Supreme Court Orders
The Wisconsin Supreme Court has declined to amend Wis. Stats. 801.58(7)
and 808.08, regarding the right of substitution of judge on remand; has
amended SCR 10.06, 10.07, and 10.08, regarding the State Bar Executive Committee
composition and quorum and annual meetings; and has amended SCR 75.02(2),
setting forth the approval procedure for new duties of the circuit court
commissioners.
Right of
Substitution of Judge on Remand
In the Matter of the Amendment of the Rules of Civil Procedure and
the Rules of Appellate Procedure: Wis. Stat. §§ 801.58(7) and 808.08;
Internal Operating Procedures of the Supreme Court and the Court of Appeals
- Right of Substitution of Judge on Remand
Order 00-10
On Jan. 16, 2001, the court held a public hearing on the petition filed
on Aug. 31, 2000, by the Director of State Courts seeking amendment of
Wis. Stat. §§ 801.58 (7) and 808.08, the Supreme Court Internal Operating
Procedures, and the Court of Appeals Internal Operating Procedures, to
require an appellate court remanding a case to a lower court to state
whether the party has a right to request substitution of a judge. The
court has considered the petition and matters presented at the public
hearing.
IT IS ORDERED that the petition is denied.
Dated at Madison, Wis., this 7th day of
March, 2001.
By the court:
Cornelia G. Clark
Clerk of Court
SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE (dissenting). I do not think the
court should deny this petition without explanation. An explanation is
important not only for the petitioners in the present case but also for
preserving institutional memory should this issue arise in some form in
the future.
Rather than deny the petition, I would hold the petition in abeyance.
I would ask the chief judges to consider the issues raised at the hearing
on this petition and at the court's open administrative conference so
that the chief judges might determine whether to modify the proposed rule
or withdraw it.
The following issues were raised at the hearing and conference:
1. The need for a rule remains in doubt. The justices question the
need for an express statement by an appellate court in each case that
substitution is or is not a matter of right because members of the court
stated that in most remanded cases, the parties have a right to request
substitution of the judge. On the other hand, the chief judges apparently
conclude that although in only a few cases will the right of substitution
be in doubt, the issue should be resolved by an appellate court rather
than the circuit court.
2. The State Bar of Wisconsin objected to the proposed rule because
it does not give counsel an opportunity to be heard on the right of
substitution.
The Litigation Section of the State Bar of Wisconsin objected to the
proposed rule on the same grounds as the State Bar. Counsel did, however,
advise the court that the preference was that an appellate court, rather
than the circuit court, decide the issue of the right to substitution
and that after the appellate decision each party may decide at the circuit
court level whether it wishes to exercise that right. Counsel recognized
that two issues exist that should be treated separately: (1) the legal
question of the right to substitution and (2) the party's discretion
to exercise the right to substitution.
3. Several justices expressed concern about when an appellate court
would decide the right to substitution and whether any such decision
might interfere with the return of the record, motions for reconsideration,
and the statutory provisions (especially the time requirements) relating
to a party's exercise of the right to seek substitution at the circuit
court.
A member of the court of appeals set forth an analytical frame for considering
the proposed rule.
In determining whether a right of substitution exists, an appellate
court is deciding a legal question, that is, it must apply Wis. Stat.
§ 801.58 and State ex rel. J.H. Findorff
v. Milwaukee County, 2000 WI 30, 233 Wis. 2d 428, 608 N.W.2d 679,
to its own opinion. An appellate court's decision about the right of substitution
is limited to the issues for which the case is remanded. Further issues
may develop on remand that raise the issue of the right of substitution.
On remand to the circuit court the parties may decide whether to exercise
their right of substitution.
For the reasons set forth, I write separately.
State Bar
Board of Governors and Annual Meetings
In the Matter of the Amendment of the Supreme Court Rules: SCR 10.06,
10.07, and 10.08 - Composition and Quorum of State Bar Board of Governors
Executive Committee; Annual Meetings of the State Bar
Order 00-11
On Jan. 16, 2001, the court held a public hearing on the petition filed
on Sept. 13, 2000, by the Board of Governors of the State Bar of Wisconsin
requesting amendment of the Supreme Court Rules to increase the membership
of the Executive Committee and to increase the number of members required
to demand a meeting of the Executive Committee. The petitioner also requests
amendment of Supreme Court Rule 10.06 (3) to specify that a majority of
members constitutes a quorum and to allow participation in a meeting of
the Executive Committee by facsimile or email. The petitioner further
requests amendment of Supreme Court Rule 10.07 to provide that an assembly
of members may be held only at the annual meeting.
