Wisconsin Lawyer
Vol. 80, No. 12, December 2007
Multi-Jurisdictional Practice
In the matter of Petition of the State Bar of Wisconsin to Amend Chapter 20 of the Supreme Court Rules
Order 06-06
On Nov. 20, 2006, the State Bar of Wisconsin filed a petition seeking to amend SCRs 20:5.5, 20:8.5, and 10.03(4) of the Supreme Court Rules (the "multi-jurisdictional practice" petition). The petition proposed changes to the Supreme Court Rules pertaining to the temporary practice of law by lawyers not licensed to practice in the State of Wisconsin, as well as changes to the rules governing pro hac vice admission. A public hearing was conducted on April 12, 2007. Attorney Dean Dietrich presented the petition to the court. Other interested persons appeared at the hearing or submitted written comments. In particular, the Association of Corporate Counsel submitted written comments expressing concern that the petition did not propose amendments pertaining to in-house counsel that are part of American Bar Association Model Rule 5.5(d). At the ensuing open administrative conference, the court acknowledged the importance of the issues presented in this petition and resolved to consider various aspects of the petition at a series of future open administrative conferences. An open administrative conference on this matter is presently scheduled for Jan. 9, 2008. Therefore,
IT IS ORDERED that on Feb. 22, 2008, at 9:30 a.m., at its open administrative conference in the Supreme Court Room in the State Capitol, Madison, Wis., the court may discuss proposed amendments to SCR 20:8.5 (Disciplinary Authority; Choice of Law), proposed changes to SCR 10.03(4), the "pro hac vice rule," proposed procedures regarding the licensure of foreign attorneys, and any other aspect of the petition requiring further discussion as identified by the court at its Jan. 9, 2008, open administrative conference;
IT IS FURTHER ORDERED that any interested persons may file with the court a written submission regarding the subjects identified for this conference no later than Feb. 1, 2008. As this matter has already been the subject of a public hearing, general public testimony will not be entertained at the open conference. The court may, in its discretion, direct questions to individuals present at the conference to aid the court's consideration of these matters.
IT IS FURTHER ORDERED that notice of the open administrative conference 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.
Dated at Madison, Wis., this 5th day of November, 2007.
By the court:
David R. Schanker, Clerk of Supreme Court
Appellate Court Briefs and Appendix
In the matter of the proposed Amendment to Wis. Stat. Rule 809.19 (Briefs and Appendix)
Order 07-03
On March 27, 2007, the Wisconsin Court of Appeals petitioned this Court to amend Wis. Stat. § (Rule) 809.19 pertaining to briefs and appendix. A public hearing was held on Oct. 5, 2007. Margaret Carlson, Chief Staff Attorney for the Court of Appeals, presented the petition on behalf of Chief Judge Richard Brown and offered testimony in support of the petition.
At the ensuing open administrative conference, the court voted unanimously to adopt the petition, with modifications. Accordingly, effective Jan. 1, 2008, Wis. Stat. § (Rule) 809.19 is amended as follows:
Section 1. 809.19(2) is amended to read:
809.19(2) Appendix. (a) Contents. The appellant's brief shall include a short appendix providing relevant trial court record entries, containing, at a minimum, the findings or opinion of the trial circuit court and limited portions of the record essential to an understanding of the issues raised, including oral or written rulings or decisions showing the trial circuit court's reasoning regarding those issues. If the appeal is taken from a circuit court order or judgment entered in a judicial review of an administrative decision, the appendix shall also contain the findings of fact and conclusions of law, if any, and final decision of the administrative agency. The appendix shall include a table of contents. If the record is required by law to be confidential, the portions of the record included in the appendix shall be reproduced using first names and last initials instead of full names of persons, specifically including juveniles and parents of juveniles, with a notation that the portions of the record have been so reproduced to preserve confidentiality and with appropriate references to the record.
