Wisconsin Lawyer
Vol. 82, No. 9, September 2009
Conditional Admission to the Bar
In the Matter of Creation of Supreme Court Rule 40.075 Relating to Conditional Admission to the Bar.
Order 08-13
On May 1, 2008, the Board of Bar Examiners (BBE) filed a petition requesting this court create a supreme court rule pertaining to conditional admission to the bar. The proposed new rule would allow applicants with issues such as substance abuse problems, mental health conditions, financial management difficulties, or criminal history, to be admitted conditionally to the State Bar of Wisconsin (State Bar) under terms and conditions established by the BBE.
Written comments were received regarding this petition from State Bar President Diane Diel on behalf of the State Bar, Attorney Steven Levine, Attorney William Weigel, and Attorney Daniel L. Shneidman. The State Bar advised the court it opposed the petition solely because the petition submitted to the court did not contain a provision that would ensure the confidentiality of a conditional admission.
A public hearing was conducted on March 9, 2009. That day, the Office of Lawyer Regulation (OLR) filed a letter advising the court the Board of Administrative Oversight had voted to oppose the petition because the monitoring program for conditional admission has not yet been established. The OLR and the State Bar have filed a joint rule petition proposing such a monitoring program. See Rule No. 08-28, In the Matter of the Petition for Lawyer Support and Monitoring and Procedures for Referrals from the Office of Lawyer Regulation, filed Dec. 29, 2008, by Keith Sellen, OLR Director, and Diane Diel, State Bar President.
The court discussed the petition at the ensuing open administrative conference. First, the court decided to discuss the petition notwithstanding the pending petition to establish a monitoring program. The court then considered the proposal and discussed the ABA Model Rule on Conditional Admission to Practice Law as well as Minnesota’s conditional admission rule, Minnesota Rule Bar Admission 16. The court discussed whether conditional admission should be confidential and concluded that confidentiality is appropriate because the public is adequately protected by oversight mechanisms in the proposed rule. The court also discussed various other aspects of the proposed rule. However, after further consideration, the court has decided to hold this matter pending consideration of the monitoring program petition (No. 08-28, In the Matter of the Petition for Lawyer Support and Monitoring and Procedures for Referrals from the Office of Lawyer Regulation). Therefore,
IT IS ORDERED that the petition for creating a supreme court rule pertaining to conditional admission to the bar is held in abeyance and will be considered along with the petition currently pending before this court in Rule No. 08-28, In the Matter of the Petition for Lawyer Support and Monitoring and Procedures for Referrals from the Office of Lawyer Regulation, which will be scheduled for hearing and open administrative conference at a date to be determined in the fall of 2009.
IT IS FURTHER ORDERED that notice of the issuance of this order 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 3rd day of August, 2009.
By the court:
David R. Schanker, Clerk of Supreme Court
Top of Page
Rules of Judicial Recusal
In the matter of amendment of the Code of Judicial Conduct’s rules on recusal.
Order 08-16 and 08-25
On June 20, 2008, the League of Women Voters of Wisconsin Education Fund petitioned this court to create Supreme Court Rules (SCRs) relating to recusal when a party in an action or the lawyers in an action have previously made a campaign contribution to or spent money on a media campaign relating to a judicial election for a judge who is presiding in the case. On July 28, 2009, the League of Women Voters of Wisconsin Education Fund filed an amended petition.
On Sept. 30, 2008, the Wisconsin Realtors Association Inc. petitioned this court to amend the Code of Judicial Conduct to provide that the receipt of a lawful campaign contribution by a judicial campaign committee or an endorsement of a candidate does not, by itself, warrant judicial recusal.
IT IS ORDERED that a public hearing on these petitions, and any other petitions filed prior to Oct. 27, 2009, relating to recusal, shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on Wednesday, Oct. 28, 2009, at 9:30 a.m.
IT IS FURTHER ORDERED that the court’s conference in these matters 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 both petitions 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 3rd day of August, 2009.
By the court:
David R. Schanker,
Clerk of Supreme Court
Amended Petition 08-16
Petitioner, The League of Women Voters of Wisconsin Education Fund (hereafter referred to as “The League”) has petitioned the Wisconsin Supreme Court to create Supreme Court Rule 60.01 (5m), (10e), (10g), (10k), and (10m) and 60.04 (4) (g) and (6) under the Court’s rulemaking authority under section 751.12 of the statutes and its administrative authority over all courts conferred by Article VII, §3 of the Wisconsin Constitution. In light of the U.S. Supreme Court’s recent decision in Caperton v. A.T. Massey Coal Co., Inc. and developments across the country related to recusal rules and standards, The League submits this Amended Petition.
The League asks the Court to adopt rules for recusal when a party in an action or the lawyer or law firm in an action has previously made a campaign contribution to or spent money on a media campaign relating to a judicial election for a judge who is presiding in the case. The League is a nonpartisan political organization which encourages informed and active participation in government, works to increase understanding of major public policy issues, and influences public policy through education and advocacy. Based on our position supporting a system of justice which assures adults and juveniles prompt and equal treatment before the law, we believe it is necessary to have rules for recusal which remove any perception that justices and judges are beholden to those who contribute to their campaigns. People who go before a judge should be able to trust that the judge is a fair and impartial decision maker.
In April 2008, the Brennan Center for Justice issued a report describing the threats to the impartiality of state courts due to the growing influence of money in judicial elections. In 2002, U.S. Supreme Court Justice Anthony Kennedy wrote in Republican Party of Minnesota v. White that in response to dynamics perceived to threaten the impartiality of the courts, states “may adopt recusal standards more rigorous than due process requires, and censure judges who violate these standards.”
Rules for recusal relating to campaign contributions are intended to remove any perception that large donors and others who spend money to influence campaigns exercise an undue influence on court decisions. The rules will help maintain public confidence that judges are fair and impartial in the Wisconsin tradition. The petition sets forth a proposal for recusal which ensures that an electoral system that relies on campaign contributions and educational campaigns by interested groups does not erode the Courts’ commitment to a fair judiciary whose decisions are based on the facts of the case and the issues before them.
As the third independent branch of government, the judicial system regulates itself, creating rules and procedures under the Judicial Code. The League recognizes that the regulation of the judicial system and the activities of judges fall under the jurisdiction of the Supreme Court. Petitioner asks the Court to exercise its authority and amend the Judicial Codes in order to achieve three goals: 1) Create rules for recusal that increase public confidence that campaign contributions will not influence a judge’s decisions; 2) Give notice to donors and others who spend money to influence campaigns that their election activities will trigger recusal rules; and 3) Create a procedure which allows the non-contributing party in a case to waive the recusal rules.
The League therefore asks the Court to amend the Judicial Code as follows:
Section 1. 60.01 (5m) of the Supreme Court rules is created to read:
60.01 (5m) “Entity” means an association, company, cooperative, corporation, or partnership organized under chapter 178, 179, 180, 181, 183, 184, 185, or 193 of the statutes.
Section 2. 60.01 (10e) of the Supreme Court rules is created to read:
60.01 (10e) “Mass communication” means a message that is disseminated by means of one or more communications media, a mass electronic communication, a mass distribution, or a mass telephoning, but not including a bona fide poll conducted for the purpose of objectively identifying or collecting data concerning the attitudes or preferences of electors.
Section 3. 60.01 (10g) of the Supreme Court rules is created to read:
60.01 (10g) “Mass distribution” means the distribution of 50 or more pieces of substantially identical material.
Section 4. 60.01 (10k) of the Supreme Court rules is created to read:
60.01 (10k) “Mass electronic communication” means the transmission of 50 or more substantially identical materials by means of electronic mail or facsimile transmission.
Section 5. 60.01 (10m) of the Supreme Court rules is created to read:
60.01 (10m) “Mass telephoning” means the making of 50 or more telephone calls conveying a substantially identical message.
Section 6. 60.01 (13m) of the Supreme Court rules is created to read:
60.01 (13m) “Organization” means any association, lodge, order, fraternal society, beneficial association, or fraternal and beneficial society or association; historical, military, or veterans organization; labor union; federation; or any other society, organization, or association, degree, branch, subordinate lodge, or auxiliary thereof, whether incorporated or unincorporated, the principles and activities of which are not repugnant to the constitution and laws of the United States or of this state.
Section 7. 60.04 (4) (g) of the Supreme Court rules is created to read:
60.04 (4) (g) 1. That a party to the proceeding or an attorney or the law firm for a party to the proceeding made a contribution of $1,000 or more, or multiple contributions totaling $1,000 or more, within the preceding two years, to support the judge’s election to the judge’s current or prospective judicial position.
2. That a party to the proceeding or attorney or law firm for a party to the proceeding was an entity or organization, or a member of the board of directors of that entity or organization, that within the preceding two years paid in full or in part for a mass communication that was disseminated in support of the judge’s election to the judge’s current or prospective judicial position.
3. That a party to the proceeding was an entity or organization, or a member of the board of directors of that entity or organization, that paid in full or in part for a mass communication that was disseminated during the period beginning on the 60th day preceding an election for the judge’s current or prospective judicial position and ending on the date of that election, and that includes a reference to the judge or another candidate for that position.
Section 8. 60.04 (6) of the Supreme Court rules is amended to read:
(6) A judge required to recuse himself or herself under sub. (4) may disclose on the record the basis of the judge’s recusal and may ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive recusal. If, following disclosure of any basis for recusal other than personal bias or prejudice concerning a party, the parties and lawyers, without participation by the judge, all agree that the judge should not be required to recuse himself or herself and the judge is then willing to participate, the judge may participate in the proceeding. If, following disclosure that the basis for the recusal is under sub. (4) (g), the party who is opposed to the party or the party’s attorney or law firm that made a contribution or paid for a mass communication may waive the recusal of the judge and the judge, if willing, may participate in the proceeding. The agreement or waiver shall be incorporated in the record of the proceeding.
