Wisconsin
Lawyer
Vol. 81, No. 6, June
2008
Supreme Court Orders
The Wisconsin Supreme Court amended SCR 13.045(1) to require judicial
members to pay the annual WisTAF assessment, amended SCR 70.14(2) to
formalize
the PPAC vice chair position, and amended Wis. Stat. section (Rule)
809.18 governing voluntary dismissals of cases on appeal.
Paralegal Licensure and Regulation
In the matter of the Licensure and Regulation of Paralegals
Order 04-03
On Feb. 13, 2004, the Board of Governors of the State Bar of
Wisconsin filed a petition
asking this court to establish a system for mandatory licensure and
regulation of paralegals
in Wisconsin. A public hearing was conducted by the court on Oct. 27,
2004, at which
numerous persons appeared. The court took the matter under advisement
pending consideration of
certain issues, including jurisdiction to regulate nonlawyers and
possible ramifications for a
pending petition addressing the unauthorized practice of law. On April
7, 2008, the court,
having considered all written submissions and previous testimony,
discussed this matter in
open administrative conference. The court recognized the essential
contributions of paralegals
to our legal system and their legitimate desire for recognition of their
expertise
and professionalism. However, the court also acknowledged the reality
that the prospect
of creating an entirely new regulatory and enforcement structure or
dramatically
expanding existing agencies presents a daunting task in the present
economic climate. Therefore,
IT IS ORDERED that the petition is denied.
IT IS FURTHER ORDERED that the Board of Governors of the State
Bar of Wisconsin
and interested paralegal organizations are invited to consider the
merits of a
voluntary registered paralegal program such as the program adopted by
the Florida Supreme Court,
and may, if they deem it appropriate, submit a rules petition to the
court proposing a
voluntary plan for the registration of paralegals in
Wisconsin.1
Dated at Madison, Wis., this 24th day of April, 2008.
By the court:
David R. Schanker
Clerk of Supreme Court
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Depositions Conducted Outside Wisconsin
In the matter of Proposed Amendment to Wis. Stat. § 887.26
Order 05-06
On June 15, 2005, the Judicial Council filed a petition proposing
certain amendments to
Wis. Stat. § 887.26, relating to requirements for depositions
conducted outside the state
of Wisconsin. On Nov. 14, 2005, the court conducted a public hearing on
this matter. The
court and the petitioner concluded that the petition required certain
revisions to clarify
that § 887.26, as amended, would permit the taking of both
oral and written depositions.
The petition was returned to the Judicial Council. An amended petition
was filed on June 12,
2006. At its open administrative conference on March 21, 2007, the court
adopted the petition,
as amended, effective July 1, 2008.
Therefore,
IT IS ORDERED that, effective July 1, 2008, 887.26 of the
statutes is amended as follows:
Section 1. 887.26 (title) and (1) of the statutes are
amended to read:
887.26 (title) Depositions
without this
outside state
by commission
. (1) How
taken. In any civil action, proceeding, or matter in which
depositions may be taken within
this state, the deposition of any witness without
outside the state may be taken
before any officer as provided in s. 804.03 (1) or (2) or as provided
in the rules of the state or country
where taken. Depositions outside the state may be taken orally
or upon written
interrogatories
questions as provided in this section.
Section 2. Section 887.26 (4) of the statutes is amended
to read:
887.26 (4) Commission to take. A commission may issue
from any court of record to take
the deposition of any witness
without
outside the state,
where an issue of fact has been joined or the time therefor has
expired,
after commencement of the action, except as provided in
s. 804.015 or as provided in s. 804.02 (1), for any cause
which shall be
that is
deemed sufficient by the court, or when required for use on any trial or
hearing or upon any
motion or proceeding. The commission shall be signed by the clerk and
sealed and shall be
accompanied by a copy of subs. (4), (5), and (6).
Section 3. Section 887.26 (5) (a) of the statutes is
renumbered 887.26 (5) (bm) 1.
and amended to read:
887.26 (5) (bm) 1. The
party
person desiring a commission shall prepare
interrogatories
a notice of intent to obtain a
commission and state in the caption
thereof
of the notice of
intent the name of the commissioner proposed by the party,
the name of
the
witness and the
his or her residence of
each
with particularity, and shall serve a copy
thereof
of the notice of
intent on the opposite party, with a notice that, at the expiration
of
10
5 days from the date of
such service
the notice of
intent, a commission will be issued to take the deposition
of the witness,
directed to the court of jurisdiction of the residence of the
witness,
requesting that a subpoena issue from that court compelling the
deposition upon written questions of
the witness, and specifying the reason for taking the same.
The notice of intent shall be accompanied by the
questions. Within such time
the 5-day period, the opposite party may
file with the clerk and serve upon the other
his or her
party any
objections, to the interrogatories proposed and to the
competency of the witness
and
to the issuance of the commission and serve his or her
cross-interrogatories
cross-questions; and state the name and residence of any person
whom the opposite party desires to act as an additional
commissioner, who must reside in the county in which the commissioner
first named
resides, and may serve any objections to the questions and any
cross-questions.
Section 4. Section 887.26 (5) (am) of the statutes is
created to read:
887.26 (5) (am) Oral Depositions.
1. The person desiring a commission shall prepare
a notice of intent to obtain a commission and state in the caption of
the notice of intent
the name of the witness and his or her residence with particularity, and
shall serve a copy of
the notice of intent on the opposite party, with a notice that, at the
expiration of 5 days
from the date of the notice of intent, a commission will be issued
directed to the court
of jurisdiction of the residence of the witness, requesting that a
subpoena issue from that
court compelling the oral deposition of the witness, and specifying the
reason for taking the
same. Within the 5-day period the opposite party may file with the clerk
and serve upon the
other party objections to the issuance of the commission.
2. At the expiration of the 5 days, and no objection being
received or sustained,
the commission shall issue as provided in sub. (4). At the noticing
person's expense,
the commission shall be transmitted to the court of jurisdiction of
residence of the witness,
for issuance of the deposition subpoena in accord with the rules
applicable to that court.
No commission shall issue if the witness's residence is not given as
required.
Section 5. Section 887.26 (5) (b) of the statutes is
renumbered 887.26 (5) (bm) 3.
and amended to read:
887.26 (5) (bm) 3. At
the
expiration of the time limited, the moving party may file
the notice and interrogatories, with proof of service thereof and the
moving parties'
objections to the cross-interrogatories. The moving party may also serve
redirect interrogatories on
the opposite party, who may, within 3 days after such service, file
objections to such
redirect interrogatories. Thereupon
period under sub. (b) 1. and (b) 2., and if no objection to
the issuance of the commission has been received or sustained
the commission shall be issued
issue, with the interrogatories
written questions, direct, cross and redirect, and
all objections, and transmitted to the commissioner first named by mail
or express at the
expense of the moving party. But when any defendant shall not have
appeared and the time for
the defendant to plead has expired, no notice is required to be given
such defendant, and
the commission may issue on filing the direct
interrogatories
questions as provided in sub.
(4). At the noticing person's expense, the commission shall be
transmitted to the court
of jurisdiction of the residence of the witness, for issuance of the
subpoena in accord with
the rules applicable to that court. No commission shall issue if the
witness's
residence
s
are
residence is not given as required.
Section 6. Section 887.26 (5) (bm) (title), 2., 4. and
(c) of the statutes are created
to read:
887.26 (5) (bm) (title) Written Questions.
2. If cross-questions are served, within 3 days after such
service the noticing person
may also serve redirect questions on the opposite party, who may, within
3 days after
such service, serve objections to such redirect questions.
4. Upon issuance of the commission, the noticing person shall
transmit to the officer
taking or transcribing the deposition, by mail or express, the direct,
cross, and redirect
questions, and the objections to the questions.
(c) Before Commencement of Action. When testimony is
sought of a witness outside the
state before commencement of an action as provided in s. 804.02 (1), the
order issued under
s. 804.02 (1) (c) shall also include a commission in the form provided
by sub. (4) of
this section.
Section 7. Section 887.26 (6) (title) of the statutes is
amended to read:
887.26 (6) (title) Duty of Commissioner
Commissioner—Examination and
Cross-Examination; Record.
Section 8. Section 887.26 (6) (a) of the statutes is
renumbered 887.26 (6) (cm) and
amended to read:
887.26 (6) (cm) The commissioner first
named shall fix the time and place for executing
the commission and give the other commissioner one day's notice if
residing in the same place,
and when not, one day's notice in addition for every 30 miles of
distance between the place
of residence and the place fixed for executing the commission. If the
notice be by mail
double time shall be allowed; but notice may be waived in writing or by
appearance at the
execution of the commission. If there be 2 commissioners the commission
shall be executed in the
county where they reside, unless they agree upon
another.
The commissioner first named
taking or transcribing the deposition shall have charge of and
return the deposition, which return
shall be in the same form and manner directed by the commission
or as provided by s. 804.05 (7).
If either commissioner shall not attend at the time and place so fixed,
the other may execute
the commission with like effect as if both were present, but such
commissioner must certify in
the return that the other had due notice but failed to
attend.
Section 9. Sections 887.26 (6) (am) and (bm) of the
statutes are created to read:
887.26 (6) (am) Oral
Examination. Testimony shall be taken in the manner provided by
ss. 804.05 (4) to (6).
(bm) Examination by Written
Questions. Testimony shall be taken in the manner provided by
s. 804.06(2).
Section 10. Sections 887.26 (6) (b), (c) and (d) of the
statutes are repealed.
