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April 01, 2012

Supreme Court Orders

Eligibility for Appointment as Guardian ad Litem for an Adult

In the matter of amendments to Supreme Court Rules Chapter 36 – Eligibility for Appointment as Guardian Ad Litem for an Adult

Order 03-03A

The court on its own motion amends Supreme Court Rule (SCR) Chapter 36 to update and correct certain statutory citations contained in the chapter.

By order dated Jan. 8, 2004, the court adopted a petition filed by the Judicial Council pursuant to which it created SCR Chapter 36, entitled "Eligibility for Appointment as Guardian Ad Litem for an Adult" (Justice Roggensack dissenting, joined by Justice Wilcox and Justice Prosser).

The court is advised that certain statutory citations contained in SCR Chapter 36 were subsequently repealed. Wis. Stat. ch. 880, "Guardians and Wards," was repealed in 2006. 2005 Wis. Act 387 renumbered most of chapter 880 relating to guardianships to chapter 54. In addition, the court omits references to chapter 51 in SCR Chapter 36 because guardians ad litem are not appointed under SCR Chapter 51. Therefore,

IT IS ORDERED that effective July 1, 2012, the supreme court rules are amended as follows:

Section 1. 36.01 (intro.) of the supreme court rules is amended to read:

36.01 (intro.) Commencing on July 1, 2004, a lawyer may not accept an appointment by a court as a guardian ad litem for an adult in an action or proceeding under chs. ~~51,~~ 54 or 55, ~~or 880,~~ stats. unless any of the following conditions have been met:

Section 2. 36.02 (intro.) of the supreme court rules is amended to read:

36.02 (intro.) A lawyer's acceptance of appointment as a guardian ad litem for an adult in an action or proceeding under chs. ~~51,~~ 54 or 55, ~~or 880,~~ stats., constitutes the lawyer's representation to the appointing court that the lawyer is eligible to accept the appointment under SCR 36.01 and is governed by SCR 20:3.3.

Section 3. 36.03 (1) of the supreme court rules is amended to read:

36.03 (1) The board of bar examiners shall approve courses of instruction at a law school in this state and continuing legal education activities that the board determines to be on the subject of the role and responsibilities of a guardian ad litem for an adult or on the subject matter of proceedings under chs. ~~51,~~ 54 or 55, ~~or 880,~~ stats., and that are designed to increase the attendee's professional competence to act as guardian ad litem for an adult in those proceedings. The board of bar examiners may ~~only~~ approve courses of instruction or continuing legal education activities that are conducted after January 1, 1995.

IT IS FURTHER ORDERED that notice of this amendment of Supreme Court Rules chapter 36 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 17th day of February, 2012.

By the court:

A. John Voelker, Acting Clerk of Supreme Court

Right to Counsel in Civil Cases

In the matter of the petition to establish a right to counsel in civil cases.

Order 10-08

On Sept. 30, 2010, John F. Ebbott, Executive Director, Legal Action of Wisconsin, on behalf of 1,320 Wisconsin signatories, including citizens, judges, and lawyers, filed a petition requesting this court amend SCR 11.02 to require that circuit court judges appoint an attorney at public expense for an indigent litigant when the circuit court determines that the assistance of counsel is necessary to protect that litigant's rights to basic human needs, including sustenance, shelter, safety, health, and child custody.

Specifically, the petition asked the court to amend SCR 11.02 by adding sub. (2) to read as follows:

(2) Appearance by attorney. PROVIDED. Where a civil litigant is indigent (defined as below 200% of the federal poverty guidelines), the court shall provide counsel at public expense where the assistance of counsel is needed to protect the litigant's rights to basic human needs, including sustenance, shelter, clothing, heat, medical care, safety and child custody and placement. In making the determination as to whether the assistance of counsel is needed, the court may consider the personal characteristics of the litigant, such as age, mental capacity, education and knowledge of the law and of legal proceedings, and the complexity of the case.

The petition was supplemented, in January 2011, by a lengthy memorandum and appendix.

The court conducted a public hearing on the petition on Oct. 4, 2011. The hearing attracted numerous speakers and written submissions. Most of the people who appeared or commented on the petition favored its adoption. The single point of opposition to the petition focused on the costs of appointing counsel, not the need for or value of providing legal services for the indigent in civil cases. Following the hearing, some additional written materials were submitted to the court, including petitioners' supplemental petition seeking a pilot program on domestic violence at county expense, filed on November 17, 2011.