Respectfully submitted:
Hurley, Burish & Stanton S.C., Attorneys for Petitioner,
By Virginia M. Bartelt, Madison, Wis.
Petition 08-25
The Wisconsin Realtors Association, Inc. (the “Realtors”) petition this Court to amend the Code of Judicial Conduct to provide that the receipt of a lawful campaign contribution by a judicial campaign committee or an endorsement of a candidate does not, by itself, warrant judicial recusal.
The grounds for this petition are set forth here and in the Realtors’ Motion to Determine Judicial Participation or, Alternatively, Petition to Amend the Code of Judicial Conduct and that Motion’s accompanying Memorandum of Law (filed as part of Wisconsin Realtors Association, Inc. v. Town of West Point, No. 2006-AP-2761 (April 8, 2008)).1 The grounds are supplemented by the Realtors’ Aug. 7, 2008 letter to this Court regarding recent developments relevant to the issues raised in the Realtors’ Motion. Those documents are all incorporated by reference.
The Realtors also request that this Court consolidate consideration of this petition with Petition No. 08-16, filed on June 20, 2008 by the League of Women Voters of Wisconsin Education Fund (the “League’s petition”) after the Realtors’ Motion. The League’s petition, entitled “In re creation of rules for recusal when a party or lawyer in a case made contribution effecting [sic] a judicial campaign,” does not refer to the Realtors’ alternative petition, filed almost three months earlier. However, the Realtors’ and the League’s petitions address the same matter: amending the Judicial Code’s rules on recusal based on contributions to a judicial campaign committee. Considering the two petitions together serves the interests of time and this Court’s resources.
The amended Code should reflect the overwhelming weight of authority providing that the receipt of a lawful contribution by a judicial campaign committee does not, by itself, warrant recusal. Although the Code today by no means expressly requires recusal due to a contributor’s involvement in a case, or a campaign endorsement, the Code also does not make it explicit that recusal is unnecessary solely because a party or attorney contributed to the judge’s campaign committee. Because it is not explicit, the Code has been and may continue to be applied inappropriately to, in effect, require recusal. This inevitably penalizes the parties, their counsel, and the judiciary.
To avoid the effect of a de facto rule that leads to recusal based on a campaign contribution, the Judicial Code should be amended as follows:
SCR 60.04 should be amended to add the following subsection:
(5) Effect of Campaign Contributions. A judge shall not be required to recuse himself or herself in a proceeding based solely on any endorsement or the judge’s campaign committee’s receipt of a lawful campaign contribution, including a campaign contribution from an individual or entity involved in the proceeding.
Similarly, SCR 60.06(4) should be amended by adding the highlighted language:
(4) Solicitation and Acceptance of Campaign Contributions. A judge, candidate for judicial office, or judge-elect shall not personally solicit or accept campaign contributions. A candidate may, however, establish a committee to solicit and accept lawful campaign contributions. The committee is not prohibited from soliciting and accepting lawful campaign contributions from lawyers., or parties or entities involved in a proceeding over which the candidate is presiding. A judge or candidate for judicial office or judge-elect may serve on the committee but should avoid direct involvement with the committee’s fundraising efforts. A judge or candidate for judicial office or judge-elect may appear at his or her own fundraising events. When the committee solicits or accepts a contribution, a judge or candidate for judicial office should also be mindful of the requirements of SCR 60.03 and 60.04(4); provided, however, that the receipt of a lawful campaign contribution shall not, by itself, warrant judicial recusal.
The Realtors request a public hearing on this petition and its resolution before the 2009 state judicial elections.
Dated Sept. 30, 2008.
1On Sept. 23, 2008, this Court denied the Realtors’ Petition for Review and the complementary Motion and alternative Petition to Amend the Code of Judicial Conduct. This Court also directed the Realtors to “file a formal rules petition” “in the event the petitioners wish the court to consider amending the code of judicial conduct.” The petitioners do so wish.
By: Hannah Renfro and Brady C. Williamson
Godfrey & Kahn S.C., Madison, Wis., Attorneys for Wisconsin Realtors Association, Inc.
Top of Page
Classes of State Bar Membership
In the matter of the petition to amend Supreme Court Rule 10.03(3) relating to classes of membership in the State Bar.
Order 08-27
On Oct. 31, 2008, the State Bar of Wisconsin, by its then-President, Diane S. Diel, petitioned this court to amend Supreme Court Rule (SCR) 10.03(3), relating to classes of membership in 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 Thursday, Oct. 29, 2009, 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 at the court’s conference in this matter, the court may discuss and consider Rule 06-09, In the Matter of the Petition of the United States Administrative Law Judges Appointed Under 5 U.S.C. § 3105 to Amend SCR 10.03(3)(a).
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 3rd day of August, 2009.
By the court:
David R. Schanker,
Clerk of Supreme Court
Petition 08-27
The State Bar of Wisconsin petitions the Court for a revision to Supreme Court Rule 10.03(3), relating to classes of membership in the State Bar.
On Dec. 8, 2006, Ronald G. Bernoski, a U.S. administrative law judge, filed petition 06-09 with the Wisconsin Supreme Court, seeking amendments to SCR 10.03(3)(a) to permit federal administrative law judges (ALJs) to claim judicial status as members of the State Bar of Wisconsin. On March 9, 2007, the State Bar’s Board of Governors voted to oppose that petition. The Supreme Court held a hearing on the petition on April 12, 2007, but did not dispose of the petition after the hearing. At the open administrative conference following the hearing on April 12, 2007, the Court asked the State Bar to study the membership classification of state and federal ALJs and report back to the Court with a recommendation.
On Sept. 1, 2007, State Bar President Thomas Basting Sr. appointed a State Bar Membership Categories Committee to study the issue further. Committee members included: Kent Carnell, Madison, chair; James Alexander, Madison; Ronald Bernoski, Milwaukee; George Brown, Madison; Margaret Carlson, Madison; Lori Gendelman, Milwaukee; G. Jeffrey George, La Crosse; David Hass, Madison; John Kosobucki, Madison; Jacquelynn Rothstein, Madison; and Keith Sellen, Madison.
On May 7, 2008, the committee presented its recommendations to the Board of Governors. On Sept. 12, 2008, the Board of Governors approved those modifications, which are presented to the Court in this petition. The Board of Governors requests that the Supreme Court modify Supreme Court Rule 10.03(3) so that:
1) The class of judicial members is modified to explicitly state those judicial officials who are eligible for judicial membership. This restatement of eligible officials explicitly includes, for the first time, court of appeals staff attorneys and federal administrative law judges. In general, the officials included in this category are prohibited from the private practice of law.
2) The petition also specifies that no inactive member may transfer to emeritus status if they have not actively practiced law in Wisconsin or another state during the previous two years, unless the Board of Bar Examiners certifies the attorney has met the applicable CLE requirements for transfer to active status and the Supreme Court has approved the transfer.
PROPOSED AMENDMENTS:
SCR 10.03(3) Classes of membership. (a) The members of the state bar are divided into 4 classes: active members, judicial members, inactive members and emeritus members. The class of active members includes all members of the state bar except the judicial members and inactive members. The class of inactive members includes those persons who are eligible for active membership but are not engaged in the practice of law in this state and have filed with the secretary of the association written notice requesting enrollment in the class of inactive members. Judges of courts of record, full-time family court commissioners, full-time court commissioners, U.S. bankruptcy judges, U.S. magistrate judges The class of judicial members includes the following persons: supreme court justices, court of appeals judges, circuit court judges, full-time circuit court commissioners, full-time municipal court judges, supreme court commissioners, court of appeals staff attorneys, federal district court judges, federal appellate court judges, federal bankruptcy judges, federal magistrate judges, federal administrative law judges, and retired justices and judges who are eligible for temporary judicial assignment and are not engaged in the practice of law. are classed as judicial members, except that a Any judicial member may elect to become an active member with all rights of active membership except to hold office as an officer or governor or to practice law. The class of emeritus members includes those persons who are either active or inactive members in good standing but who are at least 70 years of age and have filed with the executive director of the association a written notice requesting enrollment in the class of emeritus members. An emeritus member has all the privileges of membership in the state bar and need not pay membership dues for the years following the year in which he or she attains the age of 70.
(b) Any inactive member in good standing and any judicial member who is no longer serving in a judicial office may change his or her classification to that of an active member by filing with the secretary a written request for transfer to the class of active members and by paying the dues required of active members. No inactive member who has not actively practiced law in this state or in another state during the last 10 years may be transferred to active membership until the transfer is approved by the supreme court except a judicial member who is no longer serving in a judicial office shall be classified as an active member upon his or her written request.
(bm) Any inactive member in good standing may change his or her classification to that of an emeritus member if otherwise qualified to become an emeritus member provided that no inactive member who has not actively practiced law in this state or in another state during the last two years may be transferred to emeritus status until the Board of Bar Examiners certifies that the member has completed the continuing legal education requirements required for transfer to active status and the transfer is approved by the supreme court.
RATIONALE: Under the proposed amended judicial membership class rule, the types of members listed include only those members who serve in a judicial capacity and are not allowed to practice law by rule, statute, or constitution in addition to their adjudicative responsibilities. Some potential types of members that engage in adjudicative type responsibilities but are not included in the class of judicial members are state administrative law judges because they are allowed to practice law in addition to their adjudicative responsibilities. The proposed amendment will replace outdated and ambiguous language with clearer membership types within the class.
