Supreme Court Orders

Admissibility of Material Relied Upon by Expert Witness

In the Matter of the Amendment of the Rules of Evidence: Wis. Stat. § (Rule) 907.03(2), Admissibility of Material Relied Upon by Expert Witness

Order

On Oct. 8, 1991, the court held a public hearing on the petition filed May 22, 1991, by the Judicial Council of Wisconsin seeking the amendment of Wis. Stat. § (Rule) 907.03, to permit facts or data underlying the opinion or inference of an expert witness that are otherwise inadmissible in evidence but of a type reasonably relied upon by such experts to be disclosed to a jury, upon permission of the judge, for the limited purpose of establishing the basis of the expert's opinion or inference. On Feb. 19, 1992, this matter was remanded to the Judicial Council for further consideration and, if it deems appropriate, resubmission to the court. The court, having received no additional submissions from the Judicial Council of Wisconsin, determines that no further action in this matter need be taken at this time.

IT IS ORDERED that no further action shall be taken in this matter at this time and the proceeding is closed.

IT IS FURTHER ORDERED that notice of the court's action in this proceeding 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 25th day of Sept., 2000.

By the court:
Cornelia G. Clark, Clerk of Court

Petition for Appellate Review

In the Matter of the Amendment of the Rules of Appellate Procedure: Wis. Stat. § (Rule) 809.62, Petition for Review

Order 93-17

On Nov. 16, 1993, the court held a public hearing on the advisability of amending the rules of appellate procedure to require all parties in a petition for review filed in the supreme court to identify issues presented to the court in the requested review proceeding, including issues raised in the court of appeals but not decided by that court. The proposed amendment would require that a response to a petition for review contain a statement of issues the respondent wants considered in the review other than the issues identified by the petitioner and would prohibit all parties from raising or arguing an issue not set forth in the petition for review or the response, unless the court orders otherwise. The court has considered the appearances at that hearing and materials submitted in response to the notice of hearing and has determined that no further action in this matter need be taken at this time.

IT IS ORDERED that no further action shall be taken in this matter at this time and the proceeding is closed.

IT IS FURTHER ORDERED that notice of the court's action in this proceeding 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 25th day of Sept., 2000.

By the court:
Cornelia G. Clark, Clerk of Court

Body to Determine Discipline and Disability of Supreme Court Justice

In the Matter of the Amendment of the Creation of a Body to Determine Discipline and Disability of a Supreme Court Justice

Order 00-04

The court held a public hearing Sept. 20, 2000, on the advisability of establishing by court rule a body to perform the court's statutory duty to review findings of fact, conclusions of law, and recommendations of a judicial conduct or permanent disability panel and to determine appropriate discipline in cases of misconduct and appropriate action in cases of permanent disability under Wis. Stat. § 757.89 when the judge against whom allegations of misconduct or disability are filed is a justice of the Supreme Court. The court has considered the material filed in response to the notice of public hearing.

IT IS ORDERED that no further action shall be taken in this matter at this time and that this proceeding is closed.

IT IS FURTHER ORDERED that notice of the court's action in this matter 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 Sept., 2000.

By the court:
Cornelia G. Clark, Clerk of Court

Filing Papers by Fax

In the Matter of the Amendment of the Rules of Civil Procedure: Wis. Stat. § 801.16(2) - Filing of Papers by Facsimile Transmission

Order 00-09

On Aug. 31, 2000, the director of state courts, on the recommendation of the Committee of Chief Judges and District Court Administrators, filed a petition requesting the amendment of Wis. Stat. § 801.16(2) to limit to 15 pages the length of papers and documents filed by facsimile transmission, unless an exception is granted, and to clarify which papers filed by facsimile transmission constitute the official court record.

IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Hearing Room, 119 Martin Luther King Jr. Blvd., Madison, Wis., on Jan. 16, 2001, 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 26th day of Sept., 2000.

By the court:
Cornelia G. Clark, Clerk of Court

Petition

The Director of State Courts, on the recommendation of the Committee of Chief Judges and District Court Administrators, hereby petitions the court to amend Wis. Stat. § 801.16(2), governing the filing of pleadings and other papers by facsimile transmission, pursuant to the court's rulemaking authority under § 751.12.

These changes are designed to limit the length of most faxed filings, allow exceptions to be approved by the judicial officer responsible for the case, and clarify which copy is the official court record. No changes are proposed in response to State v. Sorenson, 2000 WI 43 (May 26, 2000).

The committee requests that § 801.16(2) be amended to read as follows:

§ 801.16. Filing.

(2). For papers that do not require a filing fee:

(a) A court may adopt a local rule, if it is approved by the chief judge, that requires the use of a plain-paper facsimile machine and permits the filing of those papers by facsimile transmission to the clerk of circuit court at a telephone number designated by the court. No document may exceed 15 pages in length unless an exception is approved by the assigned judge or court commissioner on a case-by-case basis.

(b) If no rule has been adopted under par. (a), a an assigned judge or court commissioner may permit a party or attorney in a specific matter to file those papers with the clerk of circuit court by facsimile transmission to a plain-paper facsimile machine only if there is compliance with par. (a).

