Vol. 78, No. 3, March
2005
Supreme Court Orders
The Wisconsin Supreme Court will hold a public hearing on April 13,
2005, to consider three petitions filed by the Director of State Courts,
regarding: the adoption of voluntary court forms for use by pro se
litigants, rules pertaining to the retention of court records, and the
translation of court forms into languages other than English. The BBE
will hold a public hearing April 6 regarding SCR Chapter40 changes.
Court Forms for Pro Se Litigants
In the matter of the Adoption of Voluntary Court Forms
Designed for Self-represented Litigants
Order 05-02
On Jan. 21, 2005, the Director of State Courts filed a petition
seeking to amend Wis. Stat. §§ 758.18, 807.001, 971.025, and
SCR 70.153 concerning mandatory court forms for use by self-represented
litigants.
IT IS ORDERED that a public hearing on the petition shall be held in
the Supreme Court Room in the State Capitol, Madison, Wis., on April 13,
2005, at 9:30 a.m.
IT IS FURTHER ORDERED that the court's conference in the matter shall
be held promptly following the public hearing.
IT IS FURTHER ORDERED that notice of the hearing be given by
publication of a copy of this order and of the petition in the official
state newspaper once 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 3rd day of February, 2005.
By the court:
Cornelia G. Clark,
Clerk of Supreme Court Petition
The Director of State Courts, on the recommendation of the Records
Management Committee (RMC), hereby petitions this court to amend the
statutes and rules governing standard court forms in a way that will
allow RMC to oversee court forms designed for self-represented litigants
without making use of the forms mandatory. This change is requested
pursuant to the court's rulemaking authority under § 751.12.
Currently, all forms generated by RMC on behalf of the judicial
conference are standard forms that must be used by parties and court
officials in civil and criminal actions if the forms are applicable.
See Supreme Court Order 98-01, 228 Wis. 2d xiii (2000),
creating Wis. Stat. § 758.18 (judicial conference shall adopt
standard forms for use by parties and court officials in all civil and
criminal actions); § 807.001 (standard forms to be used in civil
actions); § 971.025 (standard forms to be used in criminal and
juvenile actions); and SCR 70.153 (RMC shall publicize forms and respond
to objections, with final determination by this court).1 The
clear import of these statutes is that any form approved by RMC is
necessarily a mandatory form.
At the same time that mandatory forms have become standard practice
for the bench and bar, the courts have seen a growing number of
self-represented litigants, particularly in family cases. In 2000, a
survey conducted by the Wisconsin Pro Se Working Group found increasing
numbers of self-represented litigants in all counties, as well as
general agreement among the clerks of circuit court that it would be
helpful to provide forms and instructions to self-represented
litigants.2 The report recommended that the court develop
user-friendly family forms for statewide use. At the time, RMC was not
prepared to take on the extra workload, so the report stopped short of
recommending that the task be assigned to RMC. The report also noted
that the statutes and rules making RMC forms mandatory would be an
obstacle, since the report did not envision that pro se forms would be
mandatory.
In 2004, the Chief Justice appointed the former state law librarian,
in consultation with an ad hoc working group, to develop a set of
simplified family forms suitable for use by self-represented litigants
statewide.3 This group has now completed a set of family
forms that is ready to be reviewed and distributed. The pro se forms are
not intended to be mandatory, since their purpose is to make it easier
for self-represented litigants to use the courts, not to pose a hurdle
for them. Because they are simplified forms, their use should not be
mandatory for attorneys, although attorneys may use them where
appropriate.
The purpose of this amendment is to assure that RMC has the necessary
authority to handle voluntary pro se forms. It requires that the forms
be accepted for filing as long as they are properly completed, so they
can be filed in any circuit court without fear of rejection. If the
clerk of circuit court distributes pro se forms or posts them on a
county website, the clerk must use the RMC form if one is available.
While these forms have the potential to be a great resource for
litigants and courts, their effectiveness will be short-lived unless
they have institutional support to ensure that they stay up to date. RMC
believes that user-friendly forms for self-represented litigants should
be available on a uniform basis statewide. Since RMC is a continuing
committee with special expertise in the area of forms development and
maintenance, it is appropriate that RMC act as the clearinghouse for pro
se forms to assure they are legally sufficient.
