Vol. 70, No. 2, February
1997
Read
Court Commisioner Implentation Report*
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Go to SCR 70.36 (5) amendment and SCR Chapter 75:
Judicial Court Commissioners
Expanding the Use
of Court Commissioners
By Dianne Molvig
As we edge closer to the next millennium, the demands
on our judicial system continue to mushroom. Several factors feed into
this: our society's growing complexity; our increasing tendency to turn
to the courts to resolve disputes; and our push for stronger crime-fighting
measures to make our communities safer, to name a few.
The effects of these trends ripple into our courtrooms.
Meanwhile, the dollars to fund courts keep dwindling. So, court dockets
overflow, people sit in jail too long awaiting trial, and overworked judges
face mounting frustrations because they can't give enough time and attention
to individual cases. All this points to a question that, although not new,
seems to take on greater urgency with each passing year: How can the judicial
system do more and more with less and less? Wisconsin decisionmakers struggle
for answers.
One solution is to expand the use of court commissioners to take some
of the load off judges. But it's a solution that raises a multitude of questions:
- What functions should court commissioners perform?
- How much power should be vested in commissioners who, unlike judges,
are not elected by the people whose lives their decisions affect?
- How does the system absolutely ensure that court commissioners are
held accountable for their actions?
- Could expanded use of court commissioners lead to a two-tiered system,
making judges increasingly insulated from and inaccessible to the average
citizen?
Searching for answers to such quandaries was the assignment given the
Audit Subcommittee of the Wisconsin Supreme Court Planning and Policy Advisory
Committee (PPAC). The PPAC subcommittee published its report and recommendations
in July 1994.
The following year the subcommittee, then called the Court Commissioner
Subcommittee, returned to the table to create an action plan to set the
1994 recommendations in motion. The latter subcommittee issued and won endorsement
for its report from the entire PPAC in early summer 1996.
That report now is wending its way amongst circuit court judges, court
commissioners, State Bar committees and other interested parties. The supreme
court is soliciting reactions before deciding how to proceed on the report's
recommendations. Implementing many of these will require changes in the
Supreme Court Rules or state statutes, or both.
Highlights of the Report
The subcommittee weaves three key themes throughout its report. First,
that court commissioners must be viewed as and be expected to perform as
professionals. That means standards (court commissioners already are subject
to ethical standards set by the Judicial Commission, as of 1991), regular
performance evaluations and continuing professional education.
The second theme is supervision. District III Wisconsin Court of Appeals
Judge Gordon Myse, who served on both PPAC subcommittees, points out that
the idea is not that court commissioners become "a sort of closet judiciary,
an unacknowledged force with judicial powers that isn't subject to public
election scrutiny," but rather that commissioners work within the parameters
defined by judges and under judges' supervision.
Third, the report recognizes how valuable court commissioners are in
the workings of Wisconsin justice, and that they comprise a judicial resource
that should be available to any court that needs them - whether for a half-day,
a month or full-time.
On the surface, those principles might appear to have little potential
for raising argument. But as some observers have noted, "the devil
is in the details."
Keeping the overriding principles in mind, the subcommittee devised several
specific recommendations. Several key recommendations follow:
Definitions
For starters, the two PPAC reports point to the current state of confusion
about what a court commissioner actually is. For instance, the term "court
commissioner" occurs some 300 times in the state statutes, but there
is no consistency in meaning- either in statute language or in common everyday
practice. A "court commissioner" might be someone appointed by
a judge who performs a few weddings a year, or someone formally hired by
a county who handles 150 cases a day in criminal intake court - and everything
in between. (In fact, no one knows exactly how many commissioners work in
the state because they're counted so many different ways from county to
county.) The diversity of roles and time commitments will continue, but
PPAC calls for clarifying terminology by setting up two definitions:
A judicial court commissioner is a legally trained officer of the court
performing limited judicial and quasi-judicial functions under the direction
and authority of the chief judge and circuit court judges within the county.
