Wisconsin Lawyer
Vol. 80, No. 11, November 2007
Redistricting Report Submitted
On Nov. 25, 2003, the Wisconsin Supreme Court appointed a committee to review legislative redistricting in Wisconsin, to review this court's decision in Jensen, et. al. v. Wisconsin Election Board, et. al., 2002 WI 13, 249 Wis. 2d 706, 639 N.W.2d 537, along with rules and procedures of other jurisdictions, and to propose procedural rules. On Sept. 21, 2007, the committee submitted its proposal, which the court has not yet reviewed. The court invites written comment to the report. After receipt of comments, the court will decide how to proceed further. For example, the court may propose changes and, in the coming months, may schedule and conduct a public hearing or an open administrative conference on the report as drafted or with changes. The report may be found at: wicourts.gov/news/archives/2007/docs/redistrictingreport.pdf.
Written comments should be directed to Susan Gray, c/o Office of the Director of State Courts, P.O. 1688, Madison, WI 53701-1688; (608) 266-6708; susan.gray@wicourts.gov. A courtesy electronic copy of your response would be appreciated. Direct specific questions or inquiries regarding this matter to Susan Gray.
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Multi-jurisdictional Practice
In the matter of the petition of the State Bar of Wisconsin to amend Chapter 20 of the Supreme Court Rules
Order 06-06
On Nov. 20, 2006, the State Bar of Wisconsin filed a petition seeking to amend SCRs 20:5.5, 20:8.5, and 10.03(4) of the Supreme Court Rules (the "multi-jurisdictional practice" petition). The petition proposed changes to the Supreme Court Rules pertaining to the temporary practice of law by lawyers not licensed to practice in the State of Wisconsin, as well as changes to the rules governing pro hoc vice admission. A public hearing was conducted on April 12, 2007. Attorney Dean Dietrich presented the petition to the Court. Other interested persons appeared at the hearing or submitted written comments. In particular, the Association of Corporate Counsel submitted written comments expressing concern that the petition did not propose amendments pertaining to in-house counsel that are part of American Bar Association Model Rule 5.5(d). At the ensuing open administrative conference, the court acknowledged the importance of the issues presented in this petition and resolved to consider various aspects of the petition at a series of future open administrative conferences. Therefore,
IT IS ORDERED that on Jan. 9, 2008, at 9:30 a.m., at its open administrative conference in the Supreme Court Room in the State Capitol, Madison, Wis., the Court shall discuss proposed amendments to SCR 20:5.5 including issues relating to corporate counsel, federal practice by nongovernmental attorneys, and differences between proposed SCR 20:5.5 and American Bar Association (ABA) Model Rule 5.5.
IT IS FURTHER ORDERED that any interested persons may file with the court a written submission regarding the subjects identified for this conference no later than Dec. 20, 2007. As this matter has already been the subject of a public hearing, general public testimony will not be entertained at the open conference. The court may, in its discretion, direct questions to individuals present at the conference to aid the court's consideration of these matters.
IT IS FURTHER ORDERED that notice of the open administrative conference be given by publication of a copy of this order in the official state newspaper once each week for three consecutive weeks, 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 1st day of October, 2007.
By the court:
David R. Schanker
Clerk of Supreme Court
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Transfer of Cases to Tribal Court
In the matter of the petition to create a rule governing the discretionary transfer of cases to tribal court
Order 07-11
On July 24, 2007, A. John Voelker, Director of State Courts, petitioned the court to create a rule governing the discretionary transfer of cases to tribal court, pursuant to the court's rulemaking authority under Wis. Stat. § 751.12.
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. 8, 2008, at 9:30 a.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 publication of a copy of this order and of the petition in the official state newspaper once each week for three consecutive weeks, 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 1st day of October, 2007.
By the court:
David R. Schanker, Clerk of Supreme Court
Petition
The Director of State Courts hereby petitions this court to create a rule governing the discretionary transfer of cases to tribal court, pursuant to the court's rulemaking authority under §751.12. This petition is submitted on behalf of the State-Tribal Justice Forum, a joint committee of state and tribal court representatives established by Chief Justice Abrahamson to promote and sustain communication, education and cooperation among Wisconsin tribal and state court systems.1
Background
Wisconsin State-Tribal Justice Forum: In July of 2005, the U.S. Department of Justice, Bureau of Justice Assistance sponsored a national gathering in Green Bay, Wisconsin to foster tribal-federal-state court relations. This conference, titled Walking on Common Ground: Pathways to Equal Justice,2 served as the catalyst for Wisconsin to reconvene its State-Tribal Justice Forum. The re-established committee consists of five circuit court judges, five tribal judges, one tribal attorney, one legislative liaison, one district court administrator, and the director of state courts. The Wisconsin State-Tribal Justice Forum met for the first time on May 12, 2006 and established its mission to promote and sustain communication, education and cooperation among tribal and state court systems and to develop the initiatives outlined in the final report of the Walking on Common Ground conference.
