Wisconsin
Lawyer
Vol. 81, No. 9, September
2008
The Wisconsin Supreme Court will
hold a public hearing on Oct. 28, 2008, to consider defining the
practice of law (Order 07-09) and electronic filing in
appellate courts (Orders 08-15 and 08-18). At a public hearing on
Nov. 10, the supreme court will consider continuing education and
admission rules (Orders 08-05,
08-06, and 08-14). The court has amended SCR Chapter 20 _ Rules of
Professional Conduct for Attorneys (Order 06-06). The court corrected
typographical errors in
rules related to Wis. Stat. section 887.26 (Order 08-19), e-filing
in circuit courts (Order 08-20), and videoconferencing in the courts
(Order 08-21), and amended
the rules of appellate procedure (Order 04-08).
Rules of Appellate Procedure
In re: Proposed Amendments to Wis. Stat. §§ 809.30, 809.32,
and 809.62
Order 04-08
On Sept. 30, 2004, the Wisconsin Judicial Council filed a petition
seeking to amend
§§ 809.30(2)(b), 809.32(4) and 809.62(1) through (7) of the
Rules of Appellate
Procedure. This petition was the culmination of extensive work by a
Judicial Council
Committee, with assistance from the Appellate Practice Section and
Criminal Law Section of
the State Bar, and the Wisconsin Association of Criminal Defense
Lawyers.
A public hearing was conducted on the petition on March 15,
2005. At the ensuing
open administrative conference, the court discussed certain aspects of
the petition and
took the remaining issues under advisement. The matter was discussed at
subsequent
open conferences on March 21, 2007, and June 25, 2008, at which time the
court
voted unanimously to adopt portions of the petition, as set forth
herein, and to deny
other aspects of the petition. The effective date of the amendments
adopted herein will
be Jan. 1, 2009.
IT IS ORDERED that effective Jan. 1, 2009:
Section 1. 809.107 (2) (bm) (intro.) of the
statutes is
amended to read:
809.107 (2) (bm) Notice of intent to pursue
postdisposition or appellate
relief. (intro.) A person shall initiate an appeal under this
section by filing, within 30
days after the date of entry of the judgment or order appealed from, as
specified in
s. 808.04 (7m), a notice of intent to pursue postdisposition or
appellate relief with
the clerk of the circuit court in which the judgment or order appealed
from was
entered. Also within that time period, the appellant shall serve a copy
of the notice of
intent on the person representing the interests of the public, opposing
counsel, the
guardian ad litem appointed under s. 48.235 (1) (c) for the child who is
the subject of
the proceeding, the child's parent and any guardian and any custodian
appointed under
s. 48.427 (3) or 48.428 (2). If the record discloses that final
adjudication occurred
after the notice of intent was filed, the notice shall be treated as
filed after entry of
the judgment or order appealed from on the day of the entry of the final
judgment or
order. The notice of intent shall include all of the following:
Section 2. 809.30 (2) (b) (intro.) of the
statutes is
amended to read:
809.30 (2) (b) Notice of intent to pursue
postconviction or postdisposition
relief. (intro.) Within 20 days after the date of sentencing or
final adjudication, the
person shall file in circuit court and serve on the prosecutor and any
other party a notice
of intent to pursue postconviction or postdisposition relief.
If the record discloses that sentencing or final adjudication
occurred after the notice of intent was filed,
the notice shall be treated as filed after sentencing or final
adjudication on the day
of the sentencing or final adjudication. The notice shall include
all of the following:
Section 3. The following Judicial Council
Committee
Comment to s. 809.30 (2) (b)
is included to read as follows:
Judicial Council Committee Comment: The amendment to s.
809.30
(2) (b) allows a
notice of intent that is filed too early to be deemed filed on the date
that a judgment
and sentence or other final adjudication is filed. This is consistent
with the
procedure applicable to civil appeals under s. 808.04 (8).
Section 4. 809.32 (4) of the statutes is
amended to read:
809.32 (4) No-merit petition for
review. If a fully briefed appeal is taken to the court of appeals and
the attorney is of the opinion that a petition for review in
the supreme court under s. 809.62 would be frivolous and without any
arguable merit,
the attorney shall advise the person of the reasons for this opinion and
that the person
has the right to file a petition for review. If requested by the person,
the attorney
shall file a petition satisfying the requirements of s. 809.62 (2) (d)
and (f) and the
person shall file a supplemental petition satisfying the requirements of
s. 809.62 (2)
(a), (b), (c), and (e). The petition and supplemental petition shall
both be filed within
30 days after the date of the decision or order of the court of appeals.
An opposing
party may file a response to the petition and supplemental petition
as provided in s. 809.62 (3) within 14 days after the service of
the supplemental petition.
Section 5. 809.62 (1) (intro.) of the statutes
is
renumbered s. 809.62 (1m)
and amended to read:
809.62 (1m) A party may file with the supreme
court a
petition for review of
an adverse decision of the court of appeals pursuant to s. 808.10 within
30 days of
the date of the decision of the court of appeals.
Supreme court review is a matter of judicial discretion, not of
right, and will be granted only when special and
important reasons are presented. The following, while neither
controlling nor fully measuring
the court's discretion, indicate criteria that will be
considered:
Section 6. 809.62 (1) (a) to (e) of the
statutes are
renumbered 809.63 (1r) (a)
to (e).
Section 7. 809.62 (1g) of the statutes is
created to
read:
809.62 (1g) Definitions. In this section:
(a) "Adverse decision" means a final order or decision
of the court of appeals,
the result of which is contrary, in whole or in part, to the result
sought in that court
by any party seeking review.
(b) "Adverse decision" includes the court of appeals'
denial of or failure to
grant the full relief sought or the court of appeals' denial of the
preferred form of relief.
(c) "Adverse decision" does not include a party's
disagreement with the court
of appeals' language or rationale in granting a party's requested
relief.
Section 8. The following Judicial Council
Committee
Comment to s. 809.62 (1g)
is included to read as follows:
Judicial Council Committee Comment: The definition in s.
809.62 (1g) codifies
the holding in Neely v. State, 89 Wis. 2d 755,
757-58,
279 N.W.2d 255 (1979), to the
effect that a party cannot seek review of a favorable result merely
because of
disagreement with the court of appeals' rationale. At the same time, s.
809.62 (1g) underscores
the fact that a court of appeals' decision that is generally favorable
to a party
remains adverse to that party to the extent that it does not grant the
party all the
relief requested, i.e., the full relief or the preferred form of relief
sought by the
party. See also State v. Castillo, 213 Wis. 2d 488,
492, 570 N.W.2d 44 (1997).
As an example, a criminal defendant seeking reversal of his
conviction or, if that
is not granted, resentencing, would be entitled to seek review of the
court of
appeals' failure to grant a new trial, even if it did order
resentencing. Similarly, a
civil appellant challenging a verdict finding liability and, should that
be denied, the
amount of damages, would be entitled to seek review of the court of
appeals' failure to grant
a new trial on liability, even if the court of appeals did order
reassessment of damages.
Section 9. 809.62 (1m) (title) of the statutes
is created
to read:
809.62 (1m) (title) General rule; time
limit.
Section 10. 809.62 (1r) (intro.) of the
statutes is
created to read:
809.62 (1r) Criteria for granting
review. (intro.) Supreme court review is a matter of judicial
discretion, not of right, and will be granted only when special
and important reasons are presented. The following, while neither
controlling nor
fully measuring the court's discretion, indicate criteria that will be
considered:
Section 11. The following Judicial Council
Committee
Comment to s. 809.62 (1m)
and (1r) is included to read as follows:
Judicial Council Committee Comment: Rules 809.62 (1m) and
(1r)
are former Rule
809.62 (1), divided into subsections and subtitled. Subtitles are added
throughout Rule
809.62 to help practitioners and parties locate particular provisions.
Section 12. 809.62 (2) (title) of the statutes
is created
to read:
809.62 (2) (title) Contents of
petition.