(Thus, specialist court commissioners, such as family court commissioners,
which statutes require every county to have, and probate court commissioners
would all be considered "judicial court commissioners." Also,
any such positions could be full- or part-time, according to court needs.)
An honorary court commissioner is appointed by a circuit court judge,
with the authority to perform weddings and ministerial duties, conduct supplemental
proceedings and appoint receivers when appropriate.
AB 858
Will Be Back
During the last state legislative session,
Milwaukee Representative Scott Walker proposed AB 858, at the behest of
Milwaukee County Chief Judge Patrick Sheedy, as a way to trim the enormous
caseload crunch in Milwaukee County. The bill would have allowed Milwaukee
County's full-time court commissioners to sentence in misdemeanor cases,
when the defendant and state agreed on the sentence. "The safety valve
on this," notes Walker, "was that any sentence imposed by a commissioner
would be subject to a review by a judge if either party requested it within
15 days after sentencing."
Thus, the bill would have freed up judges
to deal with contested cases, supporters contended. Although the bill passed
the Assembly, it died in the Senate. The State Court Office lobbied against
it, urging the Legislature to put off a piecemeal approach to one county's
problem until a comprehensive statewide plan regarding court commissioners
was in place.
Still, Walker says he's inclined to bring
up the bill again next session "because," he notes, "as I
argued on the floor (last session), we can't wait. Milwaukee County faces
a very difficult position." |
Appointment, term and qualifications. Judicial court commissioners would
be selected by the circuit court judges whom the commissioners would serve,
subject to approval by the district's chief judge. Selection should be based
on merit, while considering the value of diversity. The proposed fixed term
is six years. Commissioners could be removed without cause during the first
two years, considered an "evaluation period" (although supervising
judges can shorten or lengthen this period, with approval from their chief
judge), and with cause thereafter. Commissioners must be members of the
bar in good standing, with at least three years' experience.
Evaluation and Discipline
PPAC calls for job performance reviews of judicial court commissioners
by the supervising judge(s) in the county. The latter can call for disciplinary
actions and removal of commissioners, with the chief judges having the final
say in such decisions.
Education and Training
In the past, continuing education for court commissioners has tended
to fall between the cracks. Judges have their courses, lawyers have theirs,
and oftentimes neither is completely useful to a judicial court commissioner.
Nor were court commissioners required to earn continuing education credits.
PPAC recommends that commissioner education programs be provided to all
judicial court commissioners at state expense (funds for this already have
been added to the supreme court budget). Full-time commissioners must complete
60 judicial education credits every six years in courses useful to commissioners.
Part-timers, who also may be practicing law, can mix continuing legal education
and court commissioner education credits (at least 20 of those must be court
commissioner education credits, approved by the judicial education committee).
Duties
The reports call for some additional duties to be extended to judicial
court commissioners - for example, enabling juvenile court commissioners
to issue orders authorizing children to be taken into custody; extending
commissioners' powers in probate court to include opening estates and conducting
uncontested guardianships, among other duties; and allowing criminal court
commissioners to conduct prearraignments and predispositional nonevidentiary
proceedings. The PPAC subcommittee discussed but rejected the idea of allowing
criminal court commissioners to have dispositional authority in uncontested
cases.
Contempt Powers
In the interval between its 1994 and 1996 reports, PPAC switched its
position on giving court commissioners contempt powers. Citing disruptive
incidents that threaten security during court commissioner proceedings,
PPAC now recommends that commissioners have powers of contempt.
Local Rules and Judicial Court Commissioner Authority
PPAC leaves room for local judges to set rules and standards to clarify
commissioners' duties (keeping within statutory limits) and to devise decision-making
guidelines for commissioners. All of these are subject to the district chief
judge's approval.
Complaints
Anyone can complain to the chief judge about the conduct of a judicial
court commissioner and also will be informed about the right to file a complaint
with the Judicial Commission. (As noted above, chief judges also have the
power to discipline and remove judicial court commissioners.)