Under the proposed amended emeritus membership class rule, those members of the State Bar who have been classified as inactive, under which they cannot practice law, can no longer transfer to emeritus status and therefore practice law without specific approval from the Board of Bar Examiners. Although this transfer is not a regular practice, it has happened frequently enough that this language needs to be adopted in order to prevent lawyers who have taken little or no CLE in previous years from practicing law in Wisconsin.
Respectfully submitted, this 31st day of October, 2008.
Diane S. Diel, President, State Bar of Wisconsin
Madison, Wis.
Top of Page
Procedures for Lawyer Support and Monitoring
In the matter of the petition to create procedures for lawyer support and monitoring and procedures for referrals from the Office of Lawyer Regulation.
Order 08-28
On Dec. 29, 2008, the State Bar of Wisconsin (State Bar), by its then-President, Diane S. Diel, and the Office of Lawyer Regulation (OLR), by its director, Keith L. Sellen, jointly petitioned this court to establish procedures for lawyer support and monitoring within the State Bar and for OLR to refer lawyers for assessment, treatment, and monitoring.
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 Thursday, Oct. 29, 2009, 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 at the court’s conference in this matter, the court will discuss and consider Rule 08-13, In the matter of creation of Supreme Court Rule SCR 40.075 Relating to Conditional Admission to the Bar, which this court held in abeyance by order dated Aug. 3, 2009, pending consideration of Rule 08-28.
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 3rd day of August, 2009.
By the court:
David R. Schanker, Clerk of Supreme Court
Petition 08-28
The State Bar of Wisconsin, and the Office of Lawyer Regulation (OLR), hereby petition the Supreme Court of Wisconsin for an order establishing procedures for lawyer support and monitoring within the State Bar (Appendix A) and for OLR to refer lawyers for assessment, treatment, and monitoring (Appendix B).
Petitioners recognize a substantial correlation of lawyer professional misconduct with alcoholism, depression, other mental and physical conditions, or other problems. Addressing the underlying problems serves the public interest by enabling lawyers to practice to professional standards. Early recognition and response to underlying problems serves to prevent harm.
Petitioners also recognize the usefulness and effectiveness of the Wisconsin Lawyers Assistance Program (WisLAP), which provides confidential assistance to lawyers and their family members, and the Law Office Management Assistance Program (LOMAP), which helps lawyers effectively and efficiently manage law practice.
Current policies, however, require OLR to keep matters confidential. When OLR learns information indicating that a lawyer’s ability to practice may be affected by alcoholism, depression, or other mental and physical conditions, OLR is not permitted to inform WisLAP.
When lawyers seek assistance on their own initiative, WisLAP and LOMAP would continue their policies regarding confidentiality. When OLR refers lawyers, WisLAP and LOMAP would keep information confidential, except cases where the lawyer consents as part of an alternative to discipline program, and cases where the Court has imposed conditions and the information is necessary to monitor the conditions.
Petitioners believe the public interest would be served by providing a means for OLR to refer lawyers whose ability to practice may be affected by alcoholism, depression, other mental and physical conditions, or other problems for assistance from WisLAP or LOMAP.
Petitioners believe that Appendices A and B provide appropriate authority and guidance, consistent with the interests of the public and practitioners who may be the subject of referrals.
Respectfully submitted:
Diane S. Diel, President, State Bar of Wisconsin
Keith L. Sellen, Director, Office of Lawyer Regulation
Top of Page
Record Retention
In the matter of the petition to amend Supreme Court Rule 72.01 regarding record retention.
Order 09-02
On April 29, 2009, the Director of State Courts, A. John Voelker, petitioned this court to amend Supreme Court Rule (SCR) 72.01, relating to record retention. The petition states the proposed changes make the language of the rule more uniform and/or conform to statutory changes that have occurred since the last major review of SCR 72.01 in 1997.
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 Monday, Nov. 2, 2009, 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 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 3rd day of August, 2009.
By the court:
David R. Schanker, Clerk of Supreme Court
Petition 09-02
The Director of State Courts, on the recommendation of the Records Management Retention Subcommittee, hereby petitions the court to make amendments to Supreme Court Rule 72.01 regarding record retention, pursuant to the court’s rulemaking authority under Wis. Stat. §751.12 and its administrative authority over all courts conferred by Article VII, §3 of the Wisconsin Constitution.
In 2005, the Wisconsin Circuit Court Access (WCCA) Oversight Committee was reconvened to review court policies regarding online access to circuit court records. One of the committee’s final recommendations was that a comprehensive review of SCR 72.01 be undertaken. As a result, the Records Management Retention Subcommittee was reconvened in 2007. The Retention Subcommittee included judges, court of appeals staff, clerks of circuit court, registers in probate, a representative from the State Historical Society, and a district court administrator. The subcommittee also consulted with a district attorney and members of the private bar when necessary. The subcommittee undertook a detailed rule-by-rule review of SCR 72.01, carefully weighing whether rule changes were needed. Some of the proposed changes are substantive while others are procedural, making the language of the rules more uniform or conforming to statutory changes that have occurred since the last major review of SCR 72.01 in 1997.
The Director of State Courts petitions for changes to the following rules:
SCR 72.01(1) Civil case files. All papers deposited with the clerk of circuit court in every proceeding commenced under chapters 801 through 847 of the statutes: 20 years after entry of final order.
SCR 72.01(2) Civil court record. A history and index of proceedings under chapters 801 through 847 of the statutes kept in book or card form: 20 years after entry of final order.
SCR 72.01(3) Civil minute record. A brief statement of in-court proceedings commenced under chapters 801 through 847 of the statutes, generally maintained in the case file: 20 years after entry of final order.
NOTE: For SCR 72.01(1)-(3), added references to include additional statutory sections and removed language regarding the file format. Civil case files encompass more than just cases commenced under Wisconsin Statutes Chapter 801, for example temporary restraining orders and injunctions, which are commenced under Chapter 813. The current rules do not cover retention for any action given a civil designation (CV) that is not commenced under chapter 801. Adding a reference to Chapters 801-847 covers all types of actions filed as civil actions in circuit court. For removal of language regarding file format in SCR 72.02(2), please see the note at the end of this petition that references removal of that language from multiple rules throughout SCR 72.01.
DELETE: SCR 71.02(4) Judgment and order record. A record consisting of copies of all civil and criminal judgments, orders and reports entered, the originals of which are kept in the case file: None; this recordkeeping requirement was repealed by 1983 Wisconsin Act 303.
NOTE: Deleted SCR 72.01(4). This rule should be deleted as it is no longer necessary. SCR 72.01(4) was repealed by 1983 Wisconsin Act 303. Because this recordkeeping requirement was repealed more than 20 years ago, any documentation left in the clerk’s office is now covered by the 20 years after repeal retention period in SCR 72.01(61) for court records no longer created.
SCR 72.01(5) Judgment docket. A record of all money judgments: 20 years after final initial docket entry.
NOTE: For SCR 72.01(5), replaced the word “final” with “initial.” A civil judgment is valid for 20 years (s. 893.40, stats). A judgment entered on the judgment and lien docket is valid for 10 years from entry onto the judgment and lien docket, with the possibility that a second 10-year docketing period may be granted by the court (s. 806.15(1), stats; s. 806.23, stats). The total time a lien is valid, however, cannot exceed the 20 year limit on judgments. If a party redockets their judgment at year 19, the judgment and the lien are still only valid for one additional year. Using this example, under the current rule, keeping the judgment docket 20 years from that “final” entry would result in the clerk having to keep the judgment docket for that case much longer than necessary. As the judgment is valid 20 years from the date it is granted, there is no reason to keep the judgment docket for longer than 20 years from the “initial” entry on the judgment docket.
SCR 72.01(6) Lien claims. A statutory lien filed for services performed or materials provided: until satisfaction, or expiration of lien or entry of judgment, whichever occurs first, except as provided in subs. (6ag) and (6b).
NOTE: For SCR 72.01(6), added language clarifying the rule. Adding this language makes it clear exactly what is being satisfied or expiring and sets those two options apart from entry of judgment, which is a different option.
SCR 72.01(6ag) Construction liens. A statutory lien claim filed with the clerk of circuit court for services performed or materials provided for improvements, as defined in s. 779.01 (2) (a), stats.: 2 6 years after the date of filing the lien claim with the clerk of circuit court. if no action is brought and no summons and complaint are filed.
NOTE: For SCR 72.01(6ag), extended the retention period, added clarifying language and removed reference to a separate civil action. Changed the reference from “clerk of courts” to “clerk of circuit court” to make the rule language consistent with the other rules in SCR 72.01. In terms of extending the retention period, the two year limit in this section was based on Wis. Stat. 799.06(1), which states that a construction lien is only valid for 2 years from the date of filing with the circuit court, unless a civil action is brought to foreclose on the lien. This retention period has proven completely unworkable for clerks of circuit court, as the action to foreclose on the lien is a separate civil action and the pleadings do not always clearly cross-reference the construction lien case number. As such, clerks of circuit court have no knowledge when this retention period has been met and have not been able to destroy construction lien filings. Concerns were raised by practitioners in this area that if a litigant did file an action to foreclose on the lien the litigant needed time to return to circuit court and request documentation that the construction lien was properly filed. Extending the retention period for construction liens to 6 years gives the litigant the 2-year time period to bring an action to foreclose on the lien, plus an additional 4 years for that litigant to request any necessary documentation from the circuit court lien case.
