Supreme Court Orders

The Board of Bar Examiners issued an order, following a public hearing, on proof of practice elsewhere. The Wisconsin Supreme Court also has issued orders, following public hearings, on juror use and management and on SCR 71.01 - required court reporting. The supreme court also has issued an order regarding additional authority of the chief judge.

In addition, the supreme court will hold public hearings on April 15 regarding venue in prisoner cases and the Clients' Security Fund balance requirement. The supreme court also will hold a public hearing on May 6 on electronic data dissemination and required court reporting. The hearings for both dates will be held at 1:30 p.m. in the Supreme Court Room in the State Capitol, Madison, Wis.

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Orders

• Proof of practice elsewhere
• Venue in prisoner cases
• Clients' Security Fund
• Electronic data dissemination
• Required court reporting
• Additional authority of the chief judge

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Proof of practice elsewhere

Order

SCR 40.11 having provided for rule-making authority by the Board of Bar Examiners that is consistent with Chapter 40 of the Supreme Court Rules, and the Board of Bar Examiners having conducted a public hearing on Jan. 21, 1997, after appropriate notice, the following regulations under Chapter 40 of the Supreme Court Rules are amended or created as follows:

SCR Chapter 40 Appendix

LEGAL COMPETENCE REQUIREMENT: PROOF OF PRACTICE ELSEWHERE

Create BA 5.01:

The Board authorizes its staff to close any application for admission on proof of practice elsewhere that remains incomplete one year following the date the application was filed with the Board.

REQUIREMENT AS TO CHARACTER AND FITNESS TO PRACTICE LAW

Create BA 6.05:

The Board authorizes its staff to close any application for a character and fitness certification that remains incomplete one year following the date the application was filed with the Board.

These rules shall become effective Jan. 21, 1997.

Dated at Juneau, Wis., this 23 day of January, 1997.

By the Board of Bar Examiners:
Daniel W. Klossner, Chair
Board of Bar Examiners

Juror use and management

In the Matter of the Amendment of ss. 17.15(2), 17.16(1), 17.27(2), 23.77(1) and (3)(a) and (b), 51.20(11)(a), 59.40(2)(d), 80.24(6), 80.48(2) and(3), 345.43(1) and (3)(a), (b) and (c), 753.34(6), ch. 756, ss. 788.03, 805.08(2) and (3), 805.09(1), 805.18(2), 879.45(5), 880.33(2)(a)1., 971.04(1)(c), 971.165 (1)(c)2. and 3., 972.01, 972.02(1), 972.03, 972.04(1), 972.10(7), 975.06 (1)(b)(Intro.), 978.05(4) and 979.05(2) and (3) - Juror Use and Management

Order 96-08

The court held a public hearing Sept. 11, 1996, on the petition of the Judicial Council seeking implementation of the American Bar Association Standards Relating to Juror Use and Management by amendment of the statutes to delete statutory references to jury commissioners and municipal jury lists, to repeal and recreate chapter 756 of the statutes in respect to jury service, the preparation of prospective juror lists, and the selection of juries, and to renumber and revise the provisions for grand jury and inquest jury selection and service. The court has considered the petition, the presentations made at the public hearing and the materials filed with the court in the matter.

The League of Women Voters of Dane County Inc. appeared at the public hearing and proposed that the statute, Wis. Stat. §756.04(1)(b), specifying the contents of the list of names compiled by the Department of Transportation for use in jury selection be amended to require the date on which the motor vehicle operator's license or identification card was issued to each of the names on the list. It further proposed statutory amendments to provide that the department list subsequently used by the clerks of circuit court to compile lists of prospective jurors and to create a master list first be purged of the names of those on the Department of Transportation list whose motor vehicle operator's license or identification card has expired. Because these proposed amendments were not part of the Judicial Council petition that was noticed for public hearing and interested persons, including the Department of Transportation, may not have had the opportunity to present their views on the proposal, the court takes no action on the proposed amendments but will consider them in a separate rule-making proceeding, upon a petition filed by The League of Women Voters of Dane County Inc. or others, with notice and a public hearing.