Section 13. 809.62 (2) (a), (d) and (f) 2. of
the
statutes are amended to read:
809.62 (2) (a) A statement of the issues
presented for review
the petitioner seeks
to have reviewed, the method or manner of raising the issues in the
court of appeals
and how the court of appeals decided the issues.
The statement of issues shall also identify any issues the petitioner
seeks to have reviewed that were not decided by the court
of appeals. The statement of an issue shall be deemed to comprise every
subsidiary issue
as determined by the court. If deemed appropriate by the supreme court,
the matter may
be remanded to the court of appeals.
(d) A statement of the case containing a description of the
nature of the case;
the procedural status of the case leading up to the review; the
dispositions in the
trial
circuit court and court of appeals; and a statement of those
facts not included in
the opinion of the court of appeals relevant to the issues presented for
review,
with appropriate references
citation to the record.
(f) 2. Judgment
The
judgments, orders, findings of fact, conclusions of law
and memorandum decisions of the circuit court and administrative
agencies necessary for
an understanding of the petition.
Section 14. The following Judicial Council
Committee
Comment to s. 809.62 (2) (a)
is included to read as follows:
Judicial Council Committee Comment: Rule 809.62(2)(a) is
amended to require
the petitioner to identify all issues on which it seeks review,
including issues raised
in the court of appeals but not decided in the court of appeals. The
amendment to
Rule 809.62(2)(a) also clarifies that the statement of an issue
incorporates all
subsidiary issues. This amendment is adapted from the United States
Supreme Court's rules.
See U.S. Sup. Ct. Rule 14.1(a). See also In the Interest of
Jamie
L., 172 Wis. 2d 218, 232-33, 493 N.W.2d 56 (1992).
Section 15. 809.62 (2m) (title) of the statutes
is
created to read:
809.62 (2m) (title) Inapplicable to parental
consent to
abortion
cases.
Section 16. 809.62 (2r) (title) of the statutes
is
created to read:
809.62 (2r) (title) Application to termination
of
parental rights
cases.
Section 17. 809.62 (3) of the statutes is
amended to
read:
809.62 (3) Except as provided in s. 809.32 (4),
an
opposing party may file a
response to the petition within 14 days after the service of the
petition.
If filed, the response may contain any of the following:
(a) Any reasons for denying the petition.
(b) Any perceived defects that may prevent ruling on the
merits of any issue in
the petition.
(c) Any perceived misstatements of fact or law set forth in
the petition that have
a bearing on the question of what issues properly would be before the
court if
the petition were granted.
(d) Any alternative ground supporting the court of appeals
result or a result
less favorable to the opposing party than that granted by the court of
appeals.
(e) Any other issues the court may need to decide if the
petition is granted, in
which case the statement shall indicate whether the other issues were
raised before the
court of appeals, the method or manner of raising the issues in the
court of appeals,
whether the court of appeals decided the issues, and how the court of
appeals decided
the issues.
Section 18: 809.62 (3) (title) of the statutes
is created
to read:
809.62 (3) (title) Response to petition.
Section 19. The following Judicial Council
Committee
Comment to s. 809.62 (3)
is included to read as follows:
Judicial Council Committee Comment: Rule 809.62(3) is
amended
to advise the
respondent to apprise the supreme court, in the response to the
petition, of any issues the
court may need to decide if it grants review of the issue(s) identified
in the petition.
This applies whether or not the court of appeals actually decided the
issues to be raised.
The amendments to Rule 809.62(3) also advise the respondent to
identify in
its response any perceived misstatements of law or fact, or any defects
(such as
waiver, mootness, or estoppel) that could prevent the supreme court from
reaching the merits
of the issue presented in the petition.
Compare U.S. Sup. Ct. Rule 15.2.
Rule 809.62(3)(d) addresses the circumstance in which the
respondent asserts
an alternative ground to defend the court of appeals' ultimate result or
outcome,
whether or not that ground was raised or ruled upon by the lower courts.
Rule 809.62(3)(d) also addresses the circumstances in which the
respondent asserts
an alternative ground that would result in a judgment less favorable
than that granted
by the court of appeals but more favorable to the respondent than might
be granted for
the petitioner (e.g., remand for a new trial rather than a rendition of
judgment for
the petitioner). The language is modified from Tex. R. App. P.
53.3(c)(3).
Rule 809.62(3)(d) and (e) are intended to facilitate the supreme
court's assessment
of the issues presented for review, not to change current law regarding
the application
of waiver principles to a respondent. See State v.
Holt, 128 Wis. 2d 110, 125, 382 N.W.2d 679 (Ct. App.
1985) (An appellate court may sustain a lower court's holding on
a theory or on reasoning not presented to the lower court.)
Implicit in these amendments, although not expressly stated as
in the federal
rule, U.S. Sup. Ct. Rule 15.2, is the understanding that a respondent
may be deemed to
have waived issues or defects that do not go to jurisdiction if they are
not called to
the attention of the supreme court in a response to the petition. The
supreme court
retains its inherent authority to disregard any waiver and address the
merits of an
unpreserved argument or to engage in discretionary review under Wis.
Stat. §§ 751.06 or 752.35.
See State v. Mikrut, 2004 WI 79, ¶38. The possible
invocation of waiver for failure to
raise such alleged defects in the response will encourage the respondent
to inform the
supreme court of such defects before the supreme court decides whether
to expend scarce
judicial resources on the case. See Oklahoma City v.
Tuttle, 471 U.S. 808, 815-16 (1985).
A number of other states have rules requiring the respondent to
identify other
issues it seeks to raise if review is granted, and either expressly or
impliedly limiting
the issues before the supreme court on a grant of review to those set
forth in the
petition and response. See Ariz. R. Civ. App. P. 23(e); Calif.
App. R. 28(e)(2) & (5); Kan.
R.S. & A. Cts. Rule 8.03(g)(1); N.C. R. App. P. 15(d) & 16(a);
Oregon R. App. P.
9.20(2); Wash. R. App. 13.4(d).
A leading handbook on United States Supreme Court practice
describes the procedure
in that Court as follows:
"A respondent may also choose to waive the right to oppose
a petition, which
seems clearly without merit. This will save time and money, without any
substantial risk
if respondent feels certain that certiorari will be denied. In order
that the waiver
will clearly be understood as based upon the lack of merit in the
petition, the
statement filed with the Court_which may be in the form of a letter to
the Clerk_should
contain language to this effect: `In view of the fact that the case
clearly does not
warrant review by this Court [as is shown by the opinion below],
respondent waives the right
to file a brief in opposition.' The letter may also request leave to
file a response to
the petition if the Court wishes to see one. This will seldom be
necessary, since if
the respondent has not filed a response, or has affirmatively waived the
right to file,
and if the Court believes that the petition may have some merit, the
respondent will
usually be requested to file a response _ usually within 30 days from
the request.
"In recent years, in order to expedite the filing of
responses in the more
meritorious cases, the Solicitor General has waived the right to file
opposition briefs in
many cases deemed to be frivolous or insubstantial. States often do the
same
thing, especially in criminal cases. Such waivers should be filed
promptly, in order to
speed up the distribution of the petition and the disposition of the
case. Usually
such petitions are denied, even though the Court may call for a response
if any of
the Justices so request."
Stern, R., et al., Supreme Court
Practice §6.37 at 374-75 (7th ed. 1993)
(footnote omitted).
Section 20. 809.62 (3m) of the statutes is
created to
read:
809.62 (3m) Petition for
cross-review. (a) When required; time
limit. A party who seeks to reverse, vacate, or modify an adverse
decision of the court of appeals
shall file a petition for cross-review within the period for filing a
petition for review
with the supreme court, or 30 days after the filing of a petition for
review by
another party, whichever is later.
(b) No cross-petition required. 1. A petition for
cross-review is not necessary
to enable an opposing party to defend the court of appeals' ultimate
result or
outcome based on any ground, whether or not that ground was ruled upon
by the lower courts,
as long as the supreme court's acceptance of that ground would not
change the result
or outcome below.
2. A petition for cross-review is not necessary to enable an
opposing party to
assert grounds that establish the party's right to a result that is less
favorable to it
than the result or outcome rendered by the court of appeals but more
favorable to it than
the result or outcome that might be awarded to the petitioner.
