Supreme Court Orders
The Wisconsin Supreme Court has amended SCR 70.36(5) and created SCR
Chapter 75 relating to judicial court commissioners.
Judicial court commissioners
In the Matter of the Amendment of Supreme Court Rules: SCR 70.36(5);
(proposed) SCR Chapter 75 - Appointment, Performance Evaluation,
Continuing Education, Discipline and Decisions of Judicial Court
Commissioners
Order 97-10
The court held a public hearing Dec. 16, 1997, on the petition of the
Supreme Court's Planning and Policy Advisory Committee requesting the
adoption of rules to provide for the appointment, performance
evaluation, continuing education, and discipline of judicial court
commissioners. The petition also requested the adoption of a rule
establishing time periods for decisions of judicial court commissioners,
a procedure for extending the time for those decisions, and the monthly
reporting of matters pending decision and sanctions for violations of
those provisions. The court then held a public conference on the rule
proposal Jan. 20, 1998. The court has considered the presentations at
the public hearing and the materials filed with the court in this
matter.
IT IS ORDERED that, effective July 1, 1998, the Supreme Court Rules
are amended as follows.
SECTION 1. 70.36 (title) of the supreme court rules is amended to
read:
70.36 (title) Judges' and judicial court commissioners'
certification of status of pending cases.
SECTION 2. 70.36 (5) of the supreme court rules is created to
read:
70.36 (5) (a) In this subsection, "judicial court commissioner" means
a person appointed under SCR 75.02 (1) or a person authorized under SCR
75.02 (2) to perform specific duties set forth in SCR 75.03 on a
temporary or occasional basis.
(b) A judicial court commissioner may not routinely take matters
under advisement. Every judicial court commissioner shall decide any
matter within 30 days after the matter is submitted to him or her for
decision. If the judicial court commissioner is unable to decide a
matter within 30 days, he or she shall notify the chief judge not later
than 5 days before the end of the 30-day period. The chief judge may
extend the period to decide the matter for an additional 30 days or may
require the judicial court commissioner to suspend all other assigned
activities until the decision is filed in the court.
(c) Within the first 10 days of each month, each judicial court
commissioner shall certify in writing to the chief judge and the
supervising judge that there are no matters awaiting decision beyond the
30-day or, if extended by the chief judge, the 60-day period specified
in par. (b). If there are matters so pending, the certificate shall set
forth the case number and caption of each matter and the date on which
it was submitted for decision.
(d) Violation of this subsection is cause for the chief judge to
withdraw temporarily or permanently the judicial court commissioner's
appointment or authority to act.
SECTION 3. Chapter 75 of the supreme court rules is created to
read:
SCR CHAPTER 75
JUDICIAL COURT COMMISSIONERS
SCR 75.01 Definitions. In this chapter:
(1) "Commissioner" means a judicial court commissioner as defined in
sub. (2).
(2) "Judicial court commissioner" means an officer of the court
appointed under SCR 75.02 (1) or authorized under SCR 75.02 (2) to
perform limited judicial and quasi-judicial functions under the
direction and authority of the chief judge and the judges of the
circuit. The term includes a person appointed by one or more circuit
court judges under s. 757.68 (2), stats., only to the extent that the
person is authorized under SCR 75.02 (2) to perform specific duties set
forth in SCR 75.03.
PLANNING AND POLICY ADVISORY COMMITTEE NOTE: This chapter applies to
persons appointed under SCR 75.02 (1) and to persons appointed under s.
757.68 (2) of the statutes and authorized by the chief judge to perform
duties under SCR 75.03 on a temporary or occasional basis. Continuing
education requirements set forth in SCR 75.05 apply to court
commissioners who spend 40 or more hours per year on those duties. The
performance evaluation and complaint procedures in SCR 75.04 and 75.06
apply to the performance of the authorized duties, however limited.
SCR 75.02 Appointment. (1) The chief judge of a
judicial administrative district shall appoint within the district, as
authorized by law, judicial court commissioners who shall be selected
through a process approved by the chief judge and the circuit court
judges of the counties in which the commissioner will serve. A judicial
court commissioner shall be licensed to practice law in this state and
in good standing with at least 3 years of legal experience. Selection
shall be based on merit.
(2) The chief judge of a judicial administrative district may, by order,
authorize a court commissioner appointed under s. 757.68 (2), stats., to
perform one or more specific duties set forth in SCR 75.03 on a
temporary or occasional basis.
(3) Upon application of a judge within the district exercising
probate jurisdiction, the chief judge of a judicial administrative
district may, by order, authorize a register in probate to perform the
duties of a judicial court commissioner in probate matters.
NOTE: Subsection (3) is based on s. 757.72 (5), stats.
