Vol. 74, No. 10, October 2001

Supreme Court Orders

• Consolidating statutes that impose sanctions
• GAL appointment eligibility
• Publication of court of appeals opinions; petitions for review

Consolidating statutes that impose sanctions

In the matter of the amendment of Wis. Stat. §§ 230.85, 767.293, 802.10, 804.01, 804.05, 804.08, 804.09, 804.11, 804.12, 805.03, 806.38, 807.21, 707.22, 807.23, 809.25, 814.025, 814.04, 814.29, and 911.01 relating to the consolidation of statutes governing the imposition of sanctions in actions and proceedings.

Order 99-07

On Dec. 1, 1999, the Judicial Council filed a petition seeking to amend and consolidate several statutes governing the imposition of sanctions in actions and proceedings. On Oct. 30, 2000, the Judicial Council filed an amended petition.

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 Tuesday, Nov. 13, 2001, 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 on rules petitions 99-07 and 01-07.

IT IS FURTHER ORDERED that notice of the hearing be given by publication of a copy of this order and of the amended 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 4th day of September, 2001.

By the court:

Cornelia G. Clark, Clerk of Supreme Court

Amended Petition 99-07

The Judicial Council, pursuant to its authority under s. 758.13, Wis. Stats. to receive, consider and in its discretion investigate suggestions from any source pertaining to the administration of justice and to recommend changes in the statutes and rules governing procedure in the courts of Wisconsin, hereby petitions the court to adopt the following statutory changes under s. 751.12, Wis. Stats.,

SECTION 1. 230.85(3)(b) of the statutes is amended to read:

230.85(3)(b) If, after hearing, the commission finds that the respondent did not engage in or threaten a retaliatory action it shall order the complaint dismissed. The commission shall order the employee's appointing authority to insert a copy of the findings and orders into the employee's personnel file and, if the respondent is a natural person, order the respondent's appointing authority to insert such a copy into the respondent's personnel file. If the commission finds by unanimous vote that the employee filed a frivolous complaint it may order payment of the respondent's reasonable actual attorney fees and actual costs. Payment may be assessed against either the employee or the employee's attorney, or assessed so that the employee and the employee's attorney each pay a portion. To find a complaint frivolous the commission must find that either s. 814.025(3)(a) or (b) 807.23(1)(b)1. or 2. applies or that both s. 814.025(3)(a) and (b) 807.23(1)(b)1. and 2. apply.

Note: Subsection (3) is amended by inserting a cross-reference to subch. 11 of ch. 807, where sanction provisions are consolidated.

SECTION 2. 767.293(6) of the statutes is amended to read:

767.293(6) Section 814.025 807.23 applies to the filing of an affidavit under this section.

SECTION 3. 802.10(7) of the statutes is amended to read:

802.10(7) SANCTIONS. Violations of a scheduling or pretrial order are subject to ss. 802.05, 804.12 and 805.03 subch. II of ch. 807.

SECTION 4. 804.01(2)(c)2. and (3)(b) of the statutes are amended to read:

804.01(2)(c)2. A party may obtain, without the required showing, a statement concerning the action or its subject matter previously made by that party. Upon request, a person who is not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for a court order. Section 804.12(1)(c) 807.22(1)(c) applies to the award of expenses incurred in relation to the motion. For purposes of this paragraph, a statement previously made is a written statement signed or otherwise adopted or approved by the person making it, or a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.

(3)(b) If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. Section 804.12(1)(c) 807.22(1)(c) applies to the award of expenses incurred in relation to the motion.

SECTION 5. 804.05(5) of the statutes is amended to read:

804.05(5) MOTION TO TERMINATE OR LIMIT EXAMINATION. At any time during the taking of the deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in s. 804.01(3). If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Section 804.12(1)(c) 807.22(1)(c) applies to the award of expenses incurred in relation to the motion.

SECTION 6. 804.08(1)(b) of the statutes is amended to read:

804.08(1)(b) Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The answers are to be signed by the person making them, and the objections signed by the attorney making them. The party upon whom the interrogatories have been served shall serve a copy of the answers, and objections if any, within 30 days after the service of the interrogatories, except that a defendant may serve answers or objections within 45 days after service of the summons and complaint upon that defendant. The court may allow a shorter or longer time. The party submitting the interrogatories may move for an order under s. 804.12(1) 807.22(1) with respect to any objection to or other failure to answer an interrogatory.

SECTION 7. 804.09(2) of the statutes is amended to read:

804.09(2) PROCEDURE. Except as provided in s. 804.015, the The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. The party upon whom the request is served shall serve a written response within 30 days after the service of the request, except that a defendant may serve a response within 45 days after service of the summons and complaint upon that defendant. The court may allow a shorter or longer time. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified. The party submitting the request may move for an order under s. 804.12(1) 807.22(1) with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested.

SECTION 8. 804.11(1)(b) and (c) of the statutes are amended to read:

804.11(1)(b) Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or attorney, but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 45 days after service of the summons and complaint upon the defendant. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that he or she had has made reasonable inquiry and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; the party may, subject to s. 804.12(3) 807.22(3) deny the matter or set forth reasons why the party cannot admit or deny it.

