Supreme Court Orders
The Wisconsin Supreme Court seeks further comment on the lawyer
discipline system, with written comments due by Jan. 4, 2000; creates
SCR 70.153 governing the creation and use of forms in the circuit court;
amends section 343.24(1) regarding the use of DOT operating record
abstracts in criminal proceedings; amends section 70.39(13)(b) regarding
staffing standards for courts; and amends SCR 70.40 regarding venue in
prisoner cases.
Creation and Use of Forms in the Circuit Court
In the Matter of the Amendment of the Rules of Civil and Criminal
Procedure: Wis. Stat. §§ 758.18, 807.001, and 971.025;
Creation of Supreme Court Rules 70.153 - Creation and Use of Forms in
the Circuit Court
Order 98-01
At public conference May 24, 1999, the court considered the petition
of the Wisconsin Records Management Committee filed June 11, 1998,
seeking the creation of Rules of Civil and Criminal Procedure requiring
the Wisconsin Judicial Conference to develop standard court forms for
mandatory use in civil and criminal actions and proceedings in the
circuit court. The proposed rules specified that a party's failure to
use a mandatory form would not constitute cause to dismiss a case, to
refuse a filing, or to strike a pleading, but the party would be
required to submit a corrected form, and the court could impose
statutory fees or costs. The petition had been presented to the court at
a public hearing Sept. 17, 1998, following which the court withheld
action in order to permit the State Bar of Wisconsin to review current
forms that have been prepared by the Records Management Committee and
notify the court of any objection it might have in respect to particular
forms.
At the May 24, 1999, public conference, the court decided to adopt
rules providing for the adoption and use of standard court forms in
civil and criminal actions and proceedings in the circuit court, as well
as a procedure for interested persons to review the standard court forms
prior to their implementation and make objection to them to the Records
Management Committee.
IT IS ORDERED that, effective Jan. 1, 2000, 758.18 of the statutes is
created to read:
758.18 Judicial conference: standard court forms.
The judicial conference shall adopt standard court forms for use by
parties and court officials in all civil and criminal actions and
proceedings in the circuit court.
IT IS FURTHER ORDERED that, effective Jan. 1, 2000, 971.025 of the
statutes is created to read:
971.025 Forms. (1) In all criminal
actions and proceedings and actions and proceedings under chapters 48
and 938 in circuit court, the parties and court officials shall use the
standard court forms adopted by the judicial conference under
s. 758.18, commencing the date on which the forms are adopted.
(2) A party or court official may supplement a
standard court form with additional material.
(3) A court may not dismiss a case, refuse a filing
or strike a pleading for failure of a party to use a standard court form
or to follow the format rules but shall require the party to submit,
within 10 days, a corrected form and may impose statutory fees or costs
or both.
(4) If the judicial conference does not create a
standard court form for an action or pleading undertaken by a party or
court official, the party or court official may use a format consistent
with any statutory or court requirement for the action or pleading.
IT IS FURTHER ORDERED that, effective July 1, 2000, section 807.001
of the statutes is created to read:
807.001 Forms. (1) In all civil actions and
proceedings in circuit court, the parties and court officials shall use
the standard court forms adopted by the judicial conference under
s. 758.18, commencing the date on which the forms are adopted.
(2) A party or court official may supplement a
standard court form with additional material.
(3) A court may not dismiss a case, refuse a filing
or strike a pleading for failure of a party to use a standard court form
or to follow the format rules but shall require the party to submit,
within 10 days, a corrected form and may impose statutory fees or costs
or both.
(4) If the judicial conference does not create a
standard court form for an action or pleading undertaken by a party or
court official, the party or court official may use a format consistent
with any statutory or court requirement for the action or pleading.
IT IS FURTHER ORDERED that, effective Jan. 1, 2000, 70.153 of the
Supreme Court Rules is created to read:
70.153 Judicial conference, forms.
(1) The standard court forms that the judicial
conference is required to adopt under section 758.18 of the statutes
shall be developed by the records management committee, an advisory
committee to the director of state courts office.
(2) Under article VIII of the bylaws of the judicial
conference, the judicial members of the records management committee act
on behalf of the judicial conference in the adoption of standard court
forms.
(3) Each standard court form shall include a notice that the form may
be supplemented with additional material.
(4)(a) Upon adoption of a standard court form, the
records management committee shall distribute or make a copy of the form
available to the clerks of circuit court, the circuit court judges, the
State Bar of Wisconsin and other persons who are required to use the
form.
(b) Within 90 days after the date of distribution of a standard court
form under par. (a), an interested person may file with the records
management committee a written objection to the mandatory use of the
form, to the content of the form or to both the use and the content.
(c) The records management committee shall respond to the objector
under par. (b) in writing within 90 days after receipt of the
objection.