(b) Certification. An appellant's counsel shall append to the appendix a signed certification that the appendix meets the content requirements of par. (a) in the following form:
I hereby certify that filed with this brief, either as a separate document or as a part of this brief, is an appendix that complies with s. 809.19(2)(a) and that contains, at a minimum: (1) a table of contents; (2) relevant trial court record entries; (3) the findings or opinion of the trial circuit court; and (4 3) portions of the record essential to an understanding of the issues raised, including oral or written rulings or decisions showing the trial circuit court's reasoning regarding those issues.
I further certify that if this appeal is taken from a circuit court order or judgment entered in a judicial review of an administrative decision, the appendix contains the findings of fact and conclusions of law, if any, and final decision of the administrative agency.
I further certify that if the record is required by law to be confidential, the portions of the record included in the appendix are reproduced using first names and last initials instead of full names of persons, specifically including juveniles and parents of juveniles, with a notation that the portions of the record have been so reproduced to preserve confidentiality and with appropriate references to the record.
Signed:
Signature
Section 2. 809.19(3)(b) is amended to read:
809.19(3)(b) The respondent may file with his or her brief a supplemental appendix in conformity with sub. (2) . If the record is required by law to be confidential, the supplemental appendix must comply with the confidentiality requirements under sub. 2(a). Any supplemental appendix shall include a table of contents and a signed certification that the appendix complies with the confidentiality requirements under sub. 2(a) in a form substantially similar to the confidentiality provision under sub. 2(b).
Section 3. 809.19(6)(f) is created to read:
809.19(6)(f) A respondent-cross-appellant must comply with the same appendix rules as an appellant under sub. 2(a) and (b), except that a respondent-cross-appellant shall not be required to include materials that are contained in the appellant's appendix.
IT IS ORDERED that notice of this amendment of Wis. Stat. § (Rule) 809.19 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 November, 2007.
By the court:
David R. Schanker, Clerk of Supreme Court
Judiciary Continuing Education
In the matter of the Amendment of Supreme Court Rules 32.09 regarding continuing education for Wisconsin Judiciary
Order 07-05
On April 17, 2007, A. John Voelker, Director of State Courts, filed a petition asking this court to amend Supreme Court Rule 32.09 regarding continuing education for the Wisconsin Judiciary. A public hearing was conducted on Oct. 5, 2007. Mr. Voelker presented the petition and offered testimony in support of the petition.
At the ensuing open administrative conference, the court voted unanimously to adopt the petition, with modifications. Accordingly, effective January 1, 2008, SCR 32.09 is amended as follows:
SCR 32.09 Noncompliance.
(1) If a judge fails to meet the requirements of SCR 32.04 or 32.05, comply with the provisions of this chapter, the director of judicial education shall send the judge a notice of noncompliance by registered or certified mail. The nature of noncompliance shall be specified in the notice. Copies of the notice shall be sent to the director of state courts and to the chief judge of the court of appeals or administrative district. The notice shall inform the judge that an extension is being granted for compliance. The director of judicial education shall have the authority to set the period of extension up to six months, which will be of such duration to reasonably allow compliance. For good cause, the judicial education committee may extend the period for compliance.
(2) After the period of the extension has passed and the judge has not complied with this order chapter, the director of judicial education shall refer the violation to the judicial education committee for a hearing and send the judge a notice of the hearing by registered or certified mail.
(3) If the judicial education committee finds the judge has not complied with SCR 32.04 or 32.05 this chapter, it shall refer the matter to the supreme court for such action as it deems appropriate. Notice of such referral shall be sent to the director of state courts and the chief judge of the court of appeals or appropriate administrative district.
IT IS ORDERED that notice of this amendment of SCR 32.09 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 November, 2007.
By the court:
David R. Schanker, Clerk of Supreme Court
Supreme Court Internal Operations
In the matter of the Amendment of the Supreme Court Internal Operating Procedures
2007 WI 128
The Supreme Court, on its own motion, has considered proposed changes to its Internal Operating Procedures in regard to asking for briefing on issues not identified by the parties in orders granting petitions for review, petitions to bypass, certifications, original actions and in post-argument decision conferences.