IT IS ORDERED that, effective the date
of this order, Supreme Court Rules 10.06 (1) and (3), 10.07 (2), and 10.08
(6) are amended to read:
Section 1. 10.06 (1) and (3) of the Supreme Court Rules are amended
to read:
10.06 (1) Members; selection. The executive committee consists of the
president, the president-elect, the immediate past-president, the chairperson
of the board of governors, one representative each from the nonresident
lawyers division, government lawyers division, and young lawyers division
selected from their board of governors representatives and 4
6 additional members elected annually by the board of governors
at its June final meeting of the fiscal year. The
4 6 additional members shall be elected from among the
governors-elect and the current governors who will serve on the
board of governors during the following fiscal year. A vacancy occurring
in the selected membership may be filled by action of the board of governors.
(3) Meeting; quorum. The executive committee shall meet at the call
of the president, or at the call of the executive director upon the
written demand of at least 3 5 of its members. All members
shall be given at least 48 hours' notice by mail or telephone of the
time and place of any meeting. Five A majority of all
members present at a meeting constitutes a quorum. No action
may be taken by the committee except upon the concurrence of at least
5 a majority of all members. The concurrence may be registered
by mail, or telephone, facsimile, or e-mail.
Section 2. 10.07 (2) of the Supreme Court Rules is amended to
read:
10.07 (2) Assembly of members. An assembly of the members of the state
bar may be held at each annual and midwinter meeting for the
purpose of discussing any issues of association public policy.
Section 3. 10.08 (6) of the Supreme Court Rules is renumbered 10.08(6)(a)
and is amended to read:
10.08 (6) Procedure for filing petition.
(a) The petition must be complete when filed with the state bar headquarters.
Upon filing, the petition will shall be examined by the
state bar executive director or his or her designee in order
to determine all of the following:
(a) 1. whether Whether the question is
properly the subject of a referendum;.
(b) 2. whether Whether the signatures
are of members of the state bar who are eligible to vote;.
(c) 3. whether Whether the signatures
satisfy the geographic distribution and time requirements set forth
in sub. (5) (f) and (g);.
(d) 4. whether Whether the petition is
otherwise in order as required by these rules this section.
(b) The ruling of the executive director shall be communicated
to the person designated in the petition as soon as practicable and
within two 2 weeks of after the date on
which the petition is filed.
IT IS FURTHER ORDERED that notice of these
amendments of the Supreme Court Rules shall be given 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 7th day of March, 2001.
By the court:
Cornelia G. Clark
Clerk of Court
SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE (concurring
and dissenting). I would not amend the composition of the Executive Committee
of the State Bar Board of Governors at this time. I would prefer that
the Board of Governors and the supreme court address the size and composition
of the Executive Committee after the powers of the Executive Committee
have been determined. Once we decide the powers of the Executive Committee,
we can better determine the appropriate size and composition of the Committee.
Supreme Court Rule (SCR) 10.06(2) governing the powers of the Executive
Committee is outdated and needs revision. For example, the Executive Committee's
powers over grievance committees and disciplinary matters were eliminated
at least 25 years ago.
Furthermore, as a justice of the court that mandates membership in the
State Bar of Wisconsin and as a member of the Bar, I am concerned about
whether the Board of Governors is delegating its responsibility as the
decision-making entity of the Bar to the executive committee, a smaller,
less representative body. I am also concerned about whether the Board
is monitoring the Executive Committee to ensure that the Executive Committee
is not exceeding its powers under SCR 10.06(2). For example, contrary
to the Supreme Court Rules, the Executive Committee recently petitioned
the court for a rule change without the authorization of the Board.