SCR 72.01(6b) Condominium liens. A statement of condominium lien filed with the clerk of circuit court under s. 703.16 (4) 703.165(3), stats., for unpaid assessments, including interest and actual costs of collection: 3 7 years after the date of filing the statement of condominium lien with the clerk of circuit court. if no action is brought to foreclose the lien.
NOTE: For SCR 72.01(6b), changed the statutory reference, added clarifying language, extended the retention period and removed reference to a separate civil action.
Section 703.16(4) was renumbered to 703.165(3) by 2003 Wisconsin Act 283. The retention rule was never modified to reflect that change. Changed the reference from “clerk of courts” to “clerk of circuit court” to make the rule language consistent with the other rules in SCR 72.01.
In terms of extending the retention period, the three year limit in this section was based on Wis. Stat. 703.165(7), which states that an action to foreclose on a condominium lien can only be brought within 3 years of the lien filing. This retention period has proven completely unworkable for clerks of circuit court as the action to foreclose on the lien is a separate civil action and the pleadings do not always clearly cross-reference the condominium lien case number. As such, clerks of circuit court have no knowledge when this retention period has been met and have not been able to destroy condominium lien filings. Concerns were raised by practitioners in this area that if a litigant did file an action to foreclose on the lien the litigant needed time to return to circuit court and request documentation that the condominium lien was properly filed. Extending the retention period for condominium liens to 7 years gives the litigant the 3-year time period to bring an action to foreclose on the lien, plus an additional 4 years for that litigant to request any necessary documentation from the circuit court lien case.
SCR 72.01(7) Unemployment compensation, public assistance and workers compensation payment warrants and dockets. A record of delinquent unemployment compensation, public assistance, or workers compensation payments that have the effect of a final judgment: 20 years after final initial docket entry.
NOTE: For SCR 72.01(7), removed references to income and franchise tax warrants, added references to public assistance and workers compensation warrants/liens, and changed the filing time to begin running from the initial docket entry. A separate rule for income and franchise tax warrants has been created. Public assistance and workers compensation cases were case liens not previously included in this rule, but which have the effect of a final judgment and therefore would be covered by the 20-year statute of limitations on civil judgments. The period was changed to run from the date the warrant is initially entered into the judgment and lien docket. There is only one entry into the judgment and lien docket for these cases and it is the initial entry.
CREATE: SCR 72.01(7a) – Delinquent income or franchise tax warrants and dockets. A record of delinquent income or franchise tax warrants/liens: 10 years from the date of filing with the clerk of circuit court for warrants/liens filed before Aug. 1, 1981; permanent from the date of filing with the clerk of circuit court for warrants/liens filed on August 1, 1981, through April 30, 2004; 20 years from the date of filing with the clerk of circuit court for warrants/liens filed on or after May 1, 2004, unless renewed. If renewed, a new 20-year retention period begins from the date the renewal is filed with the clerk of circuit court.
NOTE: Created SCR 72.01(7a). This section arose as a result of the Department of Revenue (DOR) notifying the court that the current retention rule did not comply with Wisconsin Statutes. The statutes governing the effectiveness of delinquent income and franchise tax warrants/liens filed with the clerk of circuit court have changed three times. After discussion with legal counsel at DOR it was determined that these legislative changes have created three different time periods for which these warrants are considered valid and enforceable by DOR. As such, a retention rule outlining these three different periods was needed. The most recent version of the statute, Wis. Stat. sec. 71.91(4), directs that warrants/liens filed on or after May 1, 2004 may be renewed as a lien with the court every 20 years until paid.
SCR 72.01(8) Small claims case files. All papers deposited with the clerk of circuit courts in every proceeding commenced under chapter 799 of the statutes: 20 years after entry of final order or judgment for all cases, including contested cases, stipulated dismissals and default judgments; except 2 years from date of entry of judgment for cases dismissed because issue was not joined and the case was not disposed of by judgment or stipulation within 6 months from the original return date.
NOTE: For SCR 72.01(8), added the word “circuit.” Changed the reference from “clerk of courts” to “clerk of circuit court” to make the rule language consistent with the other rules in SCR 72.01.
SCR 72.01(9) Small claims court record. A history and index of proceedings kept in book or card form: 20 years after entry of final order for contested cases, stipulated dismissals and default judgments; 1 year from date of filing for dismissed cases. except 2 years from date of entry of judgment for cases dismissed because issue was not joined and the case was not disposed of by judgment or stipulation within 6 months from the original return date.
SCR 72.01(10) Small claims minute record. A brief statement of in-court proceedings commenced under chapter 799 of the statutes, generally maintained in the case file: 20 years after entry of final order for contested cases, stipulated dismissals and default judgments; 1 year from date of filing for dismissed cases. except 2 years from date of entry of judgment for cases dismissed because issue was not joined and the case was not disposed of by judgment or stipulation within 6 months from the original return date.
NOTE: For changes to SCR 72.01(9)-(10), added language to mirror SCR 72.01(8) and removed language regarding the file format. This change reflects the same change the Court made to SCR 72.01(8) in 2006. Those changes were never applied to the identical language of SCR 72.01(9)-(10). For removal of language regarding file format in SCR 72.01(9), please see the note at the end of this petition that references removal of that language from multiple rules throughout SCR 72.01.
SCR 72.01(11) Family case files. All papers deposited with the clerk of circuit courts in every proceeding commenced under ch. 767, stats.: 30 years after entry of judgment of divorce, legal separation or annulment, or entry of final order, except that after 30 years, for any case file for which related support or maintenance payments are continuing to be made, 7 years after final payment or after order terminating maintenance is filed. ; 5 years after entry of judgment or entry of final order for dismissed divorces, legal separations and annulments.
SCR 72.01(12) Family court record. A history and index of proceedings kept in books, on cards or in electronic or optical format: 30 years after entry of judgment of divorce, legal separation or annulment, or entry of final order, except that after 30 years, for 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. ; 5 years after entry of judgment or entry of final order for dismissed divorces, legal separations and annulments.
SCR 72.01(13) Family court minute record. A brief statement of in-court proceedings commenced under ch. 767, stats., generally maintained in the case file: 30 years after entry of judgment of divorce, legal separation or annulment, or entry of final order, except that after 30 years, for 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. ; 5 years after entry of judgment or entry of final order for dismissed divorces, legal separations and annulments.
NOTE: For SCR 72.01(11)-(13), clarified purpose of retention period, added clarifying language, added reference to separate retention period for dismissed divorces, legal separations and annulments, added word “related,” and removed language regarding the file format. Changed the reference from “clerk of courts” to “clerk of circuit court” to make the rule language consistent with the other rules in SCR 72.01. A reference to entry of judgment of legal separation and annulment was added to clarify that the retention rule applied to those types of final judgments as well and to mirror the language added for dismissed family cases of those types. Shortened the retention period for certain dismissed family cases as the Committee felt that retaining dismissed cases for the full 30-year retention period was not necessary, similar to the way dismissed small claims cases are kept for a shorter retention period. There is no great public interest, safety issue, or legal reason for retaining this type of dismissed case for the full 30-year retention period. In SCR 72.01(11), added the word “related” to make the language consistent with SCR 72.01(12)-(13). For removal of language regarding file format in SCR 72.01(12), please see the note at the end of this petition that references removal of that language from multiple rules throughout SCR 72.01.
SCR 72.01(14) Family mMaintenance and support payment records. Record of family maintenance and child support payments received by the clerk of circuit court: 30 years after entry of judgment of divorce, legal separation or annulment, or entry of final order, except that after 30 years, for 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: For SCR 72.01(14), removed the words “family” and “child” for greater clarity of the rule and added reference to legal separation and annulment. A reference to entry of judgment of legal separation and annulment was added to clarify that the retention rule applied to those types of final judgments as well. Removed the words “family” and “child” to clarify that this rule applies to all types of maintenance and support in family actions. Maintenance is referred to only as “maintenance” not family maintenance and is referred to later in this same rule only as maintenance. Support could include either child or family, so the current rule’s reference to child support is not inclusive of all types of support. There is no separate retention rule for family support. Additionally, later in the rule the reference is to “support” not “child support.”
SCR 72.01(15) Felony case files. All papers deposited with the clerk of circuit courts in every proceedings commenced as felonies: under ch. 968, stats., for felony offenses and all papers filed with the clerk of courts for the commitment of an inmate under ch. 980, stats.: 50 years after entry of final judgment; for Class A felonies, 75 years after entry of final judgment.
NOTE: For SCR 72.01(15), removed specific statutory reference, added clarifying language, and removed reference to commitment of inmate cases. Changed the reference from “clerk of courts” to “clerk of circuit court” to make the rule language consistent with the other rules in SCR 72.01. The specific reference to Chapter 968 was removed to guard against future inaccuracies in the rule that result from statute renumbering. This prevents a petition from having to be filed with the Court to correct inaccurate statutory references that could result from legislative changes. Also removed the reference to commitment of inmate cases because a separate retention period for Chapter 980 cases is proposed in this petition.
SCR 72.01(16) Felony court record. A history and index of criminal proceedings commenced as felonies kept in books, on cards or in electronic or optical format, including court records regarding the commitment of an inmate: 50 years after entry of final judgment; for Class A felonies, 75 years after entry of final judgment.
SCR 72.01(17) Felony minute record. A brief statement of in-court proceedings in a felony action commenced as felonies, generally maintained in the case file, including minute records regarding the commitment of an inmate: 50 years after entry of final judgment; for Class A felonies, 75 years after entry of final judgment.