IT IS ORDERED that, effective the date of this order, Supreme Court Internal Operating Procedures II.B.1, II.B.2, II.B.3., and II.E. are amended to read:
B. Staff Analysis and Reporting
1. Petition for Review. Upon filing in the office of the clerk, petitions for review are assigned by clerk staff to the court's commissioners for analysis prior to the court's consideration of the matters presented. Within 50 days of assignment of the petition, the commissioner to whom a petition for review is assigned prepares and circulates to the court a memorandum containing a thorough legal and factual analysis of the petition, including the applicability of the criteria for the granting of a petition for review set forth in Wis. Stat. § (Rule) 809.62(1), a recommendation for the granting or denial of the petition and, where appropriate, a recommendation for submission of the matter to the court for decision on briefs without oral argument.
In addition to the written memorandum, once each month and at other times as the court may direct, a conference is held at which each commissioner orally reports to the court on the petitions for review. Two weeks prior to the conference at which the commissioners report, each commissioner circulates to the court the petitions for review, the responses to those petitions, and a memorandum on each petition, together with an agenda sheet listing by caption and docket number the cases to be reported on at the conference and the commissioner's recommendation in each case. Prior to the conference, each member of the court reads the materials circulated.
At the conference, the chief justice states the name of each case, and the members of the court are asked whether they have any objection to the commissioner's recommendation. If there is no objection, the commissioner's recommendation is accepted without further discussion.
If any justice objects to or asks to discuss the commissioner's recommendation, a discussion is held in which the commissioner or a justice reports on the case. Following discussion, the court decides whether to grant or deny the petition for review and, if the petition is granted, whether the case will be scheduled for oral argument or for submission on briefs and whether the court will limit the issues in the case.
A petition for review is granted upon the affirmative vote of three or more members of the court. The purpose of requiring less than a majority of the court to grant a petition for review is to accommodate the general public policy that appellate review is desirable. A decision to direct the parties to brief issues other than those raised in the petition for review or response requires the affirmative vote of four or more members of the court.
The commissioner to whom the petition has been assigned prepares an order setting forth the court's decision on the petition for review and arranges for the issuance of the order by the office of the clerk. If the petition is granted, the order specifies the court's limitation of issues, if any, and the briefing schedule. The order provides that a party may file a brief or may stand on the brief filed in the Court of Appeals. The parties shall not, in any new brief filed, incorporate by reference any portion of their Court of Appeals briefs or their briefs submitted with or in response to the petition for review.
2. Petition to Bypass, Certification and Direct Review. A party may request the court to take jurisdiction of an appeal or other proceeding pending in the Court of Appeals by filing a petition to bypass pursuant to Wis. Stat. § (Rule) 809.60. A matter appropriate for bypass is usually one which meets one or more of the criteria for review, Wis. Stat. § (Rule) 809.62(1), and one the court concludes it will ultimately choose to consider regardless of how the Court of Appeals might decide the issues. At times, a petition for bypass will be granted where there is a clear need to hasten the ultimate appellate decision.
The Court of Appeals may request the Supreme Court to exercise its appellate jurisdiction by certifying a pending appeal to the Supreme Court prior to hearing and deciding the matter. Certifications are granted on the basis of the same criteria as petitions to bypass.
Petitions to bypass and certifications are processed according to the procedure set forth above for petitions for review, except that these matters are given priority over petitions for review. Petitions to bypass and certifications are granted upon the affirmative vote of four or more members of the court. A decision to direct the parties to brief issues other than those raised in their court of appeals' briefs requires the affirmative vote of four or more members of the court.
Before the court on its own motion decides to review directly a matter appealed to the Court of Appeals, the chief justice may assign the matter to a commissioner for analysis. If the matter is so assigned, it is processed according to the procedures set forth in this section for petitions to bypass and certifications.