The petition describes the great unmet need of low-income persons for legal assistance in civil matters. In recognition of this need, the court has established Wisconsin Trust Account Foundation, Inc., and has imposed a $50 assessment on attorneys for support of civil legal services to the indigent. See S. Ct. Order dated March 21, 1986, In the Matter of the Creation of SCR ch. 13 and amendment of SCR 11.05 and SCR 20.50: Interest on Trust Account Program; S. Ct. Order 04-05, In the matter of the Petition of the Wisconsin Trust Account Foundation, Inc. for a Rule Assessing Members of the State Bar of Wisconsin for an Annual Sum to Support Organizations that Provide Civil Legal Services to the Indigent of this State, 2005 WI 35 (issued Mar. 24, 2005; eff. July 1, 2005).

The petition relies on the inherent power of circuit courts to appoint counsel for indigent persons. The court has set forth the inherent power of circuit courts to appoint counsel for indigent persons in civil cases in Piper v. Popp, 167 Wis. 2d 633, 658, 482 N.W.2d 353 (1992), and Joni B. v. State, 202 Wis. 2d 1, 549 N.W.2d 411 (1996). Our decision regarding this petition does not undermine the holdings of these cases.

We decline to grant the petition and supplemental petition, which do not fit within SCR 11.02. The para-meters of the proposal are difficult to discern and the effect of the proposal on circuit courts and counties is largely unknown but may be substantial.

The Wisconsin Access to Justice Commission has advised the court of its commitment to developing an Appointment of Counsel Pilot Project for indigents in one or more selected categories of civil cases involving basic human needs. Because a Pilot Project would necessitate circuit court participation, John Voelker, Director of State Courts, is already working with the Commission on the Pilot Project and his office will continue to assist the Commission on the Pilot Project to the extent the Director deems practicable. The court asks the Commission to keep this court apprised of the progress of the Pilot Project, including any budget that may be developed and the timetable and scope of its implementation. The court recognizes that data compiled from the Pilot Project may assist the court in developing a future biennial budget request to provide additional state funding to assist in funding the appointment of counsel for indigents as required by law. The court also urges the Commission to consider consulting with and facilitating the participation of representatives of the Wisconsin Counties Association, County government and circuit court clerks.

Although the court denies the petition, the court reaffirms its commitment to work with attorneys, the State Bar and local bar associations, the circuit courts, clerks of circuit courts, court commissioners, court staff, the University of Wisconsin Law School, Marquette University Law School, the public and private colleges and universities of the state, and providers of legal services to indigents to help meet the needs of low income persons for legal assistance. Pro bono initiatives to assist self-represented persons will advance our shared goal of ensuring the fair and effective administration of justice in Wisconsin.

IT IS ORDERED that the petition and supplemental petition are denied; and

IT IS FURTHER ORDERED that notice of the entry 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 24th day of February, 2012.

By the court:

A. John Voelker, Acting Clerk of Supreme Court

State Bar Bylaws

In the matter of the petition to review change in State Bar bylaw.

Order 11-05

Pending before the court is a challenge to amendments to Article I, Section 5 of the bylaws of the State Bar of Wisconsin. The Board of Governors approved the changes in April 2011.¹ On April 15, 2011, these proposed bylaw changes were duly filed with the Supreme Court pursuant to SCR 10.13(2) and Article IX of the State Bar bylaws.² SCR 10.13(2) provides that:

"[a] petition for review of any such change in the bylaws will be entertained by the court if signed by 25 or more active members of the association and filed with the clerk of the court within 60 days after publication of notice of the change. Hearing upon such a petition will be pursuant to notice in such manner as the court directs."

On July 6, 2011, 25 active members of the State Bar of Wisconsin filed a petition asking the court to review and void or amend the amendment. The bylaw amendment concerns the arbitration process used when a State Bar member asserts that an expenditure of State Bar dues by the State Bar was not for purposes of "regulating the legal profession" or "improving the quality of legal services," as required by SCR 10.03(5)(b)1.

The petitioners challenge the legal effect of the amendment, asserting that it may be inconsistent with Wis. Stat. Ch. 788 (Arbitration) by, inter alia, improperly providing for de novo judicial review of an arbitrator's decision. The petitioners propose alternative bylaw language which they ask this court to adopt.