History of Tribal Court Jurisdiction in Wisconsin: There are eleven federally recognized tribes in Wisconsin and each has its own independent government with its own constitution, membership and land base. Some of the tribes in Wisconsin operate a formal tribal court while others have alternative dispute resolution forums.3 Tribes possess inherent sovereignty and they are a distinct and separate entity from the state. Wisconsin is one of the six states in the United States that was mandated by P.L. 280 in 1953 to transfer criminal and civil jurisdiction in Indian Country from the Federal Government to the state. The Menominee Reservation is the one exception to this mandate where federal jurisdiction still resides.4
Cooperation among state and tribal courts in Wisconsin is critical. Tribal and non-tribal citizens interact on a frequent basis and when civil disputes arise where legal action is necessary, questions of civil jurisdiction can become complex. Wis. Stat. 806.245 provides parameters for the application of full faith and credit of Indian Tribal documents including judicial orders, records and judgments. Over the last decade, the Wisconsin Supreme Court has addressed concurrent jurisdictional issues in civil cases in its Teague v. Bad River Band of Lake Superior Chippewa Indians5 decisions and laid the foundation for the establishment of jurisdictional allocation protocols in the Ninth and Tenth Judicial Districts.
In 2001, the Tenth Judicial District, led by Chief Judge Edward Brunner, developed a historical agreement for handling concurrent jurisdiction cases. Under this system, state court and tribal court judges temporarily stop actions that are filed in both courts and hold a joint hearing to determine which court should handle the case. If the judges cannot agree, a process was developed for them to follow until a jurisdictional agreement can be reached. The jurisdictional allocation protocols were signed by the four Chippewa bands (Bad River, Lac Courte Oreilles, St. Croix, and Red Cliff) and the 13 counties included in the Tenth Judicial District (Ashland, Barron, Bayfield, Burnett, Chippewa, Douglas, Dunn, Eau Claire, Polk, Rusk, St. Croix, Sawyer, and Washburn).6
In Teague III, the Supreme Court clarified that in cases of concurrent jurisdiction, §806.245 is not applicable and each court should stop actions, as outlined in the Tenth District protocol, and consult and decide which court is most appropriate to proceed in handling the case. In this decision, the Supreme Court also went on to list 13 principles of comity that must be applied when determining jurisdiction. These principles included the protocols previously established by the Tenth Judicial District.7
In conjunction with the Walking on Common Ground Conference in July of 2005, the Ninth Judicial District entered into a historic agreement between the state and tribal courts in the north-central area of Wisconsin. This protocol was signed by 12 counties (Florence, Forest, Iron, Langlade, Lincoln, Marathon, Menominee, Oneida, Price, Shawano, Taylor and Vilas) and five tribes (Bad River, Forest County Potawatomi, Lac du Flambeau, Sokaogon Chippewa, and Stockbridge-Munsee). Section 7 of the Ninth District Protocol sets forth verbatim the 13 comity principles outlined in Teague III.8
Other States
In its development of this proposal, the State-Tribal Justice Forum researched protocols and rules of other states in handling issues of state-tribal concurrent jurisdiction cases in civil matters. Under its General Rules of Practice, Minnesota developed Rule 10 on Tribal Court Orders. Section 10.02 of this Rule outlines factors to be considered when recognition of tribal court orders and judgments is discretionary. The "comments" of MN Rule 10 state:
Discretionary Enforcement: Comity. Where no statutory mandate expressly applies, tribal court orders and judgments are subject to the doctrine of comity. Rule 10.02(a) does not create any new or additional powers but only begins to describe in one convenient place the principles that apply to recognition of orders and judgments by comity.9
The State of Washington's Court Rule 82.5 provides tribal court guidance on (a) exclusive jurisdiction, (b) concurrent jurisdiction, and (c) enforcement of Indian Tribal Court Orders. Part (b) of this rule states:
(b) Indian Tribal Court; Concurrent Jurisdiction. Where an action is brought in the superior court of any county of this state, and where, under the Laws of the United States, concurrent jurisdiction over the matter in controversy has been granted or reserved to an Indian tribal court of a federally recognized Indian tribe, the superior court may, if the interests of justice require, cause such action to be transferred to the appropriate Indian tribal court. In making such determination, the superior court shall consider, among other things, the nature of the action, the interests and identities of the parties, the convenience of the parties and witnesses, whether state or tribal law will apply to the matter in controversy, and the remedy available in such Indian tribal court.10
Proposed Rule
This proposal outlines standards to be considered in the allocation of jurisdiction among state and tribal courts. It will allow Wisconsin state courts the ability to transfer civil cases of concurrent jurisdiction to tribal courts when deemed appropriate through the application of the enumerated standards. The Teague Protocol requires that cases be filed in both state and tribal courts. That requires tribal and state litigants to pay filing fees, fill out proper suit papers, and make arrangements for suit in two courts. A majority of cases in tribal courts are pro se. This proposal strives to streamline the process by allowing tribal litigants to request transfer from state court using the outlined standards. State court judges then have the ability to make a discretionary decision and either transfer the case or refuse to do so based on these same standards. Motion and order forms could be developed to assist in the process.