Under the proposed change, RMC will review any pro se forms before
they are finalized and will take on the responsibility of keeping them
updated and posted on the court website.4 Although RMC
currently does not plan to create any pro se forms, the rule should be
written to give RMC that option if the committee finds it to be
appropriate in the future. The director of state courts will act as
gatekeeper for all form requests, to protect RMC from being inundated
with form proposals from inside and outside the court system. Only
family forms are under consideration at this time.
Accordingly, RMC requests that the statutes be amended as
follows:
§ 758.18 Judicial conference: standard court
forms.
(1) The judicial conference shall adopt standard court forms
for use by parties and court officials in all civil and criminal actions
and proceedings in the circuit court as provided in § 807.001(1)
- (4) and § 971.025(1) - (4).
(2) In addition, at the request of the director of state courts,
the judicial conference may adopt forms created for voluntary use by
self-represented litigants in the circuit court. The judicial conference
shall identify which forms are intended for voluntary use.
§ 807.001 Forms.
(1) In all civil actions and proceedings in circuit court, the
parties and court officials shall use the standard court forms adopted
by the judicial conference under s. 758.18, commencing the date on which
the forms are adopted.
(2) A party or court official may supplement a standard court form
with additional material.
(3) A court may not dismiss a case, refuse a filing or strike a
pleading for failure of a party to use a standard court form or to
follow the format rules but shall require the party to submit, within 10
days, a corrected form and may impose statutory fees or costs or
both.
(4) If the judicial conference does not create a standard court form
for an action or pleading undertaken by a party or court official, the
party or court official may use a format consistent with any statutory
or court requirement for the action or pleading.
(5) In addition, the judicial conference may adopt forms created
for voluntary use by self-represented litigants in the circuit court as
provided in § 758.18(2).
§ 971.025 Forms.
(1) In all criminal actions and proceedings and actions and
proceedings under chapters 48 and 938 in circuit court, the parties and
court officials shall use the standard court forms adopted by the
judicial conference under s. 758.18, commencing the date on which the
forms are adopted.
(2) A party or court official may supplement a standard court form
with additional material.
(3) A court may not dismiss a case, refuse a filing or strike a
pleading for failure of a party to use a standard court form or to
follow the format rules but shall require the party to submit, within 10
days, a corrected form and may impose statutory fees or costs or
both.
(4) If the judicial conference does not create a standard court form
for an action or pleading undertaken by a party or court official, the
party or court official may use a format consistent with any statutory
or court requirement for the action or pleading.
(5) In addition, the judicial conference may adopt forms created
for voluntary use by self-represented litigants in the circuit court as
provided in § 758.18(2).
SCR 70.153 Judicial conference, forms.
(1) The standard court forms that the judicial conference is required
to adopt under § 758.18 of the statutes shall be developed by the
records management committee, an advisory committee to the director of
state courts office.
(2) Under article VIII of the bylaws of the judicial conference, the
judicial members of the records management committee act on behalf of
the judicial conference in the adoption of standard court forms.
(3) Each standard court form shall include a notice that the form may
be supplemented with additional material.
(4)(a) Upon adoption of a standard court form, the records management
committee shall distribute or make a copy of the form available to the
clerks of circuit court, the circuit court judges, the state bar of
Wisconsin and other persons who are required to use the form.
(b) Within 90 days after the date of distribution of a standard court
form under par. (a), an interested person may file with the records
management committee a written objection to the mandatory use of the
form, to the content of the form or to both the use and the content.
(c) The records management committee shall respond to the objector
under par. (b) in writing within 90 days after receipt of the
objection.
(d) Within 30 days after the date on which he or she receives the
written response of the records management committee to an objection
filed under par. (b), the person filing the objection may file with the
clerk of the supreme court a petition for review of the decision of the
records management committee. The supreme court may request a response
from the records management committee and establish a schedule for
submission of the matter to the supreme court for determination.
(5)(a) In addition, the judicial members of the records management
committee may act on behalf of the judicial conference in the adoption
of voluntary forms created for use by self-represented litigants in the
circuit court as provided in § 758.18(2).