3. Original Action. Upon filing in the office of the clerk, a petition requesting the court to take jurisdiction of an original action is assigned to a court commissioner for analysis prior to the court's consideration of the merits of the matter presented. The commissioner orally reports on the matter to the chief justice as soon as practicable, and the chief justice, or in the absence of the chief justice, the most senior justice present, determines a date on which the matter will be considered by the court at conference. The commissioner reports on the matter at that conference. If time permits, the commissioner circulates a memorandum to the court prior to that conference analyzing the legal and factual issues involved and making a recommendation for the denial of the petition ex parte or for a response to be ordered and for the scheduling of oral argument on the question of the court's exercise of its original jurisdiction, if oral argument is deemed necessary. If circumstances warrant, the chief justice, or in the absence of the chief justice, the most senior justice present, may order a response to the petition for original action and may act on nonsubstantive motions concerning the proceeding.
If the petition is denied, the commissioner prepares an order setting forth that decision and arranges for its issuance through the office of the clerk; if a response is ordered, the commissioner prepares an order setting forth that decision, as well as the decision on oral argument. When the order is approved by the court, the commissioner arranges for its issuance by the office of the clerk. Upon the filing of a response, the matter is referred to the commissioner for analysis and reporting. The original action is then processed according to the procedures set forth above for petitions for review.
A petition to commence an original action is granted upon the vote of four or more members of the court. The criteria for the granting of a petition to commence an original action are a matter of case law. See, e.g., Petition of Heil, 230 Wis. 428 (1939). The Supreme Court is not a fact-finding tribunal, and although it may refer issues of fact to a circuit court or referee for determination, it generally will not exercise its original jurisdiction in matters involving contested issues of fact. Upon granting a petition to commence an original action, the court may require the parties to file pleadings and stipulations of fact. The court customarily holds oral argument on the merits of the action and expedites the matter to decide it promptly. A decision to direct the parties to brief issues other than those raised in the petition to commence an original action or response requires the affirmative vote of four or more members of the court.
. . .
E. Post-argument Decision Conference
Following each day's oral arguments, the court meets in conference to discuss the cases argued that day. The chief justice presides at the conference, conducts the court's discussion, and calls for the vote on the decision of each case.
For each case, the justice to whom the case was assigned for presentation at the pre-argument conference gives his or her analysis and recommendation, the court discusses the issues in the case, and the vote of each member of the court on the decision is taken, beginning with the justice who has given the recommendation. When possible, the court reaches a decision in each of the cases argued that day, but any decision is tentative until the decision is mandated. Prior to a tentative decision, any justice may have a case held for further consideration and discussion. Following the court's tentative decision, any justice may request reconferencing for further discussion of the case. A decision to direct the parties to brief issues other than those raised in their initial briefs requires the affirmative vote of four or more members of the court. In a week following the oral arguments, the court decides the cases (usually discipline cases) on the month's submission calendar that are not decided at post-argument conference.
IT IS FURTHER ORDERED that notice of this amendment of the Supreme Court Internal Operating Procedures 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.
Annette Kingsland Ziegler, J., did not participate.
Dated at Madison, Wis., this 19th day of October, 2007.
By the court:
David R. Schanker, Clerk of Supreme Court
¶1 ANN WALSH BRADLEY, J.
(concurring). I write separately to respond to the dissent below. I disagree with its analysis and conclusions for two reasons.
¶2 First. The dissent cites to Wis. Stat. § 809.62(6), but it fails to honor the text of the rule. Section 809.62(6) provides in relevant part:
(6) The supreme court may grant the petition upon such conditions as it considers appropriate, including the filing of additional briefs. If the petition is granted, the petitioner cannot raise or argue issues not set forth in the petition unless ordered otherwise by the supreme court.
(Emphasis added.)
¶3 Unless otherwise specifically provided, it takes a majority of the court to issue any order of the supreme court. Even though petitions for review can be "granted" by a vote of less than the majority, when an order is issued accepting a petition for review, it is an order on behalf of the entire court. It is not an order issued on behalf of only three justices.
¶4 Second. Although couched in terms of service to the public and fairness to the parties, the essence of the dissent is the desire to more freely frame questions and advance issues rather than letting the parties do so. There is a divergence of opinion as to whether this is the proper role of the court.