The Controversies
As the new PPAC report circulates throughout the judicial system, several
points of debate inevitably will emerge - and some already have. A few of
them include:
The Back-to-Two-Tiers Issue
One major question that has come up in the past, and surely will keep
resurfacing, is whether the expansion of court commissioner duties could
nudge us back to a two-tiered court system, such as existed before court
reorganization in 1978. Before then, the state had county courts and circuit
courts. Some matters could be taken to either court; others were the domain
of one court but not the other. For example, in criminal law, county courts
heard misdemeanors and circuit courts heard felony cases. Most counties
had at least one judge, and a circuit court could cover more than one county.
Because some judges had jurisdiction over some matters but not others, judges
couldn't always be interchangeable as needed to best handle caseloads in
the two types of courts. Plus, because county court cases could be appealed
to circuit court, the perception was that circuit court was a higher court.
In 1973 a citizens' study committee appointed by Gov. Lucey deemed the
two-tiered system inefficient and a poor use of judges. The committee called
for the system to be replaced by a single-level court in which "every
case in a court of our state is equal in importance to every other case
and that no person should be relegated to a less prestigious court or judge
for the trial of his case." Our current circuit court system arose
from that recommendation.
As numbers and powers of court commissioners gradually have increased
in recent years, some observers have wondered whether the system is headed
back to the two-tiered model. For instance, in 1991 supreme court justices
Shirley Abrahamson and Louis Ceci raised that very issue in a dissenting
opinion.
But attorney Eileen Hirsch, who sat on both PPAC subcommittees and chaired
the second one, hopes that the committee's recommendations will, if anything,
stem any movement toward a two-tiered court system. Some counties already
may be headed in that direction, she notes, because of confusion about how
much authority judges actually have over commissioners. "Our plan clarifies
that," Hirsch contends. "It gives us a system governed by judges,
with the commissioners clearly accountable to judges. I feel it actually
protects the court from a willy-nilly development of a two-tiered system."
Interesting enough, the citizens' committee that proposed the current
single-court system back in 1973 also recommended increased status and authority
for court commissioners. "We didn't see that as a contradiction,"
points out Jeffrey Bartell, a Madison attorney who served on that committee.
"It was one of a number of recommendations we made to cut down on court
congestion and the need to keep adding judges. That isn't to say we shouldn't
add judges when we need them. But the committee concluded there were a good
many functions judges perform that could be performed by someone who wasn't
a full-fledged judge - who was appropriately trained."
Professionalism Requirements as Boon or Burden
The PPAC report emphasizes the importance of continuing education for
judicial court commissioners - whether they be part-time or full-time. As
Hirsch notes, "It was a strong belief of the committee that if a court
commissioner is going to set bail, or make a temporary custody decision
in a divorce case, or make a procedural decision in a juvenile case, or
whatever, that people have a right to have a judicial court commissioner
who is a trained professional in what they do - even if they only do it
once in a while."
Still, the practical applications of that training requirement can create
hardships, especially in single-judge counties, points out Pierce County
Circuit Court Judge Robert Wing, who now has a part-time court commissioner
working for him. Take, for instance, a situation in which an emergency hearing
comes up, such as a temporary restraining order in a domestic case, that
Wing can't handle because he's in the midst of a jury trial. Being a solo-judge
court, he relies on his court commissioner to handle such proceedings. But
if she also is tied up with another matter or away on vacation, Wing turns
to a corps of local attorneys to help out. "I probably use five people
at various times," Wing points out. "But they wouldn't be permitted
to do that any longer, unless they want to be subject to all the rules"
such as continuing education credit requirements. Of course, being part-timers
they can combine CLE credits and court commissioner education credits to
meet their requirement of 60 credits every six years. And that education
is paid for by the state, not the commissioner. Still, 20 of those 60 credits
have to meet judicial education committee approval. Thus, Wing wonders if
it's worth it for his part-time commissioners, who only fill in once in
a while in emergencies, to go to the trouble of earning those 20 credits.