As tribal courts continue to expand court jurisdiction and assist the state courts in resolving disputes, many new cases as well as many cases from the past can be handled in tribal courts. Tribal litigants can have cases back in tribal court where they are most appropriately heard and where previously there may not have been a court to hear the dispute.
The Teague Protocol has been used infrequently in the past. The State-Tribal Justice Forum has received notice of a number of situations in which Tribal and State Courts are transferring cases in a discretionary manner as justice requires. When considering the potential number of pro se litigants, especially in family matters, a user-friendly discretionary transfer mechanism is strongly supported by all of the State-Tribal Justice Forum in an effort to provide guidance and to let judges know they have the discretion to do so when concurrent jurisdiction exists. The Forum submits this proposal to clarify this option.
This proposal has been reviewed by Wisconsin Tribal Judges Association, the Committee of Chief Judges, the Wisconsin Joint Legislative Council's Special Committee on State-Tribal Relations, and the Wisconsin State Bar's Indian Law Section.
Accordingly, the director requests additions in the statute as proposed.
§801.54 Discretionary transfer of civil cases to tribal court
should read as follows:
(1) Purpose.
The purpose is to effectively and efficiently allocate judicial resources. In situations where a circuit court and a tribal court have concurrent jurisdiction, this provision authorizes the circuit court, in its discretion, to transfer a case to the appropriate tribal court. This rule does not apply to any case in which controlling law grants exclusive jurisdiction to either the circuit court or the tribal court.
(2) Discretionary Transfer.
(a) When an action is brought in the circuit court of any county of this state, and when, under the laws of the United States the tribal court of a federally recognized tribe has concurrent jurisdiction of the matter in controversy, the circuit court may, on its own motion or the motion of any party and after notice and hearing, cause such action to be transferred to the appropriate Indian tribal court. In making such determination the circuit court shall consider:
1. Whether issues in the action require interpretation of the tribe's constitution, by-laws, ordinances or resolutions;
2. Whether the action involves traditional or cultural matters of the tribe;
3. Whether the action is one in which the tribe is a party, or whether tribal sovereignty, jurisdiction, or territory is an issue in the action;
4. The tribal membership status of the parties;
5. Where the cause of action arises;
6. Whether the parties have by contract chosen a forum or the law to be applied in the event of a dispute;
7. The timing of any motion to transfer jurisdiction, taking into account the parties' and court's expenditure of time and resources, and compliance with any applicable provisions of the circuit court's scheduling orders;
8. The court in which the action can be decided most expeditiously;
9. Such other factors as may be appropriate in a particular case.
(b) In the event a tribal court declines to accept a transfer of jurisdiction under this rule, within 60 days of transfer, jurisdiction shall remain with the circuit court.
(3) Powers, Rights and Obligations Unaffected.
Nothing in this rule is intended to alter, diminish, or expand the jurisdiction of the circuit courts or any tribal court, the sovereignty of the state or any federally recognized tribe, or the rights or obligations of parties under state, tribal, or federal law.
Respectfully submitted:
A. John Voelker, Director of State Courts
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Videoconferencing in Courts
In the matter of the petition to create a rule governing the use of videoconferencing in the courts
Order 07-12
On Sept. 4, 2007, A. John Voelker, Director of State Courts, petitioned the court to create a rule governing the use of videoconferencing in the courts, pursuant to the court's rulemaking authority under Wis. Stat. § 751.12.
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. 8, 2008, at 9:30 a.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 publication of a copy of this order and of the petition in the official state newspaper once each week for three consecutive weeks, 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.
IT IS FURTHER ORDERED that the appendices filed with the petition, namely Appendix A (proposed changes to SCR Ch. 68), Appendix B (PPAC, Bridging the Distance 2005: Implementing Videoconferencing in Wisconsin), and Appendix C (PPAC, Bridging the Distance 2005: Implementing Videoconferencing in Wisconsin: Resource Directory) shall be made available on the website of the Wisconsin Supreme Court, http://wicourts.gov.
Dated at Madison, Wis., this 1st day of October, 2007.
