Supreme Court Orders
The Wisconsin Supreme Court will hold public hearings on Dec. 16
regarding judicial court commissioners and on Jan. 13, 1998, regarding
electronic data dissemination and retaining court records. The hearings will be held at
1:30 p.m. on both dates in the Supreme Court Room in the State Capitol,
Madison, Wis.
The court also has amended several supreme court rules regarding judicial administration.
Electronic Data Dissemination
In the Matter of Amendment of Supreme Court Rules: (Proposed) SCR
Chapter 75 - Electronic Data Dissemination
Order 96-16
At the public hearing May 6, 1997, on the petition of the Director of
State Courts requesting the adoption of rules governing access to and
release of electronic database information in the courts, the Hon. Gary
L. Carlson, on behalf of the petitioner, submitted a revised petition.
Following the public hearing, the court held the matter in abeyance for
further consideration, inviting interested persons to comment on the
matter. The court has reviewed the comments filed and has determined
that a public hearing on the revised petition is advisable.
IT IS ORDERED that a public hearing on the revised petition submitted
May 6, 1997, by the Director of State Courts shall be held in the
Supreme Court Room in the State Capitol, Madison, Wis., on Jan. 13,
1998, at 1:30 p.m.
IT IS FURTHER ORDERED that the court's conference in the matter shall
be held promptly following the public hearing.
IT IS FURTHER ORDERED that notice of the hearing be given by a single
publication of a copy of this order and of the revised petition in the
official state newspaper and in an official publication of the State Bar
of Wisconsin not more than 60 days nor less than 30 days before the date
of the hearing.
Dated at Madison, Wis., this 22nd day of September, 1997.
By the court:
Marilyn L. Graves, Clerk
SCR CHAPTER 75
RULES GOVERNING ELECTRONIC DATA DISSEMINATION
FOR THE COURTS OF WISCONSIN
SCR 75.01 Purpose and Scope.
(1) This chapter governs access to and release of electronic court
database information and applies to circuit courts, appellate courts and
to the director of state courts office. These rules are to be
administered in the context of the Wisconsin Open Records Law, which
states that:
"[A]ll persons are entitled to the greatest possible information
regarding the affairs of government and the official acts of those
officers and employees who represent them. Further, providing persons
with such information is declared to be an essential function of a
representative government and an integral part of the routine duties of
officers and employees whose responsibility it is to provide such
information."
These rules do, however, distinguish between information about the
workings of government and its officials and information the government
has on private individuals.
(2) These rules do not apply to:
(a) requests initiated by or with the consent of the chief justice,
chief judge of the court of appeals, or the director of state courts to
respond to the internal business of the courts;
COMMENT: "Internal business of the courts" includes, but is not
limited to, case management and jury management information.
(b) the verbatim record of a court hearing until a certified
transcript has been filed with the court.
[No comparable provision]
(Suggested)(c) electronic court database information made available
to the public at terminals provided by the courts.
COMMENT: These rules are not intended to impede local access to data
that is provided on local, court-provided public access terminal.
(3) Duties and responsibilities of custodians of court records under
the Wisconsin Open Records Law have not changed except as specifically
noted in this chapter. A custodian of a record may choose to provide
information beyond what is required by rule or statute if to do so would
advance the mission of the court. Such efforts do not obligate the
custodian to similar efforts on subsequent occasions.
(4) Each circuit court and appellate court may promulgate local rules
governing the procedures, responsible officials or staff and production,
retention, and distribution schedules of electronic database information
consistent with these or other supreme court policies or rules.
SCR 75.02 Definitions.
In this chapter:
(1) "Ad hoc report" means a compilation of aggregate or court
official-specific data created on a single or non-recurring basis at the
direction of the director of state courts, chief judge of a judicial
administrative district, district court administrator, clerk of circuit
court, chief judge or presiding judge of the court of appeals, chief
justice of supreme court, or clerk of supreme court and court of
appeals.
(2) "Custodian" means the person responsible for the safekeeping of
records held by a court. In the circuit court the clerk of the circuit
court is the presumptive custodian. In the appellate court and supreme
court the clerk of supreme court and court of appeals is the presumptive
custodian. Temporary handling of records is not custodianship.
(3) "New record or report" means any re-ordering, sorting,
compilation, or tabulation of existing data not regularly generated
through routine reports or previously generated through an ad hoc
report. To the extent that a search of electronically stored records is
available through public access terminals, the information obtained
shall not be considered a new record or report.
(4) "Record" means the electronic representation of court information
stored within a computer system that may be generated electronically and
transformed into a comprehensible form. This definition incorporates s.
19.32(2), Wis. Stats., as it relates to the electronic
representation of court information.
(5) "Routine report" means a compilation of data created on a
recurring basis for court use; may be aggregate or court
official-specific.
SCR 75.03 Standards.
The following standards shall be adhered to:
(1) Public access is prohibited to records that are closed pursuant
to statute, case law, rule, or other authority; or to court records that
would personally identify the following:
(a) jurors, whether before or after service;
(b) victims; and
(c) witnesses, unless they have testified in open court.
COMMENT: Because technology makes it feasible to compile numerous
electronic database records into a dossier on an individual, this
section creates an exception to the Wisconsin Open Records Law for
certain court records involving jurors, victims, and witnesses because
of the special circumstances of these court participants and their right
to privacy. Personally identifiable information includes, but is not
limited to, name, address, telephone number, and social security
number.
(2) No person may disclose information pertaining to other than their
own jurisdiction unless the custodian of the original record has
previously disclosed the information or consented to the disclosure.
(3) Requests for copies of information will be granted using only the
technology or outside resources deemed necessary by the custodian of the
record. If programs exist to permit copying, requests for computer-based
information may be granted using only the type, style and format of
diskette, tape, or other medium compatible with the court technology and
supplied by the court.
COMMENT: The record custodian should disclose information using the
medium that is most available to the custodian. Because of security and
data integrity concerns, the court record custodian must provide the
medium to prevent computer viruses or other technological problems.
(4) A custodian need not provide access to routine reports that are
customarily released on a recurrent schedule except according to that
schedule.
(5) Someone requesting to view court information on-line shall be
granted reasonable use of an available public access terminal during
regular office hours.
(6) Unregulated access to a court database by non-court personnel is
prohibited. Authorized direct access is provided through public access
terminals, data links or other electronic means.
(7) In shared governmental systems, agreements shall be negotiated
and signed by the parties relative to what information generated by one
party may be disseminated by the other party or parties involved in the
data sharing without notice to the originating agency.
COMMENT: Because of an increase in data sharing among governmental
agencies, this section mandates that written agreements address what
types of shared information can be disclosed to other agencies or to the
public.
(8) The director of state courts or other records custodians may
enter into agreements with commercial providers of access services to
disseminate records that are otherwise open under this chapter. If the
agreement would involve connection to equipment owned or provided by the
supreme court, the director of state courts shall be notified and must
approve the plan before a connection is made.
(Suggested) (8) The director of state courts or other records
custodians may enter into nonexclusive agreements with other
entities to fulfill an open records request or to disseminate
records.
If the agreement would involve connection to equipment owned or
provided by the supreme court, the director of state courts shall be
notified and must approve the plan before a connection is made.
