Nov. 2, 2009 – The Wisconsin Supreme Court has unanimously approved a rule-making petition filed by the State Bar of Wisconsin to clarify the class of judicial membership in the Bar.
The court approved petition 08-27 on Oct. 29 following a public hearing regarding the petition. At the same meeting, the court also unanimously approved petition 09-05, which amends SCR 71.01 (2) governing the reporting of court proceedings. The State Bar’s Board of Governors recently voted to support that petition as well, which was filed by the Director of State Courts.
Under petition 08-27, the class of judicial members of the State Bar under SCR 10.03(3)(a) is modified to specify more precisely 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, all of the officials who will now be included in the judicial member category are prohibited by law or by their employers as a condition of employment from engaging in the private practice of law.
Under SCR 10.03(3)(c), judicial members of the State Bar cannot practice law in Wisconsin and may not hold any State Bar office or vote in any State Bar election. In addition, under SCR 10.05(a), judicial members pay only two-thirds of the regular State Bar dues.
In addition to clarifying the class of judicial membership, petition 08-27 as approved by the court provides that no inactive member of the State Bar 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. Except for this new exception, generally 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. This new exception was suggested because under SCR 10.03(3)(a), emeritus members are allowed to practice law. The change will prevent members who have been inactive for extensive periods of time from becoming emeritus members without first being current on their CLE credits.
The State Bar’s Board of Governors approved filing petition 08-27 last year upon the recommendation of the State Bar Membership Categories Committee. Past President Thomas Basting, Sr. appointed that committee in September 2007 after the Wisconsin Supreme Court asked the State Bar to study issues raised by petition 06-09, which first proposed that federal administrative law judges (ALJs) be classified as judicial members of the State Bar. The court did not approve that petition when it held a hearing on it in April 2007. Instead, the court asked the State Bar to study issues raised by the petition, which was filed by a federal ALJ.
Petition 08-27, which the court has now approved, constituted the State Bar’s response to the court’s request that the Bar study issues related to judicial membership and report back to the court with a recommendation.
Attorney Kent Carnell of Madison, who chaired the Membership Categories Committee, presented the petition to the court for the State Bar. Other committee members included 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.
In addition to approving petition 08-27, the court on Oct. 29 held a public hearing and gave unanimous approval to petition 09-05, which amends SCR 71.01(2) governing the reporting of court proceedings.
Filed by the Director of State Courts on behalf of the Committee of Chief Judges and District Court Administrators, petition 09-05 amends SCR 71.01(2) relating to required circuit court reporting to specify that audio recordings of any type that are played during a proceeding, marked as an exhibit and offered into evidence, do not need to be transcribed by a court reporter. Under petition 09-05 as approved by the court, if only part of a recording is played in court, the parts played shall be precisely identified in the record.
The Director of State Courts filed petition 09-05 in reaction to the decision of the Court of Appeals in State v. Ruiz-Velez, 2008 WI App. 169, which held that audible statements contained in videotaped interviews of child sexual assault victims which are replayed for a jury must be reported by the court reporter. In that decision, the appeals 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. In its petition, the Director of State Courts expressed concern that the decision might have applied 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.
At its meeting in September, the Board of Governors voted to support petition 09-05. The Wisconsin District Attorneys Association also supported the petition, which was opposed by the Office of the State Public Defender.
Under Wis. Stat. section 751.12 and Supreme Court Internal Operating Procedures II.B.5. and III, any person may file a petition to change Supreme Court rules, pleading, practice, procedural statutes and administrative matters.
The State Bar’s activities regarding Supreme Court rule-making petitions are coordinated by the State Bar’s government relations team. If you have questions regarding the State Bar’s position on a rule-making petition pending before the Supreme Court, please contact Adam Korbitz, government relations coordinator.
Continue to monitor WisBar.org and visit the State Bar’s Government Relations page for updated information.
Adam Korbitz is the Government Relations Coordinator for the State Bar of Wisconsin.
Related articles:
Court to tackle recusal issue and other rules petitions – Oct. 27, 2009
State Bar faces busy year with Supreme Court rule-making – Sept. 21, 2009
Board tackles petitions on judicial independence, court procedures, and more – Sept. 14
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