¶5 I have on many occasions expressed my view that generally courts should respond to issues presented and not reach out to decide other issues not before the court. In City of Janesville v. CC Midwest, 2007 WI 93, ¶¶ 67-68, ____ Wis. 2d ____, 734 N.W.2d 438 (Bradley, J., concurring),1 I recently explained:
Unlike the legislative or the executive branch of government which have as their regular fare the responsibility to raise and resolve the issues of the day, our role is to respond to the issues presented. …
The rule of law is generally best developed when issues are raised by the parties and then tested by the fire of adversarial briefs and oral arguments. Indeed, "[t]he fundamental premise of the adversary process is that these advocates will uncover and present more useful information and arguments to the decision maker than would be developed by a judicial officer acting on his own in an inquisitorial system." Adam A. Milani & Michael R. Smith, Playing God: A Critical Look at Sua Sponte Decisions by Appellate Courts, 69 Tenn. L. Rev. 245, 247 (2002), citing United States v. Burke, 504 U.S. 229, 246 (1992) (Scalia, J., concurring).
See also, Beecher v. Labor & Industry Review Comm'n, 2004 WI 88, ¶ 97, 273 Wis. 2d 136, 682 N.W.2d 29 (Bradley, J., concurring).
¶6 Accordingly, I respectfully concur.
¶7 I am authorized to state that Chief Justice Shirley S. Abrahamson, and Justices N. Patrick Crooks and Louis B. Butler, Jr., join this concurrence.
1CC Midwest indicated both in its brief and at oral argument that it had abandoned any constitutional issue in this court. Disregarding the fact that the party advancing the issue below affirmatively indicated that it had abandoned the issue here, the lead opinion nevertheless reached out to discuss and decide the constitutional takings issue.
¶8 PATIENCE DRAKE ROGGENSACK, J. (dissenting). I write in dissent to the 2007 changes in Supreme Court Internal Operating Procedures (IOP), II.B.1., II.B.2., II.B.3. and II.E., which changes require the affirmative vote of four justices to direct the parties to address an issue not specifically identified in: (1) the petition for review or response; (2) the court of appeals briefs of the parties in bypass and in certification; (3) the request, or response, that the supreme court commence an original action; and (4) after oral argument before the supreme court has occurred. My reasons for dissenting from the changes made to these four parts of the IOP differ.
Part II.B.1.
¶9 IOP II.B.1. applies to petitions for review of court of appeals decisions. It permits the supreme court to take jurisdiction of a case on the affirmative vote of three of the court's seven justices. The stated purpose of this procedure is "to accommodate the general public policy that appellate review is desirable." Stated otherwise, because the taking of more cases by the supreme court is a desirable goal in the court's service of the public, the accepting of cases for review on the affirmative vote of a minority of the court results in supreme court review of more cases.
¶10 Accepting a case on the vote of three justices is a counter-majoritarian action that has other benefits for the public besides increasing the number of cases that the supreme court will review. For example, the three-vote rule also prevents the majority of the court from completely controlling the court's docket of cases and issues. That is, without this opportunity for a minority of the court to require the court to review cases in which three justices have identified legal issues of state-wide concern, the court's majority would prevent the exploration of any case or the development of the law on any issue the majority decided it did not want the court to address. Therefore, the 2007 change in II.B.1. is an impediment to the ability of a minority of the court to have the court address issues it deems to be of state-wide concern.
¶11 The 2007 change in IOP II.B.1. is extremely significant when read in concert with Wis. Stat. § 809.62(6), which directs that a petitioner is not to brief or to argue an issue not set forth in the petition for review unless ordered to do so by the court. The concurring opinion to the IOP changes asserts that Wis. Stat. § 809.62(6) requires the vote of four justices because "when an order is issued accepting a petition for review, it is an order on behalf of the entire court. It is not an order issued on behalf of only three justices."1 I agree with the concurrence that any order made by this court is made on behalf of the entire court, unless, of course, a justice dissents, concurs or does not participate. However, an order based on the vote of three justices requesting the parties to address an issue not listed in the petition for review could just as easily be an "order on behalf of the entire court," as is an order granting a petition for review. This is so because the sole basis for permitting an order of the court that grants a petition for review to be based on the vote of only three justices is because our IOP provides for granting a petition for review on the vote of three. Therefore, if our IOP provided that the vote of three justices would result in an order requesting the parties to address issues in addition to those set out in the petition for review, that order would be "an order on behalf of the entire court," as well. Section 809.62(6) is a creation of this court; therefore, our interpretation of it to permit certain orders to be issued on the vote of three justices pursuant to the IOP is not restricted by any goal of the legislature.