(Suggested) COMMENT: This provision is not intended to permit a
custodian to enter into agreements whereby a commercial provider or
other entity becomes the de facto provider of the record in place of or
on behalf of the custodian.
SCR 75.04 Procedure.
(1) Except for access provided under agreements under 75.03(7) and
(8), requests for records shall be in writing and must include:
(a) information identifying the requester, including the name,
telephone number, and address, if any, of where the electronic record is
to be sent;
(b) a specific and detailed description of the information requested;
and
(Suggested) (1) All written requests for records must
include:
(a) information identifying the requester, including the name,
telephone number, and address, if any, of where the electronic record is
to be sent;
(b) a reasonable description of the information requested;
and
(c) the format requested.
COMMENT: The telephone number is specifically requested so that a
custodian who needs clarification can telephone the requester. The name
and address are specifically requested so that a denial, which must be
in writing, can be sent to the requester. "Address" may be an electronic
address.
(2) If the request is unclear, or stated in terms inconsistent with
the form and manner of data maintained by the custodian, the custodian
may request clarification from the requester. If the request remains
ambiguous or if accurate retrieval of the information is not possible,
the request may be denied. If, according to local rule, certain requests
are to be granted or denied by another authority within the
jurisdiction, the request form must be forwarded immediately to that
authority. Denials shall be in writing to the requester and shall state
the reason or reasons for denial as well as contain notice of the right
to appeal and the procedures to follow in making the appeal.
[No comparable provision.]
(Suggested) (a) If a records custodian denies a request for a
record, the requesting party may appeal the decision in writing within
30 calendar days of the denial to the director of state courts or a
designee. The director of state courts or the designee may consult with
appropriate authorities and must respond to the appeal within 10 working
days. Nothing in this section limits a requester's right, under s.
19.37, Wis. Stats. or any other provision to seek review of a records
custodian's decision.
COMMENT: The appeal procedure may be used by requesters seeking
review short of bringing a circuit court case.
(3) When presented with a request for information not generated by
that custodian, the first choice of a custodian shall be to refer the
requester to the presumptive custodian of the record. A custodian
cannot, however, refuse access to a record on the basis that the record
is available from another source. If access is provided by the secondary
custodian, that custodian shall inform the presumptive custodian of the
request and the fact that access was granted.
COMMENT: As a matter of courtesy, if a secondary custodian makes an
independent determination and grants access, they are to provide
notification to the presumptive custodian.
(4) Requests for circuit court information
(a) Request for information concerning a single county. When
presented with a request for circuit court information that is generated
or stored in a county as well as the director of state courts office,
the clerk of circuit court may either provide access or request that the
director of state courts office provide access. If the director of state
courts office declines the clerk's request, the clerk of circuit court
shall maintain the custodial responsibility for determining an
appropriate level of access and fees.
COMMENT: The option of allowing the clerk of circuit court to request
that the director of state courts office provide access is to
accommodate the common occurrence where a requester, seeking statewide
circuit court information, makes an individual records request to each
clerk of circuit court in the state.
(b) Request for information concerning more than one county. Requests
for information concerning more than one county or statewide circuit
court information should be directed to the director of state courts
office.
(5) Requests for supreme court and court of appeals information.
Requests for information concerning the supreme court and court of
appeals shall be directed to the clerk of supreme court and court of
appeals.
(6) Information shall be provided as soon as practicable and without
delay, consistent with the conduct of governmental business. If the
record cannot be provided within ten (10) working days, no later than
the end of that period the custodian shall respond to the requester in
writing explaining the reason for the delay and giving an estimated time
of completion.
COMMENT: The ten-day period is consistent with
interpretation of the "reasonable" time frame under the Open Records Law
for responding to requests.
(Suggested) (6) Information shall be provided as soon as practicable
and without delay, consistent with the conduct of governmental business.
[Remainder, including Comment, stricken.]
(7) If a request is made for information on a computer medium, the
custodian shall provide the medium.
COMMENT: To address security and data integrity concerns, the court
record custodian must provide the medium in order to prevent computer
viruses or other technological problems.
(8) Information disseminated in an electronic medium shall be
accompanied by a disclaimer regarding certification and accuracy which
shall be in substantially the following language:
Disclaimer: The custodian has made a reasonable effort to ensure that
data/records are up-to-date, accurate, complete, and comprehensible at
the time of disclosure. Authenticated information is only accurate as of
the time of authentication. The court is not responsible for data that
is misinterpreted or changed by anyone. Tampering with public records is
a felony under s. 946.72, Wis. Stats.
COMMENT: The disclaimer reminds requesters of their responsibility to
use public records wisely and that any effort to tamper with records
could be prosecuted as a crime.
SCR 75.05 Procedure for Requests for Special Programming of
New Records or Reports
(1) Requests for special programming to create new records or reports
shall comply with all requirements of 75.04(l). Requests related to a
circuit court shall be directed to the custodian of the record, who will
consult with the director of state courts office. Requests involving
multiple jurisdictions or the state as a whole shall be directed to the
director of state courts office. Requests involving the supreme court or
court of appeals shall be directed to the clerk of supreme court and
court of appeals.
(2) In determining whether to grant or deny special programming
requests, the following criteria are to considered:
a) availability of data;
b) specificity of the request;
c) potential for infringement of personal privacy;
d) potential for effect on ongoing business;
e) the advantage to the court in providing the information through
programming as opposed to manual means.
(Suggested)(2) In determining whether to grant or deny special
programming requests, the following criteria are to be considered:
a) availability of data;
b) specificity of the request;
c) potential for infringement of personal privacy;
d) potential for effect on ongoing business; and
e) the relative ease to the custodian of providing the
information through programming as opposed to manual means.
COMMENT: The "potential for infringement of personal privacy"
criteria acknowledges that the compilation of numerous electronic
database records could more adversely affect an individual's privacy
than the existence of numerous open paper files that are unlikely to be
compiled into a dossier.
SCR 75.06 Uniform Fee Schedule.
(1) A uniform fee schedule is established for circuit and appellate
courts and the director of state courts office. Fees are payable to the
court or office that provides the record, information, or service at the
time the record, information, or service is provided, except that
prepayment may be required if the total amount exceeds $5.00 as provided
in s. 19.35(3)(f), Wis. Stats.
(2) The fee is a combination of the cost of medium; personnel time;
mail or delivery cost; and cost of special programming.
(a) Cost of medium. Copies are made of court records only. The term
"copies" includes the original production.
1. paper: $1.25 per sheet.
2. microfiche: $1.00 per card.
3. audiotape: $5.00 per tape.
4. videotape: $15.00 per tape.
5. diskette: $15.00 per diskette.
6. Compact Disk (CD): $40.00 per CD.
(Suggested)(a) Cost of medium. Copies are made of court records only.
The term "copies" includes the original production.
1. paper: $1.25 per page.
2. microfiche: $1.00 per card.
3. audiotape: $3.00 per tape.
4. videotape: $5.00 per tape.
5. diskette: $2.00 per diskette.
6. Compact Disk (CD): $10.00 per CD.
(b) Personnel time. The fee for personnel time to copy an audiotape,
videotape, diskette, or compact disk is the actual cost. For other
copying, there is no fee for the first 15 minutes of personnel time. The
fee for time beyond the first 15 minutes is charged in 15-minute
increments for any part thereof. Personnel time is charged at the actual
cost, including wages and benefits, for the least expensive employee
capable of identifying and providing the record.