(c) The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with this section, it may order either that the matter is admitted or that an amended answer be served. The court may, in lieu of these orders, determine that final disposition of the request be made at a pretrial conference or at a designated time prior to trial. Section 804.12(1)(c) 807.22(1)(c) applies to the award of expenses incurred in relation to the motion.

SECTION 9. 804.12 of the statutes is renumbered 807.22.

SECTION 10. 804.13 of the statutes is created to read:

804.13 FAILURE TO MAKE DISCOVERY; SANCTIONS. Motions to compel discovery or requesting sanctions for discovery violations shall be determined under ss. 807.21 and 807.22.

SECTION 11. 805.03 of the statutes is repealed.

SECTION 12. 806.3 8(2) of the statutes is amended to read:

806.3 8(2) Notwithstanding sub. (1), an increase or decrease in the amount of prejudgment interest otherwise payable may be made in a foreign-money judgment to the extent required by s. 802.05, 805.03 or 807.01.

SECTION 13. Subchapter I (title) of chapter 807 of the statutes is created to read:

CHAPTER 807

CIVIL PROCEDURE MISCELLANEOUS PROVISIONS
SUBCHAPTER 1
MISCELLANEOUS PROVISIONS

SECTION 14. Subchapter II of chapter 807 [precedes 807.21] of the statutes is created to read:

CHAPTER 807
SUBCHAPTER II
SANCTIONS AND FRIVOLOUS PROCEEDINGS

807.21 SANCTIONS. (1). APPLICABILITY. The court may impose a sanction under this section against a person who violates s. 802.05(1) or 802.10(3)(b), who files a frivolous pleading or appeal under s. 807.23 or 809.25(3), who fails to prosecute a claim made in an action or proceeding, who fails to comply with the statutes and rules governing procedure in actions or proceedings, or who fails to obey an order of any court of record.

(2) WHO MAY BE SANCTIONED. The court may impose a sanction under this section against an attorney, a party represented by an attorney, or an unrepresented party who is responsible for a violation or failure under sub. (1).

(3) SANCTIONS AVAILABLE. After a hearing conducted in accordance with subs. (4) and (5), a court may do any of the following:

(a) Order adjournments, continuances of the trial or other proceedings, or reopening of discovery.

(b) Award reasonable costs, including expert and other witness fees, costs incurred in the preparation or copying of medical reports, and other costs under s. 814.036.

(c) Award reasonable attorney fees and expenses.

(d) Strike pleadings, claims, motions or other papers.

(e) Exclude witnesses or evidence.

(f) Dismiss claims. A dismissal under this section is an adjudication on the merits unless the court specifies otherwise in its order.

(g) Grant judgment.

(h) Make any other order that justice requires.

(4) FACTORS. The court shall consider all of the following factors in determining the appropriate sanctions under this section:

(a) Whether the violation or failure under sub. (1) was intentional, reckless, negligent or inadvertent.

(b) The consequences resulting from the violation or failure under sub. (1).

(c) When the person became aware of the violation or failure under sub. (1) and whether and how promptly the person attempted to remedy the violation or failure.

(d) The financial circumstances of the person, if the sanction ordered involves the payment of money.

(e) Any other pertinent circumstances, whether mitigating or aggravating.

(5) MOTION; HEARING. A motion for a sanction under this section may be brought along with other motions to compel. A motion for a sanction shall specify the conduct that is alleged to constitute the violation or failure under sub. (1) and the sanction that is sought under sub. (3). Upon the filing of the motion, or upon the court's own order for a hearing, the court shall schedule a hearing before determining a sanction. The order for the hearing shall specify the conduct believed to constitute the violation or failure. A sanction may be imposed only after a hearing.

Note: This omnibus sanction statute is based on several provisions in prior law, as well as portions of Rule 11, F.R. Civ. P. The reference to "claim" in sub. (1) is intended to include those made in cross-complaints and counterclaims. "Court of record" includes a circuit court, the court of appeals or the supreme court. For guidance on what constitutes a "reasonable" attorney fee under sub. (3)(c), see Johnson v. Georgia Highway Express Inc., 488 F.2d 714 (5th Cir. 1974); Hensley v. Eckhart, 461 U.S. 424 (1983).

Subsections (1) to (5) are prior s. 804.12, renumbered for placement with other sanction provisions.

807.22 (6) CERTIFICATE OF CONSULTATION. Discovery motions shall be accompanied by a written statement by the moving party that, after good faith consultation with the opposing party, the parties are unable to agree. The statement shall also recite the date, time and manner of the consultation and the names of all parties participating in the consultation.

807.23 FRIVOLOUS PLEADINGS.

(1) In this section:

(a) "Court" means a circuit court, the court of appeals or the supreme court.

(b) "Frivolous" means a pleading that meets one of the following conditions:

1. The pleading was commenced, filed, used or continued in bad faith, solely to harass or maliciously injure another.

2. The pleading was without reasonable basis in law or equity and which the party, or the party's attorney, knows or should know cannot be supported by a good faith argument for an extension, modification or reversal of existing law.

