospective
jurors by selecting names at random from the department list or from a
master
list created under this subsection and sub. (5).
(5)
(a) The clerk of circuit court may create a master list
using
the department list and any of the following:
1. Voter registration lists.
2. Telephone and municipal directories.
3. Utility company lists.
4. Lists of payers of real property taxes.
5. Lists of high school graduates who are 18 years of
age or older.
6. Lists of persons who are receiving aid to families
with dependent
children under subch. III of ch. 49.
(b) To create a master list, the clerk of circuit court
shall select
randomly a sample of names from each source used. The same percentage of
names shall
be selected from each source used. The department list shall be the
primary source, and the names selected from the department list shall be
compared
with the names from the 2nd source. Duplicate names shall be removed
from the
2nd source sample and the remaining names shall be combined with the
names
selected from the department list to create the master list. If more
than 2 source
lists are used, this process shall be repeated, using the previously
compiled
master list for comparison with any additional source list.
(3) From the statewide master list created under sub. (2),
the Director
of State Courts Office shall provide each clerk of circuit court with a
list
of prospective jurors residing in the county to be used during the
following
year. The county lists shall be created by randomly selecting from the
master
list the number of names requested by the clerk of circuit court for
that year.
The Director of State Courts Office shall transmit the list of
prospective
jurors to each clerk, with a certification that the list was prepared in
strict conformity with this chapter, including an identification of all
sources
used in the preparation of the list.
(6)
(4) (a) Using the list of prospective jurors provided by the
Director of State Courts Office,
T
the clerk of circuit court shall mail to every
juror to be summoned, separately or together with the summons under s.
756.05,
a juror qualification form requesting
accompanied by instructions requiring the person to complete and
return the form to the clerk within 10 days
after receiving it. The form shall
request
all of the following:
(a)
1. Information necessary to determine if the person is qualified
to
serve as a juror in that circuit court.
(b)
2. The race of the prospective juror.
(c)
3. The prospective juror's declaration that the responses are
true to
the best of his or her knowledge.
(7)
(b)
The juror qualification form shall be accompanied by
instructions requiring the person to complete and return the form to the
clerk within
10 days after receiving it. The form under sub. (6) may
request other
information that the court needs to manage the jury system in an
efficient
manner, including information ordinarily sought during voir dire
examination.
The form under sub.
(6)
shall include a notice that, if the person
willfully misrepresents a material fact,
or
fails to return the completed form within
10 days after its receipt, or fails to attend court without being
excused by
the court, the person may be required to forfeit not more than $500.
(c) The form may be supplemented to request other information
that the
court needs to manage the jury system in an efficient manner, including
information ordinarily sought during voir dire examination.
(8)
(d) If a prospective juror is unable to fill out the form
under sub. (6)
, another person may complete the form and shall indicate why the person
has done so. If it appears that there is an omission, ambiguity or error
in
a returned form, the clerk of circuit court shall return the form to the
person with instructions to correct and return the form to the clerk
within 10
days after receiving the form.
(9)
(5)(a) During each year, the clerk of circuit court
shall provide
the court with a sufficient number of names of prospective jurors to
meet the
needs of the court. The clerk shall randomly select names from
the department list
or master list and strike the name of any person randomly selected whose
returned juror qualification form shows that the person is not qualified
for
jury service under s. 756.02. The clerk shall certify that the names
were
selected in strict conformity with this chapter. The clerk shall include
a
verified statement with the list of names describing the manner in which
the names
were selected, including an identification of all sources used in the
preparation
of the list. The clerk shall keep a certified copy of the names of
prospective jurors, including the address of each prospective juror, for
public
inspection.
To create a jury array, the clerk shall strike from the list
provided by
the Director of State Courts the name of any person whose returned
juror qualification form shows that the person is not qualified for jury
service under s. 756.02.
(b) The clerk shall keep a certified copy of the array,
indicating the
city, village, or township of residence of each prospective qualified
juror,
for public inspection. Each year, the clerk shall certify compliance
with
all provisions of this chapter that fall under the authority of the
clerk
of circuit court.
(c) Except for those individual jurors whose service has been
deferred
or postponed to a time that falls within a new jury year, names of
prospective jurors not qualified or not summoned at the end of a jury
year shall
be discarded.
(10)
(d) The clerk of circuit court shall keep computerized juror
lists secure against unauthorized access.
(6)(a) The qualification form under (4)(a) and supplemental
information
under (4)(c) shall be made available to counsel and parties during voir
dire.
Once voir dire is complete and a jury has been selected for the trial,
these
records shall be returned to the court.
(b) A list of the names and city, village or township of
residence of
each juror sworn to a trial shall be retained in the court file. All
qualification forms and supplemental information shall be confidential
and released only
upon order of the court upon a showing of good cause.
756.05 Jury summons, when and how issued.
At least 12 days before the first day on which a jury is required to
be
present, to create the jury venire, the clerk of circuit court
shall
summon
randomly select a sufficient
number of prospective jurors from the jury array who shall be
summoned to appear before the court at an appropriate time for jury
service. The summons may be served
by 1st class mail or another method.
756.06 Jury selection. (1) Whenever an issue is to be
tried before
a jury, the clerk of circuit court shall randomly select names
from the jury venire until the desired number is obtained to create
the jury
panel. The random selection of names may include the provision
that jurors reporting
for service who have not been considered for assignment to a panel be
considered before other jurors are considered for a second
panelfrom the prospective juror list until the desired
number is
obtained
.
