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