The court discussed the matter at open administrative conference on Sept. 15, 2011, and concluded it would benefit from additional information prior to proceeding on the petition. Accordingly, the petitioners and the State Bar filed letter briefs addressing aspects of the petition in November 2011. At its open administrative conference on Feb. 27, 2012, the court discussed the matter again and voted unanimously to schedule a public hearing on the 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 Wednesday, May 16, 2012, 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 2nd day of March, 2012.

By the court:

A. John Voelker, Acting Clerk of Supreme Court

¹SCR 10.13(2) provides that the provisions of the bylaws of the State Bar are subject to amendment or abrogation by resolution adopted by vote of two-thirds of the members of the board of governors, or action of the members of the association expressed through the referendum procedure defined in SCR 10.08.

²The amendment was also duly published in the May 2011 Wisconsin Lawyer.

Petition to Review Change in State Bar Bylaw

Pursuant to State Bar Bylaw Article IX, the undersigned 25 active members of the State Bar of Wisconsin petition the Court to review and void or amend the attached amendment to State Bar Bylaw Article I, Section 5, as published in the May 2011 Wisconsin Lawyer.

Name	Date
1. Steven Levine	6/2/11
2. Joyce Dingman	6/2/11
3. James Boll	6/3/11
4. Arielle Silver Karsh	6/6/11
5. Michael Newmark	6/7/11
6. Diane Ramthun	6/7/11
7. David Ludwig	6/7/11
8. John Lorence	6/7/11
9. Justin Chasco	6/7/11
10. Michael Varda	6/7/11
11. Douglas W. Kammer	6/8/11
12. Howard Bernstein	6/9/11
13. Gary Poulson	6/9/11
14. Stephen W. Kleinmaier	6/9/11
15. David Schwarz	6/9/11
16. Irene Temple	6/9/11
17. Chela O'Connor	6/10/11
18. James S. Thiel	6/14/11
19. Paul E. Nilsen	6/14/11
20. Kathleen Chubg	6/14/11
21. John Sobotik	6/14/11
22. Charles M. Kernats	6/14/11
23. Leon Swerin	6/14/11
24. David Albino	6/14/11
25. Douglas S. Wood	6/14/11
26. Jeffry J. Patzke	6/17/11

A memorandum and alternative bylaw language are attached.

Submitted by: Attorney Steven Levine

CLE Credits for Teaching Paralegal Program

In the matter of the petition to amend Supreme Court Rule 31.05.

Order 11-06

On July 29, 2011, Attorney Richard J. Opie and 12 other State Bar members filed a petition asking this court to amend Supreme Court Rule (SCR) 31.05 ("Approved hours") to allow teaching "a legal specialty course in a paralegal program approved by the American Bar Association" to satisfy the requirements of SCR 31.02.

On Sept. 15, 2011, the court made a preliminary determination in open administrative conference that no public hearing was needed for this petition. The court scheduled this rule petition for discussion at an administrative conference on Nov. 7, 2011, and sought public comment on the petition.

The Board of Bar Examiners (BBE) filed the only response to the petition. It is the BBE's position that there are other procedural mechanisms in place to review requests for continuing legal education (CLE) credits and therefore, the proposed amendment to SCR 31.05 is not necessary. The BBE said attorneys interested in seeking the approval sought in this petition can submit their requests to the BBE for its consideration under SCR 31.07(2)(f). The BBE reviews the individual submissions and makes a determination as to whether the activity should be approved for CLE credit. The BBE stated the existing provisions provide an adequate means by which attorneys can seek approval for CLE activities not specifically delineated within the current rules. The petitioners responded, maintaining that a rule change would be a more efficient procedure.

At open administrative conference on Nov. 7, 2011, the court discussed the petition, the BBE's comments, and the petitioners' response. The court voted unanimously to deny the petition without a public hearing because adequate procedures exist for submitting requests for CLE credit that are not specifically delineated within the current rules. Pursuant to SCR 31.07(2)(f), an attorney can seek approval for CLE activities that are not specifically delineated within the current rules to the BBE for its consideration. The BBE reviews such requests on a case-by-case basis. This procedure is preferable to having attorneys petition the court for what would effectively become individualized CLE course approval and might trigger multiple rule petitions filed by lawyers who provide legal instruction to nonlawyers that might warrant CLE credit.

The court explicitly stated that it took no position on the merits of the petitioners' request for CLE credit for teaching a legal specialty course in a paralegal program approved by the American Bar Association.

Therefore, IT IS ORDERED that the petition is denied.

Dated at Madison, Wis., this 2nd day of March, 2012.

