Expanding the Use of Court Commissioners

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By Dianne Molvig

As we edge closer to the next millennium, the demands on our judicial system continue to mushroom. Several factors feed into this: our society's growing complexity; our increasing tendency to turn to the courts to resolve disputes; and our push for stronger crime-fighting measures to make our communities safer, to name a few. The effects of these trends ripple into our courtrooms.

Meanwhile, the dollars to fund courts keep dwindling. So, court dockets overflow, people sit in jail too long awaiting trial, and overworked judges face mounting frustrations because they can't give enough time and attention to individual cases. All this points to a question that, although not new, seems to take on greater urgency with each passing year: How can the judicial system do more and more with less and less? Wisconsin decisionmakers struggle for answers.

One solution is to expand the use of court commissioners to take some of the load off judges. But it's a solution that raises a multitude of questions:

• What functions should court commissioners perform?
• How much power should be vested in commissioners who, unlike judges, are not elected by the people whose lives their decisions affect?
• How does the system absolutely ensure that court commissioners are held accountable for their actions?
• Could expanded use of court commissioners lead to a two-tiered system, making judges increasingly insulated from and inaccessible to the average citizen?

Searching for answers to such quandaries was the assignment given the Audit Subcommittee of the Wisconsin Supreme Court Planning and Policy Advisory Committee (PPAC). The PPAC subcommittee published its report and recommendations in July 1994.

The following year the subcommittee, then called the Court Commissioner Subcommittee, returned to the table to create an action plan to set the 1994 recommendations in motion. The latter subcommittee issued and won endorsement for its report from the entire PPAC in early summer 1996.

That report now is wending its way amongst circuit court judges, court commissioners, State Bar committees and other interested parties. The supreme court is soliciting reactions before deciding how to proceed on the report's recommendations. Implementing many of these will require changes in the Supreme Court Rules or state statutes, or both.

Highlights of the Report

The subcommittee weaves three key themes throughout its report. First, that court commissioners must be viewed as and be expected to perform as professionals. That means standards (court commissioners already are subject to ethical standards set by the Judicial Commission, as of 1991), regular performance evaluations and continuing professional education.

The second theme is supervision. District III Wisconsin Court of Appeals Judge Gordon Myse, who served on both PPAC subcommittees, points out that the idea is not that court commissioners become "a sort of closet judiciary, an unacknowledged force with judicial powers that isn't subject to public election scrutiny," but rather that commissioners work within the parameters defined by judges and under judges' supervision.

Third, the report recognizes how valuable court commissioners are in the workings of Wisconsin justice, and that they comprise a judicial resource that should be available to any court that needs them - whether for a half-day, a month or full-time.

On the surface, those principles might appear to have little potential for raising argument. But as some observers have noted, "the devil is in the details."

Keeping the overriding principles in mind, the subcommittee devised several specific recommendations. Several key recommendations follow:

Definitions

For starters, the two PPAC reports point to the current state of confusion about what a court commissioner actually is. For instance, the term "court commissioner" occurs some 300 times in the state statutes, but there is no consistency in meaning- either in statute language or in common everyday practice. A "court commissioner" might be someone appointed by a judge who performs a few weddings a year, or someone formally hired by a county who handles 150 cases a day in criminal intake court - and everything in between. (In fact, no one knows exactly how many commissioners work in the state because they're counted so many different ways from county to county.) The diversity of roles and time commitments will continue, but PPAC calls for clarifying terminology by setting up two definitions:

A judicial court commissioner is a legally trained officer of the court performing limited judicial and quasi-judicial functions under the direction and authority of the chief judge and circuit court judges within the county. (Thus, specialist court commissioners, such as family court commissioners, which statutes require every county to have, and probate court commissioners would all be considered "judicial court commissioners." Also, any such positions could be full- or part-time, according to court needs.)

An honorary court commissioner is appointed by a circuit court judge, with the authority to perform weddings and ministerial duties, conduct supplemental proceedings and appoint receivers when appropriate.

Appointment, term and qualifications. Judicial court commissioners would be selected by the circuit court judges whom the commissioners would serve, subject to approval by the district's chief judge. Selection should be based on merit, while considering the value of diversity. The proposed fixed term is six years. Commissioners could be removed without cause during the first two years, considered an "evaluation period" (although supervising judges can shorten or lengthen this period, with approval from their chief judge), and with cause thereafter. Commissioners must be members of the bar in good standing, with at least three years' experience.