The upshot may be that Wing loses his back-up commissioners.
Term Limits
This is a huge issue among current court commissioners, among whom there's
strong opposition to the proposed six-year term limit. They argue that highly
qualified individuals, who already have successful law practices, won't
want to shut down at the risk of having to come back to restore their private
practice six years later. Commissioners contend that could happen if, for
example, a commissioner has a personality conflict with a chief judge.
So, who will take the jobs? "There will be two groups," says
Frank Liska, Milwaukee County administrative court commissioner and president
of the newly formed Wisconsin Association of Judicial Court Commissioners.
"It will be people right out of law school who have no prospects, and
people at the end of their career who just want a final feather in their
cap. What you're doing is excluding those who would do it as a long-term
career move and become career professionals."
That view is echoed by those in the state's other court commissioner
organization, the Wisconsin Family Court Commissioners Association, according
to Milwaukee County family court commissioner Mike Bruch. Not only will
a six-year term limit scare off qualified candidates, but, Bruch says, it
sabotages the very reason why PPAC proposes term limits to prevent incompetent
individuals from becoming entrenched in these positions. "Say I was
a bad court commissioner," he notes, "and I'm three years into
a six-year appointment. Are you willing to say to the citizens of Wisconsin,
'Well, we know he'll be out in three years'? Or do you have a system for
getting him out now, and put some teeth in it? How does six years solve
it? It gets down to saying, 'We don't really want to handle this, so we'll
let time solve it.'"
Still, the subcommittee felt that there were risks in letting court commissioners
settle into indefinite tenures. Plus, as the committee sees it, court commissioners
may be overreacting to the likelihood of getting ousted after six years.
"No court commissioner has ever been removed for political reasons
or reasons other than performance," Judge Gordon Myse points out. "Our
history shows that there haven't been wholesale changes in court commissioners
when new judges take the bench. . The danger for abuse always exists, but
we can guard against that . [and] against potential abuses either way. I
mean don't make the term so long you can't get rid of incompetence. But
don't make it so short that you compromise the stability of the job and
the effort to attract good people."
Going Too Far with Court Commissioner Powers
or Not Far Enough?
The judiciary continues to struggle with the dilemma over how to use
court commissioners to
help relieve an overburdened system - and yet to not vest them with duties
and powers that should remain in the hands of an elected judge. For instance,
should court commissioners have contempt powers? PPAC concluded it was a
necessary step. Others are not so sure. "That's an area where commissioners
can do harm that's not easily undone," notes Wing. "They can say,
'Get in jail now,' and by the time that gets reviewed by a judge, that person
has already suffered a fairly significant penalty."
Meanwhile, others proclaim that the PPAC report does not go far enough
in expanding court commissioner authority. Judges and subcommittee members
Bruce Schroeder of Kenosha County and John Perlich of La Crosse County submitted
a supplemental statement to the PPAC report stating concerns along those
lines. They wrote that "the likely use of court commissioners under
the existing proposal is inefficient and unfair." As an example, someone
appearing before a commissioner on a second-offense driving-without-a-license
charge must return to see a judge to have the case concluded. That means
taking more time off work and paying more attorney fees. The person involved
might prefer to have the case wrapped up at the commissioner's hearing.
As for the argument that extending such powers to a commissioner only
further feeds the evolution of a two-tiered court, Schroeder and Perlich
refute that as well. A two-tiered, in fact a multi-tiered, system exists
now, they say, noting that judicial functions already have seeped out to
the executive branch. For example, hearing examiners decide whether to revoke
someone's probation or whether to award worker's compensation. What's more,
such decisions are made without the possibility of de novo review as provided
in the judicial branch. Schroeder and Perlich feel that in all likelihood,
the Legislature will delegate increasing authorities such as these to executive
branch employees, as well as expanding court commissioners' functions. They
would rather see the judiciary make such determinations.