SCR 75.03 Duties. The order appointing a judicial
court commissioner either shall confer all powers and duties allowed
court commissioners by statute or shall specify duties that the
commissioner is authorized to perform, including any of the
following:
(1) In cases under ch. 48 or 938, stats.:
(a) Exercise the powers of a juvenile court commissioner under s.
48.065, stats.
(b) Issue summonses and warrants, order the release or detention of
children apprehended, conduct detention and shelter care hearings,
conduct preliminary appearances, conduct uncontested proceedings under
ss. 48.13, 938.12, 938.13 and 938.18, stats.
(c) Enter into consent decrees and hold hearings, make findings, and
issue orders in proceedings under s. 813.122 or 813.125, stats., in
which the respondent is a child.
(2) In family matters: Exercise the powers of a family court
commissioner under s. 767.13, stats.
(3) In traffic regulation cases and county ordinance cases:
(a) Conduct initial appearances and receive noncontested forfeiture
pleas.
(b) Order the revocation or suspension of operating privileges and
impose monetary penalties according to a schedule adopted by a majority
of the judges of the courts of record within the county.
(c) Refer applicable cases to court for enforcement for
nonpayment.
(4) In actions under ch. 799, stats.:
(a) Conduct return date proceedings and settlement conferences.
(b) Grant and enter default judgments and approve stipulations.
(c) Conduct conferences and hearings with the parties or their
attorneys, or both, on the return dates and adjourned dates, if any.
(d) Issue decisions, which shall become judgments under s. 799.207
(2), stats.
(5) In probate matters:
(a) Exercise the powers of a probate court commissioner under s.
757.72, stats.
(b) Conduct noncontested proceedings.
(c) Hear petitions for commitment and conduct probable cause hearings
under ss. 51.20, 51.45 and 55.06(11), stats.
(d) Conduct reviews of guardianships and protective placements and
protective services under chs. 55 and 880, stats.
(e) Advise any person under par. (c) or (d) alleged to be mentally
ill of his or her rights under the U. S. and Wisconsin
constitutions.
(f) If the person under (c) or (d) claims or appears to be unable to
afford counsel, refer the person to the authority for indigency
determinations specified under s. 977.07(1), stats., or, if the person
is a child, refer that child to the state public defender, who shall
appoint counsel for the child without a determination of indigency, as
provided in s. 48.23(4), stats.
(6) Hold hearings, make findings, and issue temporary restraining
orders under ss. 813.122 and 813.125, stats.
(7) In criminal matters:
(a) Direct a case to the proper court if the defendant wishes to
enter a plea after intelligent waiver of rights.
(b) Issue summonses, arrest warrants and search warrants, conduct
initial appearances of persons arrested, and set bail.
(c) Determine probable cause to detain arrested persons pending
initial appearance.
(d) Conduct initial appearances.
(e) Inform defendants in accordance with s. 970.02 (1) and (6),
stats.
(f) Refer defendants who appear or claim to be indigent for indigency
determinations specified under s. 977.07 (1), stats.
(g) Conduct preliminary examinations and arraignments and, with the
consent of both the state and the defendant, accept guilty and no
contest pleas.
(h) Conduct restitution hearings under s. 973.20 (13) (c) 4,
stats.
(8) Conduct inquests under ch. 979, stats.
(9) Issue warrants and capiases for those who do not appear as
summoned.
(10) Try questions of fact requiring the examination of accounts and
report upon specific issues of fact involved in those matters, upon
referral by the circuit court.
(11) Try questions of fact arising other than upon the pleadings,
upon referral by the circuit court.
(12) Prepare proposed findings of fact and conclusions of law
pertaining to default mortgage and land contract foreclosures and
mechanics' liens, upon referral by the circuit court.
(13) Conduct pretrial conferences, dismissal calendar proceedings,
statutory name change proceedings, minor settlement approvals under the
amount specified in s. 807.10 (3), stats., and uncontested mortgage
foreclosures.
PLANNING AND POLICY ADVISORY COMMITTEE NOTE: Based on s. 757.69,
stats., this rule requires that the order appointing a judicial court
commissioner either confer all powers allowed by statute or enumerate
specific duties to be performed. It is not expected that every
commissioner will be authorized to perform all of the duties enumerated.
The list deliberately excludes the powers to officiate at marriage
ceremonies and to conduct supplemental hearings on the present financial
status of a debtor and exercise powers under ss. 816.04, 816.08 and
816.11, stats. and the other powers and duties court commissioners
currently may exercise under their own authority. This chapter does not
apply to those activities, and those who perform only those activities
are not required to comply with continuing education requirements under
SCR 75.05.