(c) Mail or delivery cost. The fee for mailing or delivery is the
actual cost and shall include necessary transmittal between courts or
offices for which a public or private carrier is used.
(d) Cost for special programming. The fee for special programming
will be determined by the custodian of the record on a case-by-case
basis after investigation and justification of actual, necessary and
direct costs for materials, equipment, staff, mailing or other
justifiable location costs or required resources.
(3) Fees may be waived for government agencies or at the discretion
of the custodian.
(Suggested)(3) Fees may be waived in whole or in part for
government agencies or at the discretion of the custodian.
COMMENT: The fee schedule reflects the variety of media in which
copies might be made and the cost of each. The costs for personnel time,
mail or delivery costs, and special programming provide more specific
guidance to the "actual, necessary, and direct" costs of providing
records outlined in the Wisconsin Open Records Law.
SCR 75.06 Review of Rules
(Suggested)SCR 75.07 Review of Rules
The director of state courts or his or her designee shall review the
rules under this chapter annually and report to the supreme court any
recommendations for their modification.
COMMENT: Because of rapidly evolving technology, it is prudent to
have in place a mechanism for regular review and revision of these
rules.
Retention of Court Records
In the Matter of Amendment of Supreme Court Rules:
SCR Chapter 72 - Retention of Court Records
Order 97-03
On March 11, 1997, the Director of State Courts, on behalf of the
Wisconsin Court Records Management Committee, filed a petition seeking
the amendment of the Supreme Court Rules, chapter 72, to provide periods
of time for the retention of court records, including those maintained
as official or original information on electronic or optical storage
systems.
IT IS ORDERED that a public hearing on the petition shall be held in
the Supreme Court Room in the State Capitol, Madison, Wis., on Jan. 13,
1998, at 1:30 p.m.
IT IS FURTHER ORDERED that the court's conference in the matter shall
be held promptly following the public hearing.
IT IS FURTHER ORDERED that notice of the hearing be given by a single
publication of a copy of this order and of the petition in the official
state newspaper and in an official publication of the State Bar of
Wisconsin not more than 60 days nor less than 30 days before the date of
the hearing.
Dated at Madison, Wis., this 22nd day of September, 1997.
By the court:
Marilyn L. Graves, Clerk
Petition
The Director of State Courts for and on the recommendation of the
Wisconsin Court Records Management Committee, a committee created by the
director to recommend uniform standards and procedures for the effective
management of court records, petitions the Court to amend and create the
following rules.
Create SCR 72.01 (la) as follows:
SCR 72.01 (1a) Incarcerated Persons Records.
Files containing prisoner litigation correspondence, pleadings, etc.,
usually a habeas corpus or writ of certiorari kept in group files until
reviewed by a judge to determine if action can be filed without payment
of filing fees and court costs. If action meets filing criteria as a
civil action, it becomes a civil case and is retained in accordance with
SCR 72.01 (1). If not accepted, retain for 5 years after date of
submission.
NOTE: Committee of Chief Judges recommends 5 year retention for
purposes of review and research.
Amend SCR 72.01 (6) as follows:
72.01 (6) Lien claims. A statutory lien filed for
services performed or materials provided: until satisfaction, expiration
or entry of judgment, whichever occurs first., except:
(6a) Construction liens - 2 years from the date of filing the lien
claim with the clerk of court if no action is brought and no summons and
complaint is filed.
(6b) Condominium liens - 3 years after the date of filing the
statement of condominium lien with the clerk of court if no action is
brought to foreclose the lien.
NOTE: Wisconsin statutes create a variety of liens that have
different time limitations and foreclosure procedures, which generally
precludes a uniform retention period. Two of the most commonly filed
liens are the construction lien and condominium lien. Per §
779.06(l): No lien under § 779.01 (construction) shall exist and no
action to enforce the lien shall be maintained unless within 6 months
from the date the labor or materials were furnished a claim is filed
with the clerk of court, and unless within 2 years from the date of
filing the lien claim an action is brought and a summons and complaint
filed. Per § 703.16(4): All assessments, until paid, constitute a
lien on the condominium units on which they are assessed if a statement
of lien is filed with the clerk of court within 2 years after the
assessment was due. Under § 703.16(8), no action may be brought to
foreclose a lien unless brought within 3 years following the recording
of the statement of condominium lien.
Amend SCR 72.01 (11),(12),(13),(14) as follows:
SCR 72.01(11) Family case files. All papers
deposited with the clerk of courts in every proceeding commenced under
chapter 767 of the statutes: 50 30 years after entry of
judgment of divorce or entry of final order; except after 30 years,
any case file for which support or maintenance payments are continuing
to be made, 7 years after final payment or after order terminating
maintenance is filed.
SCR 72.01(12) Family court record. A history and
index of proceedings kept in book or card form: 50 30
years after entry of judgment of divorce or entry of final order;
except after 30 years, any court record for which related support or
maintenance payments are continuing to be made, 7 years after final
payment or after order terminating maintenance is filed.
SCR 72.01(13) Family court minute record. A brief
statement of in-court proceedings commenced under chapter 767 of the
statutes, generally maintained in the case file: 50 30
years after entry of judgment of divorce or entry of final order;
except after 30 years, any court minutes for which related support or
maintenance payments are continuing to be made, 7 years after final
payment or after order terminating maintenance is filed.
SCR 72.01(14) Family maintenance and support payment
records. Record of family maintenance and child support payments
received by the clerk of circuit court: 50 30 years after
entry of judgment of divorce or entry of final order; except after 30
years, any payment records for which related support or maintenance
payments are continuing to be made, 7 years after final payment or after
order terminating maintenance is filed.
NOTE: Retention allows 30 years for children to come of age after
entry of the judgment of divorce or entry of the final order. The
retention allows a minimum of 30 years for maintenance and support
payments after entry of judgment of divorce or entry of final order. The
retention permits sufficient time for enforcement of a family
judgment/order. Information needed after 30 years resulting from the
judgment or order exists with other sources: bureau of vital statistics,
social security administration, support (KIDS) and adoption agencies,
parties to the action, etc. For those very few cases where payments may
be continuing beyond 30 years, the record is retained for 7 years after
final payment or after the filing of the order terminating
maintenance.
Amend SCR 72.01 (15),(16),(17) as follows:
SCR 72.01(15) Felony case files. All papers
deposited with the clerk of courts in every proceeding commenced under
chapter 968 of the statutes for felony offenses, including commitment
of an inmate papers filed under chapter 980: 50 years after entry of
final judgment; for Class A felonies, 75 years after entry of final
judgment.
SCR 72.01(16) Felony court record. A history and
index of criminal proceedings kept in book, or card
form, or electronic or optical format, including commitment of an
inmate court records: 50 years after entry of final judgment; for
Class A felonies, 75 years after final judgment.
SCR 72.01(17) Felony minute record. A brief
statement of in-court proceedings in a felony action, generally
maintained in the case file, including commitment of an inmate
minutes: 50 years after entry of final judgment; for Class A
felonies, 75 years after final judgment.
Repeal SCR 72.01 (21),(22),(23):
72.01 (21) Misdemeanor traffic files. All papers
deposited with the clerk of circuit court in every proceeding commenced
under chapter 968 of the statutes for motor vehicle offenses: 6 years
after entry of final judgment.