(c) Rights and obligations of
parties. A party seeking cross-review has the
same rights and obligations as a party seeking review under ch. 809, and
any party opposing
a petition for cross-review has the same rights and obligations as a
party
opposing review.
Section 21. The following Judicial Council
Committee
Comment to s. 809.62 (3m)
is included to read as follows:
Judicial Council Committee Comment: Rule 809.62(3m) is
former
Rule 809.62 (7)
renumbered and amended. The requirements governing petitions for
cross-review fit more
logically after the requirements for the petition and the response,
contained in Rules
809.62(2) and (3).
Amended Rule 809.62(3m)(a) replaces the permissive
"may" with the mandatory "shall"
to clarify that a petition for cross-review is mandatory if the
respondent seeks
to reverse, vacate, or modify an adverse decision of the court of
appeals.
Amended Rule 809.62(3m) also clarifies when a respondent must
raise an issue in
a petition for cross-review, rather than raising the issue in a response
to the
petition or merely arguing it in the brief. Compare State v.
Scheidell, 227 Wis. 2d 285, 288 n.1, 595 N.W.2d 661
(1999) (respondent cannot argue issue raised below unless the issue
was raised in a petition for cross-review), with, e.g., In the
Interest of Jamie
L., 172 Wis. 2d 218, 232-33, 493 N.W.2d 56 (1992)
(noting "general rule" that a petition
for cross-review is not necessary to defend a judgment on any ground
previously
raised). Complicating these matters are holdings that a party may not
petition for review
(or cross-review) if it receives a favorable outcome from the court of
appeals,
State v. Castillo, 213 Wis. 2d 488, 492, 570
N.W.2d 44 (1997).
Rule 809.62(3m)(b) clarifies that a respondent need not file a
petition for
cross-review to raise alternative issues or grounds in support of either
(1) the court
of appeals' ultimate result or (2) a judgment less favorable than that
granted by the
court of appeals but more favorable to the respondent than might be
granted for
the petitioner. Any such alternative grounds for affirmance or lesser
relief
should, however, be identified in the response.
See Rules 809.62(3)(d), (3)(e) and (6).
Amended Rule 809.62(3m)(c) clarifies that a party opposing a
petition for
cross-review has the same rights and obligations as a respondent under
Rule 809.62(3).
Section 22. 809.62 (4) (title) of the statutes
is created
to read:
809.62 (4) (title) Form and length
requirements.
Section 23. 809.62 (4m) of the statutes is
created to
read as follows:
809.62 (4m) Combined response and petition for
cross-review. When a party elects both to submit a response to the
petition for review and to seek cross-review, its
submission shall be titled "Combined Response and Petition for
Cross-Review." The time limits
set forth in sub. (3m) shall apply. The response portion of the combined
document
shall comply with the requirements of subs. (3) and (4). The
cross-review portion of
the combined document shall comply with the requirements of subs. (2)
and (4), except
that the requirement of sub. (2) (d) may be omitted. The cross-review
portion shall
be preceded by a blank white cover. A signature shall be required only
at the conclusion
of the cross-review portion of the combined document.
Section 24. The following Judicial Council
Committee
Comment to s. 809.62 (4m)
is included to read as follows:
Judicial Council Committee Comment: New Rule 809.62(4m) is
created to permit a
combined document when a party elects both to respond to the petition
for review and to submit
a petition for cross-review. The content and format requirements of the
combined
document are similar to the requirements for a combined brief of
respondent and
cross-appellant found in s. 809.19(6)(b)2.
Section 25. 809.62 (5) (title) of the statutes
is created
to read:
809.62 (5) (title) Effect on court of appeals
proceedings.
Section 26. 809.62 (6) of the statutes is
amended to
read:
809.62 (6) The supreme court may grant the
petition
or the petition for cross-review or both upon such conditions as
it considers appropriate, including the filing
of additional briefs. If the
a petition is granted, the
petitioner
parties cannot raise
or argue issues not set forth in the petition unless ordered otherwise
by the
supreme court. The supreme court may limit the issues to be considered
on review.
If the issues to be considered on review are limited by the supreme
court and do not include an
issue that was identified in a petition and that was left undecided by
the court of
appeals, the supreme court shall remand that issue to the court of
appeals upon
remittitur, unless that issue has become moot or would have no
effect.
Section 27. 809.62 (6) (title) of the statutes
is created
to read:
809.62 (6) (title) Conditions of grant of
review.
Section 28. The following Judicial Council
Committee
Comment to s. 809.62 (6)
is included to read as follows:
Judicial Council Committee Comment: The last sentence of
Rule
809.62(6) is new and
is intended to preserve, for review by the court of appeals following
remand, any
issue raised at the court of appeals but not decided by that court or by
the supreme court
on review. For instance, after a civil jury verdict, an insured party
might appeal
issues relating to liability and damages. The insurer might appeal
issues relating to
coverage and damages. If the court of appeals reverses on the liability
issue, without
deciding the coverage and damages issues, and the supreme court accepts
review on the
liability issue only, amended Rule 809.62(6) preserves the damage and
coverage issues raised
in the court of appeals and identified in the petition or response for
consideration by
the court of appeals following remand and remittitur from the supreme
court. Remand of
a preserved issue will not occur if the supreme court's decision renders
the issue moot
or of no effect.
Section 29. 809.62(7) of the statutes is
repealed.
IT IS FURTHER ORDERED that the Judicial Council Committee
Comments are not
adopted, but will be published and may be consulted for guidance in
interpreting and
applying Wis. Stat. §§ 809.30, 809.32 and 809.62.
IT IS FURTHER ORDERED that notice of these amendments to Wis.
Stat. §§ 809.30,
809.32, and 809.62 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 30th day of July, 2008.
By the court:
David R. Schanker,
Clerk of Supreme Court
Top of Page
Rules of Professional Conduct for
Attorneys
In the matter of the Petition for Amendment to Supreme Court Chapter
20 _
Rules of Professional Conduct for Attorneys:
Order 06-06
On Nov. 20, 2006, the State Bar of Wisconsin filed a petition seeking
to amend
Supreme Court Rules 20:5.5, 20:8.5, and 10.03 (4). The petition proposed
changes to the
Supreme Court Rules pertaining to the temporary practice of law by
lawyers not licensed
to practice in the state of Wisconsin as well as changes to the rules
governing
admission pro hac vice. A public hearing was conducted on April 12,
2007. Numerous comments
were received. The court discussed this petition and additional comments
at
open administrative conferences on April 12, 2007; Jan. 9, 2008; Feb.
22, 2008; and April
24, 2008. On April 24, 2008, the court voted unanimously to adopt the
petition, with
certain amendments.
The court added comments where it adopted changes that differed
substantively from
the ABA Model Rule or where it deemed additional guidance appropriate
("Wisconsin Comments"). The Wisconsin Comments and comments to
the ABA Model Rules are not
adopted, but will be published and may be consulted for guidance in
interpreting and applying
the Rules of Professional Conduct for Attorneys. Therefore,
IT IS ORDERED that effective Jan. 1, 2009, SCRs 20:5.5, 20:8.5,
and 10.03 (4) of
the Supreme Court Rules are repealed and recreated to read as set forth
in the order of
this court dated July 30, 2008;
IT IS FURTHER ORDERED that the full text of the order repealing
and recreating
SCRs 20:5.5, 20:8.5, and 10.03 (4) shall be made available on the
Web site of the
Wisconsin Supreme Court, http://wicourts.gov, and the Web site of
the State Bar of
Wisconsin, www.wisbar.org.
Dated at Madison, Wis., this 30th day of July, 2008.
By the court:
David R. Schanker,
Clerk of Supreme Court
Top of Page
Defining 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 07-10
On June 19, 2007, the Board of Governors of the State Bar of
Wisconsin ("State
Bar") 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 and open administrative conference on
this matter
were conducted on Dec. 10, 2007. Numerous interested persons appeared
at the hearing
or submitted written comments. The court further discussed the matter,
including
additional written comments received, at an open administrative
conference on March 14, 2008.