By the court:

A. John Voelker, Acting Clerk of Supreme Court

Legal Services Following a Major Disaster

In the matter of the petition to create a Supreme Court Rule for legal services following a major disaster.

Order 11-07

On Aug. 31, 2011, Rod W. Rogahn, Chairperson, Board of Administrative Oversight, James M. Brennan, President, State Bar of Wisconsin, and Keith L. Sellen, Director, Office of Lawyer Regulation, filed a joint petition with the Wisconsin Supreme Court. The petition seeks to create a supreme court rule for providing legal services following the determination of a major disaster. The proposed rule is based on an ABA Model Rule which has been adopted by 13 jurisdictions.

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 Wednesday, April 25, 2012, at 9:30 a.m.

IT IS FURTHER ORDERED that the court's conference in the matter shall be held promptly following the public hearing.

IT IS FURTHER ORDERED that notice of the hearing be given by publication of a copy of this order and of the petition in the official state newspaper once each week for three consecutive weeks, and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.¹

Dated at Madison, Wis., this 2nd day of March, 2012.

By the court:

A. John Voelker, Acting Clerk of Supreme Court

¹Notice of the hearing will appear in the April 2012 Wisconsin Lawyer, the official publication of the State Bar of Wisconsin, approximately 10 days prior to the hearing rather than the required minimum of 30 days. Pursuant to its rule-making authority under Wis. Stat. § 751.12 and its Internal Operating Procedures, the court exercises its discretion to allow this unavoidable deviation from the requirements.

Petition

The Board of Administrative Oversight, State Bar of Wisconsin, and Office of Lawyer Regulation hereby petition the Supreme Court of Wisconsin for an order creating Supreme Court Rule (SCR) 23.03, providing for legal services following the determination of a major disaster, and for an order providing a Wisconsin Comment to SCR 20:5.5 referencing proposed SCR 23.03.

Petitioners submit Appendix A (text of proposed SCR 23.03 and Wisconsin Comment to SCR 20:5.5), Supporting Memorandum, and Cover Sheet in support of this request.

Respectfully submitted:

Rod W. Rogahn, Chairperson, Board of Administrative Oversight; James M. Brennan, President, State Bar of Wisconsin; Keith L. Sellen, Director, Office of Lawyer Regulation

Legal Competence Requirements of Graduates of Foreign Law Schools

In the matter of the petition to amend Supreme Court Rule 40.02(2) and to create Supreme Court Rules 40.055 and 40.14(3)(i) relating to the legal competence requirements of graduates of law schools in other nations; fees.

Order 11-08

On Nov. 18, 2011, the Board of Bar Examiners, by its director, Jacquelynn Rothstein, filed a petition with the Wisconsin Supreme Court. The petition requests the court amend Supreme Court Rule (SCR) 40.02(2) and create SCRs 40.055 and 40.14(3)(i) to permit eligible graduates of law schools from other nations to sit for the Wisconsin bar examination.

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 Wednesday, May 16, 2012, 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.

Dated at Madison, Wis., this 2nd day of March, 2012.

By the court:

A. John Voelker, Acting Clerk of Supreme Court

Petition

The Board of Bar Examiners, by its director Jacquelynn B. Rothstein, hereby petitions the Supreme Court of Wisconsin for an order to amend SCR 40.02 (2) and to create ss. SCR 40.055 and SCR 40.14 (3) (i) as follows:

TEXT OF RULE

SECTION 1. SCR 40.02 (2) is amended to read:

SCR 40.02 (2) Satisfies the legal competence requirements by diploma privilege (SCR 40.03), bar examination (SCR 40.04 or SCR 40.055) or proof of practice elsewhere (SCR 40.05).

SECTION 2. SCR 40.055 is created to read:

SCR 40.055 Legal competence requirement: Graduates of Law Schools in Other Nations. Notwithstanding SCR 40.04 (1), an individual who has received a law degree in a country other than the United States may apply to take the Wisconsin bar examination, provided the applicant meets all of the requirements as found in subs. (1)-(3):

(1) Holds a first professional degree in law from a jurisdiction whose jurisprudence is based on the principles of English common law and from a school or schools each of which, throughout the period of the applicant's study, was recognized by a competent accrediting agency in such country as qualified and approved.

(2) Has a license to practice law from a common-law jurisdiction and is in good standing in that jurisdiction.

(3) Has been substantially engaged in the practice of law in a common law jurisdiction for at least three of the last ten years prior to filing an application to take the Wisconsin bar examination.