72.01 (22) Misdemeanor traffic court record. A
history and index of proceedings under chapter 968 of the statutes for
misdemeanor traffic offenses traffic kept in book or card form: 6 years
after entry of final judgment.
72.01 (23) Misdemeanor traffic minute record. A
brief statement of in-court proceedings in a misdemeanor traffic action,
generally maintained in the case file: 6 years after entry of final
judgment.
NOTE: Misdemeanor Traffic records are now included under SCR
72.01(18),(19),(20) -Misdemeanor Case Files, Court Record and Minute
Record and retained 20 years like all criminal misdemeanor records (not
6 years). 1993 Wis. Act 317 amended § 342.12(4)(a), §
343.305(10)(b), § 346.65(2w) and other Chap. 343, 346 and 940
statutes, increasing to 10 years (from 5 years) the period for counting
prior convictions, refusals and revocations when determining penalties
for offenses related to operating a motor vehicle while under the
influence of an intoxicant.
Amend SCR 72.01 (24),(24a),(24m) as follows:
72.01 (24) Traffic Forfeiture, conservation
forfeiture and ordinance violation case files. All papers deposited with
the clerk of circuit court in every proceeding commenced under chapters
29, 30, 48, 66, 125, 167, 343, 345, and 350 and 938 of the
statutes: 6 5 years after entry of final judgment.
72.01 (24a) Traffic Forfeiture, conservation
forfeiture and ordinance violation court record. A history and index of
proceedings kept in book or card form: 6 5 years after
entry of final judgment.
72.01 (24m) Traffic forfeiture, conservation
forfeiture and ordinance violation minute record. A brief statement of
in-court proceedings in a forfeiture or ordinance violation action,
generally maintained in the case file: 6 5 years after
entry of final judgment.
NOTE: § 351.02, Wis. Stats. defines habitual traffic offenders
based on convictions during the previous five years. This can include
twelve or more convictions of traffic regulation moving violations
within a 5 year period. Conservation violations may have enhanced
penalties if they occur within a five year period (§ 29.995, Wis.
Stats.). Traffic forfeiture and ordinance violation records are
unnecessary after 5 years since final case dispositions are certified to
the Department of Transportation (DOT) and the DOT record is retained
for over 10 years and is the basis for counting prior convictions.
Specifically, § 351.02(l) and (1m) states "any person ... whose
record, as maintained by the department shows that the person
has accumulated the number of convictions ... committed within a five
year period." The Department of Transportation maintains records of
traffic convictions, suspensions and revocations. The certified record
is prima facie evidence that the person named was duly convicted by the
court (§ 351.03). A person denying such facts has the burden of
proving the facts were wrong.
Criminal misdemeanor traffic records are under SCR
72.01(18),(19),(20) and are retained for 20 years (not 6 years) like all
criminal misdemeanor records. 1993 Wis. Act 317 amended §
342.12(4)(a), § 343.305(10)(b), § 346.65(2w) and other Chap.
343, 346 and 940 statutes, increasing to 10 years (from 5 years) the
period for counting prior convictions, refusals and revocations when
determining penalties for offenses related to operating a motor vehicle
while under the influence of an intoxicant. While the change in the
retention period seems minor, the volume of paper records kept statewide
is considerable.
Amend SCR 72.01 (41),(43),(44) as follows:
72.01(41) Juvenile delinquency, juveniles in need
of protection and services (JIPS) and children in need of protection
and services (CHIPS) case files. All papers deposited with the
clerk of circuit court, register in probate or clerk of court for
juvenile matters in every proceeding commenced under chapters 48
or 938 of the statutes: 10 4 years after 18th
birthday of juvenile or child; 8 years after 18th birthday of
juvenile or child if adjudicated delinquent for committing an act that
would be punishable as a Class A or B felony if committed by an
adult.
72.01(43) Juvenile/JIPS/CHIPS court record. A
history and index of proceedings under chapters 48 or 938
of the statutes kept in book or card form: 10 4
years after 18th birthday of juvenile or child; 8 years after
18th birthday of juvenile or child if adjudicated delinquent for
committing an act that would be punishable as a Class A or B felony if
committed by an adult.
72.01(44) Juvenile/JIPS/CHIPS minute record.
A brief statement of in-court proceedings commenced under
chapters 48 or 938 of the statutes, generally maintained
in the case file: 104 years after the 18th birthday of the
juvenile or child ; 8 years after 18th birthday of juvenile or
child if adjudicated delinquent for committing an act that would be
punishable as a Class A or B felony if committed by an adult.
NOTE: Per § 938.35(lm): Dispositions under Chapters 48 and 938
of allegations under § 938.12 or § 938.13(12) shall bar any
future proceeding on the same matter in criminal court when the juvenile
reaches the age of 17. This does not affect proceedings in criminal
court which have been transferred under 938.18.
Per § 938.355(4)(a): Any order made before the juvenile reaches
the age of majority shall be effective for a time up to one year after
its entry unless the court specifies a shorter time period.
Per § 938.355(4)(b): A judge may make an order under
§§ 938.34(4d) and (4m) apply for 2 years or until juvenile
turns 18, whichever is earlier. A judge shall make an order under §
938.34(4h) apply for 5 years, if the juvenile is adjudicated delinquent
for committing an act that would be punishable as a Class B felony if
committed by an adult, or until the juvenile reaches 25 years of age, if
the juvenile is adjudicated delinquent for committing an act that would
be punishable as a Class A felony if committed by an adult. The 8 year
retention for juvenile's adjudicated delinquent for committing an act
that would be punishable as a Class A or B felony if committed by an
adult would preserve the juvenile record for a minimum of one full year
past the 25th birthday.
Amend SCR 72.01 (47) as follows:
72.01 (47) Court reporter notes. Verbatim
stenographic ,or shorthand, audio or video notes
produced by a court reporter or other verbatim record of in-court
proceedings: 10 years after hearing.
NOTE: Clarifies that the 10 year retention of court reporter
"verbatim" notes includes audio and video transcripts. Audio and video
tape is more susceptible to deterioration over time if not stored
properly and also is more "hardware" dependent (example: VHS vs Beta
format).
Amend SCR 72.01 (53),(54),(55) as follows:
72.01 (53) Juror questionnaires. A form sent to
determine eligibility of prospective jurors: 34 years
after panel service.
72.01 (54) Jury array. A list of qualified persons
selected by jury commissioners to serve as jurors: 3
4 years after panel service.
72.01 (55) Record of jurors. A record of jurors
summoned to serve on juries: 34 years after panel
service.
NOTE: Per § 756.28(2) - Effective July 1, 1997, juror
eligibility for jury service is extended to four years.
Create SCR 72.01 (63) as follows:
72.01 (63) Coroner inquest records - No
retention: per § 979.08(6) after validated and signed by the judge
or court commissioner, the record of the inquest is delivered to the
district attorney for consideration. The district attorney may deliver
the inquest record to the coroner or medical examiner for
safekeeping.
NOTE: Per § 979.08(6) - After delivery of a verdict by the
inquest jury "any verdict so rendered, after being validated and signed
by the judge or court commissioner, together with the record of the
inquest, shall be delivered to the district attorney for consideration.
After considering the verdict and record, the district attorney may
deliver the entire inquest record, or any part thereof, to the coroner
or medical examiner for safekeeping."