(c) The party or attorney, by filing papers by facsimile transmission, certifies that permission of the assigned judge or court commissioner for filing by facsimile transmission has been granted. If the court permits transmission of papers to a non-court agency, party or company for the receipt, transmittal and delivery to the court, the court shall accept the papers for filing only if there is compliance with par. (a). Facsimile papers, upon receipt by the court, are considered filed and are the official record of the court and may not be substituted. No additional copies may be sent. The clerk of circuit court shall discard any duplicate papers subsequently received by the court. Papers filed by facsimile transmission are considered filed when transmitted except that papers filed by facsimile transmission completed after regular business hours of the clerk of circuit court's office are considered filed the next business day.

Respectfully submitted this 31st day of Aug., 2000.

J. Denis Moran, Director of State Courts

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 Aug. 31, 2000, the director of state courts, on the recommendation of the Committee of Chief Judges and District Court Administrators, filed a petition seeking the amendment of Wis. Stat. §§ 801.58(7) and 808.08 and of the Internal Operating Procedures of the Supreme Court and of the Court of Appeals to require an appellate court remanding a case to a lower court to state whether the parties have a right to request a substitution of judge.

IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Hearing Room, 119 Martin Luther King Jr. Blvd., Madison, Wis., on Jan. 16, 2001, 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 hearing.

Dated at Madison, Wis., this 26th day of Sept., 2000.

By the court:
Cornelia G. Clark, Clerk of Court

Petition

The Director of State Courts, on the recommendation of the Committee of Chief Judges and District Court Administrators, hereby petitions the court to amend Wis. Stat. § 808.08 and § 801.58(7), pursuant to the court's authority under § 751.12, and the internal operating procedures of the Wisconsin Supreme Court and Court of Appeals.

These amendments would direct the appellate courts in remanding a case to state whether the parties have a right to request a substitution of judge under the provisions of § 808.08, § 801.58(7), and case law interpreting those sections. See State ex. Rel J.H. Findorff v. Milwaukee County, 2000 WI 30, 233 Wis. 2d 428 (April 6, 2000), at ¶ 20 n.9, and concurring opinions at ¶ 38, ¶ 47, and ¶ 65.

The committee requests that § 801.58(7) be amended as follows:

§ 801.58 Substitution of judge.

(7) If upon an appeal from a judgment or order or upon a writ of error the appellate court orders a new trial or reverses or modifies the judgment or order as to any or all of the parties in a manner such that further proceedings in the trial court are necessary, any party may file a request under sub. (1) within 20 days after the filing of the remittitur in the trial court whether or not another request was filed prior to the time the appeal or writ of error was taken. The appellate court shall determine whether the actions required of the trial court on remand constitute "further proceedings" within the meaning of § 808.08(3) and this section, and shall state whether the parties are entitled to request a substitution of judge on remand.

The committee requests that § 808.08 be amended to read as follows:

§ 808.08 Further proceedings in trial court.

When the record and remittitur are received in the trial court:

(1) If the trial judge is ordered to take specific action, the judge shall do so as soon as possible.

(2) If a new trial is ordered, the trial court, upon receipt of the remitted record, shall place the matter on the trial calendar.

(3) If action or proceedings other than those mentioned in sub. (1) or (2) is ordered, any party may, within one year after receipt of the remitted record by the clerk of the trial court, make appropriate motion for further proceedings. If further proceedings are not so initiated, the action shall be dismissed except that an extension of the one-year period may be granted, on notice, by the trial court, if the order for extension is entered during the one-year period.

(4) The appellate court shall determine whether the actions required of the trial court on remand constitute "further proceedings" within the meaning of sub. (3) and § 801.58(7), and shall state whether the parties are entitled to request a substitution of judge on remand.

The committee requests that Wisconsin Supreme Court Internal Operating Procedures, § II.L be amended to create a new § 5:

II.L. Decisional Process. Miscellaneous.

5. Substitution on Remand. When a case is remanded, the Supreme Court shall determine whether the actions required of the trial court on remand constitute "further proceedings" within the meaning of § 808.08(3) and § 801.58(7), and shall state whether the parties are entitled to request a substitution of judge on remand.

The committee requests that Wisconsin Court of Appeals Internal Operating Procedures, § VI(5) be amended to create a new § (k):

VI(5). Decisional Process. Opinions.

(j) A decision other than affirmance, or reversal with directions to render judgment for the appellant, states what court of action is to be followed in the court below and the rules to be applied therein so far as they are within the issues decided.

(k) When a case is remanded, the Court of Appeals shall determine whether the actions required of the trial court on remand constitute "further proceedings" within the meaning of § 808.08(3) and § 801.58(7), and shall state whether the parties are entitled to request a substitution of judge on remand.

Respectfully submitted this 31st day of Aug., 2000.