Section 11. Section 887.26 (6) (cm) (title) of the
statutes is created to read:
887.26 (6) (cm) (title) Certification and Service by
Officer; Exhibits; Copies; Notice
of Service.
Section 12. Section 887.26 (7) of the statutes is amended
to read:
887.26 (7) Fees. The persons who take
or transcribe the depositions and the witness
shall be entitled to the fees allowed supplemental
court commissioners
reporters under s.
814.68
814.69 (1) and witnesses for similar service by the law of this
state, or
such
as may be prescribed by the law of the state or country where taken.
Section 13. Section 887.26 (8) of the statutes is amended
to read:
887.26 (8) Translations. When the witness is unable to
speak the English language,
the judge of the court from which the commission issues may appoint some
competent
and disinterested person to translate the commission, rules,
interrogatories and
cross-interrogatories, or such
, at the expense of the noticing person, the subpoena, rules,
and deposition questions and answers, or any part thereof as may be
necessary, from
the
English into the language
spoken
used by the witness
or vice versa; and such translation shall be
sent to the commissioner in place of the original papers that have been
translated. Upon the
return of the commission and deposition, such judge shall in like manner
cause the answers of
the witness and the exhibits to be translated into English, as well as
all other proceedings in
a foreign language, and such translation to be filed
the translation shall be transcribed
and maintained as part of the deposition
transcript. The translator shall append to all translations the
translator's affidavit that the translator knows
the
English and such
foreign
the language of the
witness, and that in making such translation the translator
carefully
and truly translated such
the proceedings from the
English into such foreign
the witness's language or from the witness's language into
English, and that
such
the translation is correct.
Such
A translation under this
paragraph shall have the same effect as if all
the proceedings were in English, but the trial
circuit court, upon the deposition being offered
in evidence, may admit the testimony of witnesses learned in
such foreign
the language
of the deposed witness for the purpose of correcting errors
therein; and, if it shall appear that
the first translation was in any respect so incorrect as to mislead the
witness, the court may,
in its discretion, continue the cause for the further taking of
testimony.
IT IS FURTHER ORDERED that notice of these amendments 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 29th day of April, 2008.
By the court:
David R. Schanker,
Clerk of Supreme Court
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Electronic Signatures by Court Officials
In the matter of the Creation of a Court Rule Authorizing Use of
Electronic Signatures by Court Officials
Order 06-07
On Dec. 6, 2006, A. John Voelker, Director of State Courts, filed a
petition seeking to create a supreme court rule authorizing the use of
electronic signatures by court officials. A public hearing on the
petition was
conducted on April 8, 2008.
At the ensuing administrative conference, the court voted
unanimously
to adopt the petition, as modified. Therefore,
IT IS ORDERED that, effective the date of this
order, 70.42 of the Supreme Court Rules is created to
read:
SCR 70.42 Electronic Signatures. (1) Definitions. In this
rule:
(a) "Court official" means a circuit
court judge, clerk of circuit
court, register in probate, juvenile clerk, court commissioner appointed
under
section 757.68 and SCR 75.02 (1), justice of the supreme court, judge of
the court
of appeals, and the clerk of the supreme and appellate courts.
(b) "Electronic signature" means an
electronic sound, symbol, or
process attached to or logically associated with a document and executed
or adopted
by a person with the intent to sign the document.
(2) Secure electronic signatures may be provided by the
consolidated
court automation program for use by court officials who sign electronic
documents. The electronic signature shall be treated as the court
official's
personal original signature for all purposes under Wisconsin statutes
and court
rules. An electronic signature may be used on all court documents,
including
those documents described in section 137.12 (2m) of the statutes. The
official's printed name shall be inserted in place of a handwritten
signature.
(3) A court official may delegate the use of his or her
electronic
signature to an authorized designee, using the security procedures of
the
consolidated court automation program. A court official is responsible
for any use of his
or her electronic signature by an authorized designee. Court officials
shall safeguard the security of their electronic signatures and exercise
care
in delegating the electronic signature.
(4) An electronic signature shall be used only by the
official to whom it
is assigned and by such designees as the official may authorize. Upon
learning that the confidentiality of the electronic signature has been
inadvertently
or improperly disclosed, the court official shall immediately report
that fact
to the consolidated court automation program.
(5) Court officials may use their electronic signatures
for
administrative purposes. If the signature of a court official is
required on a document,
an electronic signature satisfies that requirement. Electronically
signed documents may be stored electronically for the proper retention
period.
(6) Electronic signatures may be provided to the director
of state courts
and such employees as the director may designate for administrative
purposes.
At the discretion of the director, an employee may be provided with his
or her
own electronic signature if appropriate for the conduct of official
business.
The electronic signature shall be treated as the person's original
signature.
(7) The chief justice, chief judges, and director of
state courts may
use their electronic signatures for the assignment of judges pursuant to
SCR
70.23 and 70.24. A district court administrator may be the designee of
the
chief judges for purposes of judicial assignment.
IT IS ORDERED that notice of the creation of Supreme Court Rule
SCR 70.42
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 May, 2008.
By the court:
David R. Schanker
Clerk of Supreme Court
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Electronic Filing in Circuit Courts
In the matter of the Creation of a Court Rule Governing Electronic
Filing in the Circuit Courts
Order 06-08
On Dec. 6, 2006, A. John Voelker, Director of State Courts, filed a
petition asking this court to create a new rule implementing electronic
filing in
the Wisconsin circuit courts. On Dec. 21, 2007, the petitioner filed an
amended petition which reflects programming changes necessitated by
budget considerations. A public hearing on the amended petition was
conducted on
April 8, 2008.
At the ensuing administrative conference, the court voted to
adopt
the petition unanimously, as modified, with the exception of sub. (9)
(c).
Justice Butler dissented from the adoption of that portion of the rule
which
permits the immediate destruction of paper copies of filed documents
after scanning
by the circuit court clerk, sub. (9) (c). Finally, the court ruled that
the effective date of this rule shall be July 1, 2008.
Therefore,
IT IS ORDERED that effective July 1, 2008:
SECTION 1. 801.17 of the statutes is created to read:
801.17 Electronic filing.
(1)
Definitions. In this section:
(a) "Clerk of court" means the official circuit court
recordkeeper for
the case in question, which may be the clerk of circuit court, juvenile
clerk,
or register in probate for that county.
(b) "Document" means a pleading, form, notice, motion,
order,
affidavit, paper exhibit, brief, judgment, writ of execution, or other
filing.
For purposes of this rule, a document includes the transmittal page
submitted
with the filing.
(c)
1. "Electronic filing system" means a web-based system
established by
the director of state courts for the purpose of filing documents
with a
circuit court, automatically integrating them into the consolidated
court
automation program case management system, and electronically
serving them on the parties.
2. "Electronic filing" does not include submission by
electronic
mail, facsimile, floppy disks, or other electronic methods.
(d) "Electronic filing system administrator" means an
individual appointed
by the director of state courts to receive information and take action
as necessary to run the electronic filing system.
(e) "Electronic signature" means an electronic sound,
symbol, or
process attached to or logically associated with a document, that can be
executed
or adopted by the user with the intent to sign the document.
(f) "Initiating document" means a summons and
complaint,
petition, application, citation, criminal complaint, or any other
document filed
to commence a court action.
(g) "Traditional methods" means those methods of
filing and
serving documents, other than electronic filing, provided under statutes
and
local rules.
(h) "Transmittal page" means a page generated by the
electronic filing
system containing the case management information necessary to transmit
and file
a document.
(i) "User" means an individual who has registered to
use the
electronic filing system under section (3).
(2) Scope.
(a) The director of state courts shall implement an
electronic filing system for the Wisconsin circuit courts.
(b) Use of the electronic filing system is voluntary. Parties or
their attorneys may choose to participate in the electronic filing
system on a
case-by-case basis. Parties or attorneys who choose not to participate
shall
file, serve, and receive paper documents by traditional methods.
(c) Any action that may be brought in circuit court may be
brought
using electronic filing, subject to the ability of the electronic filing
system
to accept the documents. This section does not guarantee anyone the
right to
file electronically.
(d) The procedures in this section shall be interpreted in a
manner consistent with existing procedural rules.
(3) Registration requirements.
(a) The following individuals may register
for access to the electronic filing system:
1. Licensed Wisconsin attorneys.
2. Attorneys appearing under SCR 10.03 (4).
3. Parties to an action who are not represented by an
attorney.
4. Full-time employees authorized under s. 799.06 (2).
(b) Users of the electronic filing system shall be individuals,
not
law firms, agencies, corporations, or other groups.
(c) Users shall register through the electronic filing system
website
by executing a user agreement governing the terms of use of the
electronic
filing system. To register, users must have the capability to produce,
file,
and receive electronic documents meeting the technical requirements of
the electronic filing system. By registering, users agree to
electronically
file all documents to the extent the electronic filing system can accept
them.
(d) Upon completion of a properly executed user agreement, the
electronic filing system shall assign to the user a confidential, secure
access code.
The access code shall be used only by the user to whom it is assigned
and by
any agents or employees that the user authorizes. Upon learning that
the confidentiality of the access code has been inadvertently or
improperly disclosed, the user shall immediately report that fact
through the
electronic filing system.
(e) Users shall notify the electronic filing system within 10
days of
any change in the information provided for registration. Attorneys shall
notify
the electronic filing system within 10 days of beginning representation
of
a formerly self-represented user.
(f) Nonresident attorneys may register following court approval
of a
motion to appear pro hac vice under SCR 10.03 (4).