Amend SCR 72.05 as follows:
SCR 72.05 Retention of court records maintained as
official or original information on electronic or optical storage
systems. Court records specified in SCR 72.01 and maintained as official
or original information on electronic or optical storage systems shall
be retained in the custody of the court for the minimum time periods
specified in SCR 72.01. The system maintaining the court records shall
meet all of the following requirements:
(1) The information retained shall be in ausable
legible and accessible format capable of accurately reproducing
the originalor of sustaining readability over the time periods
specified in SCR 72.01.
(1a) "Accessible" means the information is arranged, identified,
indexed and maintained in a manner that permits location and retrieval
in a readable format within a reasonable time by use of the proper
hardware and software.
(1b) "Authenticity" means being actually and reliably what is
claimed and implies the ability to substantiate it.
(1c) "Accurately reproduce" means when displayed on a retrieval
device or reproduced on paper, all information exhibits a high degree of
legibility and readability.
(1d) "Legible" means when displayed on a retrieval device or
reproduced on paper the quality of the letters, numbers or symbols that
enables the user to identify them positively and quickly to the
exclusion of all other letters, numbers or symbols.
(1e) "Minimum standards" means the minimum base level of technical
and/or operational quality necessary to accurately reproduce in an
accessible, legible and readable format, over a required period of time,
the information captured on the electronic or optical storage
system.
(1f) "Readability" means the quality of a group of letters,
numbers or symbols being recognized as words or complete numbers or
distinct symbols.
NOTE: Reference Department of Administration Adm. Rule 12.03
definitions; Adm. Rule 12.5(3) and § 16.61(7)(a)4; Black's Law and
Webster's Dictionary.
(2) Operational and technical procedures shall ensure that
protect the authenticity, confidentiality, accuracy ,
and reliability of the information captured and provide
the appropriate level of security are provided to safeguard
the integrity of the electronic or optically imaged
information.
(2a) Verify the legibility and readability of a statistically
significant sampling of electronic or optically imaged records to
ensure, to a 99.5% degree of confidence, that the information or images
are legible and readable in accordance with SCR 72.05(1d) and 72.05(1f).
Original optical images that are not legible or readable, shall be
flagged and re-scanned for optimum image enhancement. Illegible images
shall contain a scanned notation "best possible image."
(2b) Provide a suitable technical level of security to protect
electronic or optical imaged records that are statutorily deemed to be
sealed, impounded or confidential and implement procedures to restrict
access to only those parties authorized by statute or court order to
access such records.
(2c) Provide in good working order the hardware and software
needed to retrieve, read and timely reproduce on paper any record
retained on electronic or optical storage systems.
(3) Procedures shall be available in place and
implemented for the backup, recovery and storage of
electronically or optically stored records to protect those
records against media destruction or deterioration and information
loss.
(3a) Maintain, for disaster recovery purposes, at least one
electronically or optically stored backup copy of all automated or
optically imaged records and data using accepted computer backup
procedures. Store backup copies in a separate location under appropriate
environmental storage conditions. Implement a schedule to regularly
update or supplement backup copies as a normal part of
operations.
(3b) Maintain at least one set of documentation for the electronic
or optical systems that produced the automated or optically imaged
records for the retention period of those records. Regularly update or
supplement such documentation when revisions are made.
(3c) Conduct inspections of a statistically significant sampling
of electronic or optically imaged records at least once every 3 years to
verify, to a 99.5% degree of confidence, that there has been no
degradation of the electronic medium or of image quality.
(4) A media retention and conversion-review schedule
shall be established to ensure that electronically or optically stored
information is reviewed for data conversion or recertification at least
once every 5 3 years or more frequently when necessary to
prevent the physical loss of data or technological obsolescence of the
medium.
(4a) Transfer and verify off-line electronic data or records
stored on optical disk to new media or new optical disk before 50% of
the manufacturer's certified useful life of the original media/disk is
exceeded. Disk "useful life" is determined by the manufacturer's
certified disk playback stability measured in years.
(4b) Records electronically or optically stored that have reached
their minimum legal retention period specified in SCR 72.01 that do not
have historical or research value may be destroyed. For CCAP (Circuit
Court Automation Program) or other electronic court data systems and
WORM (Write-Once-Read-Many times) optical disk systems, records should
be organized and formatted to permit the off-line disk or optical WORM
disk as a whole to be destroyed. For WORM disks, the destruction of the
index to the obsolete record is sufficient.
(4c) Court records electronically or optically stored that are
expunged by court order as determined under § 973.015 and §
938.355(4m), Wis. Stats., shall be expunged by sealing or otherwise
restricting access to the electronic or optical stored record. This
includes records stored off-line and on backup media. This may involve
the obliteration of the index to the expunged record.
(4d) Protect electronically or optically stored records with
"archival" value (historical, or research value) beyond the legal
retention periods specified in SCR 72.01 from destruction or media
deterioration and transfer such records in a computer industry-accepted
standard universal format, along with technical documentation, to the
state historical society of Wisconsin.
(5) A written plan shall be provided to the director of state courts
for prior approval to ensure compliance with subs. (1) to (4) before a
new electronic or optical imaging record system is implemented and
before an existing system is enhanced. The plan should also
indicate:
(5a) That a feasibility study was conducted and an analysis made
of the system's cost and conversion costs compared to ongoing current
costs.
(5b) That a data migration plan has been developed for the
retention period of those electronically or optically stored
records.
(5c) That, if an optical imaging system, the custodian of the
record executed a statement of intent and purpose indicating:
- the case type of record and year(s) to be reproduced or
transferred,
- the SCR 72 rule number pertaining to the type of court record
being imaged,
- the physical disposition of the original paper records,
- the county resolution or ordinance (if a county system)
authorizing optical imaging,
- the records were certified as received or created and
transferred to optical disk format in the normal course of
business.
(5d) That the statement of intent and purpose was provided to the
director of state courts office.
NOTE: The amendments are intended to codify standards for the
transfer, capture and storage of court information and/or documents on
electronic or optical imaging systems for the required legal retention
period. The proposed amendments parallel or are based on Wisconsin
Statutes 16.61(5), 16.61(7)(a), 16.61(8)(a), 228.03(l) and (2);
Department of Administration Chapter Adm. 12 rules; Rules of Evidence
(Chapters 901 to 911, Wis. Stats.) Amendments are also based on
standards and guidelines proposed by the National Archives and Records
Administration, National Association of Government Archives and Records
Administrators and the Association for Information and Image Management.
The rule for expunction of electronic or optically imaged records (per
§§ 973.015 and 938.355(4m), Wis. Stats.) is based on the
proposed Chief Judges' petition on expunction, State vs.
Anderson [160 Wis. 2d 435 (Ct. App. 1991) and 130 Wis. 2d 376], DOA
Adm Rule 12.08(2) and Black's Law Dictionary definition of expunge.
Dated this 11th day of March, 1997.