Evaluation and Discipline

PPAC calls for job performance reviews of judicial court commissioners by the supervising judge(s) in the county. The latter can call for disciplinary actions and removal of commissioners, with the chief judges having the final say in such decisions.

Education and Training

In the past, continuing education for court commissioners has tended to fall between the cracks. Judges have their courses, lawyers have theirs, and oftentimes neither is completely useful to a judicial court commissioner. Nor were court commissioners required to earn continuing education credits. PPAC recommends that commissioner education programs be provided to all judicial court commissioners at state expense (funds for this already have been added to the supreme court budget). Full-time commissioners must complete 60 judicial education credits every six years in courses useful to commissioners. Part-timers, who also may be practicing law, can mix continuing legal education and court commissioner education credits (at least 20 of those must be court commissioner education credits, approved by the judicial education committee).

Duties

The reports call for some additional duties to be extended to judicial court commissioners - for example, enabling juvenile court commissioners to issue orders authorizing children to be taken into custody; extending commissioners' powers in probate court to include opening estates and conducting uncontested guardianships, among other duties; and allowing criminal court commissioners to conduct prearraignments and predispositional nonevidentiary proceedings. The PPAC subcommittee discussed but rejected the idea of allowing criminal court commissioners to have dispositional authority in uncontested cases.

Contempt Powers

In the interval between its 1994 and 1996 reports, PPAC switched its position on giving court commissioners contempt powers. Citing disruptive incidents that threaten security during court commissioner proceedings, PPAC now recommends that commissioners have powers of contempt.

Local Rules and Judicial Court Commissioner Authority

PPAC leaves room for local judges to set rules and standards to clarify commissioners' duties (keeping within statutory limits) and to devise decision-making guidelines for commissioners. All of these are subject to the district chief judge's approval.

Complaints

Anyone can complain to the chief judge about the conduct of a judicial court commissioner and also will be informed about the right to file a complaint with the Judicial Commission. (As noted above, chief judges also have the power to discipline and remove judicial court commissioners.)

The Controversies

As the new PPAC report circulates throughout the judicial system, several points of debate inevitably will emerge - and some already have. A few of them include:

The Back-to-Two-Tiers Issue

One major question that has come up in the past, and surely will keep resurfacing, is whether the expansion of court commissioner duties could nudge us back to a two-tiered court system, such as existed before court reorganization in 1978. Before then, the state had county courts and circuit courts. Some matters could be taken to either court; others were the domain of one court but not the other. For example, in criminal law, county courts heard misdemeanors and circuit courts heard felony cases. Most counties had at least one judge, and a circuit court could cover more than one county. Because some judges had jurisdiction over some matters but not others, judges couldn't always be interchangeable as needed to best handle caseloads in the two types of courts. Plus, because county court cases could be appealed to circuit court, the perception was that circuit court was a higher court.

In 1973 a citizens' study committee appointed by Gov. Lucey deemed the two-tiered system inefficient and a poor use of judges. The committee called for the system to be replaced by a single-level court in which "every case in a court of our state is equal in importance to every other case and that no person should be relegated to a less prestigious court or judge for the trial of his case." Our current circuit court system arose from that recommendation.

As numbers and powers of court commissioners gradually have increased in recent years, some observers have wondered whether the system is headed back to the two-tiered model. For instance, in 1991 supreme court justices Shirley Abrahamson and Louis Ceci raised that very issue in a dissenting opinion.

But attorney Eileen Hirsch, who sat on both PPAC subcommittees and chaired the second one, hopes that the committee's recommendations will, if anything, stem any movement toward a two-tiered court system. Some counties already may be headed in that direction, she notes, because of confusion about how much authority judges actually have over commissioners. "Our plan clarifies that," Hirsch contends. "It gives us a system governed by judges, with the commissioners clearly accountable to judges. I feel it actually protects the court from a willy-nilly development of a two-tiered system."

Interesting enough, the citizens' committee that proposed the current single-court system back in 1973 also recommended increased status and authority for court commissioners. "We didn't see that as a contradiction," points out Jeffrey Bartell, a Madison attorney who served on that committee. "It was one of a number of recommendations we made to cut down on court congestion and the need to keep adding judges. That isn't to say we shouldn't add judges when we need them. But the committee concluded there were a good many functions judges perform that could be performed by someone who wasn't a full-fledged judge - who was appropriately trained."