(g) The same access code shall be used for all cases on which
the user is
an attorney or a party. The user's access code shall expire 6 months
from the
last activity on any case for which the user is registered. The
electronic
filing system may reset access codes and electronic signatures as needed
for administrative and security purposes.
(h) Users who wish to stop using the electronic filing system in
a
particular case must notify the director of state courts through the
electronic
filing system. The electronic filing system shall generate a notice to
all
parties that traditional methods must be used for this party for future
filings
and service.
(i) The electronic filing system may provide a method for filing
documents
by individuals who are not parties to the case, such as witnesses
seeking protective orders, intervenors, and amicus curiae. It may also
provide a
method for submitting reports by individuals who are not parties to the
case, such
as presentence investigators and social workers.
(4) Time and effect of electronic
filing.
(a) The electronic filing system is an agent of the circuit court for
purposes of electronic filing,
receipt, service, and retrieval of electronic documents.
(b) When a document is submitted by a user to the electronic
filing
system, the electronic filing system shall transmit it to the
appropriate clerk
of court in the county where the case is filed. The electronic filing
system
shall issue a confirmation that submission to the electronic filing
system
is complete.
(c) The clerk of court may review the document to determine if
the
document should be accepted for filing. If the clerk accepts the
document, the
document shall be considered filed with the court at the time the
original submission
to the electronic filing system was complete. Upon acceptance, the
electronic filing system shall issue a confirmation with the date and
time of the
original submission to serve as proof of filing. If the clerk rejects
the document,
the document shall not become part of the court record and the filer
shall
receive notification of the rejection. The filer may be required to
refile
the document.
(d) The date the document is considered filed shall be
determined by
the regular designated business hours of the clerk of court. Any
document
submitted to the electronic filing system before the close of regular
business
hours shall be considered filed on that date, so long as it is
subsequently
accepted by the clerk upon review. A document submitted after the close
of
regular business hours shall be considered filed the next business day.
The
electronic filing system shall note the date and time the document is
submitted.
(e) Whenever a party has the right or duty to do some act within
a
prescribed period after the service of a document on the party, one day
shall be added
to the prescribed period if the document is served through the
electronic
filing system between 5 p.m. and 12 midnight.
(f) The calculation of time for reply under other statutes and
rules
is neither expanded nor contracted by this section.
(g) The electronic filing system shall receive electronic
filings 24
hours per day except when undergoing maintenance or repair.
(5) Commencement of action.
(a) If the clerk of court accepts an
initiating document for filing, the clerk of court shall assign a case
number
and authenticate the document as provided in sub. (10). The electronic
filing system shall send a notice to the filer that the filing has
been accepted
and is available through the electronic filing system website.
(b) Initiating documents shall be served by traditional methods
unless
the responding party has consented in writing to accept electronic
service
or service by some other method. Initiating documents shall be served
together with a notice to the responding party stating that the case has
been electronically filed and giving instructions for how to use the
electronic filing system if the responding party chooses to do so.
(c) A responding party or attorney for a responding party may
register to
use the electronic filing system as provided by this section. After
registering
to use the electronic filing system, the responding party or attorney
shall
also register as a user on the particular case. A notice indicating the
new
user will be sent to the other users on the case.
(6) Filing and service of subsequent
documents.
(a) Filing of documents other than initiating documents through the
electronic filing system shall cause
a notice of activity to be sent to the electronic mail account of the
other
users who are parties to the action. Users shall access filed
documents through
the electronic filing system.
(b) For documents that do not require personal service, the
notice
of activity is valid and effective service on the other users and shall
have
the same effect as traditional service of a paper document, except as
provided
in sub. (d).
(c) Documents requiring personal service shall be served by
traditional methods unless the responding party has consented in writing
to
accept electronic service or service by some other method.
(d) If a notice of activity sent to a user's electronic mail
account
is rejected or returned undeliverable, the electronic filing system
shall automatically notify the filing party. The filing party shall then
serve
the document on that user by traditional methods. The user whose
electronic
mail account rejected the notice shall be treated as a nonregistered
party until
the party corrects the problem and reregisters with the electronic
filing system.
(e) Unrepresented parties or attorneys who are not users shall
be served
by traditional methods. The clerk shall maintain a list indicating
which unrepresented parties or attorneys are to be served electronically
and
which are to be served by traditional methods.
(f) An unrepresented party or attorney may submit a request to
the clerk
of court to begin electronic filing of documents after commencement of
the
case. The decision to allow electronic filing of documents after the
case has
been commenced is in the sole discretion of the clerk of court. If the
request
is granted, the requester shall register under this section and shall
send
a notice to the other parties by traditional methods stating that the
case
has been electronically filed and shall include instructions for how to
use
the electronic filing system if the other parties choose to do so.
(g) Subpoenas may be electronically generated consistent with s.
805.07
and ch. 885, and shall bear the electronic signature of the issuing
attorney
or court official. Subpoenas shall be served by traditional methods
unless
the responding party has consented in writing to accept electronic
service
or service by some other method.
(h) The electronic filing system shall not be used for the
electronic exchange of discovery materials and other communications
between the
parties that are not intended to be filed with the court. Discovery
materials that
are not filed with the court through the electronic filing system may be
exchanged electronically between the parties by mutual consent,
consistent with
s. 804.01.
(7) Payment of fees.
(a) Users shall make any payment due to the clerk
of court through the electronic filing system unless otherwise ordered
by
the court or unless special arrangements are made with the clerk of
court. Documents that require payment of a fee are not considered
filed until the
fee is paid or a waiver of the fee is granted. The electronic filing
system
shall establish one or more methods for electronic payment.
(b) Users may submit a request for waiver of fees under s.
814.29 (1),
using a form provided by the electronic filing system for that purpose.
(c) The electronic filing system shall deposit the fees due to
the clerk
of court in the clerk's account.
(d) Users may be charged a convenience fee for use of the
electronic
filing system, as provided by s. 758.19 (4m).
(8) Format and content of
documents.
(a) To the extent practicable, the user shall format all
electronically filed documents in accordance with statutes
and local rules governing formatting of paper documents, including
page limits.
(b) Users shall provide any case management information needed
to
transmit and file the document. The electronic filing system shall
reject the
document for failure to include information in any one of the mandatory
fields identified by the system.
(c) The electronic filing system may set limits on the length or
number
of exhibits. Exhibits rejected by the system for this reason shall be
filed
and served by traditional methods. Leave of court may be granted for
traditional filing and service in appropriate cases.
(d) Users shall maintain the original of each electronically
filed
document in electronic form until final disposition of the case and
expiration of
all time for appeal.
(9) Official record.
(a) Electronically filed documents have the same
force and effect as documents filed by traditional methods.
(b) For documents that have been electronically filed, the
electronic
version constitutes the official record. No paper copy of an
electronically
filed document shall be sent to the court.
(c) The clerk of court may maintain the official court record in
electronic format or in a combination of electronic and nonelectronic
formats.
Documents filed by traditional methods shall be electronically scanned
and made part
of the official record. The clerk of court may discard the paper copy
immediately, notwithstanding SCR 72.03 (3). If a document submitted by
traditional
methods is not of sufficient graphical quality to be legible when
electronically scanned into the electronic filing system, the clerk
shall maintain
the document in paper format.
(d) Any official court record containing electronically filed
documents
must meet the operational standards set by SCR 72.05 for electronic
records.
(e) The clerk of court shall make the public portions of the
electronic record available through a public access terminal located in
the
clerk's office. The clerk of court shall charge for copies of pages from
the
electronic record under ss. 814.61 (10) and 814.66 (1) (h).
(f) Certified copies of an electronic record shall be obtainable
from
the clerk of court's office by traditional methods, as provided by s.
889.08.
(g) If a document is filed by traditional methods, the
submitting party
shall file a copy of that document and not the original paper document.
The court
may require the submitting party to produce the original paper document
if
validity of the signature or document is challenged.
(10) Authentication. Electronic placement of the clerk's
filing stamp
and case number on each copy of an initiating document constitutes
authentication under the statutes and court rules. An authenticated copy
may be printed
from the consolidated court automation program case management system by
the
clerk of court or from the electronic filing system by the filing party.
(11) Notarization and oaths.
(a) If a document is required to be
notarized, acknowledged, verified, or made under oath, the requirement
is satisfied if
the electronic signature of the person authorized to administer the
oath or to
make the notarization, acknowledgment, or verification, together with
all
other information required to be included by other applicable law, is
attached to
or logically associated with the document. A physical or electronic
image of
a stamp, impression, or seal need not accompany the electronic
signature.
The electronic signature and notary seal may be applied to the
document's transmittal page. (b) Notaries public who hold valid
appointments under ch.
137 may register with the electronic filing system for authorization
to
notarize electronically filed documents. To register, notaries must be
able to meet
the technical requirements of the electronic filing system. Upon
receipt of
a properly executed notary agreement, the electronic filing system
shall
assign to the notary a confidential electronic signature and seal. The
notary signature and seal shall be used only by the notary to whom it
is
assigned. Upon learning that the confidentiality of the signature and
seal have
been inadvertently or improperly disclosed, the notary shall
immediately report
that fact through the electronic filing system website.
(c) Documents notarized by traditional methods may be filed
through
the electronic filing system if a handwritten signature and physical
seal appear
on the original document. The user shall submit a scanned copy of the
notarized document to the electronic filing system, and the court shall
maintain
the scanned document as the official court record. The court may require
the submitting party to produce the original paper document if validity
of
the notarization is challenged.
(d) Other officers authorized by law to perform notarial acts
may do so
by application of their electronic signatures if those signatures are
already provided through the electronic filing system.