For: The Wisconsin Court Records Management Committee
By: J. Denis Moran, Director of State Courts
Judicial Administration
In the matter of the Amendment of Supreme Court Rules: SCR 70.16 -
Definitions; SCR 70.21 - Additional Authority of the Chief Judge; SCR
70.28 - Trial Court Services; SCR 70.30 - Additional District Court
Administrators; SCR 70.31 - Assistant to the Chief Judge and District
Court Administrator; SCR 70.35 - Reserve Judge Eligibility; SCR 32.08 -
Reserve Judges; SCR 71.04 - Transcripts
Order 97-04
The court held a public hearing Sept. 9, 1997, on the petition of the
Director of State Courts seeking the amendment of numerous Supreme Court
Rules of Judicial Administration, including the rules concerning the
appointment of district court administrators, reserve judge eligibility,
and transcripts of reporters' notes and other records of court
proceedings. The court has considered the presentation at the public
hearing and the material filed with the court in the matter.
IT IS ORDERED that, effective the date of this order, the Supreme
Court Rules are amended as follows.
SECTION 1. 70.16 (2) of the supreme court rules is repealed.
SECTION 2. 70.16 (3) of the supreme court rules is repealed.
SECTION 3. 70.16 (4) of the supreme court rules is amended to
read:
70.16 (4) "District court administrator" means a person who is a
state employee and qualified to provide administrative and technical
assistance as well as to assist the chief judge in carrying out his
or her duties and responsibilities .
SECTION 4. 70.l6 (8) of the supreme court rules is amended to
read:
70.16 (8) "Technical assistance" means assistance in trial court
administration with respect to records management; ,
caseflow management, court reporting management, jury management,
statistical analysis, computerization, grant application, and education
of support personnel.
SECTION 5. 70.21 (4) of the supreme court rules is amended to
read:
70.21 (4) Section Sections 48.06 (1) (a) 2 :
. and 938.06 (1) (a) 2.: policy formulation and supervision of
child court center court services related to juvenile
matters.
SECTION 6. 70.21 (5) of the supreme court rules is amended to
read:
70.21 (5)Section Sections 48.06 (2) and 938.06
(2): approval of circuit judge's policy governing juvenile intake
workers.
SECTION 7. 70.21 (6) of the supreme court rules is amended to
read:
70.21 (6) Section Sections 48.065 (1) and 938.065
(1): appointment of juvenile court commissioners.
SECTION 8. 70.21 (7) of the supreme court rules is amended to
read:
70.21 (7) SectionSections 48.067 (6) and (9) and
938.067 (6) and (9): guidance and assistance of juvenile intake
workers.
SECTION 9. 70.21 (8) of the supreme court rules, as affected by 1997
Supreme Court Order 97-02, is repealed.
SECTION 10. 70.21 (8e) of the supreme court rules, as affected by
1997 Supreme Court Order 97-02, is repealed.
SECTION 11. 70.21 (8s) of the supreme court rules is created to
read:
70.21 (8s) Sections 48.38 (5) and 938.38 (5): permanency planning
review panel involvement.
SECTION 12. 70.21 (9) of the supreme court rules is amended to
read:
70.21 (9) Section 59.38 (2) 59.40 (1) (b) : approval of
appointment of deputy clerks.
SECTION 13. 70.21 (11) of the supreme court rules is created to
read:
70.21 (11) Section 751.025: Court reporting management
involvement.
SECTION 14. 70.21 (15m) of the supreme court rules is repealed.
SECTION 15. 70.21 (16) of the supreme court rules is created to
read:
70.21 (16) Section 756.001 (5): designation of a circuit judge to
supervise the jury system.
SECTION 16. 70.21 (20c) of the supreme court rules is created to
read:
70.21 (20c) Section 938.22 (1) (b) and (3) (a): approval of policy
and the appointment of a superintendent of secure detention
facilities.
SECTION 17. 70.21 (20e) of the supreme court rules is created to
read:
70.21 (20e) Sections 938.245 (2) (a) 8. a., 938.32 (1m) (a), 938.34
(2m) (a), 938.342 (1) (f) 1., 938.343 (2m) (a) and 938.344 (2g) (a) 4.
a.: approval of teen court programs.
SECTION 18. 70.21 (20m) of the supreme court rules is created to
read:
70.21 (20m) Section 938.346 (5): establishment of a procedure for
notifying victims of juveniles' acts.
SECTION 19. 70.21 (26) of the supreme court rules is amended to
read:
70.21 (26) Sections 48.29 (1m), 345.315 (1m), 799.205 (2), 800.05
(3), 801.58 (2), 938.29 (1m) and 971.20 (8): determination of
substitution requests and reassignment of judges.
SECTION 20. 70.28 of the supreme court rules is repealed.
SECTION 21. 70.30 of the supreme court rules is repealed and
recreated to read:
70.30 District court administrators; creation.
(1) Judicial administrative districts 1 to 10 shall each employ a
district court administrator.
(2) The director of state courts may recommend to the supreme court
that assistant district court administrator positions be created in one
or more judicial administrative districts.
SECTION 22. 70.31 of the supreme court rules is amended to read:
70.31 District court administrators and assistants to the chief
judges shall be appointed by the respective chief judges from a list
of candidates supplied by the director of state courts, who is
responsible for recruiting for these positions. The chief judge may
reject the list and request one additional list of candidates.
SECTION 23. 70.35 of the supreme court rules is repealed and
recreated to read:
70.35 Reserve judge eligibility.
(1) To be eligible for appointment as a reserve judge to perform
marriages, a person must be eligible under s. 753.075 (2), stats.
(2) To be eligible for appointment as a reserve judge to perform
judicial assignments, a person must meet all of the following
conditions:
(a) Be eligible under s. 753.075 (2), stats.
(b) Be eligible for appointment under SCR 32.08.
(c) Subject to sub. (3), have in force and on file with the office of
the director of state courts a written consent to eligibility for
appointment as a reserve judge. The written consent shall be renewed in
writing for each successive calendar year and in the form provided
under. sub. (5).
(3) If a consent form under sub. (2) (c) is not renewed for a
successive calendar year before the end of the calendar year for which
it has been filed, the person is not eligible to be a reserve judge
until at least 6 months after his or her most recent consent form under
sub. (2) (c) expires.
(4) A person may withdraw, in writing, a consent to eligibility for
appointment as reserve judge. If a consent is withdrawn, the person may
not file a consent form under sub. (2) (c) for six months from the
effective date of the withdrawal.
(5) (a) The written consent form for permanent reserve judges shall
be in the following form:
"If I am appointed a permanent reserve judge, as that term is defined
in section 753.075 of the Wisconsin Statutes, I consent to be bound by
all provisions of the Code of Judicial Conduct (Supreme Court Rules
chapter 60) from the date of that appointment and until its
expiration."
(b) The written consent form for all other reserve judges shall be in
the following form:
"In consideration of being eligible for appointment and assignment as
a reserve judge during . . . . (year), I consent to be bound for that
year by the provisions of the Code of Judicial Conduct (Supreme Court
Rules chapter 60) applicable to reserve judges."
SECTION 24. 32.08 (1) of the supreme court rules is amended to
read:
32.08 (1) To be eligible for appointment or reappointment as a
reserve judge to perform judicial assignments, a person otherwise
entitled to appointment shall earn 5 credits during the calendar year
immediately preceding appointment or reappointment. The director of
state courts shall determine the which judicial education
programs for which the may be attended to earn the
required 5 credits may be earned. One credit is awarded for
each half-day of attendance at programs sponsored or approved by the
judicial education committee. Reserve judges are not required to comply
with SCR 32.04.