IT IS ORDERED that, effective July 1, 1997,

1. Section 17.15(2) of the statutes is repealed.

JUDICIAL COUNCIL NOTE, 1996: This proposal repeals all statutory references to jury commissioners.

2. Section 17.16(1) of the statutes is amended to read:

17.16(1) Removals from office at pleasure shall be made by order, a copy of which shall be filed as provided by sub. (8), except that a copy of the order of removal of a court commissioner, a jury commissioner or family court commissioner shall be filed in the office of the clerk of the circuit court.

JUDICIAL COUNCIL NOTE, 1996: This proposal repeals all statutory references to jury commissioners.

3. Section 17.27(2) of the statutes is repealed.

JUDICIAL COUNCIL NOTE, 1996: This proposal repeals all statutory references to jury commissioners.

4. Section 23.77(1) of the statutes is amended to read:

23.77(1) If in circuit court either party files a written demand for a jury trial within 20 days after the court appearance date and immediately pays the fee prescribed in s. 814.61(4), the court shall place the case on the jury calendar. The number of jurors shall be determined under s. 756.096(3) 756.06(2)(b). If no party demands a trial by jury, the right to trial by jury is permanently waived.

5. Section 23.77(3)(a) of the statutes is renumbered 23.77(3).

6. Section 23.77(3)(b) of the statutes is repealed.

JUDICIAL COUNCIL NOTE, 1996: This proposal repeals all statutory references to municipal jury lists.

7. Section 51.20(11)(a) of the statutes is amended to read:

51.20(11)(a) If before involuntary commitment a jury is demanded by the individual against whom a petition has been filed under sub. (1) or by the individual's counsel if the individual does not object, the court shall direct that a jury of 6 people be drawn selected to determine if the allegations specified in sub. (1)(a), (ar) or (av) are true. A jury trial is deemed waived unless demanded at least 48 hours in advance of the time set for final hearing, if notice of that time has been previously provided to the subject individual or his or her counsel. If a jury trial demand is filed within 5 days of detention, the final hearing shall be held within 14 days of detention. If a jury trial demand is filed later than 5 days after detention, the final hearing shall be held within 14 days of the date of demand. If an inmate of a state prison, county jail or house of correction demands a jury trial within 5 days after the probable cause hearing, the final hearing shall be held within 28 days of the probable cause hearing. If an inmate of a state prison, county jail or house of correction demands a jury trial later than 5 days after the probable cause hearing, the final hearing shall be held within 28 days of the date of demand.

JUDICIAL COUNCIL NOTE, 1996: This proposal changes "drawn" to "selected" whenever a statute refers to choosing jurors or prospective jurors, for statutory uniformity. Section 756.01(4) allows any method of random selection to be used, manual or automated.

8. Section 59.40(2)(d) of the statutes is amended to read:

59.40(2)(d) Keep a minute record and, except for actions under ch. 799, write in that record a brief statement of all proceedings in open court showing motions and orders during trial, names of witnesses, jurors drawn selected, the officer sworn to take them in charge, jury verdicts and openings and adjournments of court. The clerk, in lieu of keeping a minute record, may elect to incorporate in the appropriate court record, civil or criminal, the data which this paragraph requires to be recorded.

JUDICIAL COUNCIL NOTE, 1996: This proposal changes "drawn" to "selected" whenever a statute refers to choosing jurors or prospective jurors.

9. Section 80.24(6) of the statutes is amended to read:

80.24(6) If more than one appeal is taken from the award of damages on account of any highway, the appeals shall be consolidated by the circuit judge, and only one jury shall be impaneled selected to reassess the damages.