(e) The electronic signature and seal provided for notaries
public by
the electronic filing system satisfy the self-authentication provisions
of
s. 909.02.
(12) Signatures of users.
(a) Users shall be provided with an
electronic signature that can be executed by the user with the intent
to sign a
document. The electronic signature shall be treated as the user's
personal
original signature for all purposes under the statutes and court
rules. Each
document electronically signed shall bear that person's name, mailing
address,
telephone number, and state bar number if applicable. If a statute
requires a
signature at a particular location on a form, the user shall insert
the user's
printed name and an indication that the document has been
electronically signed.
The electronic signature may be applied to the document's transmittal
page.
(b) A summons and complaint, petition, or other initiating
document that
is electronically signed in compliance with this section bears a
sufficient signature under s. 802.05.
(c) An electronic signature shall be used only by the user to
whom it
is assigned. Upon learning that the confidentiality of the electronic
signature has been inadvertently or improperly disclosed, the user shall
immediately report that fact through the electronic filing system.
(d) Attorneys are responsible for electronically filed documents
to the
same extent as for paper filings. Attorneys using the electronic filing
system
are subject to sanctions under s. 802.05 and contempt procedures under
ch. 785,
and are subject to discipline for any violation of a duty to the court
under
the supreme court rules.
(e) Self-represented parties are responsible for electronically
filed documents to the same extent as for paper filings.
Self-represented
parties using the electronic filing system are subject to sanctions
under s. 802.05
and contempt procedures under ch. 785.
(f) Documents containing signatures of third parties, such as
affidavits,
may be filed through the electronic filing system if a handwritten
signature appears on the original document. The user shall submit a
scanned copy of
the signed document to the electronic filing system, and the court shall
maintain the scanned signature as the official court record. The court
may require
the submitting party to produce the original paper document if validity
of
the signature is challenged.
(g) If a document bearing a signature is filed by traditional
methods,
the filing party shall file a copy of that document and not the original
paper document, as provided by sub. (9).
(13) Signatures of court officials.
(a) If the signature of a court
official is required on a document, an electronic signature may be
used. The
electronic signature shall be treated as the court official's personal
original
signature for all purposes under Wisconsin statutes and court rules.
Where
a nonelectronic signature would be located on a particular order,
form,
letter, or other document, the official's printed name shall be
inserted.
(b) The electronic signature of a court official shall be used
only by
the official to whom it is assigned and by such designees as the
official
may authorize. The court official is responsible for any use of his or
her electronic signature by an authorized designee.
(c) A court official may delegate the use of his or her
electronic
signature to an authorized designee pursuant to the security procedures
of
the consolidated court automation program case management system. Upon
learning that the confidentiality of the electronic signature has been
inadvertently
or improperly disclosed, the court official shall immediately report
that fact
to the consolidated court automation program. Court officials shall
safeguard
the security of their electronic signatures and exercise care in
delegating
the electronic signature.
(14) Confidential information.
(a) The confidentiality of an
electronic record, or an electronic or paper copy thereof, is the same
as for
the equivalent paper record. The electronic filing system may permit
access
to confidential information only to the extent provided by law. No
person
in possession of a confidential electronic record, or an electronic or
paper
copy thereof, may release the information to any other person except
as provided
by law.
(b) If a document is confidential, it shall be identified as
confidential
by the submitting party when it is filed. The electronic filing system
may
require users to enter certain information, such as social security
numbers,
in confidential fields. The clerk of court is not required to review
documents
to determine if confidential information is contained within them.
(c) If a user seeks court approval to make a document
confidential, the
user may electronically file the document under temporary seal pending
court approval of the user's motion to seal.
(d) The electronic filing system shall place a visible mark on
documents identified as confidential.
(15) Technical failures.
(a) A user whose filing is made untimely as a
result of a technical failure may seek appropriate relief from the
court as follows:
1. If the failure is caused by the court electronic filing
system, the
court shall grant appropriate relief upon satisfactory proof of the
cause.
2. If the failure is not caused by the court electronic filing
system,
the court may grant appropriate relief upon satisfactory proof of the
cause. Parties are responsible for timely filing of electronic documents
to the
same extent as filing of paper documents, with similar consequences for
missed deadlines.
(b) This subsection shall be liberally applied to avoid
prejudice to
any person using the electronic filing system in good faith.
SECTION 2. The following Comment to Wis. Stat.
§ 801.17 is not adopted
but will be published and may be consulted for guidance in interpreting
and applying the statute.
Comment, 2008
Sub. (4) is intended to be consistent with the rules for
facsimile transmissions under ss. 801.15 and 801.16.
Sub. (6) does not apply the general rule that most documents are
considered served when they are mailed. Although documents are
considered filed when
they are accepted by the clerk and posted to the electronic filing
website,
the parties are notified of the posting by a notice sent to an
electronic
mail account. Because electronic mail is not yet as reliable as the
United
States Post Office, this subsection requires the filing party to revert
to
traditional service if the electronic mail notice is returned as
undeliverable.
Sub. (6) (f) provides that the clerk of court may allow an
existing case
to be converted to electronic filing upon the request of a party, but
the clerk
is not required to do so.
Sub. (7) provides that most routine fees be paid electronically,
including filing, motion, and docketing fees, fines and forfeitures,
court costs,
and court-ordered attorney fees. Larger fees and deposits, such as
condemnation awards, may be paid by other methods if ordered by the
court or agreed to
by the clerk of court. Attorneys should consult the Rules of
Professional
Conduct, SCR 20:1.15 (e), with respect to the restrictions on electronic
transactions from trust accounts.
Sub. (9) requires parties filing documents by traditional
methods, such as
by hand delivery or by mail, to submit copies instead of original
documents,
to allow the clerk to eliminate the paper file. Discarding the paper
copy
is consistent with the rule governing facsimile copies, s. 801.16 (2)
(e),
which provides that the faxed copy is the official record, and the
original,
if received, should be discarded. The rule does not require the
submitting
party to retain original paper documents. If there is likely to be a
challenge to
the validity of a signature or exhibit, parties may be well-advised to
keep
the original paper document. For a high-volume law practice, the
economics may
not support keeping paper originals when the remainder of the file is
electronic, and parties may prefer to assume the risk of failure of
proof.
SCR 72.03 (3) provides that even when the clerk of court has
electronically stored a court file, the clerk may not destroy the paper
file until one
year after entry of a final order in the case. In contrast, the
electronic
filing rule anticipates that there may not even be a paper file for the
case, so
the clerk should be allowed to discard the paper copy as soon as it
is electronically scanned and the clerk has confirmed that the
electronic copy
is legible, complete, and properly saved to the file.
Sub. (10) provides that electronic authentication satisfies
the authentication requirements of Wisconsin Statutes, including ss.
801.02,
801.09 (4), and 909.02 (8). Statutory authentication requirements
must be met
upon filing of the summons and complaint in order to confer jurisdiction
on
the court. American Family Mut. Ins. Co. v. Royal Ins.
Co., 167 Wis. 2d 524, 534 (1992). The purpose of
authentication is to give assurance by the clerk
that copies served are true copies of filed documents and to provide the
case
number for future reference. J.M.S. v.
Benson, 91 Wis. 2d 526, 532 (Ct. App.
1979), rev'd on other grounds, 98 Wis. 2d 406 (1980).
The security and
verifiability provided by the electronic filing system satisfy the
purposes of
the authentication requirements under statutes and case law.
Sub. (11) is intended to satisfy the standards for electronic
notarization set by ss. 137.19 (the Uniform Electronic Transactions Act)
and 706.25
(2) (c) (the Uniform Real Property Electronic Recording Act). The
rule should
be interpreted flexibly to the extent that technical standards for
electronic notarization evolve.
The function of the notary is to witness the signature and to
administer
an oath when one is required. See ss. 706.07; 887.01; 887.03;
Kellner v. Christian, 197 Wis. 2d 183, 191 (1995).
Notarial acts as defined by s. 706.07 (1)
(c) include the ability to administer oaths, take acknowledgments
and verifications, and authenticate or certify documents. The intent of
this section is to allow notaries to perform traditional notarial
functions
using alternate technology, and to make them responsible for electronic
notarization to the same extent they are responsible for traditional
notarization.
These functions may be performed not only by notaries public but also by
a
judge, clerk or deputy clerk of a court of record, or a court
commissioner under
s. 706.07 (3). This section provides that the electronic signature
of one of
these officials may be applied to a certificate of notarial acts
certifying that
the function was performed.
This section does not require the submitting party to retain
original
paper documents or exhibits bearing the notary's seal and signature. If
there
is likely to be a challenge to the validity of the notarization, parties
may
be well-advised to keep the paper copies. The court may require a party
to
produce the original paper document if validity of the notarization is
challenged.
Sub. (12) adopts the definition of electronic signature
appearing in
ss. 137.11 (8) and 706.25 (1) (d). Consistent with s. 137.15
(4), it provides
that if a law requires a signature, an electronic signature applied
through
the electronic filing system satisfies that requirement.
The Wisconsin legislature has affirmed the trend toward
acceptance
of electronic signatures in government records and commercial
transactions. At
the request of the Wisconsin Director of State Courts, 2003 Wisconsin
Act 294
(the Uniform Electronic Transactions Act) exempted court filings from
coverage
in order to allow the court to develop its own technical and legal
standards.
This section now allows the electronic signing and filing of those
documents described in s. 137.12 (2m), as well as all other documents
filed with
the court.