¶12 It is also important to note that the directive of Wis. Stat. § 809.62(6) does not prevent a majority of the court from addressing issues that were not set out in the petition for review, when the majority chooses to do so. City of La Crosse Police and Fire Comm'n v. LIRC, 139 Wis. 2d 740, 766-67 n.7, 407 N.W.2d 510 (1987) (concluding that even though the petition for review of neither party had addressed "hiring standard[s]" or "Rusch's ability to perform the duties of a police officer" in their petitions for review, a "complete review" required that those issues be addressed).
¶13 The concurrence also cites a recent concurrence in which Justice Bradley argued that the court should not address whether there was a constitutional underpinning to the eminent domain issue being addressed because the constitutional issue was not raised by the parties.2 The concurrence is incorrect in this assertion, as it was in the published decision. The lack of constitutional underpinnings to CC Midwest's claim was briefed for this court by a party, the City of Janesville,3 and it also was the subject of a lengthy dissent by Justice Prosser.
¶14 Furthermore, once the court accepts jurisdiction of a case, it may "review any substantial and compelling issue which the case presents." Univest Corp. v. General Split Corp., 148 Wis. 2d 29, 32, 435 N.W.2d 234 (1989). In addition, justices routinely address issues in their opinions that the parties have not briefed or argued. See e.g., State v. Leitner, 2002 WI 77, ¶ 12, 253 Wis. 2d 449, 646 N.W.2d 341 (addressing mootness, sua sponte); Burks v. St. Joseph's Hospital, 227 Wis. 2d 811, 835, 596 N.W.2d 391 (1999) (Abrahamson, C.J., concurring) (noting that the parties did not brief or argue the distinction employed by the majority opinion).
¶15 However, my greatest concern is the occasion when the failure to list an issue in a petition for review will prevent a petitioner from having any opportunity for reversal of the previous court decision. This occurs when the supreme court accepts review and then enforces Wis. Stat. § 809.62(6), thereby refusing to consider an issue that was not listed in the petition for review but is an issue on which the petitioner must prevail in order to obtain reversal of the earlier decision. Estate of Szleszinski v. LIRC, 2007 WI 106,
¶ 4 n.5 and ¶ 13 n.8, __ Wis. 2d __, 736 N.W.2d 111 (concluding that because the court of appeals reversed LIRC's decision that Szleszinski's medical evaluation was "individualized" and the employer did not seek review of the court of appeals' decision on that issue, it was conclusively decided for purposes of supreme court review that the medical evaluation did not qualify as an "individualized" evaluation under Wis. Stat. § 111.34(2)(c); therefore, the employer could not prevail on its defense that Szleszinski's handicap was reasonably related to performing his job duties).
¶16 Nevertheless, as most would acknowledge, one of the purposes of appellate review is "justice for the parties." See Allan D. Vestal, Sua Sponte Consideration In Appellate Review, 27 Ford. L. Rev. 477, 509 (1958-59). Preventing the parties from participating in the discussion of all the legal issues that the three justices who have voted to accept jurisdiction seek to have decided does not promote justice for the parties, because the parties are prevented from addressing all of the questions that those voting to grant the petition for review deem necessary to a complete analysis of the case.