NOTE: For SCR 72.01(16), (17), added corrective language, removed reference to commitment of inmate cases, and removed language regarding the file format. Added clarifying language and language to make the rules more consistent with the language of other rules in SCR 72.01. Also removed the reference to commitment of inmate cases because a separate retention period for Chapter 980 case is proposed in this petition. For removal of language regarding file format in SCR 72.01(16), please see the note at the end of this petition that references removal of that language from multiple rules throughout SCR 72.01.
CREATE: SCR 72.01(17a) Sexually violent person commitments. All papers deposited with the clerk of circuit court for the commitment of an inmate under ch. 980, stats.: 75 years after entry of final judgment.
CREATE: SCR 72.01(17b) Sexually violent person commitment court record. A history and index of proceedings for the commitment of an inmate: 75 years after entry of final judgment.
CREATE: SCR 72.01(17c) Sexually violent person commitment minute record. A brief statement of in-court proceedings for the commitment of an inmate, generally maintained in the case file: 75 years after entry of final judgment.
NOTE: When commitment of an inmate under Wisconsin Statutes Chapter 980 began, the circuit courts gave them a felony case designation, CF, and therefore included those cases in the felony retention rules under SCR 72.01(15)-(17). Since that time, a separate case type has been created for these cases, the CI case type. As commitment of inmate cases now have their own case type, they should be given a separate retention rule instead of remaining combined with the felony retention rules under SCR 72.01(15)-(17). Because of the serious nature of these cases and the fact the underlying criminal case is likely being retained for 50 or 75 years under SCR 72.01(15), the 75 year retention period is appropriate. Creation of a separate retention rule and the 75-year retention period was also specifically recommended by the WCCA Oversight Committee.
SCR 72.01(18) Misdemeanor case files. All papers deposited with the clerk of circuit courts in every proceedings commenced as misdemeanors under chapter 968 of the statutes for misdemeanor offenses, including criminal traffic offenses: 20 years after entry of final judgment.
SCR 72.01(19) Misdemeanor court record. A history and index of proceedings commenced as misdemeanors under chapter 968 of the statutes for misdemeanor offenses, including criminal traffic offenses, kept in book or card form: 20 years after entry of final judgment.
SCR 72.01(20) Misdemeanor minute record. A brief statement of in-court proceedings commenced as misdemeanors in a misdemeanor action, including criminal traffic offenses, generally maintained in the case file: 20 years after entry of final judgment.
NOTE: For SCR 72.01(18)-(20), added clarifying language, removed statutory reference, and removed language regarding the file format. The language added to the rule makes these rules consistent with the language of other rules in SCR 72. Removed the reference to Chapter 968 to guard against future inaccuracies in the rule that could result from statute renumbering. This prevents a petition from having to be filed with the Court to correct inaccurate statutory references that result from legislative changes. For removal of language regarding file format in SCR 72.01(19), please see the note at the end of this petition that references removal of that language from multiple rules throughout SCR 72.01.
CREATE: SCR 72.01(20a) Complex forfeitures: All papers deposited with the clerk of circuit court in proceedings commenced as complex forfeitures: 20 years after entry of final judgment.
CREATE: SCR 72.01(20b) Complex forfeiture court record. A history and index of proceedings commenced as complex forfeitures: 20 years after entry of final judgment.
CREATE: SCR 72.01(20c) Complex forfeiture minute record. A brief statement of in-court proceedings commenced as complex forfeitures, generally maintained in the case file: 20 years after entry of final judgment.
NOTE: Created new rules SCR 72.01(20a), (20b) and (20c). Complex forfeitures are actions that are technically forfeitures, but because of their complex nature are classified and handled differently at the circuit court level than other basic forfeiture actions. The CX case type was created at the circuit court level for these cases and the Director of State Courts Office has worked extensively with the Department of Justice (DOJ) to ensure the circuit courts are handling these cases properly. These cases typically involve major environmental or consumer protection violations brought by DOJ and involve very large forfeiture amounts that can range into the hundreds of thousands of dollars. Similar to criminal traffic cases referenced in the misdemeanor retention rules (SCR 72.01(18)-(20)), the term “complex forfeiture” is not a statutory designation, but a special case designation created for orderly and accurate circuit court case management. Complex forfeitures statutorily are often settled with agreements to let defendants complete restitution or other payments for far more than 5 years and therefore retaining them according to the 5-year forfeiture retention period under SCR 72.01(24) is not appropriate. Because the litigation surrounding these cases can be extensive and complicated, the Committee felt that retaining complex forfeitures according to the misdemeanor and civil retention period of 20 years was appropriate.
SCR 72.01(24) Traffic forfeiture, conservation forfeiture and ordinance violation case files. All papers deposited with the clerk of circuit court in every proceedings commenced as traffic forfeitures, conservation forfeitures or ordinance violations, including juvenile ordinance violations: under chs. 29, 30, 48, 66, 125, 167, 343, 345, 350 and 938, stats.: 5 years after entry of final judgment.
SCR 72.01(24a) Traffic forfeiture, conservation forfeiture and ordinance violation court record. A history and index of proceedings commenced as traffic forfeitures, conservation forfeitures or ordinance violations, including juvenile ordinance violations kept in books, on cards or in electronic or optical format: 5 years after entry of final judgment.
SCR 72.01(24m) Traffic forfeiture, conservation forfeiture and ordinance violation minute record. A brief statement of in-court proceedings in actions commenced as traffic forfeitures, conservation forfeitures or ordinance violations, including juvenile ordinance violations a forfeiture or ordinance violation action, generally maintained in the case file: 5 years after entry of final judgment.
NOTE: For SCR 72.01(24)-(24m), added clarifying language, removed statutory references, and removed language regarding the file format. The clarifying language makes these rules more consistent with the language of other rules in SCR 72 and with each other. Also added clarifying language to indicate that this rule includes juvenile ordinance violations. Removed statutory references in SCR 72.01(24) to guard against future inaccuracies in the rule that could result from statute renumbering and to mirror SCR 72.01(24a) and (24m). For removal of language regarding file format in SCR 72.01(24a), please see the note at the end of this petition that references removal of that language from multiple rules throughout SCR 72.01.
DELETE: SCR 72.01(25) Information and indictment record. A record consisting of copies of all informations and indictments filed, the originals of which are kept in the case file: None; this recordkeeping requirement was repealed by 1983 Wisconsin Act 302.
NOTE: Delete SCR 72.01(25). Because this recordkeeping requirement was repealed in 1983, which was more than 20 years ago, the Committee felt it was no longer necessary to maintain this retention rule. Any records still retained under this rule are now covered by the 20 year after repeal retention period in SCR 72.01(61) for court records no longer created.
SCR 72.01(26) Records of John Doe proceedings. All papers deposited with the clerk of circuit court in every proceedings commenced as John Doe actions under section 968.26 of the statutes: 50 years after date of final proceeding; for cases involving the investigation of Class A felonies, 75 years after date of final proceeding.
NOTE: For SCR 72.01(26), removed statutory references, removed 50 year retention period and reference to statute severity and added clarifying language. John Doe cases are not classified according to statute severity at the circuit court level. Therefore, there is no reason for separate retention rules according to charge severity. The Committee chose one retention period for retaining records of John Doe proceedings, the longer of the two periods in the current rule. Removed statutory references to guard against future inaccuracies in the rule that could result from statute renumbering. Added reference to “clerk of circuit” to clarify that these cases are filed with the clerk of circuit court, which is common practice throughout the state, and to match the language in the other rules in SCR 72.01.
CREATE: SCR 72.01(26m) Records of proceedings commenced under 968.02(3). All papers deposited with the clerk of circuit court in proceedings commenced under section 968.02(3) of the statutes: 75 year’s after date of final proceeding.
NOTE: Created SCR 72.01(26m). The circuit courts have seen an increasing number of cases filed under Wis. Stat. 968.02(3), which allows the judge to determine whether a criminal complaint should be issued in situations where the district attorney refuses or is unavailable to issue a complaint. A new class code has been created for these cases in the circuit court and the Committee therefore felt a separate retention rule was necessary. Because these cases are procedurally similar to John Doe cases, the Committee felt a similar retention rule was appropriate.
SCR 72.01(27m) Juvenile court search warrants. Search warrants deposited with the juvenile court in proceedings under chapter 48 and chapter 938 of the statutes: 15 years after filing with the court, unless filed with a case file.
NOTE: For SCR 72.01(27m), added statutory chapter. Added missing reference to search warrants filed under the Juvenile Justice Code, Chapter 938.
SCR 72.01(28) Records of grand jury proceedings. All papers deposited with the clerk of circuit court in every proceedings commenced under section 968.40 756.10 of the statutes: 50 years after date of final proceeding; for cases involving the investigation of Class A felonies, 75 years after date of final proceeding.
NOTE: For SCR 72.01(28), changed statutory reference, added clarifying language, removed 50 year retention period and reference to statute severity. The clarifying language added to this rule makes the rules more consistent with the language of other rules in SCR 72.01 and clarifies that these cases are filed with the clerk of circuit court. Changed the statutory reference as a result of a change to the statute number for grand jury proceedings following the original creation of this rule. Grand jury proceedings are not classified according to statute severity at the circuit court level. Therefore, there is no reason for separate retention rules according to charge severity. The Committee chose one retention period for retaining records of grand jury proceedings, the longer of the two periods in the current rule.
SCR 72.01(29) Estate Probate case files. All papers deposited with the register in probate in every proceedings commenced under chapters 851 through 879 of the statutes: 75 years after entry of final judgment or order discharging personal representative or trustee.
