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    Wisconsin Lawyer
    November 01, 1999

    Wisconsin Lawyer November 1999: Supreme Court Orders

    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


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