Supreme Court Orders

The Wisconsin Supreme Court has modified SCR Chapter 60 - Code of Judicial Conduct following input from the judiciary, other judicial officers and the public. The court also will hold public hearings on March 18 regarding the following petition subject: requests for publication of court of appeals opinions; guardian ad litem legal education; and rules of appellate procedure as to the number, form and length of briefs and appendices. The hearings will be held at 1:30 p.m. in the Supreme Court Room in the State Capitol, Madison, Wis.

Code of Judicial Conduct

In the Matter of the Amendment of the Supreme Court Rules: SCR Chapter 60 - Code of Judicial Conduct

Order 95-05

In its July 1, 1996, opinion repealing and recreating the Code of Judicial Ethics, chapter 60 of the Supreme Court Rules, effective Jan. 1, 1997, the court invited members of the judiciary and other judicial officers governed by the Code, as well as the public, to file comments with the court by Nov. 1, 1996, expressing their concerns with the effectiveness of the new Code and potential problems in its enforcement. The court has received and carefully considered the comments that have been filed and has determined that some modification of the Code is warranted prior to its effective date. The court has determined that additional modification of the Code may be warranted after further consideration and, in some cases, following notice and the holding of a public hearing.

The court does not address those comments that question the applicability of certain provisions of the Code to specified conduct, as they present questions or concerns that properly are the subject of a request for an opinion, with a full exposition of pertinent facts, from the Judicial Ethics Advisory Committee the court will appoint shortly.

IT IS ORDERED that, effective the date of this order, chapter 60 of the Supreme Court Rules, as repealed and recreated by the July 1, 1996, order of the court, is amended as follows:

1. The title of SCR chapter 60 is amended to read: CODE OF JUDICIAL CONDUCT and Code of Judicial Ethics, wherever it appears in SCR chapter 60, is amended to read Code of Judicial Conduct.

2. SCR 60.01(3) is amended to read:

(3) "Court personnel" means the clerk of court and sheriff department employees providing staff services to the court staff, court officials and others subject to the judge's direction and control, including judicial assistants, reporters, law clerks, and bailiffs. "Court personnel" does not include the lawyers in a judicial proceeding.

3. The Comment to SCR 60.03(2) is amended to read:

COMMENT: Maintaining the prestige of judicial office is essential to a system of government in which the judiciary functions independently of the executive and legislative branches. Respect for the judicial office facilitates the orderly conduct of legitimate judicial functions. Judges should distinguish between proper and improper use of the prestige of office in all of their activities. For example, it would be improper for a judge to allude to his or her judgeship to gain a personal advantage such as deferential treatment when stopped by a police officer for a traffic offense. Similarly, judicial letterhead must not be used for conducting a judge's personal business.

A judge must avoid lending the prestige of judicial office for the advancement of the private interests of others. For example, a judge must not use the judge's judicial position to gain advantage in a civil suit involving a member of the judge's family. As to the acceptance of awards, see SCR 60.05(4)(e)1.

Although a judge should be sensitive to possible abuse of the prestige of office, a judge may, based on the judge's personal knowledge, serve as a reference or provide a letter of recommendation. Such a letter should not be written if the person who is the subject of the letter is or is likely to be a litigant engaged in a contested proceeding before the court. However, a judge must not initiate the communication of information to a sentencing judge or a probation or corrections officer but may provide to such persons information for the record in response to a formal request.

Judges may participate in the process of judicial selection by cooperating with appointing authorities and screening committees seeking names for consideration and by responding to official inquiries concerning a person being considered for a judgeship.

This subsection does not reach the matter of a judge's endorsement of a candidate for judicial or other nonpartisan elective office. That matter is left for consideration together with other issues involving a judge's political and campaign activity by the committee the court will appoint to study and to make recommendations to the court.