¶17 Furthermore, there is an unfairness to the parties to the litigation that is inherent in the 2007 change in IOP II.B.1. This is so because the IOP change will permit the supreme court to limit the parties' briefing and argument more frequently, when the court does not limit the amici curiae. This unfairness among participants occurs because frequently an amicus will file its brief with the court in completed form, together with a request that the court accept it. The court's routine practice is to do so. The brief of an amicus addresses any issue that the amicus believes the court should consider. Neither Wis. Stat. § 809.62(6) nor any IOP limits the issues that an amicus curiae can address.4 The practice of adding a new issue at the pleasure of an amicus permits an amicus to shape the nature of the controversies before the supreme court in ways that the court prevents the parties from doing.
¶18 In addition, after accepting an amicus brief, it is not uncommon for members of the court to cite to and address an issue raised therein that may not have been in the petition for review. See Wagner v. Milwaukee County Election Comm'n, 2003 WI 103, ¶ 6, 263 Wis. 2d 709, 666 N.W.2d 816 (addressing the justicibility of the controversy raised by an amicus); In re Guardianship of Jane E.P., 2005 WI 106, ¶¶ 76, 77, 283 Wis. 2d 258, 700 N.W.2d 863 (referencing venue under Wis. Stat. § 55.06(3)(c) at the request of an amicus). Therefore, under the 2007 change to IOP II.B.1., at times, the parties who brought the case before the court will be given a more limited scope of issues that they can frame and participate in than non-parties. This does not promote justice for the parties.
¶19 Accordingly, I conclude that when it is apparent at the petition conference to three of the justices who voted to grant the petition for review that an issue should be addressed in order to accord a full and fair hearing of the case but that the petitioner has not identified that issue in the petition for review, the court should direct the parties to address the issue. Otherwise, the major effects of the change in II.B.1. are: (1) to increase the majority's control of the issues the court will consider, and (2) to reduce the opportunity for fairness to the parties on appeal.
Parts II.B.2., II.B.3. and II.E.
¶20 IOP II.B.2. and B.3. address bypass, certification and petition for an original action. In those other procedures by which the supreme court commonly accepts cases, the affirmative vote of a majority of the court is required. Therefore, the majority of the court controls the supreme court's docket of the cases and issues that develop by those procedures. The 2007 changes in these parts of the IOP do not restrict the right of a party to address an issue by a greater number of votes than does the acceptance of a case in the first instance.
¶21 Part II.E. addresses the procedure in a post-argument decision conference on all cases for which we have held oral argument: petitions for review, petitions for bypass, certifications and original actions. Although Part II.E. requires the vote of only one justice to re-conference or to adjourn and continue the discussion of a case on a later date, the 2007 change in IOP creates a blanket rule that the vote of four justices is required before the court will order the parties to address an issue that was not briefed, regardless of the procedure used to accept jurisdiction of the case.
¶22 Accordingly, with the exception of the effect of II.E. on a case that is before the court for decision because a petition for review was accepted upon the affirmative vote of three justices, these changes to the IOP do not prevent a minority of the court from having an issue reviewed by the court that the minority believes is of state-wide concern. Nevertheless, the changes may reduce the fairness to all parties on appeal. Unfairness will occur when a party has not addressed an issue in its brief, but the resolution of the issue is a necessary component of the decision the supreme court must make. See Estate of Szleszinski, 2007 WI 106, ___ Wis. 2d ___, ¶ 4 n.4, and ¶ 13 n.8 (concluding that the court of appeals' determination that the medical exam of Szleszinski was not individualized will not be reviewed because the issue was not raised in the petition for review). Therefore, in fairness to the parties, when it becomes apparent after oral argument that an issue that was not listed in the petition for review or reply thereto is necessary to the court's decision on the merits of the case, I would permit the affirmative vote of three justices to result in an order directing the parties to address that issue. This is consistent with the three-vote rule of IOP II.B.1. and will promote fairness for the parties in all appeals.
¶23 For the reasons set forth above, I respectfully dissent from the 2007 changes to IOP II.B.1., II.B.2., II.B.3. and II.E.
¶24 I am authorized to state that Justice David T. Prosser joins this dissent.
1Bradley, J., concurring in the changes to the IOP.