(4) An individual who has received a legal degree in a country other than the United States but does not meet the criteria as set forth in subs. (1)-(3) may apply to take the Wisconsin bar examination provided the applicant meets all of the following requirements:

(a) Holds a first professional degree in law from a school or schools each of which, throughout the period of the applicant's study, was recognized by a competent accrediting agency in such country as qualified and approved.

(b) Has a license to practice law from a foreign jurisdiction and is in good standing in that jurisdiction.

(c) Has been substantially engaged in the practice of law for at least three of the last ten years prior to filing an application to take the Wisconsin bar examination.

(d) Has completed a master's degree in law (LL.M.) that meets all of the following requirements.

1. The program shall consist of a minimum of 24 semester hours of credit (or the equivalent thereof, if the law school is on an academic schedule other than a conventional semester system) which, except as otherwise permitted herein, shall be in classroom courses at the law school in substantive and procedural law and professional skills. No credit shall be allowed for correspondence courses, on-line courses, courses offered on DVD or other media, or other distance learning courses.

2. A minimum of 700 minutes of instruction time, exclusive of examination time, must be required for the granting of one semester of credit.

3. The program shall include a period of instruction consisting of no fewer than two semesters of at least 13 calendar weeks each, or the equivalent thereof, exclusive of reading periods, examinations and breaks, and shall not be completed exclusively during summer semesters, but a maximum of four semester hours of credit may be earned in courses completed during summer semesters.

4. The program shall be completed within 24 months of matriculation.

5. All coursework for the program shall be completed at the campus of a law school in the United States whose graduates qualify to take the Wisconsin bar examination under SCR 40.04 (1)(a).

6. The program completed by an applicant shall include all of the following:

a. A minimum of two semester hours of credit in the values and ethical responsibilities of the United States legal profession and its members.

b. A minimum of two semester hours of credit in legal research, writing and analysis, which may not be satisfied by a research and writing requirement in a substantive law course.

c. A minimum of two semester hours of credit in American legal studies, the American legal system or a similar course designed to introduce students to distinctive aspects and/or fundamental principles of United States law, which may be satisfied by a course in United States constitutional law or United States or state civil procedure.

d. A minimum of six semester hours of credit in any of the subjects included in SCR 40.03 (2) (a) or (b).

7. The program completed by an applicant may include:

a. A maximum of four semester hours of credit in clinical courses, provided (i) the clinical course includes a classroom instructional component in order to insure contemporaneous discussion, review and evaluation of the clinical experience; (ii) the clinical work is done under the direct supervision of a member of the law school faculty or instructional staff whose primary professional employment is with the law school; and (iii) the time and effort required and anticipated educational benefit are commensurate with the credit awarded.

b. A maximum of six semester hours of credit in other courses related to legal training taught by members of the faculty of the law school or of the university with which the law school is affiliated, or taught by members of the faculty of any university or college with which the law school offers a joint degree program, provided such courses must be completed at the campus of such university or college in the United States.

(5) Applicants shall submit proofs and documentation that the board may require. Documents must be in English or must be accompanied by a translation into English prepared and certified by a neutral translator.

(6) An applicant shall file all application materials and fees with the board by August 1 to be eligible for the February bar examination and by January 1 to be eligible for the July bar examination.

(7) Notwithstanding s. SCR 40.14 (3) (i), the board may add a surcharge in individual cases if it finds that extraordinary costs have been or will be incurred in its investigation of the applicant's qualifications.

SECTION 3. SCR 40.14 (3) (i) is created to read:

SCR 40.14 (3) (i) Fee for admission for graduates (SCR Rule Petition 08-09) of law schools in other nations … $850

Respectfully submitted,

Jacquelynn B. Rothstein, Director, Board of Bar Examiners, Madison, Wis.

Ex Parte Communications in Treatment Courts

In the matter of the petition to amend Supreme Court Rule 60.04(1)(g) relating to ex parte communications in treatment courts.

Order 11-09

On Dec. 12, 2011, A. John Voelker, Director of State Courts, filed a petition with the Wisconsin Supreme Court. The petition seeks to amend Supreme Court Rule (SCR) 60.04(1)(g) by adding a new provision regarding ex parte communications in treatment courts and other similar problem-solving courts.

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 Wednesday, April 25, 2012, 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.

Dated at Madison, Wis., this 2nd day of March, 2012.

