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
Wisconsin Lawyer