SECTION 25. 71.04 (4) of the supreme court rules is amended to
read:
71.04 (4) Reporters' notes or other verbatim record of proceedings
under chapters chs.48 and , 767 and
938of the statutes shall be transcribed only upon order of the
court.
IT IS FURTHER ORDERED that notice of these amendments of the Supreme
Court Rules shall 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 12th day of September, 1997.
By the court:
Marilyn L. Graves, Clerk
Judicial Court Commissioners
In the Matter of the Amendment of Supreme Court Rules: SCR 70.36(5);
(proposed) SCR Chapter 76 - Appointment, Performance Evaluation,
Continuing Education, Discipline and Decisions of Judicial Court
Commissioners
Order 97-10
On Aug. 28, 1997, the Supreme Court's Planning and Policy Advisory
Committee filed a petition seeking the amendment of the Supreme Court
Rules to provide for the appointment, performance evaluation, continuing
education, and discipline of judicial court commissioners. The petition
also asks that SCR 70.36 be amended to establish time periods for
decisions of court commissioners, a procedure for extending the time for
those decisions, and monthly reporting of matters pending decision and
sanctions for violations of those provisions.
IT IS ORDERED that a public hearing on the petition shall be held in
the Supreme Court Room in the State Capitol, Madison, Wis., on Dec. 16,
1997, at 1:30 p.m.
IT IS FURTHER ORDERED that the court's conference in the matter shall
be held promptly following the public hearing.
IT IS FURTHER ORDERED that notice of the hearing be given by a single
publication of a copy of this order and of the petition in the official
state newspaper and in an official publication of the State Bar of
Wisconsin not more than 60 days nor less than 30 days before the date of
the hearing.
Dated at Madison, Wis., this 22nd day of September, 1997.
Marilyn L. Graves, Clerk
Petition
The Planning and Policy Advisory Committee, pursuant to its authority
and responsibility under SCR 70.14 (4) to advise the Wisconsin Supreme
Court regarding the administrative structure of the court system, and to
recommend appropriate changes in the administration and methods of
operations of all the courts of the state, hereby petitions the Court to
adopt the following rules pursuant to SCR Chapter 98 and in the exercise
of the Court's administrative authority under art. VII, sec. (3) (1) of
the Wisconsin Constitution:
SECTION 1. 70.36 (5) is created to read:
70.36(5)(a) In this subsection, "court commissioner" means a judicial
court commissioner or a supplemental court commissioner authorized under
SCR 74.02 (2) to perform specific duties under SCR 74.03 on a temporary
or occasional basis.
(b) A court commissioner shall not routinely take matters under
advisement. Every court commissioner shall decide any matter within 30
days after the matter is submitted for decision. If unable to do so, the
court commissioner shall so notify the supervising judge in writing
within 5 days prior to the end of the 30-day period. The supervising
judge may extend the period for an additional 30 days, or may require
that the court commissioner suspend all other assigned activities until
the decision is filed.
(c) Within the first 10 days of each month, a court commissioner
shall report in writing to the chief judge and/or supervising judge any
matters taken under advisement or pending decision during the preceding
month. This report shall include the case number and caption, the date
submitted for decision and the date any decision was filed.
(d) Violation of this rule is cause for the chief judge to withdraw
the judicial court commissioner's authority to act, or appointment,
temporarily or permanently. In addition to or in lieu of this
discipline, the chief judge may refer the matter to the judicial
commission for investigation.
NOTE: 4/23/97 position paper pp. 9-10.
SECTION 2. SCR Chapter 74 is created to read as follows:
SCR CHAPTER 74
JUDICIAL COURT COMMISSIONERS
SCR 74.01 Definition. In this chapter, "judicial
court commissioner" or "commissioner" means a court commissioner
appointed under SCR 74.02 as an officer of the court to perform limited
judicial and quasi-judicial functions under the direction and authority
of the chief judge and judges of the circuit. The term includes a
supplemental court commissioner appointed by circuit court judges under
s. 757.68 (2) only if and to the extent that the commissioner is
authorized under SCR 74.02 (2) to perform specific duties under SCR
74.03 on a temporary or occasional basis.
NOTE: 4/23/97 position paper page 1. This chapter applies to judicial
court commissioners. But, if a supplemental court commissioner is
authorized by the chief judge to perform duties under SCR 74.03 on a
temporary or occasional basis, this chapter applies to that court
commissioner, too. There are continuing education requirements under SCR
74.05 if the supplemental court commissioner spends 40 or more hours per
year on these duties. The performance evaluation and complaint
procedures apply to the performance of the authorized duties, however
limited.
SCR 74.02 Appointment. (1) The chief judge of a
judicial administrative district shall appoint judicial court
commissioners within the district, who shall be selected through a
process approved by the chief judge and the circuit court judges of the
counties in which the commissioner will serve. A judicial court
commissioner shall be a member of the state bar in good standing with at
least 3 years' legal experience. Selection shall be based upon merit in
accordance with generally accepted personnel practices.
(2) The chief judge of a judicial administrative district may by
order authorize a supplemental court commissioner appointed under s.
757.68 (2) to perform one or more specific duties under SCR 74.03 on a
temporary or occasional basis.
(3) The chief judge of a judicial administrative district may, on
application of a judge within the district exercising probate
jurisdiction, by order authorize a register in probate to perform the
duties of a judicial court commissioner in probate matters.
NOTE: 4/23/97 position paper pages 2-3. Subsection (3) is based on s.
757.72 (5).
SCR 74.03 Duties. The order appointing a judicial
court commissioner shall either confer all powers and duties allowed
court commissioners by statute, or shall specify duties which the
commissioner is authorized to perform, including but not limited to the
following:
(1) In cases under ch. 48 or 938:
(a) Exercise the powers of a juvenile court commissioner under s.
48.065.
(b) Issue summonses and warrants, order the release or detention of
children apprehended, conduct detention and shelter care hearings,
conduct preliminary appearances, conduct uncontested proceedings under
ss. 48.13, 938.12, 938.13 and 938.18;
(c) Enter into consent decrees and exercise the powers and perform
the duties specified in par. (j) or (m), whichever is applicable, in
proceedings under s. 813.122 or 813.125 in which the respondent is a
child.
(2) In family matters:
(a) Exercise the powers of a family court commissioner under s.
767.13.
(3) In traffic regulation cases and county ordinance cases:
(a) Conduct initial appearances, receive noncontested forfeiture
plea;
(b) Order the revocation or suspension of operating privileges and
impose monetary penalties according to a schedule adopted by a majority
of the judges of the courts of record within the county;
(c) Refer applicable cases to court for enforcement for
nonpayment.
(4) In actions under ch. 799:
(a) Conduct return date proceedings and settlement conferences;
(b) Grant and enter default judgments and approve stipulations;
(c) Conduct conferences and hearings with the parties or their
attorneys or both on the return dates and adjourned dates, if any;
(d) Issue decisions, which shall become judgments under s. 799.207
(2).
(5) In probate matters:
(a) Exercise the powers of a probate court commissioner under s.