2Id., citing her concurrence in City of Janesville v. CC Midwest, 2007 WI 93, __ Wis. 2d __, 734 N.W.2d 438 (Bradley, J., concurring).
3CC Midwest, 2007 WI 93, __ Wis. 2d __, ¶ 15 n.13.
4At times, the court permits the parties to respond to an issue raised by the amicus. See, e.g., State v. Piddington, 2001 WI 24, ¶ 11, 241 Wis. 2d 754, 623 N.W.2d 528.
Group and Prepaid Legal Services Plans
In the matter of the Revision of SCR 11.06 Concerning Group and Prepaid Legal Services Plans
Order 07-01
On Feb. 2, 2007, the State Bar of Wisconsin petitioned this court for a revision to SCR 11.06 governing the participation of state bar members in group or prepaid legal services plans. A public hearing was held on Monday, Oct. 29, 2007. Thomas J. Basting, Sr., President of the State Bar of Wisconsin, presented the petition. Attorney Cheryl Furstace Daniels and Attorney Nelson Martell also appeared in support of the petition. The court received no comments opposing the petition.
At the ensuing open administrative conference, the court voted unanimously to adopt the petition, with modification to the proposed comment to SCR 11.06. Accordingly, effective the date of this order, SCR 11.06 of the Supreme Court Rules is amended to read:
Section 1. SCR 11.06(2)(a)2. and 4. are amended to read:
SCR 11.06(2)(a)2. Procedures for the review and resolution of disputes arising under the plan, but the plan may not require a client to submit to binding arbitration of any grievance or dispute related to an attorney's professional services;
4. That an attorney furnishing legal services under the plan is free to exercise independent professional judgment; and .
Section 2. SCR 11.06(2)(a)5., (4), (5), (6), (7), (8), and (9) are repealed.
Comment
Lawyers participating in prepaid legal service plans are reminded of their responsibility to comply with the Rules of Professional Conduct for Attorneys, SCR Chapter 20.
IT IS ORDERED that notice of this amendment of SCR 11.06 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 14th day of November, 2007.
By the court:
David R. Schanker,
Clerk of Supreme Court
Nonresident Lawyer Representation on State Bar Board of Governors
In the matter of the Amendment of SCR 10.05(1) Nonresident Lawyer Representation on the State Bar of Wisconsin Board of Governors
Order 07-02
On Feb. 5, 2007, the Board of Governors filed a petition proposing to amend SCR 10.05(1) to increase the number of State Bar governors selected by the Nonresident Lawyers Division. A public hearing was held on Monday, Oct. 29, 2007. Thomas J. Basting, Sr., President of the State Bar of Wisconsin, presented the petition on behalf of the Board of Governors.
At the ensuing open administrative conference, the court voted unanimously to adopt the petition. Accordingly, effective the date of this order, SCR 10.05(1) is amended as follows:
SCR 10.05 Board of governors.
(1) Composition of board. The affairs of the association shall be managed and directed by a board of governors consisting of the 6 officers of the association, all of whom shall be ex officio members-at-large of the board, not fewer than 34 members elected from the State Bar districts established under sub. (2), one member selected by the young lawyers division pursuant to its bylaws, one member selected by the government lawyers division pursuant to its bylaws, three five governors selected by the nonresident lawyers division pursuant to its bylaws, one governor selected by the senior lawyers division pursuant to its bylaws, and three nonlawyers appointed by the supreme court for staggered two-year terms. No person appointed by the supreme court shall serve more than two consecutive full terms. The rights and powers of the ex officio members of the board are the same as those of elected members. All past-presidents of the Wisconsin bar association or of the state bar of Wisconsin, the Wisconsin state delegate to the American Bar Association house of delegates and the deans of the Marquette university and university of Wisconsin law schools are entitled to floor privileges, but without voting privileges.
IT IS ORDERED that notice of this amendment of SCR 10.05(1) 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 14th day of November, 2007.
By the court:
David R. Schanker
Clerk of Supreme Court
Wisconsin Lawyer