By the court:
David R. Schanker, Clerk of Supreme Court
Petition
The Director of State Courts hereby petitions this court to create a rule governing the use of videoconferencing in the courts, pursuant to the court's rulemaking authority under Wis. Stats. s. 751.12. This petition is submitted on behalf of the Planning and Policy Advisory Committee (PPAC) of the Wisconsin Supreme Court, which is the court's advisory committee on planning initiatives, the administrative structure of the court system and the expeditious handling of judicial matters.1 The goal of this rule is to provide legal guidance to the courts on appropriate and effective use of videoconferencing, maximizing the use of videoconferencing within the court system while maintaining the integrity of the judicial branch and the constitutional rights of all litigants.
Overview
Utilizing technology solutions to improve the access, efficiency and effectiveness of court operations is a trend that courts are embracing. The advancement of video technology is beginning to have a profound impact on court processes. Videoconferencing is an interactive technology that sends video, voice and data signals over a transmission circuit so that two or more individuals or groups at distant locations can communicate with each other simultaneously using video monitors and microphones.2 Videoconferencing was first used in a court setting in Illinois in 1972 to conduct a bail hearing. A Philadelphia court followed in 1974 by using a closed circuit television for preliminary arraignments. Dade County, Florida implemented it for misdemeanor hearings in 1983.3
Those resistant to expanding the use of videoconferencing in courts have expressed trepidation that this could lessen the effect of a court appearance. There have also been concerns about the fairness of counsel, defendants being physically separate from counsel, and whether a video appearance constitutes confronting a witness in person. As individuals gain more experience with video and provide important feedback to address issues, these concerns are systematically being overcome. In addition, the technology has become more user-friendly and the quality has greatly improved.
As courts utilize video and become more innovative, they are realizing the overall benefits of it as a tool for moving a case along or disposing of a case in a cost effective manner. The standard of technology today allows judges to create the court setting, gauge reactions, ask questions, maintain control over proceedings, and establish meaningful participation among all courtroom actors in the same way as if everyone were physically present. In many cases, it provides not only an added security benefit when inmates appear by video but also increased level of dignity (i.e. mental health patients) when a physical appearance in the courtroom is simply not needed nor desired by the litigant. Videoconferencing has now become an accepted technology in many states and is used in non-evidentiary and evidentiary settings ranging from arraignments to expert testimony, motions, parole hearings and appellate oral arguments. Administratively, videoconferencing is being used for educational opportunities like the interactive jury bailiff training program put on by the Wisconsin Director of State Courts office, staff meetings, and other business of the courts. This provides both a time and cost savings to the courts, public and others involved in the legal process.
Responses of Other State and Federal Courts
The quality and use of video technology has continued to grow in court systems around the country as many have started to realize and appreciate the array of efficiencies and opportunities this technology can provide. Adapting court processes to effectively use new technology requires not only a technical understanding and acceptance of the tools and changing environment, but also a formal updating of rules and procedures that ensure appropriate use and maintain the integrity of the justice system. Several states have or are in the process of implementing videoconferencing systems within their court processes and have developed technological and procedural guidelines.
In 1997, The California Court Technology Advisory Committee issued a report on the Application of Video Technology in the California Courts.4 One of the goals of this task force was to "promote efficiency, access, convenience and cost reduction with the maximum use of video technology." The first of six recommendations to the California Judicial Council was to establish a policy to encourage courts with videoconferencing programs and those planning to implement new programs to consider applications beyond arraignment. The recommendations went on to list several other potential situations where video technology could be used, including motions and non-evidentiary hearings, mental health proceedings, other pre-trial matters, cross-jurisdictional hearings, judicial or administrative hearings, education, and training.
The Alaska Judicial Council issued the Fairbanks Video Arraignment Assessment in May of 1999.5 This report outlined both the strengths and weaknesses of their videoconferencing system at that time, which involved only misdemeanor arraignments. This assessment called for expanded use of the video system, including arraigning felony defendants and other non-evidentiary hearings, once video equipment could be upgraded to meet certain standards.
The New Jersey Judiciary claims to have one of the largest videoconferencing networks for court systems in the country, with 20 remote sites located throughout the state.6 The network is in every courthouse in the state as well as in the Supreme Court, most Appellate division chambers, the Public Defender's office and the New Jersey Law Center. The New Jersey Videoconferencing web site states that plans for significant use of video include appearances by attorney for motions and appellate arguments, testimony by expert witnesses, translation services, and arraignment of prisoners without transporting to court, conferences and ad hoc committee meetings, education and training programs.