Compliance with this section satisfies the signature
requirements of
ss. 801.09 (3), 802.05 (1), and 805.07 (4) (a), as well as all other
statutes
and rules relating to court documents. Appellate decisions have reasoned
that counsel's personal signature is necessary to confer jurisdiction on
the
court, to assure that the pleadings are well-grounded in law and fact,
and to
prevent the unauthorized practice of law. See Schaefer v.
Riegelman, 2002 WI 18, 250 Wis. 2d 494, 512-13;
Novak v. Phillips, 2001 WI App 156, 246 Wis. 2d 673,
680-81; Jadair, Inc. v. U.S. Fire Insurance
Co., 209 Wis. 2d 187, 211-12 (1997).
For users of the electronic filing system, the identification
procedures,
security, and personal accountability provided by these rules are deemed
to satisfy
the purposes of a handwritten signature and all other signature
requirements.
The intent of this section is to make attorneys and
self-represented
parties responsible for electronic filings to the same extent they are
responsible
for paper filings. For that reason, the rule does not include a
provision
allowing attorneys to reveal their electronic signatures to office staff
so the
staff can apply the signature; the attorney must review each
electronically
filed document and apply his or her electronic signature personally. The
courts
and the Office of Lawyer Regulation have a range of sanctions and
disciplinary measures that will serve as an adequate deterrent to any
misuse of
electronic signatures.
This section does not require the submitting party to retain
original
paper documents bearing handwritten signatures. If there is likely to be
a
challenge to the validity of the signature, the submitting party may be
well-advised
to keep the original document.
Sub. (13) provides electronic signatures for those court
officials
whose duties require them to sign documents in circuit court case files,
including circuit court judges, clerks of circuit court, registers in
probate,
juvenile clerks, and circuit court commissioners appointed under s.
757.68 and SCR
75.02 (1). Electronic signatures may also be provided for the chief
justice and
the director of state courts to use for assignment of judges pursuant to
SCR
70.23 and 70.24. A district court administrator may be the designee of a
chief
judge for purposes of judicial assignment.
Under this section, court officials may allow an authorized
staff member
to apply the official's electronic signature at the official's specific
direction. Appellate decisions have reasoned that counsel's personal
signature
is necessary to confer jurisdiction on the court, to assure that the
pleadings
are well-grounded in law and fact, and to prevent the unauthorized
practice of
law. No case has examined the signature requirements for court
officials, and
the reasoning behind previous decisions seems inapplicable. Each court
official remains responsible for reviewing, revising and approving the
document
before the electronic signature is applied, and should be held
accountable as if
the document were signed personally. The electronic signature shall be
applied
in accordance with the provisions of SCR 70.42.
Sub. (14) provides that the electronic filing system shall
protect those
case types made confidential by statutes. Within an open case type,
certain documents may be sealed by statute, such as presentence reports,
financial disclosure forms, psychological evaluations, and certain
health care
records. This section places the burden on the submitting party to
identify
those documents as confidential. Confidential information may also be
contained within an otherwise open document, such as a trade secret; the
burden is on
the filing party to move to seal those documents. As an added
protection,
the electronic filing system will mark confidential documents in a way
that will
be visible on the computer screen and when the documents are printed.
Sub. (15) addresses technical failures of the court's electronic
filing system or the user's electronic systems. Technical failures may
include
an error in the transmission of the document to the electronic filing
system or
to a served party, a failure to process the document upon receipt by
the electronic filing system, or erroneous exclusion of a party from the
service list by the electronic filing system.
Correction of technical failures should generally be allowed in
order
to encourage the use of the electronic filing system. Correction should
be automatic where the user can demonstrate that the problem was caused
by
the court's electronic filing system. The electronic filing system will
generate
a report if needed for a user to document the problem. Where the failure
is caused by the user's electronic systems (such as electronic mail,
word processing, or a database program) or by external forces (such as
problems
with the user's Internet service provider or power outages), the court
has
the discretion to correct the problem. The court should consider what
consequences would follow a missed deadline for traditional filings,
caused by forces
such as malfunctioning equipment or traffic delays. The committee
considered limiting the court's discretion to correct technical errors
in the filing
of initiating documents, where untimely filing is a jurisdictional
issue,
but decided against creating a bright-line rule because of occasional
exceptions such as St. John's Home of Milwaukee v. Continental
Casualty
Co., 147 Wis. 2d 764, 788-89 (Ct. App. 1988) and
Granado v. Sentry Ins., 228 Wis. 2d 794, 799 (Ct. App.
1999).
IT IS ORDERED that notice of the creation of Wis. Stat.
§ (Rule) 801.17
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 May, 2008.
By the court:
David R. Schanker
Clerk of Supreme Court
¶1 LOUIS B. BUTLER, JR., J. (Concurring in part, dissenting
in
part.). I dissent from the adoption of sub. (9) (c) of this
rule on the grounds that
sub. (9) (c) permits the immediate destruction of paper copies of
filed
documents after scanning by the circuit court clerk, resulting in a
completely
paperless system, which is inconsistent with the prudent management of
Wisconsin's judicial records. I join in the adoption of the remainder of
the rule.
Top of Page
Videoconferencing in the Courts
In the matter of the petition to create a rule governing the use
of videoconferencing in the courts
Order 07-12
On Sept. 4, 2007, A. John Voelker, Director of State Courts,
petitioned
the court to create a rule governing the use of videoconferencing in
the
courts, pursuant to the court's rulemaking authority under
Wis. Stat. § 751.12.
A public hearing on the petition was conducted on Jan. 8, 2008.
At the ensuing administrative conference, the court voted to adopt
the petition, as modified. The court ruled that the effective date of
this
rule shall be July 1, 2008.
Therefore,
IT IS ORDERED that effective July 1, 2008:
Section 1. Subchapter III of chapter 885 of the statutes is
created to read:
SUBCHAPTER III
CHAPTER 885
USE OF VIDEOCONFERENCING IN THE CIRCUIT COURTS
885.50 Statement of intent.
(1) It is the intent of the Supreme
Court that videoconferencing technology be available for use in the
circuit courts
of Wisconsin to the greatest extent possible consistent with the
limitations
of the technology, the rights of litigants and other participants in
matters before the courts, and the need to preserve the fairness,
dignity,
solemnity, and decorum of court proceedings. Further, it is the intent
of the
Supreme Court that circuit court judges be vested with the discretion
to determine
the manner and extent of the use of videoconferencing technology,
except
as specifically set forth in this subchapter.
(2) In declaring this intent, the Supreme Court finds that
careful use
of this evolving technology can make proceedings in the circuit courts
more efficient and less expensive to the public and the participants
without compromising the fairness, dignity, solemnity, and decorum of
these proceedings. The Supreme Court further finds that an open-ended
approach to
the incorporation of this technology into the court system under the
supervision and control of judges, subject to the limitations and
guidance set forth
in this subchapter, will most rapidly realize the benefits of
videoconferencing for all concerned.
(3) In declaring this intent, the Supreme Court further finds
that
improper use of videoconferencing technology, or use in situations in
which
the technical and operational standards set forth in this subchapter
are not
met, can result in abridgement of fundamental rights of litigants,
crime
victims, and the public, unfair shifting of costs, and loss of the
fairness,
dignity, solemnity, and decorum of court proceedings that is essential
to the
proper administration of justice.
885.52 Definitions. In this subchapter:
(1) "Circuit court" includes proceedings before
circuit court judges
and commissioners, and all references to circuit court judges include
circuit
court commissioners.
(2) "Participants" includes litigants, counsel,
witnesses while on the
stand, judges, and essential court staff, but excludes other
interested persons
and the public at large.
(3) "Videoconferencing" means an interactive
technology that sends
video, voice, and data signals over a transmission circuit so that two
or
more individuals or groups can communicate with each other
simultaneously
using video monitors.
885.54 Technical and operational
standards.
(1) Videoconferencing technology used in circuit court
proceedings shall meet the following
technical and operational standards:
(a) Participants shall be able to see, hear, and communicate with
each other.
(b) Participants shall be able to see, hear, and otherwise observe
any physical evidence or exhibits presented during the proceeding.
(c) Video and sound quality shall be adequate to allow participants
to observe the demeanor and non-verbal communications of other
participants and
to clearly hear what is taking place in the courtroom to the same
extent as
if they were present in the courtroom.
(d) Parties and counsel at remote locations shall be able, upon
request,
to have the courtroom cameras scan the courtroom so that remote
participants
may observe other persons present and activities taking place in the
courtroom during the proceedings.
(e) In matters set out in sub. (g), counsel for a defendant or
respondent shall have the option to be physically present with the
client at the
remote location, and the facilities at the remote location shall be
able
to accommodate counsel's participation in the proceeding from such
location. Parties and counsel at remote locations shall be able to
mute the
microphone system at that location so that there can be private,
confidential communication between them.
(f) If applicable, there shall be a means by which documents can
be transmitted between the courtroom and the remote location.
(g) In criminal matters, and in proceedings under chs. 48, 51, 55,
938,
and 980, if not in each other's physical presence, a separate private
voice communication facility shall be available so that the defendant
or
respondent and his or her attorney are able to communicate privately
during the
entire proceeding.
(h) The proceeding at the location from which the judge is presiding
shall
be visible and audible to the jury and the public, including crime
victims, to
the same extent as the proceeding would be if not conducted by
videoconferencing.
(2) The moving party, including the circuit court, shall
certify that
the technical and operational standards at the court and the remote
location are
in compliance with the requirements of sub. (1).
885.56 Criteria for exercise of court's
discretion.
