Oct. 6, 2020 – Circuit courts must revert to restrictions on in-person court proceedings if amending operational plans amidst COVID-19, the Wisconsin Supreme Court has ruled (4-3) in an order that clarifies how circuit courts must manage changing circumstances.

In March and April, the Wisconsin Supreme Court issued a number of orders that prohibited in-person proceedings, including jury trials, until further notice. The court system quickly shifted to remote proceedings through videoconferencing.

In late May, the supreme court issued an order determining that “individual circuit courts of this state may begin gradually to resume in-person proceedings, including jury trials, on a county-by-county basis if the circuit court prepares a plan to do so safely.”

The order followed adoption of a final report from Chief Justice Patience Roggensack’s Wisconsin Courts COVID-19 Task Force, a 24-member group of circuit court judges, prosecutors, public defenders, court clerks, and county counsel and the private bar.

Under the court’s order, all circuit court (and municipal court) reopening plans require face coverings in the courtroom with frequent disinfecting practices. The chief judge in each administrative district is required to approve the local operational court plan.

The order extended previous orders suspending in-person hearings until local reopening plans were approved, meaning remote hearings would continue until local reopening plans were approved to safely allow for in-person proceedings.

Circuit courts began adopting plans to allow for in-person proceedings with mandatory face coverings and other measures imposed under the supreme court’s order.

However, in recent weeks, a spike in COVID-19 cases in various parts of the state caused circuit courts to suspend in-person proceedings once again.

For instance, the chief administrative judge for Wisconsin’s Eighth Judicial District issued an order on Sept. 29, 2020, to temporarily suspend in-person court proceedings in Brown and Outagamie Counties, contrary to the operational plans for those courts.

Most Recent Supreme Court Order

The supreme court’s most recent order clarifies that when a circuit court’s operational plan is withdrawn – such as when a chief administrative judge issues an order to prohibit in-person proceedings – the Wisconsin Supreme Court’s prior orders prohibiting in-person proceedings take effect until an amended operational plan is approved.

That is, upon withdrawal of part or all of the operational plan, the county shall again be subject to the provisions of the following Wisconsin Supreme Court orders:  

· In Re The Matter of Remote Hearings During the COVID-19 Pandemic (April 15, 2020), suspending, until further order, most in-person hearings in the circuit courts of this state, subject to limited exceptions for certain matters if remote technology is not practicable or adequate to address the matter.

· In Re The Matter of Jury Trials During the COVID-19 Pandemic (March 22, 2020); which continued all previously scheduled criminal and civil jury trials to a date after May 22, 2020, to be scheduled by the circuit court judge presiding over the case.

· In the Matter of an Interim Rule re Suspension of Deadlines for Non-Criminal Jury Trials Due to the COVID-19 Pandemic (March 31, 2020), which suspended statutory deadlines for conducting non-criminal jury trials until further order.

“The circuit court shall prepare an amended operational plan that satisfies the requirements for an operational plan set forth above and the amended operational plan shall apply upon approval by the applicable chief judge,” the order states.

“Further, there may be multiple amendments to an operational plan over time to address changes in local public health conditions.”

Dissenters

Justice Annette Ziegler wrote a dissenting opinion, joined by Justice Brian Hagedorn, concluding the supreme court’s prior orders should not be extended.

“The court's orders issued in the spring of this year were to address an emergent and temporary situation regarding the COVID19 pandemic,” Justice Ziegler wrote.

“Unfortunately, this amended order does nothing temporary but instead breathes new life into the court's previous orders which were to terminate upon approval of each county’s individual plan.”

Ziegler said she would “prefer to allow local control and have the counties reach sound decisions based upon the facts and circumstances” rather than resuscitate prior orders.

Justice Rebecca Bradley also dissented separately.

“I would terminate these orders and leave the manner of conducting circuit court proceedings to the circuit court judges, who at this point have had six months to evaluate when and how they may safely conduct jury trials and other proceedings, in consultation with leaders and stakeholders in their respective counties,” she wrote.

“The court's latest order abandons the idea that circuit courts have the competency to implement operational plans for safely conducting proceedings (they do) and continues to indefinitely suspend criminal and civil jury trials, in violation of the constitutional and statutory rights of litigants.”