NOTE: For SCR 72.01(29), changed title, added statutory reference and clarifying language. The title of the rule and addition of statutory sections and clarifying language were changed to mimic the language in SCR 72.01(30)-(31) and to make this rule more consistent with the language of other rules in SCR 72.01. These additions also clarify that this rule applies to all cases in probate not otherwise covered in the retention rules, not just estate cases. The sections of the Wisconsin Statutes covering probate matters are Chapters 851-879.
SCR 72.01(30) Probate court record. A history and index of probate proceedings commenced under chapters 851 through 879 of the statutes kept in book or card form: 75 years after entry of final judgment or order discharging personal representative or trustee.
NOTE: For SCR 72.01(30), added statutory references, clarifying language and removed language regarding the file format. The addition of statutory sections and clarifying language mimics the language in SCR 72.01(29) and (31) and makes this rule more consistent with the language of other rules in SCR 72.01. The sections of the Wisconsin Statutes covering probate matters are Chapters 851-879. These additions also clarify that this rule applies to all cases in probate not otherwise covered in the retention rules. For removal of language regarding file format in SCR 72.01(30), please see the note at the end of this petition that references removal of that language from multiple rules throughout SCR 72.01.
SCR 72.01(31) Probate minute record. A brief statement of in-court proceedings commenced under chapters 851 through 879 to 880 of the statutes, generally maintained in the case file: 75 years after entry of final judgment or order, or order discharging personal representative or trustee.
NOTE: For SCR 72.01(31), changed statutory reference and added reference to judgment. Chapter 880 no longer exists in the Wisconsin Statutes and therefore needed to be eliminated. The sections of the Wisconsin Statutes covering probate matters are now Chapters 851-879. Added a reference to final judgment because some final dispositions in probate cases are also judgments, not just final orders.
SCR 72.01(32) Guardianship case files. All papers deposited with the register in probate in every adult guardianship proceedings commenced under chapters 54 and 55 and 880 of the statutes: 7 years after termination of guardianship. For juvenile guardianships under chapters 48 and 54 of the statutes: 7 years after the juvenile’s 18th birthday.
SCR 72.01(33) Guardianship court record. A history and index for adult guardianship of proceedings commenced under chapters 54 and 55 and 880 of the statutes kept in book or card form: 7 years after termination of guardianship. For juvenile guardianships under chapters 48 and 54 of the statutes: 7 years after the juvenile’s 18th birthday.
SCR 72.01(34) Guardianship minute record. A brief statement of in-court proceedings for adult guardianships commenced under chapters 54 and 55 and 880 of the statutes, generally maintained in the case file: 7 years after termination of guardianship. For juvenile guardianships under chapters 48 and 54 of the statutes: 7 years after the juvenile’s 18th birthday.
NOTE: For SCR 72.01(32),(33), and (34), removed the reference to Chapter 880 of the Wisconsin Statutes, added clarifying language, added references to juvenile guardianships, and removed language regarding the file format. 2005 Wis. Acts 264, 387 and 388 eliminated Chapter 880 of the Wisconsin Statutes and created/renumbered the provisions in Chapter 880 to Chapters 54 and 55. The clarifying language added makes these rules more consistent with the language of other rules in SCR 72.01 and with each other. Also, added clarification that the seven year retention rule for guardianships should be applied differently to adult and juvenile guardianships. Because issues can arise with a juvenile guardianship until the juvenile turns 18, even if the guardianship has terminated earlier, it was decided that the most complete retention period was to retain juvenile guardianships for 7 years past the juvenile’s 18th birthday. For removal of language regarding file format in SCR 72.01(33), please see the note at the end of this petition that references removal of that language from multiple rules throughout SCR 72.01.
SCR 71.02(38) Mental health case files. All papers deposited with the clerk of circuit court or register in probate in every proceedings commenced under chapter 51 of the statutes: 10 7 years after entry of final order. of commitment or extension.
SCR 72.01(39) Mental health court record. A history and index of proceedings commenced under chapter 51 of the statutes kept in book or card form: 10 7 years after entry of final order. of commitment or extension.
SCR 72.01(40) Mental health minute record. A brief statement of in-court proceedings commenced under chapter 51 of the statutes, generally maintained in the case file: 10 7 years after entry of final order. of commitment or extension.
NOTE: For SCR 72.01(38)-(40), shortened the retention period, added some clarifying language and removed other language to clarify the rule, and removed language regarding the file format. Added language to SCR 72.01(39) to make the language of that rule more consistent with the language in SCR 71.02(38) and (40) and the other SCR 72.01 retention rules. The retention period in this rule was shortened as the Committee felt there was no need to retain mental health records for longer than 7 years after the final order in this case. This time period more than covers any court need for this file. To make it clear that these rules apply to any final order in a mental health case, the reference to commitment or extension was also removed, as those two dispositions are not the only dispositions available in a mental health case. For example, the case can also result in a dismissal. For removal of language regarding file format in SCR 72.01(39), please see the note at the end of this petition that references removal of that language from multiple rules throughout SCR 72.01.
RENUMBER: SCR 72.01(42) to SCR 72.01(41) Termination of parental rights and adoption case files. All papers deposited with the clerk of circuit court, register in probate or clerk of court for juvenile matters in every termination of parental rights and adoption proceeding commenced under chapter 48 of the statutes: permanent.
NOTE: In SCR 72.01(42), renumbered the rule to SCR 72.01(41) and removed reference to Chapter 48. Renumbered this rule to SCR 72.01(41) so that the subsequent three retention rules on juvenile retention are grouped together, similar to the other rules of a particular subject area in SCR 72.01, instead of being separated by this rule, which refers to a different subject area. The specific reference to Chapter 48 was removed to guard against future inaccuracies in the rule that result from statute renumbering. This prevents a petition from having to be filed with the Court to correct inaccurate statutory references that could result from legislative changes. Additionally, this rule references adoptions, which for children are under Chapter 48, but for adults are under Chapter 882. The retention of adult adoption files is not currently covered under any other retention rule. The removal of the reference to Chapter 48 clarifies that this retention rule applies to both adoptions of children and adults.
RENUMBER: SCR 72.01(41) to SCR 72.01(42) Juvenile delinquency, juveniles in need of protection and services and children in need of protection and services case files. Except as provided in sub. (24), all papers deposited with the clerk of circuit court, register in probate or clerk of court for juvenile matters in every proceedings commenced under ch. 48 or 938, stats.: 4 years after the 18th birthday of the juvenile or child; 75 8 years after the adjudication 18th birthday of the juvenile or child if he or she was adjudicated delinquent for committing an act that would be punishable as a Class A or Class B felony if committed by an adult.
SCR 72.01(43) Juvenile court record. A history and index of proceedings commenced under ch. 48 or 938, stats. , kept in books, or on cards or in electronic or optical format: 4 years after the 18th birthday of the juvenile or child; 75 8 years after the adjudication 18th birthday of the juvenile or child if he or she was adjudicated delinquent for committing an act that would be punishable as a Class A or Class B felony if committed by an adult.
SCR 72.01(44) Juvenile minute record. A brief statement of in-court proceedings in actions commenced under ch. 48 or 938 stats., generally maintained in the case file: 4 years after the 18th birthday of the juvenile or child; 75 8 years after the adjudication 18th birthday of the juvenile or child if he or she was adjudicated delinquent for committing an act that would be punishable as a Class A or Class B felony if committed by an adult.
NOTE: For SCR 72.01(41) and (43)-(44), added clarifying language, changed the retention period to 75 years for juvenile offenses adjudicated as felonies, and removed language regarding the file format. For SCR 72.01(41), renumbered the rule to SCR 72.01(42). Renumbered SCR 72.01(41) to (42) so that the three retention rules on juvenile retention are grouped together, similar to the other rules of a particular subject area in SCR 72.01, instead of being separated by the current SCR 72.01(42), which refers to a different subject area. The clarifying language added to all three rules makes these rules more consistent with the language of other rules in SCR 72.01 and with each other. In terms of lengthening the retention period, certain juvenile adjudications for acts that would be felonies if committed by an adult carry a lifetime sex offender registration requirement. Additionally, juvenile adjudications for any felony carry an automatic firearms restriction. The firearms restriction is not automatically lifted at the end of the juvenile’s adjudication, but continues unless the juvenile petitions the court for the restriction to be lifted. If the juvenile never petitions the court, the firearms restriction continues. Because of the firearms restrictions and sex offender registry requirements, retaining juvenile felony adjudications for only 8 years past the 18th birthday is not a long enough retention period. The 75-year period was chosen to match the longer of the felony retention periods for adult criminal cases. For removal of language regarding file format in SCR 72.01(43), please see the note at the end of this petition that references removal of that language from multiple rules throughout SCR 72.01.
SCR 72.01(45) Non-criminal case exhibits, paper and non-paper. One year after time for appeal has expired, provided that return of the exhibit has been offered to the proffering party or unless all parties have stipulated to an earlier return of exhibits.
NOTE: For SCR 72.01(45), added language indicating parties can stipulate to an early return for exhibits in non-criminal cases. Adding this language clarifies this rule and correctly reflects longstanding circuit court practice. This retention rule is both administrative and procedural. In addition to the circuit court procedure stated in this rule of offering the exhibit back to the proffering party at the end of the retention period, for years the procedure in circuit court for all non-criminal cases has also included allowing the parties to stipulate to an earlier return of exhibits, typically immediately after trial. This procedure has long been reflected on the Model Recordkeeping Form GF-102 and in the Model Recordkeeping Procedures. While this procedure has been in place for many years with no problems, it is not reflected in the retention rule.