Professionalism Requirements as Boon or Burden

The PPAC report emphasizes the importance of continuing education for judicial court commissioners - whether they be part-time or full-time. As Hirsch notes, "It was a strong belief of the committee that if a court commissioner is going to set bail, or make a temporary custody decision in a divorce case, or make a procedural decision in a juvenile case, or whatever, that people have a right to have a judicial court commissioner who is a trained professional in what they do - even if they only do it once in a while."

Still, the practical applications of that training requirement can create hardships, especially in single-judge counties, points out Pierce County Circuit Court Judge Robert Wing, who now has a part-time court commissioner working for him. Take, for instance, a situation in which an emergency hearing comes up, such as a temporary restraining order in a domestic case, that Wing can't handle because he's in the midst of a jury trial. Being a solo-judge court, he relies on his court commissioner to handle such proceedings. But if she also is tied up with another matter or away on vacation, Wing turns to a corps of local attorneys to help out. "I probably use five people at various times," Wing points out. "But they wouldn't be permitted to do that any longer, unless they want to be subject to all the rules" such as continuing education credit requirements. Of course, being part-timers they can combine CLE credits and court commissioner education credits to meet their requirement of 60 credits every six years. And that education is paid for by the state, not the commissioner. Still, 20 of those 60 credits have to meet judicial education committee approval. Thus, Wing wonders if it's worth it for his part-time commissioners, who only fill in once in a while in emergencies, to go to the trouble of earning those 20 credits. The upshot may be that Wing loses his back-up commissioners.

Term Limits

This is a huge issue among current court commissioners, among whom there's strong opposition to the proposed six-year term limit. They argue that highly qualified individuals, who already have successful law practices, won't want to shut down at the risk of having to come back to restore their private practice six years later. Commissioners contend that could happen if, for example, a commissioner has a personality conflict with a chief judge.

So, who will take the jobs? "There will be two groups," says Frank Liska, Milwaukee County administrative court commissioner and president of the newly formed Wisconsin Association of Judicial Court Commissioners. "It will be people right out of law school who have no prospects, and people at the end of their career who just want a final feather in their cap. What you're doing is excluding those who would do it as a long-term career move and become career professionals."

That view is echoed by those in the state's other court commissioner organization, the Wisconsin Family Court Commissioners Association, according to Milwaukee County family court commissioner Mike Bruch. Not only will a six-year term limit scare off qualified candidates, but, Bruch says, it sabotages the very reason why PPAC proposes term limits to prevent incompetent individuals from becoming entrenched in these positions. "Say I was a bad court commissioner," he notes, "and I'm three years into a six-year appointment. Are you willing to say to the citizens of Wisconsin, 'Well, we know he'll be out in three years'? Or do you have a system for getting him out now, and put some teeth in it? How does six years solve it? It gets down to saying, 'We don't really want to handle this, so we'll let time solve it.'"

Still, the subcommittee felt that there were risks in letting court commissioners settle into indefinite tenures. Plus, as the committee sees it, court commissioners may be overreacting to the likelihood of getting ousted after six years. "No court commissioner has ever been removed for political reasons or reasons other than performance," Judge Gordon Myse points out. "Our history shows that there haven't been wholesale changes in court commissioners when new judges take the bench. . The danger for abuse always exists, but we can guard against that . [and] against potential abuses either way. I mean don't make the term so long you can't get rid of incompetence. But don't make it so short that you compromise the stability of the job and the effort to attract good people."

Going Too Far with Court Commissioner Powers or Not Far Enough?

The judiciary continues to struggle with the dilemma over how to use court commissioners to help relieve an overburdened system - and yet to not vest them with duties and powers that should remain in the hands of an elected judge. For instance, should court commissioners have contempt powers? PPAC concluded it was a necessary step. Others are not so sure. "That's an area where commissioners can do harm that's not easily undone," notes Wing. "They can say, 'Get in jail now,' and by the time that gets reviewed by a judge, that person has already suffered a fairly significant penalty."

Meanwhile, others proclaim that the PPAC report does not go far enough in expanding court commissioner authority. Judges and subcommittee members Bruce Schroeder of Kenosha County and John Perlich of La Crosse County submitted a supplemental statement to the PPAC report stating concerns along those lines. They wrote that "the likely use of court commissioners under the existing proposal is inefficient and unfair." As an example, someone appearing before a commissioner on a second-offense driving-without-a-license charge must return to see a judge to have the case concluded. That means taking more time off work and paying more attorney fees. The person involved might prefer to have the case wrapped up at the commissioner's hearing.