The Georgia Supreme Court Videoconferencing Committee began meeting in 2002 to review use and policies surrounding video use in the courts. They developed a uniform rule for their Superior Courts. Uniform Rule 9.2 of the Georgia Superior Court states:
(A) The following matters may be conducted by video-conference:
1. Determination of indigence and appointment of counsel;
2. Hearings on appearance and appeal bonds;
3. Initial appearance hearings;
4. Probable cause hearings;
5. Applications for arrest warrants;
6. Applications for search warrants;
7. Arraignment or waiver of arraignment;
8. Pretrial diversion and post-sentencing compliance hearings;
9. Entry of pleas in criminal cases;
10. Impositions of sentences upon pleas of guilty or nolo contendere;
11. Probation revocation hearings in felony cases in which the probationer admits the violation and in all misdemeanor cases;
12. Post-sentencing proceedings in criminal cases;
13. Acceptance of special pleas of insanity (incompetency to stand trial);
14. Situations involving inmates with highly sensitive medical problems or who pose a high security risk; and
15. Testimony of youthful witnesses;
16. Ex-parte applications for Temporary Protective Orders under the Family Violence Act and the Stalking Statute;
17. Appearances of interpreters;
Notwithstanding any other provisions of this rule, a judge may order a defendant's personal appearance in court for any hearing.
(B) Confidential Attorney-Client Communication. Provision shall be made to preserve the confidentiality of attorney-client communications and privilege in accordance with Georgia law. In all criminal proceedings, the defendant and defense counsel shall be provided with a private means of communications when in different locations.
(C) Witnesses. In any pending matter, a witness may testify via video conference. Any party desiring to call a witness by video conference shall file a notice of intention to present testimony by video conference at least thirty (30) days prior to the date scheduled for such testimony. Any other party may file an objection to the testimony of a witness by video conference within ten (10) days of the filing of the notice of intention. In civil matters, the discretion to allow testimony via video conference shall rest with the trial judge. In any criminal matter, a timely objection shall be sustained; however, such objection shall act as a motion for continuance and a waiver of any speedy trial demand.
(D) Recording of Hearings. A record of any proceedings conducted by video conference shall be made in the same manner as all such similar proceedings not conducted by video conference. However, upon the consent of all parties, that portion of the proceedings conducted by video conference may be recorded by an audio-visual recording system and such recording shall be part of the record of the case and transmitted to courts of appeal as if part of a transcript.
(E) Technical Standards. Any video-conferencing system utilized under this rule must conform to the following minimum requirements:
1. All participants must be able to see, hear, and communicate with each other simultaneously;
2. All participants must be able to see, hear, and otherwise observe any physical evidence or exhibits presented during the proceeding, either by video, facsimile, or other method;
3. Video quality must be adequate to allow participants to observe each other's demeanor and nonverbal communications; and
4. The location from which the trial judge is presiding shall be accessible to the public to the same extent as such proceeding would if not conducted by video conference. The court shall accommodate any request by interested parties to observe the entire proceeding.
The trial court on its own motion or upon the request of any part may in his discretion conduct pre trial or post trial proceedings in civil actions by telex one conference with attorneys for all affected parties. The trial judge may specify:
(A) The time and the person who will initiate the conference;
(B) The party which is to incur the initial expense of the conference call, or the apportionment of such costs among the parties, while retaining the discretion to make an adjustment of such costs upon final resolution of the case by taxing same as a part of the costs; and,
(C) Any other matter or requirement necessary to accomplish or facilitate the telephone conference7
The Supreme Court of South Carolina issued the following order in January of 2007 in regard to "Videoconferencing Approval in the Family Court Statewide."
O R D E R
RE: Videoconferencing Approval in the Family Court Statewide
I FIND THAT the use of videoconferencing enhances the efficiency and security in courtroom proceedings, while maintaining the constitutional rights of the defendants. The purpose of this Order is to set forth procedures to be used in the Family Courts of this State for the purpose of hearing bench warrants, South Carolina Department of Social Services (SCDSS) cases limited to emergency protective custody pursuant to S.C. Code Ann. § 20-7-610, intervention hearings, status review hearings, and permanency planning hearings when the Defendant is not present in the Courtroom, but will appear at the hearing by videoconference. Pursuant to the provisions of Section 4, Article V, South Carolina Constitution,
IT IS ORDERED that the following procedures are approved for use in the Family Courts statewide for the purpose of hearing bench warrants, SCDSS cases limited to emergency protective custody pursuant to S.C. Code Ann. § 20-7-610, intervention hearings, status review hearings, and permanency planning hearings.
1. The Chief Administrative Family Court Judge must submit to the Chief Justice prior to implementation written procedures for the use of videoconferencing equipment, to include specification for types of equipment and their placement.
2. No videoconference proceeding may take place in the Family Courts of this State unless the Defendant consents in writing and orally on the record to appear at the hearing by videoconference, rather than in person. Defendant must be represented by counsel, if appointed, who must be present in the courtroom, and counsel must consent to the appearance of the Defendant by videoconference. Defense counsel's participation in the hearing is sufficient to show his or her consent. The family court judge must verify written and oral waiver of Defendant's right to personal appearance at the commencement of any hearing.