SCR 72.01(46) Criminal and juvenile delinquency case exhibits, paper and non-paper. One year after time for appeal has expired, provided that return of the exhibit has been offered to the proffering party.
NOTE: For SCR 72.01(46), added reference to juvenile delinquency cases. Exhibits in juvenile delinquency cases are currently not clearly covered under any retention rule. Juvenile delinquency cases are akin to criminal proceedings and the exhibits in those cases should therefore be retained similarly to criminal case exhibits. The procedure for non-criminal case exhibits under SCR 72.01(45) being returned earlier through a stipulation process cannot be applied to criminal cases under this rule because of chain of custody concerns.
SCR 72.01(48) Receipts. A receipt for money received by the clerk of circuit court or register in probate: 7 years after issuance.
SCR 72.01(50) Trust account ledgers. Records of trust accounts maintained by a clerk of circuit court or register in probate: the retention period for case file from which the trust account emanates; when the trust account is closed, the record may be filed with the related trust account file.
NOTE: For SCR 72.01(48) and (50), added the word “circuit.” Changed the reference from “clerk of court” to “clerk of circuit court” to make the rule language consistent with the other rules in SCR 72.01.
DELETE: SCR 72.01(56) Ministers’ credentials. A certification that a person is a member of the clergy, licentiate or appointee that permits officiating at marriages: 20 years after date of filing.
NOTE: Deleted SCR 72.01(56). This rule should be deleted as it is both unnecessary and creates confusion. Ministers have not been statutorily required to file credentials with the clerk since 1979. Because these documents are no longer required by statute to be filed with the clerk, any documentation left in the clerk’s office is now covered by the 20 years after repeal retention period in SCR 72.01(61) for court records no longer created. Additionally, because ministers are no longer required to file with the clerk, this rule has created confusion in the public and among clerks, as some ministers and court staff read this rule and believe ministers are still required to file their credentials with the clerk of circuit court.
DELETE: SCR 72.01(57) Notary public appointments. An oath filed with the clerk of court by a notary public: Upon expiration of term.
NOTE: Deleted SCR 72.01(57). Since September 2001 notaries have been required to file oaths only with the Secretary of State and not with the clerk of circuit court. This retention rule was originally created because attorneys who had permanent commissions had the option of filing a copy of their permanent notary certification with the clerk. But, the attorney’s original certification was on file with the Secretary of State. The Secretary of State reports that they have all attorney permanent commissions on file beginning with the late 1950s. Because these documents are no longer required by statute to be filed with the clerk, any documentation left in the clerk’s office is now covered by the 20 years after repeal retention period in SCR 72.01(61) for court records no longer created.
SCR 72.01(60) Naturalization records. Records of applications for U.S. citizenship and proceedings to grant U.S. citizenship: Permanent. Transfer custody to the Wisconsin State Historical Society.
NOTE: For SCR 72.01(60), changed the retention period to transfer the records to the State Historical Society. The clerks of court have not accepted citizenship documents since the mid-1990s and in some courts earlier. The Wisconsin State Historical Society has advised the Director of State Courts Office that the United States National Archives and United States Immigration and Naturalization Service have advised that any copies of naturalization records still with the circuit court are valuable historical documents and the Library Archives Division of the State Historical Society is the appropriate depository for them. The change to this rule reflects that advice and ensures that these valuable historical documents are maintained in the appropriate location.
SCR 72.01(61) Court records no longer created, utilized or maintained. Records no longer created, utilized or maintained by the court for legal purposes: 20 years after repeal, modification, supersession or amendment.
NOTE: For SCR 72.01(61), added language to title. This language was added to the title to make the title consistent with the rule language.
SCR 72.01(64) Incarcerated person records. Files containing Pprisoner litigation correspondence, pleadings and other documents; usually a writ of habeas corpus or certiorari; that are kept in group files until they are reviewed by a judge to determine if the action can be filed without the payment of filing fees and court costs: 5 years after date of submission. If the action meets the filing criteria as a civil action, it becomes a civil case and is retained in accordance with sub. (1).
NOTE: For SCR 72.01(64), added language to clarify this rule. SCR 72.01(64) was created in response to the prisoner litigation act, which became effective in September 1998. Because the new legislation was somewhat confusing, this retention rule was originally created at that time with more detail and reference to procedure than other retention rules. Since 1998, however, circuit court procedure surrounding prisoner litigation has been well established and the need for this additional detail is no longer necessary and has made this retention rule confusing. A separate case type has also been created for these cases, IP, and thus the reference to retaining these actions in group files is inaccurate.
NOTE: For changes to SCR 72.01(2),(9),(12),(16),(19),(24a),(30),(33),(39) and (43) removing language regarding the file format. In order to maintain consistency with the other rules in SCR 72.01 and to alleviate confusion as to what format the SCR 72.01 retention rules apply to, removed the language from these rules that specifies the type of file format. The entirety of the SCR 72.01 retention rules apply to all circuit court records, regardless of the format in which they exist, be it paper or electronic. This is made clear through the reference to electronic records in SCR 72.03 and that rule’s reference back to SCR 72.02, and the reference to electronic records in SCR 72.05(2). The addition of a reference to electronic records in some SCR 72.01 retention rules was made in a prior petition to the Wisconsin Supreme Court, but there was no explanation included in that petition as to why the language referencing electronic records was made only to some rules and not others. At this time, by virtue of the scanning functionality available through CCAP, all pieces of all circuit court records can be made electronic. Therefore, the reference to electronic records in some SCR 72.01 rules and not others has created confusion. Removing any reference to the record format clarifies that the SCR 72.01 retention rules apply to all court records, regardless of format.
Respectfully submitted:
A. John Voelker, Director of State Courts
Top of Page
Evidence Originating in a Language Other than English
In the matter of the petition to create Wis. Stat. § 887.27, Wis. Stat. § 901.08, and Supreme Court Rule 70.155, relating to the submission of evidence originating in a language other than English.
Order 09-03
On May 26, 2009, the Director of State Courts, A. John Voelker, petitioned this court to create Wis. Stat. § 887.27, Wis. Stat. § 901.08, and Supreme Court Rule 70.155, relating to the submission of evidence originating in a language other than English.
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 Monday, Nov. 2, 2009, 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 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 3rd day of August, 2009.
By the court: David R. Schanker, Clerk of Supreme Court
Petition 09-03
The Director of State Courts hereby petitions this court to create a new rule governing the submission of evidence originating in a language other than English, pursuant to the court’s rulemaking authority under §751.12. This petition is submitted on behalf of the Committee to Improve Interpreting and Translation in the Wisconsin Courts. This rule is proposed as part of the Wisconsin Statutes Chapter 901 which addresses the rules of evidence in civil and criminal proceedings. This petition also requests a related change pertaining to translation of official court forms.
Wis. Stat. §757.18 states, “All writs, process, proceedings and records in any court within this state shall be in the English language.” Given the sharp increase in the foreign born population to this state over the past decade and the heavy reliance on court interpreters for litigants who do not speak English, courts have begun to see an increase in documents, records, and transcripts originating in a language other than English that are offered into evidence and need to be translated.
For example, custodial interrogations that are conducted with non-English speaking individuals through the assistance of interpreters may need to be transcribed and translated. Other examples of materials requiring translation include wills, letters submitted for sentencing consideration, and government documents from other countries such as birth records, marriage certificates and divorce decrees.
Currently, Wisconsin statutes address only translation of depositions taken outside of the state. Wis. Stat. §887.26(8) states:
“When the witness is unable to speak the English language, the judge of the court from which the commission issues may appoint some competent and disinterested person to translate, at the expense of the noticing person, the subpoena, rules, and deposition questions and answers, or any part thereof as may be necessary, from English into the language used by the witness or vice versa; and the translation shall be transcribed and maintained as part of the deposition transcript. The translator shall append to all translations the translator’s affidavit that the translator knows English and the language of the witness, and that in making such translation the translator carefully and truly translated the proceedings from English into the witness’s language or from the witness’s language into English, and that the translation is correct. A translation under this paragraph shall have the same effect as if all the proceedings were in English, but the circuit court, upon the deposition being offered in evidence, may admit the testimony of witnesses learned in the language of the deposed witness for the purpose of correcting errors therein; and, if it shall appear that the first translation was in any respect so incorrect as to mislead the witness, the court may, in its discretion, continue the cause for the further taking of testimony.”
Wis. Stat. §887.26(8), however, does not address other forms of evidence which may need to be translated. It also does not address depositions taken within the state.
Therefore, this rule proposes to renumber §887.26(8) as §887.27 and rename the new section “Depositions, translations of” so it encompasses depositions taken from non-English speaking witnesses within the state as well. This rule seeks to establish similar guidance for other forms of translated evidence and to place both the responsibility and expense of the translation on the party who wishes to admit evidence. Like 887.26(8), the proposed rule includes a requirement for the translator to submit an affidavit attesting to the accuracy of the translation.
Finally, Supreme Court Rule 70.155 sets requirements for official translation of court forms. For the purpose of consistency, this rule should also require attachment of the translator’s affidavit attesting to the accuracy of all translations of court forms.