(b) Upon adoption of a voluntary form, the records management
committee shall distribute or make a copy of the form available to the
clerks of circuit court, the circuit court judges, and the state bar of
Wisconsin.
(c) Any adopted voluntary form, if properly completed, shall be
received for filing or other appropriate action by the circuit court. If
a clerk of circuit court distributes voluntary forms, the clerk must use
adopted forms whenever they are available for that purpose.
(d) Voluntary forms may be used by members of the state bar if no
mandatory form is available for that purpose.
(e) A party or court official may supplement an adopted voluntary
form with additional material.
Respectfully submitted:
A. John Voelker,
Director of State Courts
1See also Bylaws of the Judicial Conference of
Wisconsin, Art. VIII (if statute or rule requires form development,
judicial members of RMC authorized to act on behalf of judicial
conference).
2See Pro Se Litigation: Meeting the Challenge of
Self-Represented Litigants in Wisconsin at 7 (December 2000).
3The demand for these forms is so great that local working
groups have already developed family forms for use in Waukesha County
and in the Tenth Judicial District, now incorporated into the statewide
committee's work. A 2003 study in the Tenth Judicial District found that
one or both parties are self-represented in 64% of family cases, 75% of
small claims cases, and 58% of civil cases.
4CCAP staff have been working with the ad hoc committee to
make fillable forms and simplified instructions available on the court
website.
Record Retention
In the matter of the Amendment of SCR 72.01 and SCR 70.36 Regarding
Record Retention
Order 05-03
On Jan. 21, 2005, the Director of State Courts filed a petition
seeking to amend SCR 72.01 and 70.36 concerning the retention of court
records.
IT IS ORDERED that a public hearing on the petition shall be held in
the Supreme Court Room in the State Capitol, Madison, Wis., on April 13,
2005, at 9:30 a.m.
IT IS FURTHER ORDERED that the court's conference in the matter shall
be held promptly following the public hearing.
IT IS FURTHER ORDERED that notice of the hearing be given by a single
publication of a copy of this order and of the petition in the official
state newspaper and in an official publication of the State Bar of
Wisconsin not more than 60 days nor less than 30 days before the date of
the hearing.
Dated at Madison, Wis., this 3rd day of February, 2005.
By the court:
Cornelia G. Clark
Clerk of Supreme Court Petition
The Director of State Courts, on the recommendation of the Records
Management Committee, hereby petitions the court to make two amendments
to the Supreme Court Rules regarding record retention, pursuant to the
court's rulemaking authority under § 751.12 and its administrative
authority over all courts conferred by Article VII, § 3 of the
Wisconsin Constitution.
1) SCR 72.01(46) should be amended to eliminate the conflict between
this rule and Wis. Stat. 974.07, which became effective September 1,
2001. Wis. Stat. 974.07 allows a person, any time after being convicted
of a crime, adjudicated delinquent, or found not guilty by reason of
mental disease or defect, to request DNA testing of any "biological
material" collected in connection with the investigation or prosecution
of a case. SCR 72.01(46), however, requires the clerk to retain criminal
case exhibits for only one year past the time of appeal and makes no
distinction as to retaining biological material longer.
SCR 72.01(46) should be amended to reflect the new statutory
provision. SCR 72.01(46a) should be created to read as
follows:
SCR 72.01(46a). Criminal case exhibits containing biological
material subject to DNA testing under Wis. Stat. 974.07. Any criminal
case exhibit that is deemed to contain "biological material" and that
remains in the courts' custody shall be retained for 50 years after
entry of final judgment or until the court otherwise orders the
disposition of the evidence under 974.07.
2) SCR 70.36, judges' and circuit court commissioners' certification
of status of pending cases, should be amended to provide a retention
period for these records to make this rule clearer and more complete.
These records are kept so that litigants and citizens can verify that
judges are disposing of cases in a timely manner. They are also kept to
provide investigatory information for the judicial commission.
The Records Management Committee recommends a 10-year
retention period to provide a sufficient number of records to show that
judges are accurately reporting their cases or to establish any pattern
of misconduct. SCR 70.36(2)(a)(3) should be created to read as
follows:
70.36(2)(a)(3). Certificates shall be retained by the office of
the director of state courts for 10-years from the date they are
filed.