10. Section 80.48(2) of the statutes is amended to read:

80.48(2) DEPOSIT OF FUNDS; NOTICE OF HEARING. (a) An order made under sub. (1)(c) shall require the petitioners to deposit with the treasurer of the proper municipality such sum as the authorities who made the order consider necessary to pay the costs and expenses of the proceedings to be held pursuant to the order. No further action shall be had on the petition until the deposit is made. When the deposit is made, the common council, trustees or supervisors shall make a further order fixing the time, not less than 10 days thereafter, when and place where a jury will be impaneled selected to pass upon the necessity for taking the land through which the proposed street or highway is to be laid.

(b) Notice of the time and place the jury will be impaneled selected shall be served upon the occupants of the land through which the proposed street or highway is to be laid, if any, as provided in s. 80.05 not less than 6 days before the time so fixed. If any portion of the land through which the proposed street or highway is to be laid is not actually occupied, the notice shall be published as a class 2 notice, under ch. 985, in the city, village or town where the land is located. The notice shall contain a description, as near as may be, of the premises to be taken and state that at the time and place named in the notice a jury will be impaneled selected for the purpose of passing upon the necessity for taking for the public use the land described therein.

11. Section 80.48(3) of the statutes is amended to read:

80.48(3) Jurors. At the time and place specified in the notice the circuit judge of the county, the president of the village or the chairperson of the town in which the land sought to be taken lies shall issue a precept directed to the sheriff of the county or to any constable, naming the sheriff or constable, which precept shall direct the officer to write the names of 36 freeholders of the county who are qualified to serve as jurors in the circuit court and to return the list. After being sworn to perform the duties required to the best of his or her ability, without partiality, the officer shall immediately write the names and deliver the list thereof to the officer who issued the precept; and from the list each party, in person or by an agent or attorney, commencing with the petitioner, shall strike out alternately, 12 names, and if either party is absent or refuses to strike out, the officer who issued the precept shall appoint some person to strike 12 names for the absent person. The officer shall then summon the 12 persons whose names remain on the list in the manner prescribed under s. 756.08 756.05 to appear at the time and place mentioned in the summons for the purpose of determining the necessity of taking for the public use the land described in the petition; if any of the persons summoned fail to attend, others may be drawn selected in the same mode to fill the vacancy, and for that purpose the proceedings may be adjourned from time to time. When 12 persons are thus secured, they shall be sworn by the officer who issued the precept to faithfully and impartially discharge the duties imposed upon them, which oath shall be filed with the city, village or town clerk. The number of persons listed and summoned shall be proportionately reduced if the jury is to consist of a number less than 12.

12. Section 345.43(1) and (3)(a) and (b) of the statutes are amended to read:

345.43(1) If a case has been transferred under s. 800.04(1)(d), or if in circuit court either party files a written demand for a jury trial within 10 days after the defendant enters a plea of not guilty under s. 345.34 and immediately pays the fee prescribed in s. 814.61(4), the court shall place the case on the jury calendar of the circuit court. The number of jurors shall be determined under s. 756.096(3)(b) 6. If no party demands a trial by jury, the right to trial by jury is permanently waived.

(3)(a) If a jury is demanded, inIn counties having a population of 500,000 or more, the jury shall be drawn selected from the circuit court jury panel and selected prospective juror list as set forth under chs. 801 to 847. In all other counties, such juries shall be selected as provided in pars. par. (b) and (c), except that any party may demand trial by a countywide jury and that the clerk shall randomly select, by lot, the names of sufficient persons qualified to serve as jurors as will provide to each party entitled to peremptory challenges the number of challenges specified in par. (b) 5 peremptory challenges.

(b) If a timely demand for a jury is made, the judge shall direct the clerk of the court to select by lot at random from the current jury panel prospective juror list the names of a sufficient number of residents of the county qualified to serve as prospective jurors in courts of record, from which lists list either party may strike 5 names. If either party neglects to strike out names, the clerk shall strike out names for the party. The judge shall permit voir dire examinations and challenges for cause. The clerk shall summon a sufficient number of persons whose names are not struck out, to appear at the time and place named in the summons.