(1) In determining in a particular case whether to permit the
use of videoconferencing
technology and the manner of proceeding with videoconferencing, the
circuit court
may consider one or more of the following criteria:
(a) Whether any undue surprise or prejudice would result.
(b) Whether the proponent of the use of videoconferencing technology
has
been unable, after a diligent effort, to procure the physical presence
of a witness.
(c) The convenience of the parties and the proposed witness, and the
cost
of producing the witness in person in relation to the importance of
the
offered testimony.
(d) Whether the procedure would allow for full and effective
cross-examination, especially when the cross-examination would involve
documents
or other exhibits.
(e) The importance of the witness being personally present in the
courtroom where the dignity, solemnity, and decorum of the
surroundings will impress
upon the witness the duty to testify truthfully.
(f) Whether a physical liberty or other fundamental interest is at
stake
in the proceeding.
(g) Whether the court is satisfied that it can sufficiently know and
control the proceedings at the remote location so as to effectively
extend
the courtroom to the remote location.
(h) Whether the participation of an individual from a remote
location presents the person at the remote location in a diminished or
distorted
sense such that it negatively reflects upon the individual at the
remote location
to persons present in the courtroom.
(i) Whether the use of videoconferencing diminishes or detracts from
the dignity, solemnity, and formality of the proceeding so as to
undermine
the integrity, fairness, and effectiveness of the proceeding.
(j) Whether the person proposed to appear by videoconferencing
presents
a significant security risk to transport and present personally in the
courtroom.
(k) Waivers and stipulations of the parties offered pursuant to s.
885.62.
(L) Any other factors that the court may in each individual case
determine
to be relevant.
(2) The denial of the use of videoconferencing technology is
not appealable.
885.58 Use in civil cases and special
proceedings.
(1) Subject to the standards and criteria set forth in ss.
885.54 and 885.56 and to
the limitations of sub. (2), a circuit court may, on its own motion or
at
the request of any party, in any civil case or special proceeding
permit the use
of videoconferencing technology in any pre-trial, trial, or post-trial
hearing.
(2) (a) A proponent of a witness via videoconferencing
technology at
any evidentiary hearing or trial shall file a notice of intention to
present testimony by videoconference technology 30 days prior to the
scheduled start
of the proceeding. Any other party may file an objection to the
testimony of
a witness by videoconferencing technology within 10 days of the filing
of
the notice of intention. If the time limits of the proceeding do not
permit
the time periods provided for in this paragraph, the court may in its
discretion shorten the time to file notice of intention and objection.
(b) The court shall determine the objection in the exercise of its
discretion under the criteria set forth in s. 885.56.
885.60 Use in criminal cases and proceedings under chapters 48,
51, 55, 938, and 980.
(1) Subject to the standards and criteria set forth in
ss. 885.54 and 885.56 and to the limitations of sub. (2), a circuit
court may,
on its own motion or at the request of any party, in any criminal case
or
matter under chs. 48, 51, 55, 938, or 980, permit the use of
videoconferencing technology in any pre-trial, trial or fact-finding,
or post-trial proceeding.
(2) (a) Except as may otherwise be provided by law, a
defendant in a
criminal case and a respondent in a matter listed in sub. (1) is
entitled to
be physically present in the courtroom at all critical stages of the
proceedings, including evidentiary hearings, trials or fact-finding
hearings, plea
hearings at which a plea of guilty or no contest, or an admission,
will be offered,
and sentencing or dispositional hearings.
(b) A proponent of a witness via videoconferencing technology at
any evidentiary hearing, trial, or fact-finding hearing shall file a
notice
of intention to present testimony by videoconference technology 20
days prior
to the scheduled start of the proceeding. Any other party may file an
objection
to the testimony of a witness by videoconference technology within 10
days of
the filing of the notice of intention. If the time limits of the
proceeding do
not permit the time periods provided for in this paragraph, the court
may in
its discretion shorten the time to file notice of intention and
objection.
(c) If an objection is made by the plaintiff or petitioner in a
matter
listed in sub. (1), the court shall determine the objection in the
exercise of
its discretion under the criteria set forth in s. 885.56.
(d) If an objection is made by the defendant or respondent in a
matter
listed in sub. (1), the court shall sustain the objection.
885.62 Waivers and stipulations. Parties to circuit court
proceedings
may waive the technical and operational standards provided in this
subchapter,
or may stipulate to any different or modified procedure, as may be
approved by
the court.
885.64 Applicability.
(1) The provisions of this subchapter shall
govern the procedure, practice, and use of videoconferencing in the
circuit courts
of this state.
(2) All circuit court proceedings, with the exception of
proceedings
pursuant to s. 972.11 (2m), that are conducted by videoconference,
interactive video
and audio transmission, audiovisual means, live audiovisual means,
closed-circuit audiovisual, or other interactive electronic
communication with a
video component, shall be conducted in accordance with the provisions
of
this subchapter.
(3) The use of non-video telephone communications otherwise
permitted
by specific statutes and rules shall not be affected by this
subchapter, and
shall remain available as provided in those specific statutes and
rules.
Section 2. The following Comment to subchapter III of chapter
885 of
the statutes is not adopted but will be published and may be consulted
for
guidance in interpreting and applying the statute.
Comment, 2008
Section 885.50 of the subchapter is intended to recognize and
summarize
the larger debate concerning the use of videoconferencing technology
in the
courts, and to provide a clear statement of the Supreme Court's intent
concerning
such use, which should be helpful guidance to litigants, counsel and
circuit
and appellate courts in interpreting and applying these rules.
This subchapter is not intended to give circuit court judges the
authority
to compel county boards to acquire, maintain or replace
videoconferencing equipment. Rather, it is intended to provide courts
with authority and
guidance in the use of whatever videoconferencing equipment might be
made available
to them.
Section 885.54 is intended to establish stringent technical and
operational standards for the use of videoconferencing technology over
objection, and
in considering approval by the circuit court of waivers or
stipulations under
s. 885.62. Mobile cart-based systems will not meet these standards in
many or
even most situations, but may still be used pursuant to a waiver or
stipulation approved by the court. The effect will be to encourage the
installation
of multiple camera systems, while still allowing the use of cart-based
systems when participants are in agreement to do so, which is likely
to be much of
the time.
Section 885.56 is intended to give the circuit court broad
discretion
to permit the use of videoconferencing technology when the technical
and
operation standards of s. 885.54 are met, while providing clear
guidance in the
exercise of that discretion. Under this section, the circuit court may
permit the use
of videoconferencing technology in almost any situation, even over
objection, except as provided under s. 885.60. On the other hand, the
court may deny
the use of videoconferencing technology in any circumstance,
regardless of
the guidelines. This is consistent with the intent of this legislation
to
vest circuit courts with broad discretion to advance the use of
videoconferencing technology in court proceedings under the standards
and guidelines set out,
but to reserve to courts the prerogative to deny its use without
explanation.
A circuit court's denial of the use of videoconferencing is not
appealable as
an interlocutory order, but to the extent the denial involves issues
related to
a party's ability to present its case and broader issues related to
the presentation of evidence, the denial can be appealed as part of
the appeal
of the final judgment.
Regarding section 885.58, civil cases and special proceedings in
general
pose few problems of constitutional dimension concerning the use
of videoconferencing technology and offer litigants the potential of
significant savings in trial expenses. For these reasons, this
technology will likely
gain rapid acceptance resulting in expanding use. Where objections are
raised,
the rule provides that the circuit court will resolve the issue
pursuant to
the standards and decisional guidance set out in ss. 885.54 and
885.56.
It is the intent of s. 885.60 to scrupulously protect the rights of
criminal defendants and respondents in matters which could result in
loss of liberty
or fundamental rights with respect to their children by preserving to
such litigants the right to be physically present in court at all
critical stages
of their proceedings. This section also protects such litigants'
rights
to adequate representation by counsel by eliminating the potential
problems
that might arise where counsel and litigants are either physically
separated,
or counsel are with litigants at remote locations and not present in
court.
"Critical stages of the proceedings" is not defined under
this section,
but incorporates existing law as well as new law as it is adopted or
decided.
This section is not intended to create new rights in litigants to be
physically present which they do not otherwise possess; it is intended
merely to
preserve such rights, and to avoid abrogating by virtue of the
adoption of
this subchapter any such rights.
This section is also intended to preserve constitutional and other
rights
to confront and effectively cross-examine witnesses. It provides the
right
to prevent the use of videoconferencing technology to present such
adverse witnesses, but rather require that such witnesses be
physically produced in
the courtroom. In requiring a defendant's objection to the use of
videoconferencing to be sustained, this section also preserves the
defendant's speedy
trial rights intact.
Objections by the State or petitioner to the use of
videoconferencing technology to present defense witnesses are resolved
by the court in the
same manner as provided in civil cases and special proceedings under
ss. 885.54
and 885.56.
The intent of s. 885.62 is to permit litigants to take advantage
of videoconferencing technology in any matter before the court
regardless
of whether the provisions of this subchapter would otherwise permit
such use,
as long as the parties are in agreement to do so and the circuit court
approves. This should help to encourage innovation and experimentation
in the use
of videoconferencing technology, and thereby promote the most rapid
realization
of its benefits, while preserving to the litigants and ultimately to
the
courts the ability to prevent abuses and loss of the fairness,
dignity, solemnity
and decorum of court proceedings.