J. Denis Moran, Director of State Courts

State Bar Governance, 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 Sept. 13, 2000, the Board of Governors of the State Bar of Wisconsin filed a petition requesting the amendment of the Supreme Court Rules to increase the membership of the State Bar Board of Governors executive committee by including a representative from the Nonresident Lawyers Division, one representative from the Government Lawyers Division, one representative from the Young Lawyers Division, and two additional members elected by the Board of Governors. The petition also requested the amendment of SCR 10.06(3) to increase from three to five the number of members required to demand a meeting of the executive committee, to specify that a majority of members present constitutes a quorum of the executive committee, and to provide that participation at a meeting of the executive committee may be by telefacsimile or email. The petition requested further that SCR 10.08 be amended to provide that the assembly of members may be held only at an annual meeting.

IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Hearing Room, 119 Martin Luther King Jr. Blvd., Madison, Wis., on Jan. 16, 2001, 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 hearing.

Dated at Madison, Wis., this 26th day of Sept., 2000.

By the court:
Cornelia G. Clark, Clerk of Court

Petition

To the Justices of the Wisconsin Supreme Court:

The Board of Governors of the State Bar of Wisconsin ("Board of Governors") respectfully submits this petition as follows:

That the provision of the Supreme Court Rules relating to members of the executive committee, specifically SCR 10.06(1) and (3) be amended as follows:

SCR 10.06 Executive Committee

(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 Non-Resident Lawyers, Government Lawyers, and Young Lawyers Divisions 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 the 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, telefacsimile or email.

That the provision of the Supreme Court Rules relating to meetings of the association, specifically SCR 10.07(2) be amended as follows:

SCR 10.07 Meetings of the Association

(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.

That the provision of the Supreme Court Rules relating to referendum procedure, specifically SCR 10.08(6) be amended as follows:

SCR 10.08 Referendum Procedure

(6) Procedure for Filing Petition. The petition must be complete when filed with the state bar headquarters. Upon filing, the petition will be examined by the state bar executive director or his or her designee in order to determine the following: (a) whether the question is properly the subject of a referendum; (b) whether the signatures are of members of the state bar eligible to vote; (c) whether the signatures satisfy the geographic distribution and time requirements set forth in sub. (5)(f) and (g); (d) whether the petition is otherwise in order as required by these rules. The ruling of the executive director shall be communicated to the person designated in the petition as soon as practicable and within two weeks of the date the petition is filed.

The undersigned respectfully submits this petition on behalf of the Board of Governors and prays for an Order accordingly this 12th day of Sept., 2000.

Gary L. Bakke, President

State Bar of Wisconsin

Judicial Conference

In the Matter of the Amendment of the Supreme Court Rules: SCR 70.15(1) - Judicial Conference

Order 00-13

The court, on its own motion, has deemed it advisable to amend the Supreme Court Rule, SCR 70.15(1), setting forth the membership of the Judicial Conference of Wisconsin to conform it with the bylaw of the Judicial Conference, Article I, establishing the membership.

IT IS ORDERED that, effective the date of this order, SCR 70.15(1) of the Supreme Court Rules is amended to read:

(1) There is constituted the judicial conference of Wisconsin, which consists of the justices of the supreme court, the judges of the court of appeals, the judges of the circuit court, and the reserve judges, three municipal court judges designated by the Wisconsin municipal judges association, and one judicial representative of a non-Public Law 280 tribal court and two judicial representatives of Public Law 280 tribal courts designated by the Wisconsin tribal judges association.

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 21st day of Sept., 2000.

By the court:
Cornelia G. Clark, Clerk of Court

Code of Judicial Conduct

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

Order 00-14

The court, on its own motion, has determined it advisable to amend the Rules of the Judicial Conduct Advisory Committee in respect to its circuit judge membership to enlarge the number of judges eligible for appointment to the committee by including reserve judges who serve regularly in the circuit court.

IT IS ORDERED that, effective the date of this order, A. (1) of the Rules of the Judicial Conduct Advisory Committee is amended to read:

(1) Membership. A judicial conduct advisory committee consisting of nine members appointed by the supreme court is created. Six members of the committee shall be selected from the judiciary of this state, one member shall be selected from the court commissioners serving the circuit court, one member shall be selected from attorneys licensed to practice law in this state, and one member shall be selected from the public. One judge member shall be a chief judge of a judicial administrative district, one judge member shall be a judge of the court of appeals, one judge member shall be a circuit judge or a reserve judge who serves regularly on an urban area court, one judge member shall be a circuit judge or a reserve judge who serves regularly on a rural area court, one judge member shall be a municipal judge, and one judge member shall be a reserve judge. Members shall serve for a term of three years and shall continue to serve until a successor is appointed, except that, to achieve staggered terms, three of the members first appointed shall serve for one year, three members for two years, and three members for three years. A member may serve not more than two successive three-year terms. Appointments to fill a vacancy shall be for the balance of the term vacated. Members of the committee shall serve without compensation but shall be reimbursed for expenses actually and necessarily incurred in the performance of their duties.

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 25th day of Sept., 2000.

By the court:
Cornelia G. Clark, Clerk of Court

Wisconsin Lawyer