By the court:

A. John Voelker, Acting Clerk of Supreme Court

Petition

The Director of State Courts hereby petitions the Supreme Court to amend SCR 60.04(1)(g) by adding a new provision regarding ex parte communications in treatment courts. 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.

TEXT OF PROPOSED CHANGE

Section 1. SCR 60.04(1)(g)6. is created to read:

6. A judge may initiate, permit, engage in or consider ex parte communications knowingly waived by a participant when serving on therapeutic or problem-solving courts, mental health courts, or treatment courts. In this capacity, judges may assume a more interactive role with participants, treatment providers, probation officers, social workers, and others.

Respectfully submitted:

A. John Voelker,
Director of State Courts

Open Records and Open Meetings Laws

In the matter of the petition requesting information pursuant to Supreme Court Rules 40.12, and to create Supreme court Rule 30.03 and repeal Supreme court Rule 40.12, requiring the Board of Bar Examiners to abide by the state Open Records and Open Meetings Laws.

Order 12-02

On Jan. 11, 2012, Attorney Steven Levine filed a petition with the Wisconsin Supreme Court. The petition requests that, pursuant to Supreme Court Rule (SCR) 40.12, the court order the Board of Bar Examiners to provide to Attorney Levine the names and addresses of those persons who sat for the July 2011 Wisconsin bar examination. In addition, the petition requests the court repeal SCR 40.12 and create SCR 30.03 to require the Board of Bar Examiners to abide by and be subject to Wisconsin's Open Records Law and Open Meetings Law.

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 Wednesday, May 16, 2012, 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.

Dated at Madison, Wis., this 2nd day of March, 2012.

By the court:

A. John Voelker, Acting Clerk of Supreme Court

Petition

INTRODUCTION

Petitioner Steven Levine hereby petitions the Supreme Court of Wisconsin pursuant to SCR 40.12 to order the Board of Bar Examiners (BBE) to (1) provide him with the names and addresses (email addresses, if available; street and city addresses if email addresses unavailable) of those persons who sat for the July 2011 Wisconsin bar exam and to (2) repeal SCR 40.12 and create SCR 30.03, as follows: "Except as explicitly set forth in SCR Chapters 30, 31, or 40, the Board of Bar Examiners shall abide by and be subject to the Wisconsin Open Records Law (Wis. Stats. §§ 19.31-19.39, as it may be amended, added to, or renumbered) and the Wisconsin Open Meetings Law (Wis. Stats. §§ 19.81-19.98, as it may be amended, added to, or renumbered) and to all remedies provided by those laws."

BACKGROUND

In August 2011 petitioner Steven Levine requested the BBE to provide him with the names and addresses (email addresses if available, otherwise street and city addresses) of those persons who sat for the July 2011 Wisconsin bar exam. Petitioner explained in his request that he wished to survey those persons concerning their evaluation of the bar exam as well as any suggestions they might have for improvement of the exam and bar admission process. (The names might also be used to form an advocacy group to advocate for change in the bar admission process.) In a letter dated September 30, 2011 (attached to this petition), the BBE Director responded that the BBE had considered petitioner's request at its meeting of September 23, 2011, and that "[f]ollowing a discussion of the matter, and upon motion duly made and seconded, the Board declined to release that information to you as it is considered confidential under SCR 40.12."

SCR 40.12 provides:

"Confidentiality. The application files of an applicant and all examination materials are confidential. The supreme court or the board may authorize the release of confidential information to other persons or agencies."

SCR 40.12 specifically authorizes the BBE or this court to release the information requested by petitioner "to other persons." Petitioner hereby requests the court to (1) direct the BBE to provide petitioner with the requested information pursuant to SCR 40.12 and thereafter to (2) repeal SCR 40.12 and create SCR 30.03 as follows: "Except as explicitly set forth in SCR Chapters 30, 31, or 40, the Board of Bar Examiners shall abide by and be subject to the Wisconsin Open Records Law (Wis. Stats. §§ 19.31-19.39, as it may be amended, added to, or renumbered) and the Wisconsin Open Meetings Law (Wis. Stats. §§ 19.81-19.98, as it may be amended, added to, or renumbered) and to all remedies provided by those laws."