The intent of s. 885.64 is to make it clear that all
electronic communications with a video component are to be conducted
under the
provisions of this subchapter, regardless of the various names and
terms by which
such means of communication are referenced in other statutes and
rules, and also
to make clear that the provisions of this subchapter are to take
precedence
over other statutes and rules which address the use of such means of
communication. Finally, sub. (3) is intended to make clear that
existing authority for the
use of non-video telephone communications in court proceedings remains
unaffected by the new provisions of this subchapter concerning
videoconferencing.
IT IS ORDERED that notice of the creation of subchapter III of
chapter 885
of the statutes 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 May, 2008.
By the court:
David R. Schanker
Clerk of Supreme Court
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Correcting Typographical Errors in SCR
70.40(1)
In the matter of SCR 70.40
Order 08-12
The court having identified typographical errors in the printed
volume containing SCR
70.40 (1) and deciding on its own motion to correct these errors,
effective the date of this
order, Supreme Court Rule 70.40 (1) is amended to read:
70.40 (1) The clerk of circuit court shall use the
"IP" (incarcerated person) case
type designation to identify pleadings and papers submitted by any
prison
prisoner, as defined
in s. 801.02 (7) (1)
(a) 2., stats., seeking to commence, prosecute or defend an
action
or proceeding under s. 814.29 (1m), stats., without the prepayment of
costs and fees.
IT IS FURTHER ORDERED that notice of this amendment of Supreme
Court Rule 70.40 (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 29th day of April, 2008.
By the court:
David R. Schanker
Clerk of Supreme Court
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Board of Bar Examiners Public Hearing
NOTICE: The Board of Bar Examiners will hold a public hearing
from 9 to 10 a.m. on Aug.
1, 2008, at the State Bar Center, 5302 Eastpark Boulevard, Madison, WI
53718, and will
there receive oral comment on the following proposed amendments to its
appendices to Chapters 31
and 40 of the Supreme Court Rules. Written comments on these proposed
amendments will
be considered if they are received at the offices of the Board of Bar
Examiners, P.O. Box
2748, Madison, WI 53701-2748, at or before the time of the hearing.
APPENDIX TO CHAPTER 31
CLE 1.01 For the purpose of administering SCR Chapter
31,
t
The year of an attorney's admission to the State Bar of Wisconsin shall
be the year carried on the computer records
of the State Bar unless the lawyer notifies the Board in writing prior
to the end of his or
her first reporting period that the State Bar data is incorrect and
attaches
supporting documentation.
CLE 1.02 For the purpose of administering SCR
Chapter
31,
Except for repeated on-demand programs, the minimum number of persons
attending a course shall be two attendees and
one moderator. Fewer than that number, and the course shall be deemed to
be self-study and
shall not be approved for continuing legal education credit.
CLE 3.01 For the purpose of administering SCR
Chapter 31,
t
The classification of State Bar of Wisconsin membership on the February
1 immediately following the end of the
lawyer's reporting period will govern whether a report will be required.
The Board will grant
lawyers who change to inactive status after February 1 according to
State Bar records a deferment
of the 30 hours then due on receipt of a written request that is
accompanied by the
$50.00
late fee then due and the written statement of the State Bar that the
lawyer has in fact
already converted his or her membership to inactive status. A request
will be considered timely
if received at the Board office by the close of business on the date
that the lawyer's
suspension is to go into effect pursuant to SCR 31.10(1); that is, the
filing date established by
that rule.
CLE 3.015 (1) Lawyers who will have been in
inactive status for less than 2 years, or
have been voluntarily resigned from the State Bar for less than 2 years,
must complete 30 hours
of CLE (including 3 ethics hours) prior to resuming active status.
(2) Lawyers who will have been in inactive status for more
than 2 years, or have
been voluntarily resigned from the State Bar for more than 2 years, must
complete 60 hours of
CLE (including 3 ethics hours) prior to resuming active status.
(3) Lawyers who resume active status must satisfy the
requirements of SCR 31.02 for
the reporting period in which they are
reactivated.
CLE 3.02(1)
A
No late fee will be assessed
for
against lawyers who
report courses in satisfaction of one reporting period that were
actually attended in the next
reporting period
complete their reporting and attendance requirements by the February 1
following the
end of their reporting period.
(2) Lawyers who have been served with the notice of
noncompliance set out in SCR
31.10(1) may avoid the automatic suspension therein described if, within
60 days after service,
they (a) complete their reporting and attendance requirements and (b)
pay the late fee.
CLE 5.01 Sponsors must provide a method for lawyers who
have
taken on-line on-demand programs to submit questions, and must
provide answers supplied by instructors who
are qualified by practical or academic experience within five business
days, at no
additional cost.
CLE 5.02 Applications for approval
of on-line on-demand programs must be accompanied by
(a) A copy of the on-line on-demand program on DVD;
(b) Written materials that are
provided to lawyers who subscribe to the on-line
on-demand program; and
(c) A statement of the manner in which the sponsor intends
to comply with
CLE 5.01.
CLE 5.03 A sponsor whose application for approval of a
repeated on-demand program is
denied may appeal to the Board.
CLE 7.005 Except for repeated on-demand programs as
defined in SCR 31.01(6m) and
self-study courses as defined in CLE 1.02, courses approved for CLE
credit by any other state
or territory or the District of Columbia are deemed approved for the
same number of hours and
for the same purposes in Wisconsin. To take advantage of this section,
lawyers must document
the out-of-state approval in connection with filing their CLE Form 1.
CLE 7.01 The following
nonacademic
portions of the program may not be counted for
credit: breaks,
introductory remarks, keynote speeches
and
business meetings, and similar
non-academic activities
CLE 7.02 Credit hours shall be rounded down to the
nearest whole or half hour. Hours of credit shall be determined by the
following formula:
Total minutes minus nonacademic portions (breaks,
introductory remarks, keynote
speeches,
business meetings) divided by 50 minutes equal the hours of CLE credit.
For every half day of programming in excess of 120
minutes, a minimum of 15 minutes will
be deducted as a break allowance for the purpose of calculating
hours.
CLE 7.05
No continuing legal education activity that is offered in
conjunction with a
meal will be approved unless the meal portion is allocated no less than
30 minutes in duration
and the education portion occupies a separate period lasting at least 50
minutes.
Only under unusual circumstances will credit in excess
of 1.0 hour be extended to
a continuing legal education activity offered in conjunction with a
meal.
(Repealed)
CLE 8.03 Any sponsor holding general program approval
that fails to cooperate with
the administrative requirements developed by the
Director
Board may have its general
program approval revoked by the Board.
CLE 8.04 A CLE Form 2 shall be submitted to the Board to
initiate a request for
course approval. The Board will accept a uniform national course
approval request form at
the discretion of its Director
Board.
CLE 8.05 A CLE Form 5, or a CLE Form 2, shall be
submitted to initiate a request for
legal ethics and professional responsibility approval. The Board will
accept a uniform
national course approval request form at the discretion of its
Director
Board.
REINSTATEMENT AFTER SUSPENSION PURSUANT TO SCR 31.11
CLE 11.02 Petitions for reinstatement pursuant to SCR
31.11(1)(a) must be executed under
oath or affirmation.
CLE 11.03 The number of hours required of a lawyer
seeking reinstatement is 30 per
previous reporting period up to a maximum of
90
60; in addition, the lawyer will be required to meet
the requirement for the reporting period in which his or her
reinstatement
falls
.
CLE 12.01 The Board will consider extensions for
completion of attendance and
reporting requirements only upon written request.
CLE 13.01 Documents filed with the Board may be sent by
facsimile transmission,
provided that the filing requirement will not be satisfied unless
the Board receives by United
States Postal Service or third-party commercial carrier within ten
business days after the
facsimile transmission an exact paper copy bearing an original signature
together with any
applicable fee. If the paper copy is timely received, the date of the
facsimile transmission will
be deemed the date of filing. The Board will not accept
facsimile transmissions in satisfaction
of its filing requirements.
BOARD MEETINGS
CLE 14.01. As an agency of the Supreme Court, the Board
is not subject to Subchapter V
of Chapter 19 of the Wisconsin Statutes, relating to open meetings of
governmental
bodies. However, the Board posts the dates and locations of its meetings
on its Internet web site
and invites the public to attend its meetings. Members of the public are
not allowed to
attend meetings or parts of meetings that involve confidential matters.
Examples of
confidential matters include (i) individuals' applications for admission
to the Wisconsin bar,
(ii) hearings on admission applications and (iii) bar examination
questions.
APPENDIX TO CHAPTER 40
BA 4.02 Accommodations. Special testing accommodations
must be requested by a writing that
is filed no later than the first filing deadline
(
December 1 for the February examination and May
1 for the July examination)
. The Board may deny requests that are not in writing or that are
filed after the deadline.
BA 4.03 (b) Staff closure of a file is appealable
to the
full
Board.
BA 5.01 (b) Staff closure of a file is appealable
to the Board.
BA 6.02 Relevant Conduct or
Condition. The revelation or discovery of any of
the following should be treated as cause for further inquiry before the
Board decides whether
the applicant possesses the character and fitness to practice law:
(i) evidence of mental or emotional impairments substantial
enough to affect the
applicant's ability to practice law;
BA 6.04 Notice of an at-risk
application. If the Board determines that an
application is at risk of being denied, the Board shall notify the
applicant of its determination
in writing. The notice shall state the reasons for the possible denial,
describe the
applicant's right to seek a hearing, advise the applicant of the
deadline for requesting a hearing
and include a copy of the Board's hearing procedures. At the time of
mailing the notice of an
at-risk application, the Board shall provide the applicant with copies
of all materials that
were reviewed by the Board in making its decision. Thereafter, while the
application is
under review, the applicant may review all materials in the applicant's
file during the
Board's business hours, and may obtain copies thereof at a cost of no
more than twenty-five cents
per page.