On April 23, 2008, the State Bar submitted a letter asking the court
to hold
this matter in abeyance in order to permit the State Bar to carefully
evaluate the
various proposals submitted regarding this matter. The court approved
the State Bar's request
at an open administrative conference on April 24, 2008, and by written
order dated May
29, 2008. The court also ordered the State Bar to advise the court, in
writing, of
the status of its review of this matter. The court has been informed
that the State Bar
has completed its review.
IT IS ORDERED that on Tuesday, Oct. 28, 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. 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 this matter.
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 30th day of July, 2008.
By the court:
David R. Schanker,
Clerk of Supreme Court
Top of Page
Rules of Pleading, Practice and Procedure -
Juries
In the matter of the Amendment of Rules of Pleading, Practice and
Procedure: Wis. Stat. Ch. 756, Juries
Corrected 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, to amend Chapter 756 of the Wisconsin
Statutes relating
to juries. The petition states that the goal of this rule petition
"is to improve
and clarify provisions governing the management of jurors in the
circuit courts."
A public hearing was held on Monday, April 7, 2008. At its open
administrative conference on April 24, 2008, the court voted to grant
the petition, with
certain amendments. In addition, the court directed the petitioners to
report to the
court within six months of the date of this order whether petitioners
deem it advisable
to amend Wis. Stat. § 756.04 (2) (c) to permit the office of
the director of state
courts to seek the additional lists proposed by interested parties to
this rules proceeding
at the open conference on April 7, 2008. The court also directed the
petitioners to
report to the court within three years of the effective date of this
order regarding
whether the amendments made pursuant to this petition have advanced
the primary goals
of improving representation on Wisconsin juries and protecting juror
privacy. Therefore,
IT IS ORDERED that effective Jan. 1, 2009:
Section 1. 756.01 of the statutes is created to
read:
756.01 Definitions. In this
chapter:
(1) "Juror" means a person summoned in
compliance
with this chapter or who has
taken an oath or affirmation under s. 756.08 (1).
(2) "Jury" means the jurors and
alternates sworn to
hear a trial.
(3) "Jury array" means the annual list of
prospective jurors in each county
qualified as eligible to serve under s. 756.02.
(4) "Jury panel" means the jurors present
for voir
dire in a specific case.
(5) "Jury venire" means the jurors
summoned for a
date-specific term of service.
(6) "Jury year" means the calendar year
beginning
January 1 and ending December 31.
Section 2. 756.04 (1) of the statutes is repealed.
Section 3. 756.04 (2) of the statutes is renumbered
756.04
(2) (intro.) and
amended to read:
756.04 (2) (intro.) Jurors for all
circuit courts
shall be selected under ss.
756.04 to 756.07, subject to all of the following:
Section 4. 756.04 (2) (a) to (f) of the statutes
are created
to read:
756.04 (2) (a) Each year, the
office of the director
of state courts 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.
(b) Each year, on a date agreed upon with the office of the director
of state
courts, the department of transportation shall compile a list that
includes the name,
address, county, date of birth, race, gender, identification 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, and
social security number, as permitted by law and any record sharing
agreement between
the department of transportation and the office of the director of
state courts. The
office of the director of state courts shall establish the format of
the list by agreement
with the department of transportation. The department of
transportation shall transmit
the list to the office of the director of state courts, without
charge.
(c) The office of the director of state courts may use any of the
following lists
in addition to the list provided by the department of transportation
under par. (b)
in order to create the master list of potential jurors compiled under
par. (a).
The director may each year request any of the following information
from the custodians
of that information:
1. A list of registered voters from the government accountability
board.
2. A list of all natural persons that may have filed a state income
tax return
with the department of revenue.
3. A list of child support payors and payees from the department of
workforce development.
4. A list of recipients of unemployment compensation from the
department of
workforce development.
5. A list of residents of this state issued approvals or licenses
from the
department of natural resources.
(d) If the records listed in par. (c) are requested, the director of
state courts
may 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. Any list provided
under par. (c) shall
contain no data other than the data provided in par. (b). The
agreement shall establish
the format of the list and date of transmission of the list.
(e) The lists of prospective jurors provided to the clerks of
circuit courts
shall contain only the name, address, gender, date of birth, race and
county of residence
of each prospective juror.
(f) All social security numbers shall be kept secure from
unauthorized access
and shall not be provided to the clerk of circuit court and shall not
be open to the public.
Comment: SCR 73.01 provides guidance
regarding
monitoring of the jury system.
Section 5. 756.04 (3) to (5) of the statutes are
repealed.
Section 6. 756.04 (3m) of the statutes is created
to read:
756.04 (3m) From the statewide master list of
potential
jurors created under
sub. (2), the office of the director of state courts shall provide
each clerk of
circuit court with a list of prospective jurors residing in the
clerk's county to be used
during the following jury year. The list for each county shall be
created by randomly
selecting from the master list of potential jurors the number of names
of residents of the
county requested by the clerk of circuit court for that year. The
office of the director
of state courts shall transmit the list of prospective jurors to each
clerk, with
a certification that the list was prepared in strict conformity with
this chapter.
Section 7. 756.04 (6) of the statutes is renumbered
756.04
(6) (am) and 756.04
(6) (am) (intro.), as renumbered, is amended to read:
756.04 (6) (am) (intro.) The
Using the
list of prospective jurors provided by
the office of the director of state courts under sub. (3m),
the clerk of circuit court shall mail to every
prospective 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:
Section 8. 756.04 (7) of the statutes is renumbered
756.04
(6) (bm) and amended
to read:
756.04 (6) (bm) 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 juror qualification form shall be
accompanied by instructions requiring the person to complete and
return the form to the clerk
of circuit court within 10 days of receiving
it. The form under sub. (6) shall include
a notice that, if the person willfully misrepresents a material fact
or willfully fails
to return the completed form within 10 days after its receipt, or
willfully fails to
attend court without being excused by the court, the person may be
required to forfeit sanctioned not more than $500.
Section 9. 756.04 (6) (cm) of the statutes is
created to
read:
756.04 (6) (cm) The juror
qualification form mailed to
prospective jurors under
par. (am) may be supplemented to request other information that the
court requires to
manage the jury system in an efficient manner, including information
that may be sought
during voir dire examination.
Section 10. 756.04 (8) of the statutes is
renumbered 756.04
(6) (dm) and amended
to read:
756.04 (6) (dm) If a prospective
juror is unable to
fill out the juror
qualification form under sub.
(6) mailed to the prospective juror under par. (am) and
(cm), 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 of circuit court within 10
days after receiving the form.
Section 11. 756.04 (9) of the statutes is
renumbered 756.04
(9) (a) and amended
to read:
756.04 (9) (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 of
circuit court shall strike from
the list provided by the office of the director of state courts
under sub. (3m) the name
of any person whose returned juror qualification form shows that
the person is
not qualified for jury service under s. 756.02.
Section 12. 756.04 (9) (b) and (c) of the statutes
are
created to read:
756.04 (9) (b) The clerk of circuit court shall
keep for
public inspection
a certified copy of the jury array under par. (a), indicating the
city, village, or
town of residence of each prospective qualified juror. Each year, the
clerk of circuit
court 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.
Section 13. 756.04 (10) of the statutes is amended
to read:
(10) The clerk of circuit court shall keep
computerized juror
lists data secure against unauthorized access.
Section 14. 756.04 (11) of the statutes is created
to read:
756.04 (11) (a) All completed juror qualification
forms
mailed to prospective
jurors under sub. (6) (am) and supplemental information obtained under
sub. (6) (cm) shall
be confidential and shall be released only upon order of the court
upon a showing of
good cause. However, the completed juror qualification forms and
supplemental information
of jurors in the jury venire or jury panel when the trial is scheduled
shall be
made available to counsel and parties to the litigation upon request
without a circuit
court order. This information shall remain confidential and shall be
used only for the
purpose of the trial or any appeal. Counsel and parties may not retain
copies of
the qualification forms or supplemental information obtained under
sub. (6) (am) and
sub. (6) (cm).