13. Section 345.43(3)(c) of the statutes is repealed.

JUDICIAL COUNCIL NOTE, 1996: This statute prescribes procedures for the trial of "traffic regulation" forfeiture offenses. Subsection (1) is amended to conform to the amendment of s. 756.096(3)(b) by 1995 Wis. Act 27, limiting jury size to six in such cases. Subsection (3) is amended by incorporating the usage of revised ch. 756. Prior sub. (3)(c), allowing use of a municipal jury list, is repealed.

14. Section 753.34(6) of the statutes is amended to read:

753.34(6) The jury commissioners of Shawano county shall serve as jury commissioners for the circuit court for Menominee and Shawano counties, and the jury list shall be known as the jury list A single prospective juror list shall be prepared for the circuit court for Menominee and Shawano counties.

15. Chapter 756 (title) of the statutes is amended to read:

CHAPTER 756

JURORS JURIES

16. Sections 756.001 to 756.03 of the statutes are repealed and recreated to read:

756.001 State policy on jury service; opportunity and obligation to serve as juror. (1) Trial by jury is a cherished constitutional right.

(2) Jury service is a civic duty.

(3) No person who is qualified and able to serve as a juror may be excluded from that service in any court of this state on the basis of sex, race, color, sexual orientation as defined in s. 111.32(13m), disability, religion, national origin, marital status, family status, lawful source of income, age or ancestry or because of a physical condition.

(4) All persons selected for jury service shall be selected at random from the population of the area served by the circuit court. All qualified persons shall have an equal opportunity to be considered for jury service in this state and the obligation to serve as jurors when summoned under this chapter for that purpose. Any manual or automated method of selection that provides each qualified person with an equal probability of selection for jury service or that provides each prospective juror with an equal opportunity for assignment to a particular trial may be used.

(5) The presiding judge of each circuit court, or, if there is none, the circuit judge designated by the chief judge to supervise the jury system, shall be responsible for administering the jury system in that court and shall discharge that duty in an efficient, equitable and cost-effective manner, in accordance with this chapter. The clerk of circuit court, if delegated by and under the supervision of the judge responsible for administering the jury system, may select and manage juries under policies and rules established by the judges in that circuit court.

JUDICIAL COUNCIL NOTE, 1996: Subsections (1) and (2) are based on prior s. 756.001(1). Subsection (3) implements ABA Standard 4 by expanding the nondiscrimination clause of prior s. 756.01(3) to all classes protected under the state equal rights statute, s. 101.22. Subsection (4) implements ABA Standard 3 and is based on prior s. 756.001(2). Subsection (5), based on the same prior statute, implements ABA Standard 10.

756.02 Juror qualifications. Every resident of the area served by a circuit court who is at least 18 years of age, a U.S. citizen and able to understand the English language is qualified to serve as a juror in that circuit unless that resident has been convicted of a felony and has not had his or her civil rights restored.

JUDICIAL COUNCIL NOTE, 1996: This section, based on prior s. 756.01(1), implements ABA Standard 4.

756.03 Excuse; deferral. (1) Excuse. The court to which a person is summoned for jury service may excuse the person from jury service if the court determines that the person cannot fulfill the responsibilities of a juror. The court shall not consider any structural limitations of a facility when making that determination.

(2) deferral. The court to which a person is summoned for jury service may, upon request of that person, defer to a later date set by the court the period in which the person must serve if the court determines that service as a juror would entail undue hardship, extreme inconvenience or serious obstruction or delay in the fair and impartial administration of justice.

(3) CLERK AUTHORIZED TO GRANT. The judge responsible for administering the jury system in the circuit court may authorize the clerk of circuit court to grant excuses or deferrals under this section. The authorization may limit the grounds on which the clerk of circuit court may grant the excuse or deferral and may require persons seeking an excuse or deferral to document the basis for any excuse or deferral.

JUDICIAL COUNCIL NOTE, 1996: This proposal, implementing ABA Standard 6, repeals the concept of exclusions and exemptions under prior s. 756.02. Instead, it allows judicial excuses for persons who clearly cannot fulfill the duties of a juror and deferrals for undue hardship. Periods of required availability for jury service are set forth in s. 756.28.