The Board shall notify an applicant in writing that it
intends to deny his or her
application for admission. The notice shall state the reasons for the
intended denial and provide
an opportunity to request a hearing before the Board. At the time of
notice, the Board shall
provide the applicant with a copy of the complete packet of information
it used in arriving at
its decision.
BA 6.06 (b) Staff closure of a file is appealable to the
Board.
BA 10.01 The board may waive any of the
requirements of this Appendix in exceptional cases
and for good cause. An application and the filing fee appropriate to the
rule must accompany
the request for waiver. One-half of the filing fee will be refunded if
the waiver is denied.
The Board will consider requests for waiver only on
receipt of an application and
the applicable filing fee. On receipt of the written request for waiver,
the Director will make
a ruling and issue an appropriate refund of some or all of the filing
fee if the request
is denied. The applicant may make written request for review of the
Director's determination
as to waiver. At such time as the applicant requests Board review, the
filing fee will
become entirely nonrefundable. Board decisions on review will be
reported by letter to the applicant.
BA 14.01 Facsimile
Transmissions. Documents filed with the Board may be sent
by facsimile transmission, provided that the filing requirement
will not be satisfied unless
the Board receives by United States Postal Service or third-party
commercial carrier within
ten business days after the facsimile transmission an exact paper copy
bearing an
original signature together with any applicable fee. If the paper copy
is timely received, the date
of the facsimile transmission will be deemed the date of filing.
Applications and supporting documentation must be submitted in
original form. The Board will not accept
facsimile transmissions in satisfaction of its filing
requirements.
BA 14.02 An application for bar admission, or for a
character and fitness
certification pursuant to SCR 40.06(3m), will not be filed unless:
(a) It is submitted in typewritten form;
(a) It is accompanied by two properly
executed
signed and notarized authorization
and release forms; and
(b) It is accompanied by the applicable filing fees.
In the proper amount, and, if it is a bar examination
application, payment is by certified check or money order; and
(d) The applicant's signatures on the application and on
the authorization and release
forms are notarized.
BA 14.025. Handwritten applications will not be accepted.
BA 14.03 Continuing application. Applications are
continuing applications during
their pendency. Applicants are required to notify the Board in writing
of any changes with
respect to the information elicited by the application, and each
application must be amended
to accurately
reflect the facts throughout the entire time that the application is
processed
pending, including the date on which the applicant is admitted to
practice in Wisconsin.
BA 14.04 Absolute application
deadline. (a) Applicants for bar admission on the
diploma privilege shall file an application for a character and fitness
certification with the
Board between the time the student has completed a minimum of 50 credit
hours and
30 days
a predetermined date after the J.D. is conferred (February 1 for
December graduates; July 1
for May graduates; October 1 for August graduates).
Payment of a late fee will be assessed to spring graduates who
have not filed by December 15, summer graduates who have not filed
by March 15, and fall/winter graduates who have not filed by July
15.
(b) Notwithstanding (a) above, applicants otherwise eligible for
admission on the
diploma privilege may apply by December 31 of the year following their
graduation from law school
if by that date they document that they have passed a bar examination,
and have been admitted to practice, in another US state, territory,
or the District of
Columbia.
BA 14.05 Late fees: diploma privilege.
A late fee will be assessed to the following applicants for bar
admission on the diploma privilege: May graduates who have not filed
an application by the preceding December 15; August graduates who have
not filed an
application by the preceding March 15; and December graduates who have
not filed an application by
the preceding July 15. An application for a character and
fitness certification must be filed
with the Board at least three months prior to a scheduled law school
swearing-in ceremony in
order for a diploma privilege applicant to be certified for
participation in the large
group swearing-in ceremony.
BOARD MEETINGS
BA 15.01. As an agency of the Supreme Court,
the Board is not subject to Subchapter V
of Chapter 19 of the Wisconsin Statutes, relating to open meetings of
governmental
bodies. However, the Board posts the dates and locations of its meetings
on its Internet web site
and invites the public to attend its meetings. Members of the public are
not allowed to
attend meetings or parts of meetings that involve confidential matters.
Examples of
confidential matters include (i) individuals' applications for admission
to the Wisconsin bar,
(ii) hearings on admission applications and (iii) bar examination
questions.
BA 16 PROCEDURES FOR HEARINGS BEFORE THE BOARD
(1) Application. These rules govern all hearings before the
Board of Bar Examiners.
(2) Notice of an at-risk application.
Before declining to certify an applicant's satisfaction of
requirements under this chapter, the board shall notify the applicant
in writing of the basis for its determination that the application is at
risk of being
denied and, except as to failure of the bar examination under SCR 40.04,
the applicant shall have
the opportunity to respond in writing within thirty days of the mailing
of notification of
the board's decision to the applicant at the last address furnished by
the applicant in writing
to the board.
(3) Hearings. The Board may grant a hearing to any
applicant who has received a
notice under SCR 40.08(1).
(4) Request for Hearing. Applicants must make
their requests for a hearing in
writing within 30 days after the mailing of the notice under SCR
40.08(1).
(5) Review of Records. Applicants who have
received a notice under SCR 40.08(1)
may, while the application is pending, review, personally or by counsel,
all materials in
the applicant's files, including any staff recommendations. Upon written
request, the Board
will transmit copies of these materials to the applicant or the
applicant's counsel at a cost
not to exceed twenty-five cents per page.
(6) Pre-hearing conference. Within 30 days after
receiving an applicant's Request
for Hearing, the Board Chair or the Chair's delegate shall confer in
person or by telephone
with the applicant or the applicant's counsel to set a hearing date,
clarify the issues,
determine whether the applicant will stipulate to any material facts,
consider any limitations on
the number of witnesses, the length of the hearing and such other
matters as may aid the Board
in its determination. Promptly after this pre-hearing conference, the
Chair or the
Chair's delegate shall prepare a memorandum for the record which
summarizes all actions taken at
the conference. The memorandum shall control the subsequent course of
the action, unless
modified at the hearing to prevent manifest injustice.
(7) Hearing record. The hearing record shall
include evidence received or
considered, stipulations and admissions, a statement of matters
officially noticed, questions and
offers of proof, objections and rulings thereon, any proposed findings
or decisions and
exceptions, and any decision, opinion or report by the Board.
(8) Counsel. An applicant shall be entitled to be
represented by counsel at hearing at
the applicant's expense, provided a notice of appearance is filed at or
before the hearing.
(9) Record of proceedings. A stenographic,
electronic or other record of oral
proceedings shall be made. If the board obtains a transcript of
proceedings, it shall, upon
request, provide the applicant with a copy at a cost not to exceed
fifteen cents per page.
(10) Presiding officer. The Board Chair or the
Chair's designee shall preside at
hearing, and shall rule on motions, objections and any other matters
that arise.
(11) Rules of evidence. The Board is not be bound
by common law or statutory rules
of evidence.
(12) Hearing record. The applicant and any member
of the Board may move that portions
of the applicant's file be received in evidence. All evidence received
at the hearing shall
be made a part of the hearing record. The applicant shall be afforded
adequate opportunity
to rebut or offer countervailing evidence.
(13) Official notice. The Board may take official
notice of any generally recognized
fact or any established technical or scientific fact, but the applicant
shall be notified
either before or during the hearing of the facts so noticed, and shall
be afforded an opportunity
to contest the validity of the official notice.
(14) Documents. Documentary evidence may be
received in the form of copies or excerpts
if the original is not readily available.
(15) Testimony. Witnesses may be heard in person,
or their testimony may be received
in the form of affidavits or deposition
transcripts. As a general practice, examinations
and cross-examinations of witnesses shall be made by the members of the
Board. Applicants or
their counsel may cross-examine adverse witnesses.
(16) Record may remain open.
The Chair or the Chair's designee may allow the record
of the hearing to remain open for a limited period of time, which shall
be specified, to give
the applicant an opportunity to submit additional written materials.
(17) Determination. At its next regularly
scheduled meeting following the time set
under Rule 16, the Board, unless it decides by majority vote to hold the
record open for
additional written or oral evidence, shall make its determination by
majority vote of the members
present and voting, in person or by telephone.
(18) Adverse decision. If the determination is
adverse to the applicant, the Board
Chair or the Chair's designee shall within thirty days, incorporate the
Board's determination in
a written decision, which shall include findings of fact and conclusions
of law, and
shall promptly circulate the decision among all members of the Board.
After the decision
is circulated, dissenting board members shall have twenty-one days in
which to transmit
written dissents to the director.
(19) Transmission of decision.
The director shall transmit the Board's
decision, together with any written dissents, to the applicant or the
applicant's counsel within
ten days after completion of the steps set out in Rule 18.
(20) Reconsideration. Within thirty days after
transmission of the Board's decision,
the applicant may file a petition for reconsideration, which shall be
granted only on the basis
of some material error of law, some material error of fact, or the
discovery of new
evidence sufficiently strong to reverse the adverse determination. The
Board shall dispose of
the petition by majority vote at its next regularly scheduled meeting
following the filing of
the petition, either by denying the petition or by granting the petition
on a schedule which
it shall then specify.
[Note: the foregoing section 20 will not take effect unless
and until the supreme
court adopts the board's recommended amendments to the deadline for
filing an appeal.]
(21) Confidentiality. The hearing shall be closed
and written materials, including
the board's preliminary and final determinations, shall be confidential
and shall be
disclosed only to the applicant and the applicant's counsel.
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