(b) A list of the names and city, village, or town of residence of
each juror sworn
to hear a trial shall be retained in the court file.
Section 15. 756.05 of the statutes is amended to
read:
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 created under s. 756.04 (9) 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.
Section 16. 756.06 (1) and (2) (am) of the statutes
are
amended to read:
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 prospective juror list until the desired number is
obtained. 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
panel.
(2) (am) A jury in a misdemeanor case shall consist
of
6 12 persons.
Section 17. 756.07 of the statutes is amended to
read:
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.
Section 18. 756.30 (1m) (intro.) of the statutes is
created
to read:
756.30 (1m) Juror contempt
procedure. Whoever does any of the following is
subject to sanctions for contempt of court:
Section 19. 756.30 (1) is renumbered 756.30 (1m)
(am) and
amended to read:
756.30 (1m) (am) Whoever
willfully Willfully misrepresents any material fact on
a juror qualification form under s. 756.04 (6) 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 .
Section 20. 756.30 (1m) (bm) and (cm) of the
statutes are
created to read:
756.30 (1m) (bm) Fails to return the completed
juror
qualification form within
10 days after receipt of the form.
(cm) Fails to attend court after being lawfully summoned without
being excused by
the court.
Section 21. 756.30 (2m) of the statute is created
to read:
756.30 (2m) Sanctions. A circuit court may impose a
sanction
for violation of
sub. (1m) in an amount not to exceed $500. The sanction may be imposed
by the court
after hearing on an order to show cause why the prospective juror
should not be held
in contempt for failure to comply with the obligation of jury service.
No costs, fees,
or surcharges shall be imposed and the sanction shall be retained by
the clerk of
circuit court to offset juror costs.
Section 22. 756.30 (2) (title) of the statutes is
created to
read:
756.30 (2) Clerk of circuit court; fraud.
Section 23. 756.30 (3) of the statutes is repealed.
IT IS FURTHER ORDERED that within six months of the date of this
order the
petitioners shall advise the court, in writing, whether petitioners
deem it advisable to amend
s. 756.04 (2) (c) to permit the office of the director of state courts
to seek
the additional lists proposed by interested parties to this rules
proceeding at the
open conference on April 7, 2008.
IT IS FURTHER ORDERED that within three years of the effective date
of this order
the petitioners shall advise the court, in writing, whether the
amendments made pursuant
to this petition have advanced the primary goals of improving
representation on
Wisconsin juries and protecting juror privacy.
IT IS FURTHER ORDERED that the Comments are not adopted, but will be
published and
may be consulted for guidance in interpreting and applying Wis. Stat.
Ch. 756.
IT IS FURTHER ORDERED that notice of this amendment of Chapter 756
of the
Wisconsin Statutes 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 25th day of July, 2008.
By the court:
David R. Schanker,
Clerk of Supreme Court
Continuing Legal Education
In the matter of the petition to amend Supreme Court Rules SCRs 31.10
and 31.11, relating to notices of noncompliance with continuing legal
education (CLE) requirements and reinstatement.
In the matter of the petition to amend Supreme Court Rules SCR
31.32(2),
relating to the manner of filing documents relating to continuing
legal
education (CLE) requirements.
In the matter of the petition to amend Supreme Court Rules SCRs
40.14(2)
and 40.14(3)(h), relating to the filing of applications for admission
and the
fee for late application under the diploma privilege.
Orders 08-05, 08-06, and 08-14
On April 1, 2008, the Board of Bar Examiners, by its director, John
E.
Kosobucki, petitioned this court to amend Supreme Court Rules 31.10
and 31.11, relating to
notices of noncompliance with CLE requirements and reinstatement, and,
by separate petition,
to amend Supreme Court Rule SCR 31.13(2), relating to the manner of
filing
documents relating to CLE requirements.
On May 14, 2008, the Board of Board Examiners, by its director, John
E.
Kosobucki, petitioned this court to amend Supreme Court Rules SCRs
40.14(2) and
40.14(3)(h), relating to the filing of applications for admission and
the fee for late
application under the diploma privilege.
On July 24, 2008, amended petitions were filed in these matters to
show
marked versions of the proposed amendments.
IT IS ORDERED that a public hearing on these petitions, as amended,
shall be held
in the Supreme Court Room in the State Capitol, Madison, Wis., on
Monday, Nov. 10, 2008,
at 9:45 a.m.
IT IS FURTHER ORDERED that the court's conference in these matters
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 petitions 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 30th day of July, 2008.
By the court:
David R. Schanker,
Clerk of Supreme Court
Top of Page
Amended Petition 08-05
The Board of Bar Examiners, by its director John E. Kosobucki,
petitions the
Supreme Court of Wisconsin for orders amending Supreme Court Rules
31.10(1) and
31.11(1)(b), relating to the notices given when lawyers are
automatically suspended for
noncompliance with CLE requirements, and when lawyers are reinstated
after automatic suspensions.
If the Court grants these orders, the affected sections will read as
follows:
SCR 31.10 Noncompliance.
(1) If a lawyer fails to comply with the attendance requirement of
SCR 31.02, fails
to comply with the reporting requirement of SCR 31.03(1), or fails to
pay the late
fee under SCR 31.03(2), the board shall serve a notice of
noncompliance on the lawyer.
This notice shall advise the lawyer that the lawyer's state bar
membership of the
lawyer shall be automatically suspended for failing to file
evidence of compliance or to
pay the late fee within 60 days after service of the notice. The board
shall certify
the names of all lawyers so suspended under this rule to the clerk of
the supreme court and to each judge of a court of record in this
state , to all court of appeals and
circuit court judges and to all circuit court commissioners
appointed under SCR 75.02(1) in
this state, and to the executive director of the State
Bar. A lawyer shall not engage in the practice of law in
Wisconsin while his or her state bar membership is suspended
under this rule.
(2) * * * *
SCR 31.11 Reinstatement.
(1) Suspension of less than 3 consecutive years.
(a) * * * *
(b) Within 60 days after service of a petition for reinstatement,
the board shall
make a determination regarding compliance. If the board determines
that the lawyer is
in compliance with all requirements under this chapter, it shall
reinstate the
lawyer's membership in the state bar. The board shall certify the
names of all lawyers
so reinstated to the clerk of the supreme court, to all court of
appeals and circuit
court judges and to all circuit court commissioners appointed under
SCR 75.02(1) in
this state, and to the executive director of the State
Bar.
JUSTIFICATION: Under the present SCR 31.10 and 31.11, in about March
of each year,
the BBE notifies lawyers who have not complied with their CLE
requirements that they will
be automatically suspended from the practice of law if they do not
come into
compliance within sixty days. Sixty days later, the board transmits a
list of the lawyers who
have been automatically suspended to the clerk of the Supreme Court
and each judge of a
court of record. Later, the board sends to the clerk of the Supreme
Court a list of
the lawyers who are reinstated within three years of their automatic
suspension.
The proposed amendment to SCR 31.10(1) would widen the distribution
of the notice
of automatic suspension to include the state bar and court
commissioners appointed
under SCR 75.02(1), i.e., commissioners who perform limited judicial
or quasi-judicial
duties under the direction of the chief judge and the judges of the
circuit. Section
75.02(1) commissioners regularly preside over court proceedings and,
therefore, need notice
of lawyers' automatic suspensions for the same reasons that circuit
court judges do.
Notice to the state bar will allow the bar to keep its Internet
directory of Wisconsin
lawyers up-to-date.
The proposed amendment to SCR 31.11 (1)(b) would widen the
distribution of the
notices of reinstatement to include judges on the court of appeals,
circuit court judges,
court commissioners appointed under SCR 75.02(1) and the state bar.
Fairness requires
notices of reinstatement to be circulated as widely as the
corresponding notices of
automatic suspensions.
Dated this 31st day of March, 2008.