757.72;
(b) Conduct noncontested proceedings;
(c) Hear petitions for commitment and conduct probable cause hearings
under ss. 51.20, 51.45 and 55.06(11);
(d) Conduct reviews of guardianships and protective placements and
protective services under chs. 55 and 880; advise a person alleged to be
mentally ill of his or her rights under the United States and Wisconsin
constitutions and, if the person claims or appears to be unable to
afford counsel, refer the person to the authority for indigency
determinations specified under s. 977.07(l) or, if the person is a
child, refer that child to the state public defender who shall appoint
counsel for the child without a determination of indigency, as provided
in s. 48.23 (4).
(6) Hold hearings, make findings and issue temporary restraining
orders under ss. 813.122 and 813.125.
(7) In criminal matters:
(a) Direct a case to the proper court if the defendant wishes to
enter a plea after intelligent waiver of rights;
(b) Issue summonses, arrest warrants or search warrants and conduct
initial appearances of persons arrested and set bail; determine probable
cause to detain arrested persons pending initial appearance;
(c) Conduct initial appearances; inform defendants in accordance with
s. 970.02(l) and (6); refer defendants who appear or claim to be
indigent for indigency determinations specified under s. 977.07(l);
(d) Conduct preliminary examinations and arraignments and, with the
consent of both the state and the defendant, accept guilty or no contest
pleas;
(e) Conduct restitution hearings under s. 973.20 (13) (c) 4.
(8) Conduct inquests under ch. 979.
(9) Issue warrants and capiases for those who do not appear as
summoned.
(10) Try questions of fact requiring the examination of accounts, and
report upon specific issues of fact involved therein, upon referral by
the circuit court.
(11) Try questions of fact arising other than upon the pleadings,
upon referral from the circuit court.
(12) Prepare proposed findings of fact and conclusions of law
pertaining to default mortgage and land contract foreclosures and
mechanics liens, upon referral.
(13) Issue subpoenas and attachments or other process to compel the
attendance of witnesses, administer oaths and affidavits, take
depositions and testimony when authorized by law or rule or order, and
certify and report the depositions and testimony.
(14) Issue the following writs returnable before a judge at a time
set by the judge or the judge's clerk: habeas corpus; certiorari; ne
exeat and alternative writs of mandamus.
(15) Supervise accountings subsequent to a sale of land under ch.
75.
(16) Issue subpoenas returnable before a judge on behalf of the
Wisconsin department of justice for antitrust violations under s. 133.11
(1) or violations of ss. 563.02 to 563.80 under s. 563.71 (1).
(17) Investigate and dispose of unclaimed property under ss. 171.04
to 171.06.
(18) Except as provided in s. 767.13 (5) (c), conduct a paternity
proceeding according to the procedures set out in ch. 767.
(19) Conduct pretrial conferences, dismissal calendar proceedings,
statutory name changes, minor settlement approvals under the amount
specified in s. 807.10 (3), and uncontested mortgage foreclosures.
NOTE: Based on s. 757.69, Wis. Stats., this rule requires that the
order appointing a judicial court commissioner either confer all powers
allowed by statute, or enumerate specific duties to be performed. The
list of possible duties is intended to be suggestive, not exhaustive. It
deliberately excludes the powers to officiate at marriage ceremonies and
to conduct supplementary hearings on the present financial status of a
debtor and exercise powers under ss. 816.04, 816.08 and 816.11. This
chapter does not apply to those activities, nor do they cause continuing
education requirements to obtain.
SCR 74.04 Performance evaluation. (1) The director
of state courts shall establish a standard procedure for the regular
evaluation of the job performance of judicial court commissioners, which
shall include minimum performance standards for commissioners to be
certified as qualified.
(2) The chief judge shall appoint a supervising judge for each
judicial court commissioner. The supervising judge shall annually
evaluate the performance of the commissioners under his or her
supervision, communicate responsibilities and performance objectives,
and recommend to the chief judge whether the commissioner should be
certified as qualified to continue in that capacity in the succeeding
year. The supervising judge's recommendation shall be supported by
reasons and shall include findings regarding the following:
(a) Whether the court commissioner has met or exceeded the minimum
performance standards under sub. (1);
(b) Whether the commissioner is subject to any disciplinary order
which forbids the commissioner to act in a quasi-judicial capacity, or
is subject to removal or suspension.
(c) Whether the commissioner has complied with SCR 70.36 (5) and
74.05, including attendance at specific education recommended by the
chief judge.
(3) The chief judge shall, upon considering the recommendation of the
supervising judge, certify each commissioner as qualified to act in that
capacity or deny such certification. The chief judge shall not certify
as qualified any commissioner unless affirmative findings have been made
under (2) (a) and (c) and a negative finding has been made under sub.
(2) (b).
NOTE: 4/23/97 position paper pp. 4-5. Unless the commissioner has met
minimum performance standards, complied with rules relating to education
and prompt decision-making and is not subject to ethical sanctions, he
or she cannot be certified as qualified to discharge the functions of
the office. Local jurisdictions may use members of the bar, civic or
consumer groups to assist the supervising judge in the evaluation
process. Under 74.01, this section applies to supplementary court
commissioners if they are authorized to perform duties under SCR 74.03
on a temporary or occasional basis.
SCR 74.05 Continuing education. (1) A judicial court
commissioner shall maintain and improve his or her professional
competence by participating in programs of continuing education designed
for judicial court commissioners and by participating in local
orientation programs which may include mentoring by circuit court
judges.
(2) A judicial court commissioner shall earn 60 education credits
each period of 6 years by participating in continuing education
programs. A commissioner shall earn no fewer than 10, nor more than 30
credits, every two years. A full-time judicial court commissioner shall
earn credits only by participating in continuing education programs
approved by the judicial education committee. A judicial court
commissioner not employed full-time in that capacity may earn up to 40
of the required 60 credits by participating in continuing legal
education programs approved by the board of bar examiners.
(3) A supplemental court commissioner authorized under SCR 74.02 (2)
to perform specified duties under SCR 74.03 shall earn not less than 3
education credits in programs approved by the judicial education
committee in any year in which the performance of those duties requires
40 or more hours.
NOTE: 4/23/97 position paper pp. 6-7. SCR 31.05 (4) requires that the
board of bar examiners allow participation in activities approved by the
judicial education committee to be used to satisfy CLE requirements for
attorneys.
SCR 74.06 Complaints, discipline. (1) A person may
file a complaint regarding the conduct of a judicial court commissioner
with the chief judge of the judicial administrative district. The chief
judge or designee of the chief judge shall advise any complainant of the
right to file a complaint with the judicial commission. Notwithstanding
the jurisdiction of the judicial commission, the chief judge may
discipline a judicial court commissioner as provided in this rule.
(2) The chief judge of each judicial administrative district is
responsible for disciplining judicial court commissioners with respect
to their quasi-judicial activities, and for determining the severity of
the discipline, including removal. The chief judge shall consider
information and recommendations from the supervising judge or judges
when making these determinations.
NOTE: 4/23/97 position paper pp. 5 and 8.
SCR 74.07 Local court rules.
(1) Circuit court judges may establish:
(a) Rules and standards clarifying the authority of judicial court
commissioners in particular types of cases; and
(b) Guidelines for decision-making by judicial court
commissioners.
(2) All local rules shall be adopted under s. 753.35 (2). Local
rules, standards and guidelines under this rule shall be consistent with
statutes and supreme court rules, and shall be approved by the chief
judge of the judicial administrative district.
NOTE: 4/23/97 position paper pp. 7-8.
Wisconsin Lawyer