17. Section 756.031 of the statutes is repealed.

18. Section 756.04 of the statutes is repealed and recreated to read:

756.04 Prospective juror lists; number; how compiled. (1) In this section:

(a) "Department" means the department of transportation.

(b) "Department list" means a compilation of information prepared by the department that includes the name, address, date of birth, race and gender of each person who is licensed as a motor vehicle operator under ch. 343 or who has received an identification card under s. 343.50 or 343.51.

(c) "Race" means African American, American Indian or Alaskan Native, Asian or Pacific Islander, Caucasian, Hispanic, or other racial category.

(2) Jurors for all circuit courts, except jurors under ch. 80, shall be selected under ss. 756.04 to 756.07.

(3) Annually, on a date established by the secretary of transportation, the department shall transmit, without charge, to each clerk of circuit court a department list of persons residing in the area served by that circuit court. The department shall establish, by rule, uniform specifications regarding the size, format and content of computer tapes or other media used to prepare the department list.

(4) The clerk of circuit court shall compile the list of prospective jurors by selecting names at random from the department list or from a master list created under this subsection and sub. (5).

(5)(a) The clerk of circuit court may create a master list using the department list and any of the following:

1. Voter registration lists.

2. Telephone and municipal directories.

3. Utility company lists.

4. Lists of payers of real property taxes.

5. Lists of high school graduates who are 18 years of age or older.

6. Lists of persons who are receiving aid to families with dependent children under subch. III of ch. 49.

(b) To create a master list, the clerk of circuit court shall select randomly a sample of names from each source used. The same percentage of names shall be selected from each source used. The department list shall be the primary source, and the names selected from the department list shall be compared with the names from the 2nd source. Duplicate names shall be removed from the 2nd source sample and the remaining names shall be combined with the names selected from the department list to create the master list. If more than 2 source lists are used, this process shall be repeated, using the previously compiled master list for comparison with any additional source list.

(6) The clerk of circuit court shall mail to every prospective juror, separately or together with the summons under s. 756.05, a juror qualification form accompanied by instructions requiring the person to complete and return the form to the clerk within 10 days after receiving it. The form shall request all of the following:

(a) Information necessary to determine if the person is qualified to serve as a juror in that circuit court.

(b) The race of the prospective juror.

(c) The prospective juror's declaration that the responses are true to the best of his or her knowledge.

(7) The form under sub. (6) may request other information that the court needs to manage the jury system in an efficient manner, including information ordinarily sought during voir dire examination. The form under sub. (6) shall include a notice that, if the person wilfully misrepresents a material fact or fails to return the completed form within 10 days after its receipt, the person may be required to forfeit not more than $500.

(8) If a prospective juror is unable to fill out the form under sub. (6), another person may complete the form and shall indicate why the person has done so. If it appears that there is an omission, ambiguity or error in a returned form, the clerk of circuit court shall return the form to the person with instructions to correct and return the form to the clerk within 10 days after receiving the form.

(9) During each year, the clerk of circuit court shall provide the court with a sufficient number of names of prospective jurors to meet the needs of the court. The clerk shall randomly select names from the department list or master list and strike the name of any person randomly selected whose returned juror qualification form shows that the person is not qualified for jury service under s. 756.02. The clerk shall certify that the names were selected in strict conformity with this chapter. The clerk shall include a verified statement with the list of names describing the manner in which the names were selected, including an identification of all sources used in the preparation of the list. The clerk shall keep a certified copy of the names of prospective jurors, including the address of each prospective juror, for public inspection.

(10) The clerk of circuit court shall keep computerized juror lists secure against unauthorized access.

JUDICIAL COUNCIL NOTE, 1996: This section, based on prior s. 756.04, implements ABA Standard 2, recommending regularly maintained source lists as inclusive as feasible of the adult population of the district.