John E. Kosobucki,
Director,
Board of Bar Examiners
Amended Petition 08-06
The Board of Bar Examiners, by its director John E. Kosobucki,
petitions the
Supreme Court of Wisconsin for an order amending Supreme Court Rule
31.13(2), relating to
the manner in which CLE reports and other documents relating to CLE
requirements may
be filed. If the Court grants these orders, SCR 31.13(2) will read as
follows:
SCR 31.13 Service; filing
(1) * * * *
(2) Filing of a report form or a petition is effective on
the date the form
or petition is received at the office of the board during regular
business
hours. A report or other communication to the board under
this chapter is timely filed if it,
together with the applicable fees, is received at the board's office
within the time
specified for filing; or if sent to the board through the United
States Postal Service by
first-class mail (including express or priority mail), postage
prepaid, and bears a
postmark, other than a commercial postage meter label, showing that
the communication was
mailed on or before the last day for filing; or if delivered on or
before the last day
for filing to a third-party commercial carrier for the board within
three (3) calendar days.
JUSTIFICATION: Under the present rule, a CLE report or other
CLE-related document is
not deemed timely unless it arrives at the board's offices during
regular business hours
on or before the deadline day. Applicants who rely on first class mail
cannot be sure
their timely mailed documents will arrive in time. If they want to be
sure, they must
incur the greater cost of hand delivery or a courier service.
The proposed amendment is patterned on the rule for filing briefs in
the United
States Supreme Court. It gives applicants more control over their
transmissions,
better assuring them that they will not incur the costs associated
with an untimely filing.
(By a separate petition, the board is asking the Court to make a
similar change in
the manner of filing applications for admission to the bar.)
Dated this 31st day of March, 2008.
John E. Kosobucki, Director,
Board of Bar Examiners
Amended Petition 08-14
The Board of Bar Examiners, by its director John E. Kosobucki,
petitions the
Supreme Court of Wisconsin for orders amending Supreme Court Rules
40.14(2) and 40.14(3)(h).
If the Court issues this order, these sections will read as follows:
PROPOSED AMENDMENTS:
SCR 40.14 Application; fees.
(2) An application is filed on the date a properly
executed application and payment
of the applicable fees are received at the office of the board during
regular business hours.
(2) An application is timely filed if it, together with the
applicable fees,
is received at the board's offices within the time specified for
filing; or if sent to
the board through the United States Postal Service by first-class mail
(including express
or priority mail), postage prepaid, and bears a postmark, other than a
commercial
postage meter label, showing that the document was mailed on or before
the last day for
filing; or if delivered on or before the last day for filing to a
third-party commercial
carrier for delivery to the board within three calendar days.
(3) The following fees are payable to the board:
(h) Late fee for a character and fitness investigation under SCR
40.06(3m) $100 $500
JUSTIFICATION: Under the present rule, an application for admission
to the bar is
not deemed timely unless it arrives at the board's offices during
regular business hours
on or before the deadline day. Applicants who rely on first class mail
cannot be sure
their timely mailed documents will arrive in time. If they want to be
sure, they must
incur the greater cost of hand delivery or a courier service.
The proposed amendment, adapted from the rule for filing briefs in
the United
States Supreme Court, gives applicants more control over their
transmissions, better
assuring them that their applications will not be rejected as
untimely. (By a separate
petition, the board is asking the Court to make a similar change in
the manner of filing
CLE reports and other documents).
The second proposed amendment would affect only the small number of
persons each
year who do not make a timely application, but who otherwise satisfy
all requirements
for admission under the Diploma Privilege, SCR 40.03. In recent years,
the board has
often certified these applicants for admission if their applications
were no more than a
few days or weeks late, subject to the $100 late fee set by SCR
40.14(3)(h). In these
cases, the Board deems relegating these applicants to the bar
examination process a
penalty that is disproportionate to their tardiness.
However, the Board also deems the $100 late fee set by SCR
40.14(3)(h) to be
too insignificant a penalty, and therefore asks the Court to increase
it to $500. The
Board makes this request to magnify the incentive for timely
applications, and not with
an intent to increase its revenues. Indeed, the Board hopes the
increased late fee
will prompt all applicants to file their applications on time.
Dated this 13th day of May 2008.
John E. Kosobucki, Director,
Board of Bar Examiners
Top of Page
Electronic Filing in Appellate Court
In the matter of the petition to create Wis. Stat. §§
(Rule) 809.19(8)(a)4., 809.19(12),
809.19(13), 809.32(1)(fm), 809.80(5) and amend Wis. Stat.
§ (Rule) 809.80(3) relating to the electronic filing of
appellate briefs and
no-merit reports.
In the matter of the petition to create Wis. Stat. § (Rule)
809.80(5) and
amend Wis. Stat. § (Rule) 809.62(4) relating to the electronic
filing of
petitions for review and responses.
Orders 08-15 and 08-18
On June 19, 2008, the Wisconsin Court of Appeals, by Chief Judge
Richard S.
Brown, petitioned this court to create Wis. Stat.
§§ (Rule) 809.19(8)(a)4.,
809.19(12), 809.19(13), 809.32(1)(fm), 809.80(5) and amend Wis. Stat.
§ (Rule) 809.80(3) relating
to the electronic filing of appellate briefs and no-merit reports.
On July 14, 2008, David R. Schanker, Clerk of the Supreme Court,
petitioned this
court for an order to create Wis. Stat. § (Rule) 809.80(5)
and amend Wis. Stat.
§ (Rule) 809.62(4) relating to the electronic filing of
petitions for review and responses.
IT IS ORDERED that a public hearing on these petitions shall be held
in the
Supreme Court Room in the State Capitol, Madison, Wis., on Tuesday,
Oct. 28, 2008, at 9:30 a.m.
IT IS FURTHER ORDERED that the court's conference in these matters
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 petitions 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 30th day of July, 2008.
By the court:
David R. Schanker,
Clerk of Supreme Court
Petition 08-15
The Court of Appeals respectfully petitions the Supreme Court to
create Wis. Stat.
Rules 809.19(8)(a)4., 809.19(12), 809.19(13), 809.32(1)(fm), and
809.80(5), and to amend
Wis. Stat. Rule 809.80(3). 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. The Court of Appeals further respectfully
requests that the Court publish the Comment to proposed
ss. 809.19(12) and (13).
The goal of this petition is to increase judicial efficiency in the
Court of
Appeals by requiring appellate counsel to file an electronic copy of
all appellate briefs
and no-merit reports. The proposed rule changes also permit, but do
not require, the
filing of an electronic copy of the appendix.
This petition proposes a system for electronic filing of appellate
briefs and
no-merit reports as an initial step toward electronic filing at the
appellate level. Under
the proposed rules, attorneys will be required to file an electronic
copy of all briefs
and no-merit reports filed on appeal. Self-represented parties are
excluded from
this requirement but are not precluded from filing an electronic copy
of a brief. The
filing of an electronic appendix is optional for attorneys and
self-represented parties
alike. The system also enables attorneys to file briefs enhanced with
internal links (such as
a table of contents with links to locations in the brief) or external
links (to
websites containing cases or statutes cited in the brief).
Under the proposed rules, electronic copies of appellate briefs,
no-merit reports,
and appendices will be filed using the web-based interface developed
by the
Consolidated Court Automation Programs (CCAP) for e-filing in
Wisconsin's circuit courts. A
rule authorizing and governing the implementation of the CCAP e-filing
system was adopted
by the Supreme Court as Wis. Stat. § 801.17 (effective July
1, 2008).
The CCAP e-filing system requires a filer to register and acquire a
unique
password for use in verifying his or her identity and for the creation
of an
electronic signature. The proposed rules require briefs to be filed in
text-searchable
Portable Document Format (PDF); appendices may be filed in non-text
searchable PDF. Users
will log on to the system, complete an electronic transmittal form
with information about
the case and the document, and then upload the document. A
confirmation of receipt will
be sent to the user. When the document is received by the clerk's
office, it will
be reviewed by a clerk's office employee. If the brief is accepted,
information from
the transmittal form will be automatically entered into the appellate
courts'
case management system (SCCA) and the document will be associated with
the appropriate
case in SCCA. The electronic brief, no-merit report, or appendix can
then be accessed
by judges and other court personnel through SCCA.