(d) Within 30 days after the date on which he or she receives the
written response of the records management committee to an objection
filed under par. (b), the person filing the objection may file with the
clerk of the supreme court a petition for review of the decision of the
records management committee. The supreme court may request a response
from the records management committee and establish a schedule for
submission of the matter to the supreme court for determination.
IT IS FURTHER ORDERED that the standard court forms under
§§ 807.001 and 971.025 include the court forms that have
been adopted by the judicial conference prior to the date of this
order.
IT IS FURTHER ORDERED that notice of the creation of Wis. Stat.
§ 758.18, the amendment of the Rules of Civil and Criminal
Procedure, and the creation of SCR 70.153 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 5th day of October, 1999.
By the court:
Marilyn L. Graves,
Clerk of Court
Staffing Standards for Courts
In the Matter of the Amendment of Supreme Court Rules: SCR
70.39(13)(b) - Staffing Standards for Courts
Order 99-01
The court held a public hearing Sept. 28, 1999, on the petition of
the Executive Committee of the Judicial Conference of Wisconsin
requesting the amendment of SCR 70.39(13)(b) to replace the semiannual
review of staffing standards set forth in SCR 70.39(11) with a review of
those standards at the discretion of the Judicial Conference or as the
supreme court may direct. The court has considered the presentation made
at that public hearing.
IT IS ORDERED that, effective the date of this order, 70.39(13)(b) of
the Supreme Court Rules is amended to read:
70.39(13)(b) The judicial conference shall review
the staffing standards under sub. (11) semiannually
at such times as the judicial conference considers appropriate or as
the supreme court may direct and shall report to the supreme
court its the judicial conference's
recommendations for their modification of those
staffing standards.
IT IS FURTHER ORDERED that notice of this amendment of the Supreme
Court Rules be given by single publication of a copy of this order in
the official state newspaper and in an official publication of the State
Bar of Wisconsin.
Dated at Madison, Wis., this 7th day of October, 1999.
By the court:
Marilyn L. Graves,
Clerk of Court
Venue in Prisoner Cases
In the Matter of the Amendment of Supreme Court Rules: SCR 70.40 -
Venue in Prisoner Cases
Order 99-02
The court held a public hearing Sept. 28, 1999, on the petition of
the Committee of Chief Judges and District Court Administrators
requesting amendment of SCR 70.40, governing venue in cases brought by
incarcerated persons to conform that rule to applicable revisions of the
statutes. The court has considered the presentation made at that public
hearing.
IT IS ORDERED that, effective the date of this order, 70.40 of the
Supreme Court Rules is amended as follows:
SECTION 1. 70.40 (title) and (1) of the supreme court rules are
amended to read:
SCR 70.40 (title) Venue in
incarcerated person prisoner cases.
(1) The clerk of circuit court shall use the "IP"
(incarcerated person) case type designation to identify
pleadings and papers submitted by any jail or prison
inmate prisoner, as defined in s. 801.02(7)(a)2.,
stats., seeking to commence, prosecute or defend an action or
proceeding under section s. 814.29 (1)
of the statutes if the pleadings and papers submitted appear to deal
with the fact, duration or conditions of imprisonment or with other
confinement matters not including criminal postjudgment issues related
to conviction (1m), stats., without the prepayment of costs
and fees.
(1m) The incarcerated person case designation is not
intended to replace clerk of circuit court shall use the
family, criminal or civil case type designations when those designations
are appropriate and applicable costs and fees are prepaid. The case
type designation for any case designated "IP" under sub. (1) shall be
changed to and proceed under the appropriate civil case designation
whenever a court orders the case commenced under s. 814.29 (1m), stats.,
without the prepayment of costs and fees.
SECTION 2. 70.40(2) (intro.) of the supreme court rules is amended to
read:
70.40(2) (intro.) When pleadings and papers are designated an
incarcerated person case, the The court shall determine
all as much of the following as is
necessary, based on the pleadings and papers submitted by a
prisoner, in the following order:
SECTION 3. 70.40 (2) (a) to (d) of the supreme court rules are
renumbered 70.40 (2) (g) to (j).
SECTION 4. 70.40 (2) (am), (bm), (cm), (dm), (em) and (fm) of the
supreme court rules are created to read:
70.40(2) (am) Whether all required documentation has been
submitted.
(bm) Whether all available administrative remedies have been
exhausted.
(cm) Whether the prisoner is precluded from filing without the
prepayment of costs and fees under s. 801.02 (7) (d), stats.
(dm) Whether the prisoner is indigent.
(em) In what manner the filing fees and costs are to be paid.
(fm) Whether the case should be dismissed without requiring the
defendant to answer for a reason set forth in s. 802.05 (3) (b),
stats.