19. Section 756.041 of the statutes is repealed.

20. Sections 756.05 to 756.08 of the statutes are repealed and recreated to read:

756.05 Jury summons, when and how issued. At least 12 days before the first day on which a jury is required to be present, the clerk of circuit court shall summon sufficient prospective jurors to appear before the court at an appropriate time for jury service. The summons may be served by 1st class mail or another method.

JUDICIAL COUNCIL NOTE, 1996: Based on prior s. 756.08, this provision implements ABA Standard 11. Under s. 756.04(6), the qualification questionnaire sent to prospective jurors may be sent at the same time as the summons.

756.06 Jury selection. (1) Whenever an issue is to be tried before a jury, the clerk of circuit court shall randomly select names from the prospective juror list until the desired number is obtained.

(2)(a) A jury in a felony case shall consist of 12 persons unless both parties agree on a lesser number as provided in s. 972.02.

(am) A jury in a misdemeanor case shall consist of 6 persons.

(b) Except as provided in par. (c), a jury in a civil case shall consist of 6 persons unless a party requests a greater number, not to exceed 12. The court, on its own motion, may require a greater number, not to exceed 12.

(c) A jury in a case involving an offense for which a forfeiture may be imposed or in an inquest under s. 979.05 shall consist of 6 persons.

(d) This subsection does not apply to cases under ch. 938.

JUDICIAL COUNCIL NOTE, 1996: Based on prior s. 756.096, this section implements ABA Standard 17.

756.07 Insufficient jurors. When a sufficient number of jurors cannot be obtained for a trial from the list supplied by the clerk of circuit court, the court may order the sheriff to bring before the court persons in the vicinity for determination by the court of their qualification and ability to serve as jurors for the particular trial.

JUDICIAL COUNCIL NOTE, 1996: Based on prior s. 756.06, this allows jurors to be chosen from those in the vicinity, whether or not "bystanders," for a particular trial.

756.08 Oaths and affirmations. (1) The jurors selected to try the issues in the action or proceeding shall take an oath or affirmation to try the issues submitted to them and, unless discharged by the court, to give a verdict according to the law and the evidence given in court.

(2) When the issues have been submitted to the jury, a proper officer, subject to the direction of the court, shall swear or affirm that the officer will keep all jurors together in some private and convenient place until they have agreed on and rendered their verdict, are permitted to separate or are discharged by the court. While the jurors are under the supervision of the officer, he or she may not permit them to communicate with any person regarding their deliberations or the verdict that they have agreed upon, except as authorized by the court.

JUDICIAL COUNCIL NOTE, 1996: This section is based on prior s. 756.098. The ABA Standards do not mention oaths or affirmations.

21. Sections 756.095 to 756.098 of the statutes are repealed.

22. Section 756.10 (title) of the statutes is renumbered 968.40 (title).

23. Section 756.10(1) of the statutes is renumbered 968.40(1) and amended to read:

968.40 (1) SELECTION OF GRAND JURY LIST. Any judge may, in writing, order the jury commissioner clerk of circuit court to select a grand jury list within a specified reasonable time. The commissioner clerk shall select, as provided in s. 756.04, from the prospective juror list for the county the names of not less fewer than 75 nor more than 150 persons to constitute such the prospective grand juror list. They shall notify the judge in writing within the time fixed in the order that they have complied therewith. They shall keep the The list shall be kept secret.

24. Section 756.10(2) of the statutes is repealed.

25. Section 756.10(3) and (4) of the statutes are renumbered 968.40(3) and (4) and amended to read:

968.40(3) (title) EXAMINATION OF PANEL PROSPECTIVE JURORS. At the time set for the panel prospective grand jurors to appear, the judge shall and the district attorney or other prosecuting officer may examine the panel members prospective jurors under oath or affirmation relative to their qualifications to serve as grand jurors and the judge shall excuse those who are disqualified or claim lawful exemptions, and may excuse others for any reason which seems proper to the judge.