3. The pleading was not well grounded in fact and there has been no reasonable inquiry into its factual basis by the party or the party's attorney.

(c) "Pleading" means a document listed in s. 802.01(1), motions under s. 802.01(2) and any document submitted to the court related to an action, special proceeding, claim, counterclaim, cross-claim, defense, motion, appeal or cross-appeal.

(2) If the court finds that a pleading is frivolous, the court shall strike or dismiss the pleading and may impose one or more sanctions under s. 807.21 on the party or attorney responsible for its filing or continuance. The court may apportion liability for costs, fees, attorney fees and other monetary sanctions between the party and the attorney, as appropriate. Absent exceptional circumstances, the members of a law firm shall be jointly liable for frivolous pleadings filed or continued by its partners, associates and employees.

(3)(a) A party may move the court for the imposition of sanctions. A motion made under this section shall specify the pleading alleged to be frivolous, one or more of the grounds under sub. (1)(b) as to why the pleading is frivolous, and the sanctions sought by the movant. The moving party shall support the motion by affidavit based on personal knowledge.

(b) A motion alleging grounds under sub. (2)(b)2 or 3 may not be filed unless notice of intent to file the motion is served on the party against whom a sanction is sought at least 14 days, or such other longer period as the court may prescribe, before the motion is filed with the court and the party against whom a sanction is sought has not withdrawn or appropriately corrected the pleading.

(c) A motion alleging a frivolous appeal shall be filed not later than the date on which the respondent's brief is filed. A motion under this section alleging a frivolous cross-appeal shall be filed not later than the date that the cross-respondent's brief is filed. All other motions alleging a frivolous pleading shall be filed before entry of judgment, unless an earlier time is specified in a scheduling order.

Note: This section is a restatement of provisions in Chs. 802, 809 and 814, Stats., 1993. Its coverage is expanded to include motions and other papers, which are defined as "pleadings." Subsection (1)(b)3 is new, but akin to the requirement in s. 802.05 that pleadings certify reasonable inquiry into the facts and law upon which they are based. Subsection (2) makes dismissal mandatory, and allows the court to impose additional sanctions under the new omnibus sanction statute, s. 807.21. Subsection (3) incorporates the "safe harbor" feature of Rule 11(c)(1)(A), F.R. Civ. P. The safe harbor is inapplicable if the pleading is alleged to have been filed in bad faith, solely to harass or maliciously injure another. The time periods in sub. (3)(c) for appeals and cross-appeals are based on s. 809.25(3). The final sentence is new. Prior s. 814.025 was vague on the timing of such motions, but did specify that a finding of frivolousness could be made "at any time during the proceedings or upon judgment."

SECTION 15. 809.25(3)(a) of the statutes is repealed and recreated to read:

809.25(3) FRIVOLOUS APPEALS. (a) if the court finds that an appeal or cross-appeal is frivolous, the court shall dismiss the appeal or cross-appeal and may impose sanctions under s. 807.23.

Note: Sanctions for frivolous pleadings are prescribed in subch. II of ch. 807.

SECTION 16. Section 814.025 of the statutes is repealed.

Note: Sanctions for frivolous pleadings and appeals are prescribed in subch. II of ch. 807.

SECTION 17. 814.04 of the statutes is amended to read:

814.04 ITEMS OF COSTS. Except as provided in ss. 93.20, 100.30(5m), 106.04(6)(I) and (6m)(a), 115.80(9), 769.313, 807.23, 814.025, 814.245, 895.035(4), 895.75(2), 895.77(2), 895.79(3), 895.80(3), 943.212(2)(b), 943.245(2)(d) and 943.51(2)(b), when allowed costs shall be as follows:

SECTION 18. 814.29(3)(a) of the statutes is amended to read:

814.29(3)(a) A request for leave to commence or defend an action, proceeding, writ of error or appeal without being required to pay fees or costs or to give security for costs constitutes consent of the affiant and counsel for the affiant that if the judgment is in favor of the affiant the court may order the opposing party to first pay the amount of unpaid fees and costs, including attorney fees under ss. 802.05, 804.12(1)(c) and 814.025, 807.22(1)(c) and under 42 U.S.C. 1988 and to pay the balance to the plaintiff.

Note: Subsection (3)(a) is amended by inserting a cross-reference to subch. II of ch. 807, where sanction provisions are consolidated.

SECTION 19. 911.01(4)(c) of the statutes is amended to read:

911.01(4)(c) Miscellaneous Proceedings. Proceedings for extradition or rendition; sentencing, or granting or revoking probation, issuance of arrest warrants, criminal summonses and search warrants; proceedings on motions for sanctions under subch. II of ch. 807; proceedings under s. 971.14(1)(c); proceedings with respect to pretrial release under ch. 969 except where habeas corpus is utilized with respect to release on bail or as otherwise provided in ch. 969.

Note: Subsection (4)(c) is amended to exempt proceedings on motions for sanctions from the rules of evidence, other than ch. 905 with respect to privileges.

Respectfully submitted,
Judicial Council
By James C. Alexander