A judge must not testify voluntarily as a character witness because to do so may lend to the prestige of the judicial office in support of the party for whom the judge testifies. Moreover, when a judge testifies as a witness, a lawyer who regularly appears before the judge may be placed in the awkward position of cross-examining the judge. A judge may, however, testify when properly summoned. Except in unusual circumstances where the demands of justice require, a judge should discourage a party from requiring the judge to testify as a character witness.

4. SCR 60.04(1)(g)4. is amended to read:

4. A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to mediate or settle matters pending before the judge.

5. SCR 60.04(1)(n) is repealed.

6. The Comment to SCR 60.04(2) is amended to read:

COMMENT: Appointees of a judge include assigned counsel, officials such as referees, commissioners, special masters, receivers and guardians, and personnel such as clerks, secretaries judicial assistants and bailiffs. Consent by the parties to an appointment or an award of compensations does not relieve the judge of the obligation prescribed by SCR 60.04(2)(c).

7. SCR 60.05(4)(c) is repealed and recreated to read:

(c)1. Except as provided in par. 2, a judge may serve as an officer, director, manager, general partner, advisor or employee of a business entity if that service does not conflict with the judge's judicial duties, create the appearance of impropriety, or otherwise violate any provision of this chapter.

2. A judge may not serve as an officer, director, manager, general partner, advisor or employee of any business entity affected with a public interest, including a financial institution, insurance company, and public utility, and may not participate in or permit the judge's name to be used in connection with any business venture or commercial advertising that indicates the judge's title or affiliation with the judiciary or otherwise lends the power or prestige of office to promote a business or commercial venture.

COMMENT: A judge may participate in a business not affected with a public interest if that participation does not conflict with the judge's judicial duties, create the appearance of impropriety, or violate any other provision of this Code. For example, a judge may be prohibited from participation if the business entity frequently appears before a court in the jurisdiction in which the judge serves or the participation requires significant time away from judicial duties. Similarly, a judge must avoid participation if the judge's participation would involve misuse of the prestige of office.

As provided in SCR 60.07(2), sub. (4)(c) does not apply to a judge serving on a part-time basis.

8. SCR 60.05(4)(d) is amended to read:

(d) A judge shall manage the judge's investments and other financial interests so as to minimize the number of cases in which the judge's recusal or disqualification is required. As soon as the judge can do so without serious financial detriment, the judge shall divest himself or herself of investments and other financial interests that might require frequent disqualification.

9. The Comment to SCR 60.06(1) is amended to read:

COMMENT: This rule provision derives from former SCR 60.05, which was considered necessary because of the possibility that a candidacy for an office to take effect after the expiration of the judicial term would not be barred by former SCR 60.04. It was felt that the appeal to the electorate by a sitting judge for a nonjudicial office was inherently in conflict with his or her duty to serve impartially all of the people.

This provision is among the matters to be considered by the committee the court will appoint to conduct a study of judicial conduct relating to judges' political and campaign activity and submit for the court's consideration a comprehensive set of ethical rules in this area. See, Note, supra.

10. The Comment to SCR 60.06(2) is amended to read:

COMMENT: As an individual, a judge is entitled to his or her personal view on political questions and to rights and opinions as a citizen. However, as a member of Wisconsin's nonpartisan judiciary, a judge must avoid any conduct which associates him or her with any political party. This rule does not preclude a judge from attending a political meeting as a member of the public, but he or she shall not attend as a participant.

This provision derives from former SCR 60.14 and is among the matters to be considered by the committee the court will appoint to conduct a study of judicial conduct relating to judges' political and campaign activity and submit for the court's consideration a comprehensive set of ethical rules in this area. See, Note, supra.

11. The Comment to SCR 60.06(3) is amended to read:

COMMENT: As provided in SCR 60.07(2), SCR 60.06 does not apply to a judge serving on a part-time basis. This provision derives from former SCR 60.15 and is among the matters to be considered by the committee the court will appoint to conduct a study of judicial conduct relating to judges' political and campaign activity and submit for the court's consideration a comprehensive set of ethical rules in this area. See, Note, supra.