SECTION 5. 70.40(3) of the supreme court rules is amended to
read:
70.40(3) If sub. (2) (b), (c) and (d) (h), (i)
and (j) are all answered in the affirmative, the court on its own
motion shall change venue to the more convenient county under
section s. 801.52 of the
statutes , stats. The clerk of the
circuit court shall forward the case to the clerk of circuit court in
the more convenient county and shall give notice of that action to the
parties. The court to which the case is forwarded shall
determine indigency and whether the case presents a claim upon which the
court may grant relief and shall issue an appropriate order under
section 814.29 (1) of the statutes Any order changing venue
shall direct payment of costs and fees to the county to which venue is
transferred.
SECTION 6. 70.40(4) of the supreme court rules is amended to
read:
70.40(4) If the court to which the case is forwarded under sub. (3)
believes an error has been made in the determination that venue is
proper in that court, the that court shall refer
the matter to the chief judge of the district in which that court is
located to resolve the matter.
SECTION 7. 70.40(5) of the supreme court rules is repealed.
IT IS FURTHER ORDERED that notice of this amendment of the supreme
court rules be given by a single publication of a copy of this order in
the official state newspaper and in an official publication of the State
Bar of Wisconsin.
Dated at Madison, Wis., this 7th day of October, 1999.
By the court:
Marilyn L. Graves,
Clerk of Court
Lawyer Disciplinary System
In the Matter of the Review of the Lawyer Disciplinary System
Requesting Further Comment on Structure of Lawyer Discipline System
Order 99-03
On April 28, 1999, the court determined it advisable to initiate a
comprehensive review of the structure of the lawyer disciplinary system
in Wisconsin, including the structure of its Board of Attorney's
Professional Responsibility (board), the board's administrative
committee, board staff, and the district professional responsibility
committees, and scheduled a public hearing in the matter. The court
invited numerous institutions, interested individuals, and the public to
review the operation of the lawyer discipline system in Wisconsin and
make recommendations for its improvement.
At the public hearing held Sept. 14, 1999, the court considered the
preliminary draft report of American Bar Association's Standing
Committee on Professional Discipline and submissions from the board, its
administrator, its staff, the State Bar BAPR Study Committee, Marquette
University Law School, U.W. Law School and, numerous others who
addressed the matter in person and in writing.
On the following day, the court held an open rule-making conference
and discussed the issues raised in the matter. The court neither
accepted nor rejected any of the various proposals, in whole or in part,
and did not endorse the current discipline system. The court did,
however, in an effort to clarify the problems with the current system
and identify potential solutions, focus on the four major functions of
the lawyer regulation and discipline system: 1) receipt and
investigation of misconduct allegations; 2) preliminary adjudication
(resulting in a determination of whether to seek discipline); 3) formal
adjudication; and 4) administrative oversight. The important attributes
of these discrete functions are independence, accountability, and
integrity. The goal is to provide a reliable, efficient, fair, and
impartial lawyer discipline system throughout the state, one that is
credible and serves the interests of the legal system and the public it
serves.
The court determined at the conference to seek further comment from
interested persons prior to making any changes in the structure of the
lawyer discipline system.
Principles
At the conference, the court agreed on the following principles
governing the lawyer regulation and discipline system:
1. The Wisconsin Supreme Court is the ultimate authority for the
regulation and discipline of attorneys.
2. The person(s) deciding whether discipline should be sought should
not direct or control the person(s) investigating misconduct
allegations; the investigation of misconduct allegations and the
determination to seek discipline are two separate functions. Whether it
would be appropriate for the decisionmaker(s) to ask investigative staff
for further investigation and additional information depends on the
nature of the decisionmaker. If the decisionmaker is the person who will
prosecute the matter, akin to a district attorney in respect to a
criminal proceeding, the decisionmaker may ask the investigator for
additional information. If the decisionmaker is a neutral magistrate,
akin to a judicial officer determining probable cause in a criminal
proceeding, the decisionmaker will dismiss the matter if the information
provided by the investigator is insufficient to warrant a determination
to seek discipline; the investigator will have the opportunity to
resubmit the matter with additional information.
3. Administrative oversight of the lawyer regulation and discipline
system's operation, including the complaint process, timeliness,
training, and proposals for modification of the system, is an important
function.
4. Formal adjudication (fact finding, legal conclusions, and
recommendation for discipline) should be separate from the investigation
and decision-to-seek-discipline functions and should be reviewable.
5. Bodies that include nonlawyer members are an important part of the
regulation and discipline system.
6. The regulation and discipline system must be fair. It must be
neither attorney friendly nor complainant friendly but, rather, "user"
friendly, that is, accessible and responsive to attorneys and to
consumers of legal services.