3. Written consent of the defendant, upon Form SCCA/651 (Consent to Videoconferencing), a copy of which is attached and made a part of this Order, shall be obtained for use of videoconference equipment at a hearing or first appearance.
4. Equipment used to generate electronic transmission of signatures or other comparable equipment shall be available for transmission of documents between the judge and the defendant, and signatures generated and transmitted pursuant to such equipment shall have the full force and effect of an actual signature, be acceptable for purposes of binding all parties to the contents of the documents, and releasing the defendant from custody; however, all copies bearing an actual or electronic signature must be promptly filed with the court, and the defendant must promptly be provided with a copy of all documents he or she signs.
5. Equipment and facilities must include:
a. Locations provided for the defendants and for the judges which are properly situated and furnished to be suitable for and conducive to judicial hearings. The locations must be sufficiently quiet and lighted for use of the video equipment and must also be furnished so as to apprise the defendant of the seriousness of the proceedings.
b. At least two (2) video cameras, one to videoconference the defendant, and one to videoconference the judge. The cameras must also be capable of videoconferencing the defense counsel and witnesses as necessary.
i. At least two (2) display monitors so that the defendant and judge can observe the proceedings at the other's location simultaneously and converse with each other.
ii. The room in which the judge is presiding should be accessible to the public, and interested parties should have an opportunity to observe the proceedings, as determined appropriate by the presiding judge. Therefore, the monitor should be positioned in the courtroom so that interested parties and counsel for the defense and prosecution can view the defendant. If necessary, additional monitors may be placed in the courtroom so that all present may view the proceedings.
c. A telephone line, cellular telephone, or video terminal, so that defendant and defense counsel can communicate in private when in different locations.
d. Two (2) printers, equipment used to generate the electronic transmission of signatures, or other comparable equipment, so that court documents, witness statements, and other papers can be sent back and forth between the two locations and printed at both locations, if necessary. The defendant must also be allowed to confidentially exchange papers back and forth to defense counsel.
6. A court reporter must be present in the courtroom throughout any hearing in order to preserve the official record of the hearing.
7. Upon application to the Chief Administrative Judge or the trial judge, video testimony, under the same terms and conditions as set forth within this Order, shall be allowed in such hearings as may be consented to by the parties and/or their counsel.
This Order is effective immediately and remains in effect until revoked or amended by Order of the Chief Justice.8
Jean Hoefer Toal, Chief Justice
Additionally, the Federal Courts recently released a study by the Federal Judicial Center that provides the opinions of 14 Appellate court judges on their experience with video technology.9 According to this report, almost all of the surveyed judges liked the way videoconferencing saved travel time and money and felt it promoted improved access to the courts. There was less consensus on the disadvantages, but most commonly cited were technical issues.
Videoconferencing in Wisconsin
The Wisconsin Court System began to explore possible uses of videoconferencing in the early 1990s. In 1998, PPAC and the Wisconsin Counties Association jointly formed a statewide videoconferencing subcommittee. The committee's charge was to develop a "standards of good practice" manual to help jurisdictions understand and implement videoconferencing technology. A manual titled, Bridging the Distance was the a result of that committee's work. It contained general information about videoconferencing technology, suggestions for how it could be used and who to involve in planning. It also included recommended technology guidelines and specific design issues associated with implementing this technology in the justice system. Many Wisconsin counties have used this manual to assist in the design and development of video technology in their courtrooms.
During this time, use of video technology has been expanding in other areas of the justice system. In 2003, the Wisconsin Office of Justice Assistance (OJA), Statistical Analysis Center, issued a report titled Your Return on a Safer Tomorrow: The Potential Cost Savings from Further Investment in Videoconferencing Technology within Wisconsin's Justice Community. This report attempted to quantify some of the use and projected cost savings achieved in Wisconsin counties through videoconferencing use. All 72 county sheriffs were surveyed about estimated inmate/prisoner transport expenses and they reported that 27% of transport expenses were spent on transporting inmates to and from non-evidentiary court hearings that could otherwise be replaced by videoconferencing. Wisconsin District Attorneys were also surveyed; they projected that 18% of county expert witness expenses are attributed to travel. These are costs that could be saved by utilizing videoconferencing. The report also states that "If videoconferencing equipment was purchased and installed in all of Wisconsin's 72 counties, the overall investment would be just over $1.5 million. That investment could potentially generate a savings of $2.3 million in the first year of usage."10
The 2003 OJA report stated that videoconferencing was currently being used in 35% of all the courthouses in the state and only 45% of the jails had equipment. Today 90% of the Courthouses and county jails in Wisconsin are using videoconferencing in some capacity and two of the remaining counties are in the planning stage for implementation. Furthermore, all the state correctional and mental health facilities have videoconferencing capabilities.11
In 2004, PPAC recognized the need to update Bridging the Distance to reflect technological advancements, and the Wisconsin court system's experience with videoconferencing. As the original 1999 version of the manual indicated, "the world of technology is constantly advancing. While every attempt was made to ensure that the information contained in this manual is current, technology specifications and prices are ever changing." Therefore, PPAC reactivated the videoconferencing subcommittee (with new membership) to update Bridging the Distance, as well as to explore ways to encourage greater courtroom use of the technology while ensuring the rights of litigants.