The Board of Governors has itself expressed concerns about delegating
its powers to the Executive Committee and reducing the Board of Governors,
the elected representatives of the Bar, to a debating or discussion society
rather than the decision-making entity. According to minutes of recent
meetings of the Board of Governors, the Board is grappling with distinguishing
between those issues that the Executive Committee can address and those
issues that should be addressed by the full Board. The Bar has appointed
a committee to review the Supreme Court Rules governing the State Bar
and to propose amendments to those rules. SCR 10.06(2) is one of the rules
being addressed.
SCR 10.06(2) provides as follows:
(2) Powers. The executive committee may exercise all the powers and
perform all the duties of the board of governors between the meetings
of the board except the executive committee shall not, unless otherwise
authorized by the board of governors: amend the bylaws; make rules or
regulations governing nominations or elections; prescribe regulations
for proceedings before grievance committees; or initiate the taking of
any referendum or poll of members of the association. The executive committee
shall directly receive and act upon all reports of committees on disciplinary
matters without reporting to the board of governors. The minutes relating
to disciplinary matters shall be kept separate from the general minutes
and shall be confidential. The executive committee shall prepare an annual
budget for submission to the board of governors and shall perform such
other duties as the board of governors may prescribe. Unless otherwise
ordered by the board of governors, the executive committee shall not express
publicly any opinion on any matter including legislation of major public
interest or concern or of major importance to the members of the association.
A complete summary of the general minutes of each meeting of the executive
committee shall be promptly printed in the Wisconsin bar bulletin, with
a notation that any interested person may obtain a copy of the general
minutes upon request to the secretary.
For the reasons set forth, I write separately.
Circuit
Court Commissioners
In the Matter of the Amendment of Supreme Court Rules: SCR 75.02(2)
- Circuit Court Commissioners
Order 01-03
The court, on its own motion, has determined it advisable to amend the
Supreme Court Rule, SCR 75.02(2), setting forth the approval procedure
for new duties of the circuit court commissioners.
SECTION 1. IT IS ORDERED that, effective
the date of this order, SCR 75.02(2) of the Supreme Court Rules is amended
to read:
75.02(2) (a) The chief judge shall, by order, authorize each
person appointed under sub. (1) to perform one or more specific duties
allowed court commissioners by statute and approved by the supreme court.
(b) When a new duty of circuit court commissioners is created by
statute, the director of state courts shall submit the statute to the
supreme court for its consideration. If the court does not expressly
approve or disapprove the duty or extend the time for its consideration
within 30 days of its submission, the statutory duty will be deemed
approved by the court and may be considered a duty that may, by order
of the chief judge, be assigned to court commissioners.
IT IS FURTHER ORDERED that notice of this amendment of the Supreme Court
Rules 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 1st day of March, 2001.
By the court:
Cornelia G. Clark
Clerk of Court
Temporary
Order Relating to Attorney Trust Account Certification Requirements
In the Matter of the Petition for a Temporary Order Relating to Attorney
Trust Account Certification Requirements pursuant to SCR 20:1.15(g)
Order 01-06
On March 16, 2001, Keith Sellen, Director of the Office of Lawyer Regulation,
and Gary L. Bakke, President of the State Bar of Wisconsin, filed a petition
seeking a temporary order clarifying the accounts a lawyer must certify,
pursuant to Supreme Court Rule 20:1.15(g), on the fiscal year 2002 State
Bar dues statement. The court has considered the petition and determined
that a public hearing is not required at this time.
At an open administrative conference on April 5, 2001, the court agreed
to clarify SCR 20:1.15(a) and (g) as follows: A lawyer must certify all
trust accounts and safe deposit boxes in which the lawyer deposits clients'
funds or property held in connection with a representation or held in
a fiduciary capacity that directly arises in the course of or as a result
of a lawyer-client relationship.
IT IS ORDERED that the petition is dismissed with this clarification
made to SCR 20:1.15(a) and (g).
IT IS FURTHER ORDERED that if further clarification or amendment to this
Supreme Court Rule is needed, the matter should be raised at the hearing
relating to professional responsibility to be held in the fall of 2001.
Dated at Madison, Wisconsin, this 11th day of April, 2001.
By the Court:
Cornelia G. Clark
Clerk of Court
|