As for the argument that extending such powers to a commissioner only further feeds the evolution of a two-tiered court, Schroeder and Perlich refute that as well. A two-tiered, in fact a multi-tiered, system exists now, they say, noting that judicial functions already have seeped out to the executive branch. For example, hearing examiners decide whether to revoke someone's probation or whether to award worker's compensation. What's more, such decisions are made without the possibility of de novo review as provided in the judicial branch. Schroeder and Perlich feel that in all likelihood, the Legislature will delegate increasing authorities such as these to executive branch employees, as well as expanding court commissioners' functions. They would rather see the judiciary make such determinations.

"That's where I feel the PPAC committee didn't finish the job," Schroeder says. "I don't mean to cast a stone, because we worked hard on this. But the report stops short. I'd like to see the supreme court ask for additional study as to exactly what powers should be given to commissioners, under what circumstances. It's a difficult issue. And Judge Perlich and I felt that the report didn't take that extra step."

Green Bay attorney and legislator Mark Green, chair of the Legislature's Judiciary Committee, agrees. "The report doesn't get at the issue that AB 858 did (see accompanying article), which is court commissioner jurisdiction. From the Legislature's perspective, that is the critical point." AB 858 would have given Milwaukee County court commissioners the authority to take pleas and issue sentences in misdemeanor cases, when all parties agree on the outcome.

Dennis Cimpl, Milwaukee County judicial court commissioner and member of the State Bar's Bench Bar Committee, is one among many in his county who would have liked the bill to have passed - and for the PPAC report to have addressed this same issue. According to Cimpl, the types of minor misdemeanors court commissioners likely would get would include such matters as retail theft, worthless checks, prostitution and so on. "There are a number of people coming out of minor misdemeanors who have already been in custody 48 hours," Cimpl explains. "And all they're going to get is a 48-hour sentence on some of these. They would just as soon plead guilty and get it over with. They can't do that in front of me now. . This would be a way to get people out of our jail quicker." (The Milwaukee County jail population is 1,300, with a capacity of 700, according to county administrative court commissioner Frank Liska.)

But should someone who's an unelected official be putting anyone in jail? "In minor misdemeanors, I think the answer is yes," Cimpl responds. "And I'm saying that as a former defense attorney. If we didn't have this crisis in Milwaukee County, my answer would be no, that people who put people in jail should be subject to the electorate. But we don't have that luxury. Desperate times call for desperate measures." And, he adds, as long as the court commissioner's sentence is subject to timely de novo review by a judge, and issued according to sentencing guidelines drawn up by a judge, he feels safeguards are adequate.

The debate over court commissioner jurisdiction is likely to rage on for decades, especially in times when money to fund judgeships keeps getting tighter. That brings up another sticky question: Will expansions in numbers and powers of court commissioners just create an escape hatch through which legislators can avoid funding more judgeships in the future, even when they're sorely needed? "That is the tough question," Green admits. "For lack of a better term, you could call them 'mission creep' challenges. Those kinds of challenges tend to be decided behind the scenes, because they're not sexy issues that capture people's fancy. . But those decisions are going to have long-term implications - fiscal implications, and also implications of justice and access to justice. And those are decisions that are very hard to make."

Meanwhile, other issues loom in the wings, such as whether the state should take over funding of court commissioners from the counties. If it does, where would those funds come from out of an already strapped state budget? Will this lead to a new "court commissioner fee" - yet another filing fee that could threaten to further limit equal access to justice? Also, if commissioners indeed do become state rather than county employees, how do you superimpose a statewide system over an extremely diverse set of situations in various counties (for instance, some commissioners now are unionized)? These are matters the PPAC subcommittee deliberately did not delve into.

The whole subject of court commissioners seems to stir new questions at every turn. Add one more: While the judiciary struggles to decide on a definitive plan allaying concerns about the proper role of court commissioners, how long will legislators wait before coming up with measures of their own?

Many remain optimistic that the judiciary will act soon enough. "I suspect one of the things that will come out of this implementation plan," Liska says, "is that we'll finally get all the players to sit down and attempt to reach a consensus. If we're geared towards the same direction, even though we may be at cross purposes on certain issues, I think this is doable. It's going to take time. It's not going to be done overnight. But in the long run, it's in everybody's best interest to get this straightened out. We have to do something."

Wisconsin Lawyer