Nov. 7, 2022 – For several years, the Judicial Council has been in an unfunded limbo, continuing to exist but functioning at a level inconsistent to achieve its mission and purpose. The State Bar of Wisconsin supports the Judicial Council’s modest and reasonable requests for staff so that it can continue to carry out its unique and important tasks.

Many who serve on the Judicial Council believe that it has suffered from underappreciation over the years. State Bar representative to Judicial Council Margot Kirchner says “I think Judicial Council goes under the radar in all it does and all it can do. We’ve worked without funding for a long while, but we’ve continued to meet and continued to work. One of our strengths is that we have members from all three branches of government, members of the State Bar, and academia all working together as an independent entity to improve our courts and court procedure.”

Despite flying under the radar for the public and some legislators, many in the legal profession hold the Judicial Council’s work in high regard.

“Judges and lawyers alike often turn to ‘Judicial Council notes’ following statutes and rules to get a sense of history and the direction of a statute. The notes are a reliable source of information because the Judicial Council is non-partisan and made up of a wide cross section of lawyers, judges and legislators. The Council’s work is often cited in case law as an important aid to the court, litigants and the public,” says Sarah Zylstra, a State Bar representative to the Judicial Council.

John Orton, another State Bar representative to the Judicial Council,​ concurs: “The Judicial Council does things which the Legislature and the Supreme Court simply do not have time to do, but which are very important to the operation of our courts and the administration of justice. The Council studies and makes recommendations to the Legislature and the Court regarding the arcane rules of procedure and evidence. We don’t enact anything: our charge is only to study issues and propose amendments for others to consider and enact. As a result, the Council is a vital, ready-made resource for the Legislature and the Court, ” Orton says.

Nick Zales, State Bar of Wisconsin president-elect Dean Deitrich’s appointee to the Council, agrees that it is a unique and important organization for our courts: “The Judicial Council is a unique body. It brings together the best of the judiciary, legislature, and members of the bar. Every proposed change in the law is vetted, vetted, and vetted again. There are no politics involved. There is no other group like it in Wisconsin. It has a proven track record of excellence. The Council's work leads to better practices in court that serve you, your clients, and the interests of justice,” Zales says.

Another important feature of Judicial Council is that members bring a level of expertise that is uncommon among legislators today. Over the course of the last decade, fewer and fewer lawyers have become members of the Legislature. Without a large cadre of lawyer-legislators who practice in the courts, there are fewer lawmakers who are familiar with the kinds of issues which the Council studies.

“The rules of procedure and evidence are very complicated, much like the rules of our tax code. We would never expect the Legislature or the Department of Revenue to change our complicated tax code without first consulting with Certified Public Accountants who are experts in taxation and who use the tax code every day. Similarly, we would not expect the Legislature to change the complicated rules of procedure or evidence without consulting lawyers and judges who are experts in such rules and who use them every day. The Judicial Council brings together lawyers from all corners of the legal system—Judges, prosecutors, public defenders, criminal lawyers, civil lawyers, plaintiff’s lawyers, defense lawyers, law school faculty, administrators, and more—who are all committed to studying and improving these complicated rules. Moreover, the committees of the Council routinely add ad hoc members who have expertise on specific issues being studied. All of this provides a unique, efficient, valuable resource for the Legislature and the Court, ” Orton adds.

History and Makeup of the Judicial Council

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 studies and makes recommendations relating to the organization, jurisdiction and methods of administration and operation of Wisconsin courts, the rules of pleading, practice and procedure, and advises the Supreme Court on how to simplify procedures to promote the speedy resolution of litigation.

The 21-member Judicial Council is defined in statute and is comprised of: a supreme court justice; a court of appeals judge; four circuit court judges selected by the judicial conference; one district attorney; three members of the state bar elected 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 Attorney William Gleisner, an appointee of Governor Tony Evers.

Accomplishments and Funding Woes

During the 1995-97 biennial budget, two staff positions were eliminated from the council’s budget and all of the staff support duties were reassigned to the Judicial Commission. The council languished during this time as the Judicial Commission was already operating with a limited budget and wasn’t able to devote the time nor resources to the council’s ongoing or requested projects.

The Legislature restored staff support to the Judicial Council in the 2007-09 biennial budget and the invigorated council found many successes for the next 10 years. In a memo to the Joint Finance Committee in 2017, the Council listed 23 accomplishments, all of which have occurred during the 10 years of funding.

Despite these achievements, funding for the staffing of the council was again eliminated beginning with the 2017-2019 biennial budget. The Governor’s Executive Budget Summary of 2017-2019 stated “Governor [Walker] recommends eliminating the council as a separate entity and transferring position authority to the Supreme Court. The Supreme Court has the authority to create and support such an advisory council if it so chooses.” Subsequent budgets under Governor Evers and the GOP legislature have not proposed or passed any funding for Judicial Council since.

Judicial Council’s Future Relies on Restoration of Funding

In its 2023-2025 biennial budget request to the Department of Administration, the Judicial Council asked for $220,000 over two years for staff salary and fringe benefits, office supplies and services, and office rent. These requests are in line with the statutes that create the Judicial Council and authorize it to hire a supporting staff attorney (Wis. Stat. 758.13).

Nick Zales sums up the importance of funding: “a small amount of funding will yield a large number of results—one need only look at the Judicial Council’s notes on the civil procedure statutes. They are a wealth of useful guidance and information. Funding the Council so it has at least one professional staff member is essential to assisting its 21 volunteer members in their work. The Council has continued its work without any staff, but that will not last forever. There is no other group in Wisconsin quite like this, working to make the practice of law better for you.”

What You Can Do: State Bar of Wisconsin Advocacy Network

State Bar members are encouraged to send a message to their lawmakers expressing support on legislative topics which positively affect the legal system using the Advocacy Network. Pre-written email messages are editable to suit your own thoughts and opinions, and will help to demonstrate the breadth of support for policies that prioritize access to justice. You can also "Choose Your Own" to craft messages to any of your elected officials, from President of the United States down to your local municipal officials.

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