Proposed SCR Chapter 68:
A Videoconferencing Rule for Wisconsin Courts
Following the completion of Bridging the Distance 2005, the videoconferencing subcommittee shifted its focus to the research and development of legislative and/or rulemaking recommendations in regard to videoconferencing in the courts. As stated earlier, when court processes are adapted, especially in regard to technological advances, a formal updating of rules and procedures that ensure appropriate use and maintain the integrity of the justice system must also occur. The PPAC subcommittee recruited some new members in an effort to gather a cross-section of varying views and experience with regard to videoconferencing use in order to develop the most comprehensive proposal. The subcommittee membership included not only judges but public defenders, a district attorney, an assistant attorney general, a district court administrator, and representatives from the Department of Corrections and Winnebago Mental Health. The goal is to maximize the appropriate use of videoconferencing for users of the court system while putting in place procedures and safeguards that maintain the integrity of the judicial branch and the constitutional rights of the litigants. The following statement was established by the subcommittee to guide in the shaping of the proposal:
Statement of Guidance on Videoconferencing Use
Courts are deemed to have the authority to use videoconferencing where such use provides meaningful participation by all persons involved in the proceeding except where such use is expressly prohibited or, in critical proceedings, where the rights of any party are in jeopardy by using videoconferencing.
As part of its information gathering process, the subcommittee led a breakout session for judges at the November 2006 Judicial Conference titled Pathways, Potholes, Pitfalls and Possibilities: How do we make our way through the new video court landscape? The subcommittee wanted to learn about judges' current use of videoconferencing and what approach they would prefer in the development of guidelines for future expanded use. During the breakout session, the subcommittee conducted a survey to gather some quantitative data on videoconferencing use to guide its continued direction. Out of the 46 judges who completed a survey at the conference, 15 reported that they had never used videoconferencing, while 11 reported extensively using it and 20 occasionally used it. Forty-three judges (or 93% of respondents) reported that they would initiate videoconferencing in a proceeding in which they deemed appropriate. A majority of respondents reported that if conducted properly, videoconferencing allows litigants to adequately litigate their matters. During the breakout, session leaders also discussed current Wisconsin statutes applicable to video proceedings and a list of more than 80 potentially applicable statutes was provided. Most conference attendees agreed that guidelines specific to videoconferencing use were needed and these current statutes did not provide the necessary guidance, clarity and authority in many situations.
The subcommittee also studied Van Patten v. Deppisch, 434 F.3d 1038 (7th Cir. 2006). Mr. Greg Weber, Assistant Attorney General and subcommittee member, prepared a summary of this holding. The Seventh Circuit was concerned with (1) the physical separation of the defendant from his attorney and (2) the inability of the defendant, his attorney and the circuit court to observe each other and the proceedings. Although related, this case was specific to telephonic proceedings. Videoconferencing provides a method of resolving the issues outlined in Van Patten related to meaningful participation by providing opportunities for virtual presence. Section 68.05 of the proposed rule has been drafted to scrupulously protect the rights of criminal defendants to be present for all critical stages of proceedings.
Conclusion
The Wisconsin Court System has a history of being a leader and innovator in delivering effective justice to its citizens. As new technology is created, the system needs a broad ranging rule in place that can stand the test of time in the fast changing arena of technology. The rule needs to be flexible so videoconferencing use can be appropriately maximized but must also possess safeguards that will protect the rights of the litigants. The proposed rule addresses all of these concerns while protecting the integrity and dignity of the judicial process.
Based on the foregoing, the Director of State Courts requests that the Supreme Court create SCR Chapter 68 as reflected in Attachment A to this Petition.
Respectfully submitted:
A. John Voelker
Director of State Courts
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State Bar Bylaws
In the matter of a petition to review State Bar bylaw amendment
Order 07-13
On July 17, 2007, pursuant to SCR 10.13(2) and Article IX of the State Bar of Wisconsin bylaws, the State Bar of Wisconsin by its President, Thomas J. Basting, Sr., filed a certificate of bylaw amendment regarding amendments to Article II of the State Bar of Wisconsin's Bylaws. These amendments were approved by the Board of Governors at its May 2007 meeting on a 42 to 1 vote.