SCR 75.04 Performance evaluation. (1) The director
of state courts shall establish a standard procedure for the regular
evaluation of the job performance of judicial court commissioners, which
shall include minimum performance standards for judicial court
commissioners to be certified as qualified.
(2) The chief judge shall appoint annually one or more supervising
judges for each judicial court commissioner. The supervising judge or
judges shall evaluate annually, pursuant to the procedures established
under sub. (1), the performance of each commissioner under his, her or
their supervision, communicate responsibilities and performance
objectives, and recommend to the chief judge whether the commissioner
should be certified as qualified to continue in that capacity in the
succeeding year. The recommendation of the supervising judge or judges
shall be supported by reasons and shall include findings regarding all
of the following:
(a) Whether the court commissioner has met or exceeded the minimum
performance standards established under sub. (1).
(b) Whether the commissioner is subject to any disciplinary order
which forbids the commissioner to act in a quasi-judicial capacity or is
subject to removal or suspension.
(c) Whether the commissioner has complied with SCR 70.36 (5) and
75.05 and has attended specific educational programs recommended by the
chief judge.
(3) The chief judge, upon considering the recommendation of the
supervising judge or judges, shall certify annually each commissioner as
qualified to act in that capacity or deny such certification. The chief
judge may not certify any commissioner as qualified unless affirmative
findings have been made under sub. (2) (a) and (c) and a negative
finding has been made under sub. (2) (b).
PLANNING AND POLICY ADVISORY COMMITTEE NOTE: Unless the commissioner
has met minimum performance standards, complied with rules relating to
education and prompt decision making and is not subject to ethical
sanctions, he or she cannot be certified as qualified to discharge the
functions of the office. Local jurisdictions may use members of the bar
and civic and consumer groups to assist the supervising judge in the
evaluation process. Under 75.01, this section applies to court
commissioners authorized to perform duties under SCR 75.03 on a
temporary or occasional basis.
SCR 75.05 Continuing education. (1) A judicial court
commissioner shall maintain and improve professional competence by
participating in programs of continuing education designed for judicial
court commissioners and by participating in local orientation programs
which may include mentoring by circuit court judges.
(2) A judicial court commissioner appointed under SCR 75.02(1) shall
earn 60 education credits each period of 6 years by participating in
continuing education programs. One credit is awarded for each half-day
of attendance at an in-state education program. The amount of credit
awarded for attendance at a national program is to be determined by the
judicial education committee. A commissioner shall earn no less than 10
nor more than 30 education credits every 2 years. A judicial court
commissioner who is employed full-time in that capacity shall earn
credits only by participating in continuing education programs approved
by the judicial education committee. A judicial court commissioner who
is not employed full-time in that capacity may earn up to 40 of the
required 60 credits in any 6-year period by participating in continuing
legal education programs approved by the Board of Bar Examiners.
(3) A judicial court commissioner appointed under s. 757.68(2),
stats., and authorized under SCR 75.02 (2) to perform specified duties
set forth in SCR 75.03 shall earn not less than 3 education credits in
programs approved by the judicial education committee in any year in
which the performance of those duties requires 40 or more hours.
PLANNING AND POLICY ADVISORY COMMITTEE NOTE: SCR 31.05 (4) requires
that the board of bar examiners allow participation in activities
approved by the judicial education committee to be used to satisfy CLE
requirements for attorneys.
SCR 75.06 Complaints; discipline. (1) A person may
file a complaint regarding the conduct of a judicial court commissioner
with the chief judge of the judicial administrative district. The chief
judge or a designee of the chief judge shall advise any complainant of
the right to file a complaint with the judicial commission.
Notwithstanding the jurisdiction of the judicial commission, the chief
judge may discipline a judicial court commissioner as provided in sub.
(2).
(2) The chief judge of each judicial administrative district is
responsible for disciplining judicial court commissioners with respect
to their quasi-judicial activities and for determining the severity of
the discipline, including removal. The chief judge shall consider
information and recommendations from the supervising judge or judges
when making these determinations.
SCR 75.07 Local court rules. (1) The circuit court
judges of any county may establish any of the following as local court
rules.
(a) Rules and standards clarifying the authority of judicial court
commissioners in particular types of cases.
(b) Guidelines for decision making by judicial court
commissioners.
(2) All local court rules established under sub. (1) shall be adopted
under s. 753.35 (2), stats., shall be consistent with statutes and
supreme court rules, and shall be approved by the chief judge of the
judicial administrative district.
IT IS FURTHER ORDERED that the Notes of the Planning and Policy
Advisory Committee are not adopted but shall be published with the rules
for information purposes.
IT IS FURTHER ORDERED that notice of these amendments of the Supreme
Court Rules shall 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 9th day of March, 1998.
By the court:
Marilyn L. Graves, Clerk
Wisconsin
Lawyer