12. SCR 60.06(4) is created to read:

(4) Solicitation or acceptance of campaign contributions. A judge or candidate for judicial office shall not personally solicit or accept campaign contributions.

COMMENT: This provision does not prohibit reasonable financial contributions to a voluntary campaign committee in behalf of a judicial candidate. The nonpartisan elective process as now constituted is an expensive one, and until other means of conducting and financing judicial elections are devised, this provision should be so construed.

This provision and its Comment derive from former SCR 60.10 and 60.11 and is among the matters to be considered by the committee the court will appoint to conduct a study of judicial conduct relating to judges' political and campaign activity and submit for the court's consideration a comprehensive set of ethical rules in this area. See, Note, supra.

13. SCR 60.07(2) is amended to read:

(2) A judge who serves on a part-time basis, including a reserve judge, a part-time municipal judge and a part-time court commissioner, is not required to comply with the following: SCR 60.05(3)(a), (b), (c)1.b., 2.a. and c., (4)(a)1.b., (b), (c), (d) and (e), (5), (6), (7) and (8) and SCR 60.06.

IT IS FURTHER ORDERED that notice of these amendments of the Supreme Court Rules shall 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 20th day of December, 1996.

By the court:

Marilyn L. Graves, Clerk

Publication of Court of Appeals Opinions

In the Matter of the Amendment of Rules of Appellate Procedure: Wis. Stat. (Rule) 809.23(4) Requests for Publication of Court of Appeals Opinions

Order 96-10

On July 17, 1996, the Court of Appeals of Wisconsin filed a petition seeking the amendment of Wis. Stat. (Rule) 809.23(4), to provide for requests to have a Court of Appeals opinion not recommended for publication published in the official reports and to limit requests for publication to opinions other than decisions by one court of appeals judge and a per curiam opinion. In respect to per curiam opinions, the amendment would permit a person to request that a per curiam opinion be withdrawn, authored and recommended for publication and would establish a time for that request to be made.

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 March 18, 1997, at 1:30 p.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 13th day of November, 1996.

By the court:

Marilyn L. Graves, Clerk

Guardian ad Litem Education

In the Matter of the Amendment of Supreme Court Rules: (Proposed) 31.02(3), 31.065 and 31.07(6) - Guardian ad Litem Legal Education

Order 96-13

On Nov. 1, 1996, the Judicial Council of Wisconsin filed a petition seeking the adoption of rules establishing continuing legal education attendance requirements of lawyers who accept appointment as guardian ad litem for a minor in a proceeding under Chapters 48, 767 or 938 of the statutes. The petition also proposes that approval of continuing legal education for credit in satisfaction of the requirement be done by the Board of Bar Examiners.

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 March 18, 1997, at 1:30 p.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 13th day of November, 1996.

By the court:

Marilyn L. Graves, Clerk

Petition

Preamble: A guardian ad litem is appointed by the court to protect the legal rights of children in proceedings under Chapters 48, 767 or 938, Wis. Stats. "[T]he guardian ad litem's overarching duty is to assist the court in its governmental function of seeing to it that justice is done to those who are defenseless and who are the objects of the special concern of government . . A guardian ad litem must do the job competently and to the fullest extent reasonable in a particular case." Waukesha County v. Tadych, 197 Wis. 2d 653, 659 (1996). Yet, despite their critical role in the protection of children's legal rights, guardians ad litem representing minors in Wisconsin courts are not currently required to have any special training.

Lawyers should have special training for these reasons: 1) Because a child does not hire and cannot fire the guardian ad litem, there are no market forces weeding out incompetents; 2) Children cannot speak for themselves, which makes them especially vulnerable to inadequate representation; 3) Because the guardian ad litem is court-appointed, the State has a moral responsibility to ensure that the representation is adequate; 4) Law schools generally do not offer courses that prepare lawyers to deal with, represent, or advocate for children; and 5) The guardian ad litem role is unique, requiring familiarity with many disciplines including child development, psychology, sociology, parenting and law.