On Sept. 21, 2007, Attorney Steven Levine filed a timely petition seeking review of this bylaw amendment, signed by 25 or more active members of the State Bar of Wisconsin. See SCR 10.13(2). Supreme Court Rule 10.13(2) provides that a hearing upon such a petition will be pursuant to notice in such manner as the court directs.
On Dec. 10, 2007, a public hearing is scheduled in Rule No. 07-10, In the matter of the Petition for Revision of SCR 10.04 Concerning the Officers of the State Bar of Wisconsin. This petition proposes term limits on the office of the State Bar president and chair of the State Bar Board of Governors. The memorandum in support of rules petition No. 07-10 indicates these proposals and the bylaw amendment that is the subject of the pending petition were discussed as part of a single initiative. Therefore, the court deems it appropriate to consider these matters on the same date.
The bylaw amendment provides as follows:
RESOLVED, that State Bar Bylaw Article II, be amended as follows:
Article II Officers
Section 1. Nominations. The President Elect, the Secretary and the Treasurer of the State Bar shall be elected from a list of candidates nominated in the manners herein prescribed.
(a). The President of the Association with approval of the Board of Governors shall appoint A a committee of five members to nominate candidates for said offices to be voted on at the next annual election. shall be appointed by the President of the Association with the approval of the Board of Governors The nomination committee shall be approved at the first regularly scheduled Board meeting following the annual convention. Such report The committee shall issue a report naming name one two or more candidates nominated by the committee nominees for the Office of President Elect, two or more candidates nominated nominees for the Office of Secretary and two or more candidates nominated nominees for the Office of Treasurer. Before making its report, the committee shall solicit from the membership the names of members interested in seeking nomination to any office scheduled for election. The committee shall make its report no later than December 15 in each year.
(b). Other persons may be nominated for any of said offices by petition. signed in the case of each Each nominee must provide a petition signed candidate by not less than one hundred active members of the Association. , and The petition must be filed in the Office of the Executive Director on or before the first business day of February of the year of the election. , provided that before the filing of such petition Before such a petition may be filed, the nominee must consent in a written statement shall be endorsed thereon by the nominee to the effect that the member consents to nomination for the office designated in the petition.
Section 2. Voting and Canvass of Ballots. The provisions of Sections 4 to 8 inclusive of Article III of these By Laws relating to the election of members of the Board of Governors shall be applicable also to the election of officers.
Section 3. Election of Chairperson of the Board of Governors. The Board shall elect a A Chairperson of the Board of Governors shall be elected by the Board from its members at its last regular meeting each fiscal year. The President shall appoint a nominating committee from the governors at the second to last regular Board meeting of the fiscal year. The committee shall to nominate one or more candidates for this office at the second to last regular Board meeting of the fiscal year . Those eligible for nomination and election to this office shall be are: all who are then members of the current Board members, including members whose second terms expire that June, except for the President and President Elect. While serving in that office as Chairperson of the Board, the Chairperson of the Board shall be a governor at large and no longer a district governor.
Section 4. Commencement of Term of Office. The terms of all out going officers of the Association and the Chairperson of the Board of Governors shall end, and the term of their successor shall commence, on the first day of July.
Section 5 Regional Diversity of Officers. In order to encourage participation by lawyers throughout the State in the leadership of the State Bar, any year's nominees for the office of President Elect shall be from only one of four areas within the State of Wisconsin. The area designated for a given year shall be on the rotation specified herein. The four geographic areas are (a) District 2 - the Milwaukee area, (b) District 9 - the Madison area, (c) District 6 - the Waukesha area, and (d) all other State Bar Districts - designated as the Out-State area. A nominee's area is determined by where he or she primarily practices law. The area from which a candidate(s) shall be eligible to run in the election for President Elect shall rotate each year in the following order: District 2, District 9, and then Out-State Districts, with District 6 being added following the Out-State area in every third rotation, with such addition of District 6 being made for the April 2009 election. If no candidates are available for nomination from the designated area in a given year, candidates from the area for the succeeding year shall be solicited and the rotation moved up to reflect the area from which the candidates are nominated. This rotation throughout the State shall apply to candidates chosen by the nominating committee and those petitioning for nomination. The State Bar shall maintain a schedule of this rotation and the District eligible for each annual election for president of the State Bar.
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. 10, 2007, at 9:45 a.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 in the official state newspaper and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 20 days before the date of the hearing.
IT IS FURTHER ORDERED any interested persons may file with the Court a written submission regarding this matter no later than Dec. 1, 2007.
Dated at Madison, Wis., this 1st day of October, 2007.
By the court: David R. Schanker, Clerk of Supreme Court
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Wisconsin Lawyer
