Sept. 21, 2009 – The Wisconsin Supreme Court kicked off a busy year of rule-making proceedings on Sept. 10, holding a public hearing on and immediately approving a petition filed last year by the Board of Bar Examiners to create authority in the Supreme Court rules for the electronic filing of CLE reports.

Adoption of the new rule should avoid a replay of last year, when many attorneys required to report their CLE by the end of the year found they had to both report electronically and mail a signed hard copy of their CLE report to the BBE. The rule is effective immediately.

The State Bar of Wisconsin, which supported the BBE petition, is also working in one fashion or another on most of the rule-making petitions now pending before the Supreme Court. The court currently has 14 petitions pending before it, including five petitions filed by the State Bar and an additional five petitions supported or opposed by the State Bar. The State Bar’s Board of Governors is not taking a position on two pending petitions and has yet to determine its position on an additional two pending petitions.

The court has scheduled public hearings for eight of the pending petitions this fall; four have yet to have public hearings scheduled and an additional two petitions have already had at least one public hearing and are awaiting final action by the court, including the State Bar’s 2007 petition regarding the unauthorized practice of law.

The Supreme Court has scheduled three days of hearings in late October and early November on eight of the pending petitions.

On Oct. 28, the court will hold a public hearing and an open administrative hearing at 9:30 a.m. on petitions 08-16 and 08-25, both relating to the issue of judicial recusal.

Petition 08-16, filed by the League of Women Voters of Wisconsin Education Fund, would create “rules for recusal when a party in an action or the lawyer or law firm in an action has previously made a campaign contribution to or spent money on a media campaign relating to a judicial election for a judge who is presiding in the case.”

Under petition 08-16, a contribution of $1,000 or more, or multiple contributions totaling $1,000 or more, within the preceding two years would be a basis for recusal under the League’s petition. Similarly, the League’s petition indentifies a party’s payment in full or in part for “a mass communication that was disseminated in support of the judge’s election” within the preceding two years to be a basis for recusal.

Petition 08-25, filed by the Wisconsin Realtors Association, takes the opposite tack and would amend the Code of Judicial Conduct to “provide that the receipt of a lawful campaign contribution by a judicial campaign committee or an endorsement of a candidate does not, by itself, warrant judicial recusal.”

At its meeting on Sept. 11-12, the State Bar’s Board of Governors voted to oppose both of the recusal petitions filed by the League and the Realtors. Over the summer, members of the Board of Governors assigned to a task force examined the issue of judicial recusal. Gov. Thomas L. Schober, chair of that study committee, reported to the full board that neither petition properly addressed the matter. Schober referred to a draft report authored by the ABA Standing Committee on Judicial Independence. Within the report’s broader policy goals are detailed recommendations, including a recommendation for the adoption of peremptory challenges already codified in this state by Wis. Stat. 801.58, Schober said.

On Oct. 29, the court has scheduled a public hearing on three other petitions. The court will hold a public hearing on petition 08-27, filed by the State Bar last year to clarify classes of membership in the State Bar.

At the same hearing the court will also hear petition 09-05, filed by the Director of State Courts, which would amend SCR 71.01 (2) governing the reporting of court proceedings. The State Bar’s Board of Governors recently voted to support this petition.

Filed at the request of the Committee of Chief Judges and District Court Administrators, petition 09-05 is a response to State v. Ruiz-Velez, 2008 WI App. 169. In Ruiz-Velez, the court of appeals ruled that audible statements contained in videotaped interviews of child sexual assault victims replayed for a jury must be transcribed by the court reporter. The court suggested that its ruling applies not only to child sexual assault but to any proceeding in the circuit court during which any audio- or video-recorded statement is replayed. The petition would amend SCR 71.01 to exclude from the requirement that all court proceedings are reported audio recordings of any type that are played in court and offered into evidence.

On Oct. 29, the court will also hold a hearing on petition 08-28, filed jointly by the State Bar and the Office of Lawyer Regulation to create rules establishing procedures for lawyer support and monitoring within the State Bar. The petition would also establish procedures for OLR to refer lawyers for assessment, treatment and monitoring when they are struggling with AODA and other mental health issues. After the public hearing, when the court convenes in open administrative conference on petition 08-28, it will also discuss a BBE petition (08-13) it deferred earlier this year concerning conditional admission to the State Bar. (The State Bar has a neutral position regarding the conditional admission petition as long as conditional admission is a confidential process; earlier this year the Supreme Court voted to adopt a confidentiality provision modeled on the ABA model rule on conditional admission.)

Finally, on Nov. 2, the court will hold public hearings on three more petitions, including petition 09-06, which the State Bar filed earlier this summer to permit non-resident State Bar members to serve as certain officers of the association.

On Nov. 2, the court will also hear two additional petitions filed by the Director of State Courts. Petition 09-02 would make various technical amendments to SCR 72.01 regarding record retention, in order to take into account statutory changes that have occurred since the last major revision to the rule in 1997. Petition 09-03 would create a rule governing the submission of evidence originating in a language other than English. The State Bar’s Board of Governors has not taken a position on either petition.

Assuming the Supreme Court disposes of all eight petitions scheduled for hearings this fall, the court will have at least four more petitions to schedule for public hearings in 2010. Those petitions include petition 08-11, filed by the BBE to make various procedural changes when notifying an applicant for admission to the bar that the BBE may reject their application for reasons related to character and fitness. The State Bar supports the petition.

The court is also expected to schedule public hearings early next year on petition 09-01, filed by the Judicial Council to create rules governing the discovery of electronically stored information. The court will likely also hear petition 09-07, filed by the State Bar of Wisconsin to make various changes to SCR chapter 72 governing record retention and expunction. Finally, the court may hold a hearing on petition 09-08, filed by several Wisconsin attorneys to change Supreme Court rules governing the use of State Bar dues.

The court also still has pending before it the State Bar’s petition regarding the unauthorized practice of law, petition 07-09. The court held a public hearing and open administrative conference on the petition in December 2007, as well as two additional open conferences in March and October of 2008. The court deferred the petition last session without acting to approve it. An additional open conference on the petition is expected during the first half of 2010. Earlier this year, State Bar President Doug Kammer reappointed the State Bar’s UPL Policy Committee and added several new members, including former Supreme Court Justice Jon Wilcox.

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.

Related articles:

Board tackles petitions on judicial independence, court procedures, and more – Sept. 14
Lawyers in treatment for substance abuse, other impairments could be admitted to practice under proposal – March 10, 2009
Inside the Bar: Wisconsin Supreme Court will continue to review State Bar UPL committee – December 2008
Inside the Bar: Supreme Court moves on State Bar consumer protection petition – January 2008
Legal Services Consumer Protection Act Offers Needed Safeguards

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