MEMORANDUM AND ARGUMENT

I. The court should direct the BBE to provide petitioner with the names and addresses of those persons who sat for the July 2011 Wisconsin bar exam. This information is not personal nor does it invade anyone's privacy. It simply consists of names and addresses. The information is requested for a legitimate purpose: to survey bar applicants who sat for the July 2011 bar exam to gain their evaluations of the exam and of the entire bar admission process. The names and addresses may also be used to form an advocacy group to advocate changes in the Wisconsin bar admission process. In a state where arrest records are "open records" available to the public (Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 279 N.W.2d 179 (1979)), certainly the names and addresses of bar exam applicants are also "open records."

Petitioner's reasons for requesting the names and addresses of those persons who sat for the July 2011 bar exam are legitimate and reasonable. The BBE's refusal to provide that information provided no reasons for its denial, except to state that the information requested "is considered confidential." This is no reason at all. It does not state the reasons why the BBE declined to release this information to petitioner, despite the fact that SCR 40.12 allows such release. The court should order the BBE to provide petitioner with the requested information.¹

II. The court should require the BBE to abide by the state's open records and open meetings laws. Petitioner requests that [ ] the court abolish SCR 40.12 and adopt a new SCR 30.03 to read as follows: "Except as explicitly set forth in SCR Chapters 30, 31, or 40, the Board of Bar Examiners shall abide by and be subject to the Wisconsin Open Records Law (Wis. Stats. §§ 19.31-19.39, as it may be amended, added to, or renumbered) and the Wisconsin Open Meetings Law (Wis. Stats. §§ 19.81-19.98, as it may be amended, added to, or renumbered) and to all remedies provided by those laws." Under proposed SCR 30.03, requests for all BBE records – including information contained in applicants' files – would be subject to the state's open records law, including the exceptions contained therein.

It is important for the court to repeal SCR 40.12 and replace it with a new SCR 30.03, requiring the BBE to abide by the state's open records and open meetings laws. The purpose of the state's open records law is to inform the public concerning the actions of governmental officers and employees. Bldg. & Constr. Trades Council v. Waunakee Cmty. Sch. Dist., 221 Wis. 2d 575, 582, 585 N.W.2d 726, 729 (Wis. App. 1998). The law acts as a basic pillar of our democratic form of government by providing public oversight of government. E.g., Schill v. Wisconsin Rapids School Dist., 2010 WI 86, ¶ 2, 327 Wis. 2d 572, 580, 786 N.W.2d 177; Linzmeyer v. Forcey, 2002 WI 84, ¶ 15, 254 Wis. 2d 306, 646 N.W.2d 811; Nichols v. Bennett, 199 Wis. 2d 268, 273, 544 N.W.2d 428, 430 (1996). The public policy of the state, as expressed in the open records law is to provide the broadest practical access to government affairs. Hempel v. City of Baraboo, 2005 WI 120, ¶ 28, 284 Wis. 2d 162, 699 N.W. 2d 991.

Section 19.31 provides:

"Declaration of policy. In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them. Further, providing persons with such information is declared to be an essential function of a representative government and an integral part of the routine duties of officers and employees whose responsibility it is to provide such information. To that end, ss. 19.32 to 19.37 shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied."

Section 19.32(1) applies the open records law to any "… board, commission, committee, council, department or public body corporate and politic created by constitution, law, ordinance, rule or order." The BBE is such a board. There is no reason why the purposes of the open records law so eloquently expressed in the appellate court opinions cited above should not also apply to the BBE. Public oversight of the BBE is no less important than public oversight of any other state board or agency.

Under current SCR 40.12, if an interested person wishes to see a record of the BBE, that person must first request that information from the BBE, then seek that information from the supreme court if the BBE denies the request – a burdensome, time-consuming process. Under SCR 40.12 the information can be denied for any reason or for no reason at all. The rule contains no standards – the essence of arbitrariness. Presumably, the record requested may be granted or denied depending on whether the BBE or the court believes that the reason the record has been requested is for a worthy purpose.

In contrast, under the open records law, a requester of a record need not state any reason for his or her request. It is not up to government officials – nor should it be – to judge the reasons for the request. The policy of the state expressed in the open records law is that citizens are entitled to "the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them." Providing such information is declared to be an "essential function" of government, and there is "a presumption of complete public access, consistent with the conduct of governmental business." "The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied." Wis. Stat. § 19.31. Records must be provided "as soon as practicable and without delay." Wis. Stat. § 19.35(4)(a).

With respect to providing the public with governmental records, SCR 40.12 and Wis. Stats. §§ 19.31-19.39 are like night and day. SCR 40.12 creates a presumption of denial of access in a burdensome, time-consuming, arbitrary process. Wis. Stats. §§ 19.31-19.39 create a presumption of access in a practical, expeditious process. The court should apply the open records law to the BBE. By adopting petitioner's proposed SCR 30.03, the court will also be making clear that the open records law applies to BBE records other than applicants' files or examination materials.