The proposed rules represent an important step toward electronic
filing in
the appellate courts. The availability of briefs, no-merit reports,
and appendices
in electronic form will enable Court of Appeals judges to view these
case materials
on their computers, to search for specific terms, to jump to a
location within a brief,
to copy text, to link to cited cases and statutes, and to take
advantage of the
portability and ease of transmission of electronic files.
For these reasons, the Court of Appeals respectfully requests that
the Supreme
Court adopt the following rules.
SECTION 809.19(8)(a)4. of the statutes is created to read:
809.18(8) Number, form and length of briefs and appendices.
(a) Number.
1. A person shall file either 22 copies of a brief or appendix in
the supreme court
or the number that the court directs and shall serve 3 copies on each
party.
2. Except as provided in subd. 3 and s. 809.43, person shall file
either 10 copies
of a brief or appendix in the court of appeals or the number that the
court directs
and shall serve 3 copies on each party.
3. Except as provided in s. 809.43, a person who is found indigent
under s.
814.29(1) and who is not represented by counsel shall file 5 copies of
a brief or appendix in
the court of appeals and shall serve one copy on each party. A
prisoner who has been
granted leave to proceed without prepayment of fees under s.
814.29(1m) and who is
not represented by counsel shall file 5 copies of a brief or appendix
in the court
of appeals and shall serve one copy on each party.
4. In addition to the copies required in subd. 1, 2, and 3, all
parties represented
by counsel shall file one electronic copy of the brief as provided in
s. 809.19(12) and
may file one electronic copy of the appendix as provided in s.
809.19(13).
SECTION 809.19(12) of the statutes is created to read:
809.19(12) Electronic briefs. (a) General
Rule. In addition to paper briefs filed under s. 809.19(8),
counsel for any party, guardian ad litem, or person filing a brief
under s. 809.19(7), shall file with the court the same brief in
electronic
form. Notwithstanding s. 801.17(9), the paper copy of the brief
remains the official
court record. An appendix to the electronic brief may be filed in
accordance with
s. 809.19(13); the appendix should not be included with the electronic
brief. A
self-represented party is not required to file an electronic brief,
but may do so as
provided for in this subsection.
(b) Process. Counsel filing an electronic brief shall use
the
electronic filing
system set forth in s. 801.17.
(c) Format. The electronic brief shall be in
text-searchable
Portable Document
Format (PDF).
(d) Filing. The electronic brief shall be electronically
transmitted on the same
date that the paper brief is filed under s. 809.80(3)(b).
(e) Corrections. If corrections are required to be made to
a
paper brief, a
corrected electronic brief shall be filed.
(f) Certification. In addition to the form and length
certification required by
s. 809.19(8)(d), counsel must certify that the text of the electronic
brief is identical
to the text of the paper brief.
SECTION 809.19(13) of the statutes is created to read:
809.19(13) Electronic Appendix. (a) General
Rule. In addition to the paper appendix filed under s. 809.19(2)
or s. 809.19(3)(b), counsel may file with the court the
same appendix in electronic form. Notwithstanding s. 801.17(9), the
paper copy of
the appendix remains the official court record. A self-represented
party is not required
to file an electronic appendix, but may do so as provided for in this
subsection.
(b) Process. Counsel filing an electronic appendix shall
use
the electronic
filing system set forth in s. 801.17.
(c) Format. An electronic appendix shall be in Portable
Document Format (PDF).
An electronic appendix shall be filed as a separate document or
documents; it should not
be included with the electronic brief.
(d) Filing. An electronic appendix shall be electronically
transmitted on the
same date that the paper appendix is filed under s. 809.80(3)(b).
(e) Corrections. If corrections are required to be made to
a
paper appendix,
a corrected electronic appendix shall be filed.
(f) Certification. In addition to the certification
required
by s. 809.19(2)(b) and
s. 809.19(3)(b), counsel shall certify that the content of the
electronic appendix
is identical to the content of the paper appendix.
Comment to Sections 809.19(12) and 809.19(13): An electronic brief
required under
s. 809.19(12) and an electronic appendix requested under s. 809.19(13)
are in addition
to and not a replacement for the paper brief and appendix required by
s. 809.19. The
filing requirement is satisfied only when the requisite number of
paper copies of the brief
and appendix and the electronic brief are filed. If an attorney is
unable for good cause
to comply with the requirement of an electronic brief, a motion for
relief may be filed.
The filing of an electronic appendix is encouraged, but not
required. These rules
do not provide for total electronic filing at the appellate level.
Accordingly, the
paper copies of appellate briefs and appendices constitute the
official court record.
An electronic brief shall be submitted as a text-searchable Portable
Document
Format (PDF) document. Text-searchable PDF documents must be created
by
electronically converting the original word processing file to PDF.
PDF documents created by
scanning paper documents do not comply with this requirement. An
electronic appendix may be
a non-text-searchable PDF document created by scanning.
Electronic briefs may be enhanced with internal links (such as a
table of
contents with links to locations in the brief) or external links
(links to websites
containing the text of cases or statutes cited in the brief). External
links in an electronic
brief shall not require a password for access to the case or statute.
No enhancement to
an electronic brief shall alter the text of the brief.
All electronic briefs shall be submitted in a single electronic
file. The
file containing the electronic brief shall
not contain the appendix or any other document
or material. An electronic appendix containing more than 200 pages may
be split
into smaller electronic files.
Sample electronic brief certification form:
CERTIFICATE OF COMPLIANCE WITH RULE 809.19(12)
I hereby certify that:
I have submitted an electronic copy of this brief, excluding the
appendix, if
any, which complies with the requirements of s. 809.19(12). I further
certify that:
This electronic brief is identical in content and format to the
printed form of
the brief filed as of this date.
A copy of this certificate has been served with the paper copies of
this brief
filed with the court and served on all opposing parties.
Signed:....
Signature
Sample electronic appendix certification form:
CERTIFICATE OF COMPLIANCE WITH RULE 809.19(13)
I hereby certify that:
I have submitted an electronic copy of this appendix, which complies
with
the requirements of s. 809.19(13). I further certify that:
This electronic appendix is identical in content to the printed form
of the
appendix filed as of this date.
A copy of this certificate has been served with the paper copies of
this
appendix filed with the court and served on all opposing parties.
Signed:....
Signature
SECTION 809.32(1)(fm) of the statutes is created to read:
809.32(1)(fm) Filing of electronic copy of no-merit report and
supplemental
no-merit report. In addition to the paper copies of the no-merit
report required under this
rule and the optional supplemental no-merit report, the attorney shall
file with the
court the same no-merit report and supplemental no-merit report, if
any, in electronic
form, using the procedure set forth in s. 809.19(12). The attorney
shall certify that the
text of the electronic report is identical to the text of the paper
report.
SECTION 809.80(5) of the statutes is created to read:
809.80(5) Filing of Electronic Briefs or No-Merit
Reports. (a) General Rule. The electronic brief, electronic
no-merit report, or electronic supplemental no-merit
report required to be filed under s. 809.19(12) or s. 809.32(1)(fm)
shall be transmitted to
the clerk for filing on or before the date that the paper copy of the
document is
filed. Failure to transmit the electronic document on or before the
date that the
paper document is filed may result in the document being considered
untimely.
(b) Clerk review. The clerk shall review the electronic
brief, electronic
no-merit report, or electronic supplemental no-merit report 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 filer
will
receive notification of the rejection. The filer may be required to
refile the document.
SECTION 809.80(3) of the statutes is amended to read:
809.80(3) Filing of papers; use of mail. (a) All filings _
general
rule. Except as provided in pars. (b) to (e), filing is not timely
unless the clerk receives the
papers within the time fixed for filing. Filing may be accomplished by
hand delivery, mail
or by courier. Filing by facsimile is permitted only as set forth in
s. 801.16. Electronic filing, other than filing by facsimile as
set forth in s. 801.16, is not
permitted unless otherwise ordered by the supreme court.
Respectfully submitted on June 19, 2008.