"That's where I feel the PPAC committee didn't finish the job,"
Schroeder says. "I don't mean to cast a stone, because we worked hard
on this. But the report stops short. I'd like to see the supreme court ask
for additional study as to exactly what powers should be given to commissioners,
under what circumstances. It's a difficult issue. And Judge Perlich and
I felt that the report didn't take that extra step."
Green Bay attorney and legislator Mark Green, chair of the Legislature's
Judiciary Committee, agrees. "The report doesn't get at the issue that
AB 858 did (see accompanying article), which is court commissioner jurisdiction.
From the Legislature's perspective, that is the critical point." AB
858 would have given Milwaukee County court commissioners the authority
to take pleas and issue sentences in misdemeanor cases, when all parties
agree on the outcome.
Dennis Cimpl, Milwaukee County judicial court commissioner and member
of the State Bar's Bench Bar Committee, is one among many in his county
who would have liked the bill to have passed - and for the PPAC report to
have addressed this same issue. According to Cimpl, the types of minor misdemeanors
court commissioners likely would get would include such matters as retail
theft, worthless checks, prostitution and so on. "There are a number
of people coming out of minor misdemeanors who have already been in custody
48 hours," Cimpl explains. "And all they're going to get is a
48-hour sentence on some of these. They would just as soon plead guilty
and get it over with. They can't do that in front of me now. . This would
be a way to get people out of our jail quicker." (The Milwaukee County
jail population is 1,300, with a capacity of 700, according to county administrative
court commissioner Frank Liska.)
But should someone who's an unelected official be putting anyone in jail?
"In minor misdemeanors, I think the answer is yes," Cimpl responds.
"And I'm saying that as a former defense attorney. If we didn't have
this crisis in Milwaukee County, my answer would be no, that people who
put people in jail should be subject to the electorate. But we don't have
that luxury. Desperate times call for desperate measures." And, he
adds, as long as the court commissioner's sentence is subject to timely
de novo review by a judge, and issued according to sentencing guidelines
drawn up by a judge, he feels safeguards are adequate.
The debate over court commissioner jurisdiction is likely to rage on
for decades, especially in times when money to fund judgeships keeps getting
tighter. That brings up another sticky question: Will expansions in numbers
and powers of court commissioners just create an escape hatch through which
legislators can avoid funding more judgeships in the future, even when they're
sorely needed? "That is the tough question," Green admits. "For
lack of a better term, you could call them 'mission creep' challenges. Those
kinds of challenges tend to be decided behind the scenes, because they're
not sexy issues that capture people's fancy. . But those decisions are going
to have long-term implications - fiscal implications, and also implications
of justice and access to justice. And those are decisions that are very
hard to make."
Meanwhile, other issues loom in the wings, such as whether the state
should take over funding of court commissioners from the counties. If it
does, where would those funds come from out of an already strapped state
budget? Will this lead to a new "court commissioner fee" - yet
another filing fee that could threaten to further limit equal access to
justice? Also, if commissioners indeed do become state rather than county
employees, how do you superimpose a statewide system over an extremely diverse
set of situations in various counties (for instance, some commissioners
now are unionized)? These are matters the PPAC subcommittee deliberately
did not delve into.
The whole subject of court commissioners seems to stir new questions
at every turn. Add one more: While the judiciary struggles to decide on
a definitive plan allaying concerns about the proper role of court commissioners,
how long will legislators wait before coming up with measures of their own?
Many remain optimistic that the judiciary will act soon enough. "I
suspect one of the things that will come out of this implementation plan,"
Liska says, "is that we'll finally get all the players to sit down
and attempt to reach a consensus. If we're geared towards the same direction,
even though we may be at cross purposes on certain issues, I think this
is doable. It's going to take time. It's not going to be done overnight.
But in the long run, it's in everybody's best interest to get this straightened
out. We have to do something."
Dianne Molvig operates Access Information Service,
a Madison research, writing and editing service. She is a frequent contributor
to area publications. |