The nature and duties of the BBE are not essentially or drastically different from other state boards and agencies as to justify an exemption from the state open records and open meetings laws which cover those agencies. The Wisconsin Department of Safety and Professional Services (DSPS, formerly the Department of Regulation and Licensing) regulates every regulated profession in Wisconsin except lawyers. In that respect, its functions are identical to the BBE's. The DSPS is subject to the open records and open meetings laws. There is no justification for treating the BBE any differently. If the DSPS can function well under the open records and open meetings laws, so can the BBE. Ironically, the current director of the BBE was formerly employed by the Department of Regulation and Licensing, where she was required to comply with the open records and open meetings laws. There is no reason why the BBE cannot operate well under those laws, given that all state agencies, including the DSPS, are subject to those laws and operate quite well under them.

There are no good reasons for the Supreme Court not to subject the BBE to the Wisconsin open records and open meetings laws. It would be hypocritical for the court to praise the open records and open meetings laws when the court decides cases dealing with all other state boards and agencies, but to exempt the BBE from compliance with those laws. And it would be arrogant – amounting to a statement that the public may need the protection of those laws with respect to all other state agencies, but not with respect to the BBE: Justices and a board which regulates lawyers can be trusted to act appropriately without the need for the open records or open meetings laws; all other agencies cannot be so trusted. To exempt the BBE from the open records and open meetings laws would constitute a statement that the Supreme Court and the BBE are above the law followed by all other state agencies – a poor example for the public by its supreme court, which is supposed to even-handedly administer the law.

The lack of application of the state open records and open meetings laws regarding public access to BBE records and meetings leaves the public at the mercy of arbitrary action by the BBE. The need for Supreme Court review in each case places an unreasonable and unnecessary burden on the public. The public should have no less rights of access to BBE records and meetings than to the records and meetings of any other state agency. The Supreme Court should adopt proposed SCR 30.03 to cover all BBE records – not only those presently covered by SCR 40.12. As an equal and coordinate branch of government, the Supreme Court of Wisconsin has a responsibility to the public to require its BBE to operate in a manner consistent with the public's right to know, as set forth in Wis. Stats. §§ 19.81-19.98 and 19.31-19.39 – unless such operation would be contrary to the interests of justice.

III. The same arguments in favor of applying the open records law to the BBE also are relevant to applying the open meetings law to the BBE. At present, the BBE usually posts agendas of its meetings on its website – but such posting is at the sole discretion of the BBE, and there have been problems. For example, the agenda of the July 2011 meeting was posted after the meeting was held. The open meetings law also contains protections for the public other than notices of agency meetings – such as protections regarding "email meetings," meetings by "formally constituted subunit[s]" of an agency (Wis. Stat. § 19.82(1)), and access by the media. For full protection of the public, the court should explicitly subject the BBE to the requirements of both the open records and open meetings laws.²

Respectfully submitted,

Steven Levine, Madison, Wis.

¹The BBE stated that it was denying petitioner's request under SCR 40.12, but that rule applies only to "the application files" of a bar admission applicant. Petitioner did not request the contents of any file – only the names and addresses of those persons who sat for the July 2011 bar exam.

²In Board of Bar Examiners rule CLE 14.01, the BBE asserts:

"As an agency of the Supreme Court, the Board is not subject to Subchapter V of Chapter 19 of the Wisconsin Statutes, relating to open meetings of governmental bodies. However, the Board posts the dates, locations and agendas of its meetings in its Internet web site and invites the public to attend its meetings. Members of the public are not allowed to attend meetings or parts of meetings that involve confidential matters. Examples of confidential matters include (i) individuals' applications for admission to the Wisconsin bar, (ii) hearings on admission applications and (iii) bar examination questions."

Petitioner disagrees with the BBE's assertion that it is not subject to the Open Meetings Law. Please see Wis. Stats. § 19.82(1), which applies that law to "a state or local agency, board, commission, committee, council, department or public body corporate and politic created by constitution, statute, ordinance, rule or order;" The BBE is such a "board." To end any confusion in this regard, the Court in this rulemaking proceeding may and should explicitly subject the BBE to the Open Meetings Law, as set forth in petitioner's proposed SCR 30.03.

Wisconsin Lawyer