Richard S. Brown, Chief Judge,
Wisconsin Court of Appeals
Petition 08-18
The Clerk of the Supreme Court respectfully petitions the Supreme
Court to amend
Wis. Stat. Rule 809.62(4) and the proposed Wis. Stat. Rule 809.80(5),
the creation of
which was requested by the Court of Appeals in its petition filed June
19, 2008. 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.
The goal of this petition is to increase judicial efficiency in the
Supreme Court
by requiring appellate counsel to file an electronic copy of the
Petition for Review
and the Response to Petition for Review. The petition also proposes
authorizing but
not requiring the filing of an electronic copy of an appendix filed
with a Petition
for Review. This petition is intended to complement the Court of
Appeals' petition, which proposed a rule requiring the filing of an
electronic copy of briefs and
no-merit reports.
For these reasons, the Clerk of the Supreme Court respectfully
requests that
the Supreme Court adopt the following rules.
SECTION 809.62(4) of the statutes is amended to read:
809.62(4) The petition for review and response, if any, shall
conform to
s. 809.19(8)(b) and (d) as to form and certification, shall be as
short as possible,
and may not exceed 35 pages in length if a mono-spaced font is used or
8,000 words if
a proportional serif font is used, exclusive of appendix. The petition
for review and
the response shall have white front and back covers, and a party shall
file 10 copies
with the clerk of the supreme court. In addition, counsel for any
party, guardian ad
litem, or person shall file with the court the same petition for
review or response
in electronic form using the procedure provided in s. 809.19(12) and
may file
one electronic copy of an appendix to the petition for review or
response using
the procedure provided in s. 809.19(13). A self-represented party is
not required to file
an electronic copy of the petition for review or response, but may
do so as provided for
in this subsection.
Comment to Section 809.62(4): The electronic copy of a petition for
review, response,
or appendix is in addition to and not a replacement for the paper
copies required by
this rule. The filing requirement is satisfied only when the requisite
number of paper
copies are filed. If an attorney is unable for good cause to comply
with the requirement of
an electronic copy, a motion for relief may be filed.
SECTION 809.80(5) of the statutes, as proposed by the Court of
Appeals, is amended
to read:
809.80(5) Filing of Electronic Briefs, or No-Merit
Reports, and Petitions for
Review and Responses. (a) General Rule. The electronic
brief, electronic no-merit report, or electronic
supplemental no-merit
report, or electronic petition for review and
response required to be filed under s.
809.19(12), or s.
809.32(1)(fm), or 809.62(4) shall be transmitted to the
clerk for filing on or before the date that the paper copy of
the document is filed. Failure to transmit the electronic document on
or before the
date that the paper document is filed may result in the document being
considered untimely.
(b) Clerk review. The clerk shall review the electronic
brief, electronic
no-merit report, or electronic supplemental no-merit
report, or electronic petition for review and
response to determine if the electronic document should be
accepted for filing.
1. If the clerk accepts the electronic document, it shall be
considered submitted
to 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
submission. The
filing date for the document remains the date on which filing was
accomplished under
s. 809.80(3).
2. If the clerk rejects the electronic document following review,
the filer
will receive notification of the rejection. The filer may be required
to resubmit
the electronic document.
Respectfully submitted on July 14, 2008.
David R. Schanker,
Clerk of Supreme Court
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Correction to Wis. Stat. § 887.26
In the matter of corrections to Supreme Court Order 05-06 amending
Wis. Stat.
§ 887.26
Order 08-19
The court having identified typographical errors in its order issued
April 29,
2008, amending Wis. Stat. § 887.26, and deciding on its own
motion to correct these errors
so the accurate language is included in the statutes when the statutes
are published in
the fall of 2008,
IT IS ORDERED that effective the date of this order, the
typographical errors found
in Supreme Court Order 05-06 amending 887.26 of the statutes are
corrected as follows:
Section 1. Section 887.26 (5) (bm) 3., as
renumbered and
amended by Supreme
Court Order 05-06, is amended to read:
887.26 (5) (bm) 3. At the expiration of the period under
sub. subds. (b) 1. and
(b) 2., and if no objection to the issuance of the
commission has been received or
sustained the commission shall issue, with the written questions,
direct, cross and redirect,
and all objections, and transmitted to the commissioner first named by
mail or express
at the expense of the moving party. But when any defendant shall not
have appeared and
the time for the defendant to plead has expired, no notice is required
to be given
such defendant, and the commission may issue on filing the direct
interrogatories
questions as provided in sub. (4). At the noticing person's expense,
the commission shall
be transmitted to the court of jurisdiction of the residence of the
witness, for
issuance of the subpoena in accord with the rules applicable to that
court. No commission
shall issue if the witness's residence is not given as required.
Section 2. Section 887.26 (6) (am) of the statutes,
as
created by Supreme Court
Order 05-06, is amended to read:
887.26 (6) (am) Oral
Examination. Testimony shall be taken in the manner provided
by ss. s. 804.05 (4) to (6).
IT IS FURTHER ORDERED that notice of this correction to Supreme
Court Order
05-06 amending of Wis. Stat. § 887.26 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 25th day of July, 2008.
By the court:
David R. Schanker,
Clerk of Supreme Court
[Editor's Note: Order 08-19 amends final Order
05-06, published in the June
2008 Wisconsin Lawyer and available at www.wisbar.org.]
Top of Page
Corrections Wis. Stat. § 801.17
In the matter of corrections to Supreme Court Order 06-08 creating
Wis. Stat.
§ 801.17, governing electronic filing in the circuit courts
Order 08-20
The court having identified a typographical error in its order issued
May 1,
2008, creating Wis. Stat. § 801.17, and deciding on its own
motion to correct this error
so the accurate language is included in the statutes when the statutes
are published in
the fall of 2008,
IT IS ORDERED that effective the date of this order, the
typographical error found
in Supreme Court Order 06-08 creating Wis. Stat. § 801.17 of
the statutes is corrected
as follows:
Section 1. 801.17 (6) (b) of the statutes, as
created by
Supreme Court Order
06-08, is amended to read:
801.17 (6) (b) For documents that do not require
personal
service, the notice
of activity is valid and effective service on the other users and
shall have the
same effect as traditional service of a paper document, except as
provided in sub. par. (d).
IT IS FURTHER ORDERED that notice of this correction to Supreme
Court Order
06-08 creating Wis. Stat. § 801.17 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 25th day of July, 2008.
By the court:
David R. Schanker,
Clerk of Supreme Court
[Editor's Note: Order 08-20 amends final Order
06-08, published in the June
2008 Wisconsin Lawyer and available at www.wisbar.org.]
Top of Page
Videoconferencing in the Courts
In the matter of corrections to Supreme Court Order 07-12 creating
ch. 885
of the statutes, governing the use of videoconferencing in the courts
Order 08-21
The court having identified a typographical error in its order issued
May 1,
2008, creating chapter 885 of the Wisconsin statutes, and deciding on
its own motion
to correct this error so the accurate language is included in the
statutes when
the statutes are published in the fall of 2008,
IT IS ORDERED that effective the date of this order, the
typographical error found
in Supreme Court Order 07-12 creating chapter 885 of the statutes is
corrected as follows:
Section 1. Section 885.54 (1) (e) of the statutes,
as created
by Supreme Court
Order 07-12, is amended to read:
885.54 (1) (e) In matters set out in
sub.
par. (g), counsel for a defendant
or respondent shall have the option to be physically present with the
client at the
remote location, and the facilities at the remote location shall be
able to
accommodate counsel's participation in the proceeding from such
location. Parties and counsel
at remote locations shall be able to mute the microphone system at
that location so
that there can be private, confidential communication between them.
IT IS FURTHER ORDERED that notice of this correction to Supreme
Court Order
07-12 creating ch. 885 of the Wisconsin Statutes 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 30th day of July, 2008.
By the court:
David R. Schanker,
Clerk of Supreme Court
[Editor's Note: Order 08-21 amends final Order
07-12, published in the June
2008 Wisconsin Lawyer and available at www.wisbar.org.]
Top of Page
Wisconsin
Lawyer