7. Understanding of and confidence in the regulation and discipline
system is essential and depends upon the education of the public and the
bar in its operation and the ease with which it may be used. Distrust of
the system is always to be expected, but the system must in reality
provide fair and balanced regulation of the bar in the public
interest.
8. Each component of the system has a role to play in the training of
the participants in the system as well as in the education of the public
and the bar in the operation of the system.
9. Timeliness in the processing of misconduct allegations is
important. Where possible, the time required for disposition of
misconduct allegations should be reduced.
10. Each component of the system should have input in the system's
budget process, but it is the responsibility of administrative staff to
prepare an initial budget and submit a final budget for approval and
implementation by the court.
11. Pursuant to the court's Feb. 27, 1998, Statement of Principles,
Policies and Procedures, the person directing the staff hires and
supervises that staff, and the person who directs the staff is hired by
the Wisconsin Supreme Court, with the assistance of the Director of
State Courts. Issues concerning the performance of the director are to
be referred to the Director of State Courts, who reports the matter to
the Wisconsin Supreme Court when deemed appropriate.
Request for Further Comment
The court seeks comment in respect to the following:
1. Whether the investigation function should be carried out by
central staff alone or with the addition of decentralized bodies.
2. If centralized bodies are to perform the investigative functions
now performed by district professional responsibility committees, what
are the fiscal implications and impact on the attorney assessments? How
should the centralized bodies be composed and selected?
3. Which person or entity should be responsible for directing the
prosecution of a disciplinary proceeding? Who is the prosecutor's
client? Possibilities include the people of the State of Wisconsin, the
person(s) responsible for the investigation, and the person or entity
making the decision to seek discipline. Who should have oversight of the
prosecution function?
4. Should the person or entity making the determination to seek
discipline be a central entity or decentralized entities?
5. Who should perform the administrative oversight of the system?
Should it be performed by a separate entity, with input from each
component of the system, or by other means? Is it appropriate and
advisable to merge the administrative oversight function with the
determination to seek discipline function?
6. Is the person or entity determining to seek discipline the one who
will prosecute it, akin to a district attorney, or a neutral
adjudicator, akin to a preliminary hearing magistrate?
7. How are the various participants in the system selected, by whom
(possibilities include the State Bar and the Supreme Court, with or
without the assistance of a nominating committee), and according to what
criteria?
8. What are the appropriate composition and proportion - lawyers and
nonlawyers - of each entity within the system?
9. Whether a decentralized investigating body should conduct
investigations of attorneys residing or practicing in the investigating
body's locality.
10. What type of formalized training is appropriate for each
component's participants?
11. What are appropriate procedures for handling misconduct
allegations against current or former participants in the system?
12. Who should impose and collect attorney assessments to fund the
system - the State Bar, the Supreme Court, or another entity?
13. Comment on any of the proposals that have been proffered and any
other matters relating to the lawyer regulation and discipline
system.
IT IS ORDERED that comment on the matters set forth herein be filed
in writing, with eight copies, with the Clerk of the Supreme Court, 110
E. Main St., Room 215, Madison, WI 53703, on or before Jan. 4, 2000.
IT IS FURTHER ORDERED that the court hold further proceedings in this
matter as deemed advisable following its consideration of comment filed
pursuant to this order.
Dated at Madison, Wis., this 1st day of October 1999.
By the court:
Marilyn L. Graves,
Clerk of Court
Use of DOT Operating Record Abstracts in Criminal Proceeding
In the Matter of the Amendment of the Rules of Pleading, Practice,
and Procedure: Wis. Stat. § 343.24(1) - Use of Department of
Transportation Operating Record Abstract in Criminal Proceeding
Order 99-04
On Sept. 28, 1999, the court held a public hearing on its proposal to
amend Wis. Stat. section 343.24(1) to delete the provision
declaring Department of Transportation operating record abstracts
inadmissible in evidence in any criminal proceeding arising out of a
motor vehicle accident. The amendment is intended to make admissible
evidence available to establish repeat Operating While Intoxicated,
Operating After Revocation, and other criminal traffic violations
without the need for court records and case files beyond their retention
period specified in SCR 72.01. The court has considered the
presentations made at that public hearing.
IT IS ORDERED that, pursuant to Wis. Stat. section 751.12 and
effective Jan. 1, 2000, 343.24(1) of the statutes is amended to
read:
343.24 Department to furnish operating record. (1)
The department shall upon request furnish any person an abstract of the
operating record of any person. The abstract shall be certified if
certification is requested. Such abstract is not admissible in evidence
in any action for damages or criminal proceeding
arising out of a motor vehicle accident.
IT IS ORDERED that notice of this amendment of Wis. Stat.
section 343.24(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 5th day of October, 1999.
By the court:
Marilyn L. Graves,
Clerk of Court
Wisconsin Lawyer