(2) (a) A jury in a felony case shall consist of 12
persons unless
both parties agree on a lesser number as provided in s. 972.02.
(am) A jury in a misdemeanor case shall consist of
6
12 persons.
(b) Except as provided in par. (c) and ss. 980.05 (2) and (2m)
(c),
980.09 (3), and 980.095 (1), a jury in a civil case shall consist of 6
persons
unless a party requests a greater number, not to exceed 12. The court,
on its
own motion, may require a greater number, not to exceed 12.
(c) A jury in a case involving an offense for which a forfeiture
may
be imposed or in an inquest under s. 979.05 shall consist of 6 persons.
(d) This subsection does not apply to cases under ch. 938.
756.07 Insufficient jurors. When a sufficient number of
jurors cannot
be obtained for a trial from the
list
jury venire supplied by the clerk of
circuit court, the court may order the sheriff to bring before the court
persons in
the vicinity for determination by the court of their qualification and
ability
to serve as jurors for the particular trial.
756.08 Oaths and affirmations. (1) The jurors selected to
try the
issues in the action or proceeding shall take an oath or affirmation to
try the
issues submitted to them and, unless discharged by the court, to give a
verdict according to the law and the evidence given in court.
(2) When the issues have been submitted to the jury, a
proper
officer, subject to the direction of the court, shall swear or affirm
that the
officer will keep all jurors together in some private and convenient
place until
they have agreed on and rendered their verdict, are permitted to
separate or
are discharged by the court. While the jurors are under the supervision
of
the officer, he or she may not permit them to communicate with any
person
regarding their deliberations or the verdict that they have agreed upon,
except
as authorized by the court.
756.25 Juror fees and mileage. (1) Every grand and petit
juror
summoned shall receive an amount, not less than $16, as fixed by the
county board,
for each day of attendance, and an amount equal to the mileage rate set
under
s. 20.916 (8) for each mile traveled each day in going and returning by
the
most usual route. A juror may not be paid for a day when the court is
not in
session unless payment is ordered by the court.
(2) The county board may pay jurors by the half-day. The
payment shall
be for 50% of the established daily pay under sub. (1) and may not
affect
the payment for mileage.
(3) Notwithstanding subs. (1) and (2), if the judges in
any circuit
have established a system under s. 756.28 in which jurors are summoned
to serve
for only one day or one trial, the county board may determine the amount
to be
paid jurors for the first day of attendance and the amount to be paid
jurors
for traveling to and from the court for the first day of attendance.
(4) When a juror has completed his or her service, the
clerk of
circuit court shall promptly initiate the procedure for payment of the
juror's fees
and mileage under s. 59.64 (1) (g) 1.
756.255 Leave of absence. An employer shall grant an
employee a leave
of absence without loss of time in service for the period of jury
service. For
the purpose of determining seniority or pay advancement, the status of
the
employee shall be considered uninterrupted by the jury service. No
employer may
use absence due to jury service as a basis for discharging an employee
or for
any disciplinary action against the employee. An employer who discharges
or disciplines an employee in violation of this section may be fined not
more
than $200 and may be required to make full restitution to the aggrieved
employee, including reinstatement and back pay. Except as otherwise
provided in
this section, restitution shall be in accordance with s. 973.20.
756.28 Length of juror service; periods of required
availability. (1) ONE DAY OR ONE TRIAL. The judges in any circuit
may establish a system
in which a person summoned under s. 756.05 may not be required to serve
or
attend court for prospective service as a petit juror for more than one
day in
a specified period, unless more days are necessary to complete service
in
a particular case. The specified period may not be less than 2 nor more
than
4 years. In circuits where judges have established such a system, a
petit
juror whose deliberation ends with a verdict may not be required to
participate in
a 2nd trial even though the juror may not have completed the first day
of
juror service at the time of commencement of the 2nd trial.
(2) GENERAL 4"YEAR ELIGIBILITY. In a county where a
system has not
been established under sub. (1), a person may be required to be
available
for service as a grand or petit juror only once in any
4"year period. The period for which any person may be required to
be available for service may not exceed
31 consecutive days. No person may be required to serve, or attend court
for prospective service, as a juror for a total of more than 5 days
unless
more days are necessary to complete service in a particular case.
756.30 Penalties. (1) Whoever does any of the
following may be required
to forfeit not more than $500, which shall be imposed by the court, and
be retained by the Clerk of Court to off-set juror fees:
(a) Whoever w
illfully misrepresents any material fact on a
juror qualification form under s. 756.04
(6
) 756.06(8) or whoever fails to return
the completed qualification form within 10 days after receipt of the
form may
be required to forfeit not more than
$500
.
(b) Fails to return the completed qualification form within
10 days
after receipt of the form.
(c) Fails to attend court after being lawfully summoned
without being
excused by the court.
756.31 Clerk of circuit court fraud.
(2)
If the clerk of circuit court commits any fraud in the selection
of jurors or prospective jurors, the clerk shall forfeit not more than
$500
for each offense.
(3)
Any person lawfully summoned to attend as a juror who fails
to
attend without any sufficient excuse shall pay a fine not exceeding $40,
which
shall be imposed by the court to which the person was summoned and shall
be paid
into the county treasury.
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