Respectfully submitted:
A. John Voelker,
Director of State Courts
Translation of Court Forms
In the matter of the Translation of Court Forms
Order 05-04
On Jan. 21, 2005, the Director of State Courts filed a petition
seeking to amend Wis. Stat. § 758.18 and SCR 70.155 concerning the
translation of court forms into languages other than English.
IT IS ORDERED that a public hearing on the petition shall be held in
the Supreme Court Room in the State Capitol, Madison, Wis., on April 13,
2005, at 9:30 a.m.
IT IS FURTHER ORDERED that the court's conference in the matter shall
be held promptly following the public hearing.
IT IS FURTHER ORDERED that notice of the hearing be given by
publication of a copy of this order and of the petition in the official
state newspaper once 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 3rd day of February, 2005.
By the court:
Cornelia G. Clark,
Clerk of Supreme Court Petition
The Director of State Courts hereby petitions this court to create a
rule governing translation of court forms, pursuant to the court's
rulemaking authority under § 751.12. This petition is submitted on
behalf of the Committee to Improve Interpreting and Translation in the
Wisconsin Courts and the Records Management Committee, which are working
jointly to identify those court forms most appropriate for translation
into other languages and to set standards for their format and use.
As part of the effort to improve services to court users with limited
English proficiency,1 the court interpreter
program has recommended that the director's office contract for
professional translation of the most important court forms and
instructions. The records management committee has been asked to apply
its forms expertise to the design of bilingual forms. This court is
requested to approve the use of translated forms and to set guidance for
use of the forms.
A number of other state courts provide translations of forms, as do
Wisconsin executive agencies. Translation of important documents is
consistent with Title VI of the Civil Rights Act of 1964 and its
requirements for agencies receiving federal funding; there provide that
"vital documents" used by a funded agency be translated into the
languages most commonly used in the jurisdiction.2 The director's office plans to use its federal
interpreter grant funding for 2005 to contract for the translations.
There is a high demand for translated forms from counties with large
Spanish- and Hmong-speaking populations.3
Many clerks of court have paid for local translations of the plea
questionnaire, the affidavit of indigency, and various waiver forms, but
quality of the translations has been mediocre at best.4 Standard forms deserve standard, professional
translations that are as carefully reviewed and legally sufficient as
the English versions, and creating official versions of the most-
requested forms is the best way to assure their quality.5
The proposed rule does not contemplate that the official record will
be kept in a language other than English, and forms must still be
completed in English to be accepted for filing in the circuit courts.
Wis. Stats. § 757.18 provides that "All writs, process, proceedings
and records in any court within this state shall be in the English
language...." The proposed rule accordingly provides that translated
forms will contain both English and foreign language text, and that any
form calling for a response will require the response to be in English.
Interpreters may assist parties in filling out the forms by reading the
form and waiting for the party to provide the answer, then filling in
the English equivalent or checking the appropriate box.6
The proposed rule says that translations are not intended to
substitute for the services of an interpreter, the advice of counsel, or
a colloquy with the court. The interpreter committee seeks to avoid
situations where defendants are handed a form waiving their rights and
asked to sign it without further explanation, or where interpreters are
instructed to explain the form in violation of the interpreter code of
ethics. Merely reading a translated form to a defendant from another
country falls woefully short of discharging the responsibilities of
court or counsel, since it assumes that the defendant understands not
just the words but the concepts underlying them. In fact, defendants not
born in this country often fail to understand concepts such as "jury"
and "counsel", let alone the underlying premise that an individual
possesses "rights" with respect to the government. Because the use (and
misuse) of translated forms is substantively different, any rule
recognizing translations as official court forms should guide their
proper usage.
The interpreter committee and the records management committee have
each contributed members to an ad hoc committee on translation. This
committee has identified forms and instructions to be translated,7 agreed on an appropriate format,8 and determined that the language most critically
needed is Spanish.9 The court interpreter
program manager will have the responsibility to negotiate and monitor
contracts with translators, assemble a review panel to make sure
translations are accurate and easily comprehended by diverse speakers of
the language, distribute the forms, and keep the materials updated. Once
a form is translated into a particular language for the first time,
keeping up with changes should involve a manageable level of time and
expense.