Accordingly, the director requests the following changes to the statutes and rules:
1. Wis. Stat. §887.26(8) should be renumbered and renamed as a new section under Wis. Stat. §887.27 to read:
887.27 Depositions, translations of.
2. A new section of the Wisconsin statutes should be created to read:
901.08 Submission of evidence-languages other than English
A party seeking to offer evidence originating in a language other than English shall be responsible for translating the evidence into written format and shall be responsible for all costs of translation, and any other expense associated with the receipt into evidence, unless otherwise ordered by the court. The translator shall append to all translations the translator’s affidavit that the translator knows English and the other language and that in making such a translation the translator carefully and truly translated the information from English into the other language or from the other language into English, and that the translation is correct. In cases where a party objects to the translator selected or the accuracy of the translation, the objecting party shall bear the costs of producing an alternate translation.
3. A new section of Supreme Court Rule 70.155, Translation of court forms should be created to read:
(5) Any translation shall be accompanied by an affidavit that the translator knows English and the other language and that in making such a translation the translator carefully and truly translated the information from English into the other language and that the translation is correct.
Respectfully submitted:
A. John Voelker, Director of State Courts
Top of Page
Required Reporting of Court Proceedings
In the matter of the petition to amend Supreme Court Rule 71.01 regarding required reporting of court proceedings.
Order 09-05
On June 5, 2009, the Director of State Courts, on the recommendation of the Committee of Chief Judges and District Court Administrators, petitioned this court to amend Supreme Court Rule (SCR) 71.01(2) governing the reporting of court proceedings.
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 Thursday, Oct. 29, 2009, 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 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 3rd day of August, 2009.
By the court:
David R. Schanker, Clerk of Supreme Court
Petition 09-05
The Director of State Courts, on the recommendation of the Committee of Chief Judges and District Court Administrators, hereby petitions the court to amend SCR 71.01 (2) governing the reporting of court proceedings. This petition is made pursuant to the court’s rulemaking authority under §751.12 and its administrative authority over all courts conferred by Article VII, §3 of the Wisconsin Constitution. Because this petition seeks to clarify controlling law, the Chief Judges request that it be heard early in the 2009-2010 term to avoid inconsistencies between trial courts and to minimize litigation.
In its decision in State v. Ruiz-Velez, 2008 WI App 169, the court of appeals ruled that audible statements contained in videotaped interviews of child sexual assault victims which are replayed for a jury under Wis. Stat. § 908.08 must be reported by the court reporter. In its decision, the court suggested that its ruling applies not only to child sexual assault trials, but to any proceeding in the circuit court during which any audio- or video-recorded statement is replayed. The court’s decision may apply to a variety of other audio recordings that are sometimes played in court – confessions, 911 calls, recordings made by concealed microphones, telephone calls made from the jail, telephone calls made to creditors or to service providers, and others.
The ruling implicates a variety of practical concerns. Until now, it has not been the practice of circuit courts to attempt to make a verbatim record of statements made in such recordings. Such statements were considered evidence, not testimony. Thus, in proceedings that were conducted before Ruiz-Velez was decided, neither the court nor the parties may have made a careful record of what portions of videotapes or audiotapes actually were replayed for the jury or the court.
Furthermore, statements made in such recordings are rarely made in the same carefully-managed circumstances in which a record is made in a courtroom. The quality of the recording medium itself is often too poor to reproduce an audible, intelligible version of every word of every statement. The statements often are obscured by background noise and transmission noise. Those who are speaking rarely identify themselves. The recordings usually consist of conversation, during which speakers talk at the same time or to talk over one another, as people speaking in conversation tend to do.
Thus, it is not practical to require court reporters to make a record of statements made on such recordings as they are played back before a jury or the court. Such a requirement probably would require the court reporter to ask for the recording to be stopped or replayed, perhaps numerous times. Stopping and replaying recorded statements would unduly interfere with the presentation of the evidence. In cases in which the parties dispute the content of the recorded statements, a request by the court reporter that a particular portion of a recording be replayed might itself become evidentiary.
The most common appellate issue with respect to a recording is whether a sufficient foundation has been laid to allow the fact finder to hear it, so that a transcript of the recording itself is often unnecessary to the appeal. The occasional disputes about who said what to whom are exactly the situation where the court reporter will have the most difficulty producing an accurate transcript, and will be most likely to type “unintelligible” for those portions that are not clearly understood. The Ruiz-Velez ruling will seldom save the appellate courts from listening to and deciding what is on the exhibit in question.
For these reasons, the Committee of Chief Judges requests that SCR
71.01(2)(e) be created to read as follows:
SCR 71.01 Reporting.
(2) All proceedings in the circuit court shall be reported, except for the following:
(a) A proceeding before a court commissioner that may be reviewed de novo;
(b) Settlement conferences, pretrial conferences, and matters related to scheduling;
(c) In a criminal proceeding, a matter preceding the filing of a criminal complaint.
(d) If accompanied with a certified transcript, videotape depositions offered as evidence during any hearing or other court proceeding.
(e) Audio recordings of any type that are played during the proceeding, marked as an exhibit and offered into evidence. If only part of the recording is played in court, the sections played shall be precisely identified in the record.
Respectfully submitted:
A. John Voelker, Director of State Courts
Top of Page
Nonresident Members as State Bar Officers
In the matter of the petition to amend Supreme Court Rule 10.04(1) to permit non-resident members to serve as certain officers of the State Bar of Wisconsin.
Order 09-06
On June 24, 2009, the State Bar of Wisconsin, by its then-President, Diane S. Diel, petitioned this court to amend Supreme Court Rule (SCR) 10.04(1) to permit non-resident members of the State Bar to hold office as treasurer, secretary, and chairperson of the Board of Governors.
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 Monday, Nov. 2, 2009, 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 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 3rd day of August, 2009.
By the court:
David R. Schanker, Clerk of Supreme Court
Petition 09-06
The State Bar of Wisconsin petitions the Court for a revision to Supreme Court Rule 10.04(1) to permit non-resident members of the State Bar to hold office as treasurer, secretary and chairperson of the board of governors.
On Oct. 24, 2008, the board of the State Bar’s Non-Resident Lawyers Division voted 7-3 to request that the Board of Governors petition the Supreme Court to permit State Bar members who do not reside and practice in Wisconsin to be elected and serve as certain State Bar officers, namely treasurer, secretary and chairperson of the board. The Division’s board did not request that non-resident members be permitted to serve as president-elect or president.
Under current SCR 10.04(1), only active members currently residing and practicing in Wisconsin are eligible to serve as officers of the State Bar. As of June 1, 2009, 31.4% or 7329 of the State Bar’s total membership of 23,320 are non-residents and are ineligible to serve as officers under the current rule. All State Bar members who reside outside of Wisconsin are automatically enrolled in the Non-Resident Lawyers Division, and the Division’s board is elected directly by the Division membership.
The Non-Resident Lawyers Division has advocated the revision to SCR 10.04(1) as a matter of general fairness and democracy. No substantive policy reasons exist why non-residents should not be eligible to serve in the State Bar officer positions referenced above. Non-resident members of the State Bar pay dues equal to those charged of resident members, yet they are currently denied the opportunity to serve as officers of the State Bar. The board of the Non-Resident Lawyers Division has not requested that non-residents be eligible to serve as president-elect or president due to the numerous duties those positions require. However, the positions of treasurer, secretary and chairperson of the board of governors are not so onerous that a non-resident member could not perform them if given the opportunity to serve. Approving the proposed revision to SCR 10.04(1) will merely allow non-resident lawyers the opportunity to be nominated for treasurer, secretary and chairperson of the board; as with resident candidates for those positions, these lawyers would still need to be elected to the officer positions by State Bar members.
Pursuant to SCR 10.05 and 10.06, each year the president of the Non-Resident Lawyers Division is a member of both the board of governors and the executive committee, and attendance by the Non-Resident Lawyers Division president at meetings of those bodies in Wisconsin has consistently been equal to that of resident members. In 2008, the Supreme Court approved adding two additional non-resident lawyers to the board of governors in order to bring non-resident representation on the board to 14%, which is still less than the percentage of non-resident members of the State Bar. The Non-Resident Lawyers Division sought the revision to SCR 10.04(1) proposed in this petition so that non-resident lawyers can be further integrated into the State Bar’s leadership by allowing these lawyers the opportunity to be eligible to serve the State Bar in the officer positions referenced above.
At its meeting on May 5-6, 2009, the Board of Governors adopted the Division’s recommendation by a voice vote of greater than sixty percent. This petition sets forth the Board of Governors’ requested amendment to SCR 10.04(1) to permit active, non-resident members to serve as treasurer, secretary and chairperson of the board.
While a strict reading of the modification requested below may suggest that, if the Court were to adopt the change, an inactive or judicial member of the State Bar would be eligible to serve as treasurer, secretary or chairperson of the board, it should be noted that current SCR 10.03(3)(b)(c) contains an independent prohibition on inactive or judicial members holding office in the State Bar. It is not the State Bar’s intent to change this prohibition.
Requested modification:
SCR 10.04 Officers. (1) Titles; Nomination and Election. The officers of the state bar include a president, a president-elect, an immediate past-president, a chairperson of the board of governors, a secretary and a treasurer, who shall be nominated and elected in the manner provided by the bylaws. Only active members of the state bar residing and practicing law in Wisconsin are eligible to serve as officers president or president-elect of the association. The term of office of the president, president-elect, immediate past-president and chairperson of the board of governors is one year. The term of the secretary and the treasurer is 2 years, with the secretary elected in even-numbered years and the treasurer elected in odd-numbered years. The term of each officer runs until the qualification of a successor.
Based on the foregoing, the State Bar of Wisconsin requests that the Supreme Court amend SCR 10.04(1) as reflected above.
Respectfully submitted:
Diane S. Diel, President, State Bar of Wisconsin
Madison, Wis.
Top of Page
Wisconsin Lawyer