The profession has an obligation to offer the type of training that is necessary for a guardian ad litem to be effective and skilled. Most lawyers interested in serving as guardians ad litem for minors will seek this training voluntarily. However, for those who do not, a minimum education requirement is necessary.

Therefore, the Judicial Council petitions the Supreme Court as follows:

SECTION 1. SCR 31.02(3) is created to read:

SCR 31.02(3) On and after [the first day of the 24th month commencing after adoption of this rule] a lawyer who accepts an appointment as a guardian ad litem for a minor in a proceeding under chapters 48, 767 or 938 of the statutes shall also be subject to the continuing legal education attendance requirements under SCR 31.065.

SECTION 2. SCR 31.065 is created to read:

SCR 31.065 Attendance requirements for guardians ad litem in proceedings under chapters 48, 767 and 938 of the statutes. (1) On and after [the first day of the 24th month commencing after adoption of this rule] no lawyer may accept an appointment as a guardian ad litem for a minor in a proceeding under chapters 48, 767 or 938 of the statutes unless the lawyer meets one of the following continuing legal education attendance requirements for courses approved under SCR 31.07(6);

(a) Six hours during the lawyer's current and immediate prior reporting periods combined.

(b) Thirty hours at any time on or after [the first day of the 36th month commencing prior to adoption of this rule]

(2) Students having successfully completed state law school courses of instruction certified under SCR 31.07(6) shall, upon admission to the bar, meet the requirements of this rule.

(3) Instructors for courses certified under SCR 31.07(6) shall be allowed credit under SCR 31.05(3).

(4) In a specific case, a court may waive the requirement under this rule only if the court makes specific findings in writing or on the record that there are no attorneys available to serve as guardian ad litem who have received the required certification and that the attorney being appointed is qualified based upon the attorney's experience and expertise in that type of proceeding.

SECTION 3. SCR 31.07(6) is created to read:

SCR 31.07(6) The board may approve continuing legal education for credit under SCR 31.065 if it is designed to increase the attendee's professional competence to act as a guardian ad litem for a minor in proceedings under chapters 48, 767 or 938 of the statutes. The board shall not approve any continuing legal education for credit under SCR 31.065 if it is not on the subject of the role and responsibilities of a guardian ad litem for a minor or on the subject matter covered in proceedings under chapters 48, 767 or 938 of the statutes or if the continuing legal education activity occurred prior to [the first day of the 36th month commencing prior to adoption of this rule].

COMMENTARY: The Board of Bar Examiners is the body with the expertise to certify courses under this rule. It removes any appearance that the State Bar of Wisconsin is favoring courses offered by the State Bar for certification and assures the review of a neutral body. If the Board of Bar Examiners cannot handle the increased responsibilities that this rule would require, then the courses could be submitted to the Guardian ad Litem Committee of the Family Law Section and the Guardian ad Litem Committee of the Children and the Law Section of the State Bar of Wisconsin.

Respectfully submitted on Nov. 1, 1996.

Judicial Council

By: James C. Alexander

Number, Form and Length of Brief and Appendices

In the Matter of the Amendment of Rules of Appellate Procedure: Wis. Stat. (Rule) 809.19(8)1 - Number, Form and Length of Briefs and Appendices

Order 97-01

The court, on its own motion, proposes to amend the rule, Wis. Stat. (Rule) 809.19(8)1, to require that parties file 22 copies of briefs and appendices in the Supreme Court, seven more than the number required by the current rule. As proposed to be amended, Wis. Stat. (Rule) 809.19(8)1 would read:

1. Except as provided in s. 809.43, a person who files a brief or appendix in the supreme court shall file 15 22 copies with the court, or such other number as the court directs, and serve 3 copies on each party.

IT IS ORDERED that a public hearing on the court's proposal to amend Wis. Stat. (Rule) 809.19(8)1 shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on March 18, 1997, at 1:30 p.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 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 2nd day of January, 1997.

By the court:

Marilyn L. Graves, Clerk