Accordingly, the director requests the following changes to the
statutes and rules. Wis. Stats. § 758.18(3) should be created to
read as follows:
§ 758.18 Judicial conference: standard court
forms.10
(3) The judicial conference may adopt translations of forms
adopted under sub. (1) and (2). The judicial conference shall identify
the forms to be translated and the languages to be used.
SCR 70.155 should be created to read as follows:
SCR 70.155 Translations of Court Forms.
(1) The records management committee, working with the director of
state courts office, shall identify court forms and instructions
suitable for translation into a language other than English. Translated
forms adopted by the judicial members of the records management
committee on behalf of the judicial conference shall be treated as court
forms adopted under § 758.18 and SCR 70.153.
(2) Translated forms shall use a format that incorporates both
English and the second language. Every question or statement requiring a
response, such as a check box or signature, will provide only one
location in the English portion of the form to make that response. The
answers to free-text questions must be written in English.
(3) Each translated form shall carry a notice, in both languages,
that the translated form does not replace the need for an interpreter,
any colloquies mandated by law, or the responsibility of court and
counsel to ensure that persons with limited English proficiency fully
comprehend their rights and obligations.
(4) Use of a translated form does not supersede the need for an
interpreter for communicating with counsel, or for in-court proceedings
pursuant to Wis. Stats. § 885.38. Interpreters may assist
individuals in filling out forms to the extent provided by SCR
63.07.
Respectfully submitted:
A. John Voelker,
Director of State Courts
1See Committee to Improve
Interpreting and Translation in the Wisconsin Courts, Improving
Interpretation in Wisconsin's Courts at 36 (October 2000).
2Title VI and the related guidance
of the U.S. Department of Justice are described in the Wisconsin
Director of State Courts Language Assistance Plan at 5 (January
26, 2004), found at http://www.wicourts.gov/services/judge/docs/lapstate.pdf
.
3The legislature has already
provided in § 799.04 that in counties with a population over
500,000, the small claims summons form shall have all provisions printed
in both English and Spanish.
4Some locally translated forms
include nonexistent words, unrecognizable spelling, and word-for-word
translations that render the meaning in Spanish nonsensical.
5This rule does not govern
translation of brochures, signs, web pages, and other information
undertaken by the director of state courts or other court agencies.
6The Code of Ethics for Court
Interpreters, SCR ch. 63, limits the assistance an interpreter may
provide in reading and filling out forms:
63.07 Scope of practice. Interpreters shall limit themselves to
interpreting or translating and shall not give legal or other advice,
express personal opinions to persons using their services, or engage in
any other activities that may be construed to constitute a service other
than interpreting or translating while serving as an interpreter.
Comment: ... Interpreters may convey legal advice from an
attorney to a person only while that attorney is giving it. Interpreters
should not explain the purpose or contents of forms, services, or
otherwise act as counselors or advisors unless they are interpreting for
someone who is acting in that official capacity. Interpreters may
translate language on a form for a person who is filling out the form,
but should not explain the form or its purpose for such a person.
While engaged in the function of interpreting, interpreters should not
personally perform official acts that are the official responsibility of
other court officials. (emphasis added)
7Court documents chosen for
translation include the adult and juvenile plea questionnaires, waiver
of right to counsel, notice of right to seek post-conviction relief, and
the domestic abuse injunction form and instructions.
8A draft translation of the plea
questionnaire, CR-227, is attached to demonstrate the format. [Attached
only to the petition filed with the court.]
9Hmong translations may be provided
at a later date after completion of a Hmong-English legal glossary
currently in development.
10The Records Management
Committee is concurrently submitting a petition on forms for use by
self-represented litigants, which would add a second section to §
758.18:
(1) The judicial conference shall adopt standard court forms for use
by parties and court officials in all civil and criminal actions and
proceedings in the circuit court.
(2) In addition, at the request of the director of state courts,
the judicial conference may adopt forms created for voluntary use by
self-represented litigants in the circuit court. The judicial conference
shall identify which forms are intended for voluntary use. This
translation petition contemplates that both standard forms and voluntary
pro se forms, if any, will be covered by the translation rule.
Wisconsin Lawyer