By Adam Korbitz, Government Relations Coordinator, State Bar of Wisconsin

July 26, 2010 – Wisconsin's Judicial Council has wrapped up another year marked by several significant achievements, including new Supreme Court rules governing the discovery of electronically stored information.

In April 2010, the court approved an amended petition filed by the Judicial Council regarding new rules governing discovery of electronically stored information. The petition, which the State Bar of Wisconsin supported, received a public hearing in January 2010. The new rules take effect on Jan. 1, 2011.

The Judicial Council filed the petition with the Supreme Court in April 2009 to modify the Wisconsin rules of discovery to take into account the discovery of electronically stored information. The petition proposed rules similar to the Uniform Rules on the Discovery of Electronically Stored Information and the 2006 amendments to the Federal Rules of Civil Discovery regarding the discovery of electronically stored information.

On July 6, 2010, the Supreme Court promulgated the new rules, which will be effective Jan. 1, 2011. At the same time, the court scheduled another public hearing on the rules for Sept. 30, 2010, so that attorneys and other members of the public can comment on the rules once more before they become effective. Written comments regarding the new rules are due to the court no later than Aug. 31, 2010. (According to the scheduling order, any comments shall be filed with the Clerk of the Supreme Court, P.O. Box 1688, Madison, WI 53701-1688, and emailed to clerk@wicourts.gov.)

In April 2010, the court also approved another rule-making petition filed by the Judicial Council, this one relating to the confidentiality of communications made in mediation. Following a public hearing, the court voted unanimously to approve petition 09-12, which the Judicial Council filed in October 2009 to clarify that hearings held under Wis. Stat. section 904.085(4)(e) must be held in camera. Section 904.085 provides generally that communications made in mediation are privileged.

Under current section 904.085(4)(e), courts may admit evidence which would otherwise be barred by that section, but only after a hearing is held to determine if admission is necessary to prevent a manifest injustice of sufficient magnitude to outweigh the importance of protecting the principle of confidentiality in mediation proceedings generally. The Judicial Council petition makes it clear that such hearings must be held in camera rather than in open court.

The Judicial Council filed the petition at the suggestion of the late Judge Robert Haase, who recently passed away on July 19, 2010. At the public hearing in April 2010, Judge Haase told the court that having such hearings in open court defeated the purpose of making communications made in mediation privileged in the first place.

The State Bar's Board of Governors also supported this Judicial Council petition, at the request of the Bar's Alternative Dispute Resolution Section.

Finally, on November 1, 2009, three new laws which originated as bills introduced at the request of the Judicial Council and drafted with its assistance took effect. The three acts  — 2009 Wisconsin Acts 25, 26 and 27 — all make various changes to the rules of appellate procedure. Enactment of these new rules, which Gov. Jim Doyle signed into law in June 2009, caps a process that began 12 years ago when the council's appellate procedure committee first began studying the issue in 1997.

The conclusion of the council's successful year continues a string of successes for the body. The council's previous year saw the Supreme Court approve another Judicial Council petition in January 2009, this one to permit the citation of unpublished appellate decisions for their persuasive value. The new rule, which took effect July 1, 2009, applies only to decisions issued on or after the effective date and does not include per curiam decisions, summary dispositions or memorandum decisions. The Supreme Court has ordered a review in 2011 of how the rule is being implemented. And in April 2008, the Supreme Court gave final approval to the Judicial Council's 2005 petition to conform the rules for conducting depositions outside of Wisconsin with the rules for conducting them in Wisconsin. Those new rules were effective July 1, 2008.

Many projects in the works

In addition to these recent successes, the Judicial Council has plenty of other projects in the works. Several Judicial Council committees are also working on projects in various stages of development.

The council's appellate procedure committee is studying proposals to improve the procedures and rules governing the use of presentence investigation reports before and after sentencing. The committee has been studying the issue for several years and has consulted with the Department of Justice, the Department of Corrections, and the Wisconsin District Attorneys Association, among other stakeholders. The committee plans to present its recommendations to the full Judicial Council in September. The appellate procedure committee also plans to begin a new project to study and make a recommendation regarding procedural rules governing the ghostwriting of legal documents.

The council's criminal procedure committee has been working for several years on a proposed comprehensive revision of the rules of criminal procedure. A draft proposal is currently undergoing final editing by the Legislative Reference Bureau, in preparation for final review by the full council. This fall, the criminal procedure committee will also begin a new project to study and make recommendations concerning the substitution of judges in termination of parental rights cases under sec. 48.422 (5).

Both the full council and its evidence and civil procedure committee are continuing work on a comprehensive review of the Wisconsin rules of evidence, with the goal of recommending amendments that reflect current case law and keep the rules cohesive and consistent with modern practice. The committee has completed its review of the deadman's statute (sec. 885.16), the rule of completeness (sec. 901.07), the rule regarding statements of injured persons (sec. 904.12), and the use of "other acts" evidence (sec. 904.04). The committee, which will continue working its way through various rules of evidence, has also drafted a proposed bias rule.

The evidence and civil procedure committee has also completed its recommendations concerning the calculation of time for appeals and requests for new trials in small claims cases. The full council has approved the recommendations, which are being drafted into a rules petition for council review and eventual filing with the Supreme Court.

Council history and membership

The state Legislature created the Judicial Council in 1951 to advise the state Supreme Court and the Legislature on issues affecting the administration of justice. The council recommends legislation to change the procedure, jurisdiction or organization of the courts. The council also studies the rules of pleading, practice and procedure and advises the Supreme Court on how to simplify procedures to promote the speedy resolution of litigation. Four seats on the 21-member council are delegated to the State Bar of Wisconsin.

Under section 758.13, Wis. Stats., the 21-member Judicial Council is comprised of a supreme court justice; a court of appeals judge; four circuit court judges; one district attorney; three members designated by the State Bar; two citizen members; and all of the following individuals (or their designees): the Director of State Courts, the chairs of the Senate and Assembly standing committees with jurisdiction over judicial affairs, the Attorney General, the chief of the Legislative Reference Bureau, the deans of the law schools of the University of Wisconsin and Marquette University, the State Public Defender, and the president-elect of the State Bar. The council is currently chaired by Milwaukee attorney Beth Ermatinger Hanan.

Several council members serve at the pleasure of their appointing authorities. The four circuit judges selected by the Judicial Conference serve four-year terms. The three members selected by the State Bar and the two citizen members appointed by the governor serve three-year terms.

In addition to Attorney Hanan, current Judicial Council members designated by the State Bar are: President-elect James M. Brennan; Attorney Catherine A. LaFleur; and Attorney Tom W. Bertz.

The Legislature restored staff support to the Judicial Council in 2007 when it passed the 2007-2009 biennial budget, more than 12 years after abolishing such support in 1995. The council subsequently hired April Southwick, a 1998 graduate of Hamline University School of Law, as its staff attorney in May 2008. The 2009-11 biennial budget signed into law in June 2009 continued the funding for the Judicial Council staff attorney, a move which the State Bar supports.

Related articles:

Supreme Court approves discovery rules to address electronically stored information - May 4, 2010

Supreme Court approves Judicial Council, BBE rule-making petitions - April 30, 2010

Scope of proposed electronic discovery rules debated at public hearing - Feb. 3, 2010

Proposed Rules for Electronic Discovery - (Wisconsin Lawyer, December 2009)

Judicial Council takes stock of recent successes, looks to future challenges - September 16, 2009

Understanding new appellate procedure rules - Sept. 3, 2009

Three bills amending and clarifying appellate procedures signed into law - June 26, 2009

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