(4) (title) ADDITIONAL PANEL MEMBERS GRAND JURORS. If after such examination less fewer than 20 panel members 17 grand jurors remain, additional names prospective jurors shall be drawn selected, summoned and examined as aforesaid. The number so drawn shall be 3 times the difference between 20 and the number remaining on the panel. This method shall be continued until there are at least 20 17 qualified members jurors on the panel grand jury.

26. Section 756.10(5) of the statutes is repealed.

27. Section 756.10(6) of the statutes is renumbered 968.40(6) and amended to read:

968.40(6) Time grand jurors to serve. Grand jurors shall serve for a period of 6 months and the judge may order them to serve for a 2nd period of 6 months but not any longer 31 consecutive days unless more days are necessary to complete service in a particular proceeding. The judge may discharge the grand jury at any time.

28. Section 756.10(7) and (8) of the statutes are renumbered 968.40(7) and (8).

29. Sections 756.11 to 756.14 of the statutes are renumbered 968.41 to 968.44 and amended to read:

968.41 (title) Oath or affirmation of grand jurors. The judge shall administer the following oath to grand Grand jurors shall, before they begin performance of their duties: You, as grand jurors for the county of . . . , do, solemnly swear (or affirm, as the case may be) that you they will diligently inquire as to all matters and things which come before this the grand jury; that you they will keep all matters which come before this the grand jury secret; that youthey will indict no person for envy, hatred or malice, neither will you; that they will not leave any person unindicted for love, fear, favor, affection or hope of reward; and that youthey will indict truly, according to the best of your their understanding; so help you God. The clerk of court shall deliver forthwith to each grand juror a copy of such oath.

968.42 (title) Foreman Presiding juror and clerk. The grand jury shall select from their number a foreman presiding juror and a clerk. The clerk shall preserve the minutes of the proceedings before them and all exhibits.

968.43 (title) Reporter; oath; salary; assistant. (1) Every grand jury shall when ordered by the judge ordering such grand jury, employ one or more competent reporters to attend their sessions and to make and transcribe a verbatim record of all proceedings had before them.

(2) Before assuming the duties prescribed in under this section, each reporter shall make and file an oath or affirmation faithfully to record and transcribe all of the proceedings before the grand jury and to keep secret the matters relative to the proceedings. He or she Each reporter shall be paid out of the county treasury of the county in which the service is rendered such sum for compensation and expenses as shall be audited and allowed as reasonable by the court ordering the grand jury. Each reporter may employ on his or her own account the assistance of a competent typist a person to transcribe the testimony and proceedings of the grand jury, but before entering upon the duties under this section the typist subsection, the person shall be required to make and file an oath or affirmation similar to that required of each reporter.

(3) Every stenographic reporter and every typewriter operator who takes and Any person who violates the an oath or affirmation required by this section shall, upon conviction thereof, sub. (2) may be imprisoned not less than one nor for not more than 5 years.

968.44 (title) Oaths to witnesses Witnesses. The foreman presiding juror of every grand jury, and the district attorney or other prosecuting officer who is before the grand jury may administer all oaths and affirmations in the manner prescribed by law to witnesses who appear before the jury for the purpose of testifying in any matter of which they the witnesses have cognizance. At the request of the court, the foreman presiding juror shall return to the court a list, under his or her hand, of all witnesses who are sworn before the grand jury,. That and the list shall be filed by the clerk of circuit court.

30. Section 756.145 of the statutes is renumbered 968.45 and 968.45 (title), as renumbered, is amended to read:

968.45 (title) Witnesses Witness rights; transcripts.

31. Section 756.147 of the statutes is renumbered 968.46.

32. Section 756.15 of the statutes is renumbered 968.47.

33. Section 756.16 of the statutes is renumbered 968.48 and amended to read:

968.48 Attendance; absence; excuse; number required for grand jury session; number required to concur in indictment. Each grand juror shall attend every session of the grand jury unless excused by foreman presiding juror The foreman presiding juror may excuse a grand juror from attending a grand jury session only for a reason which appears to foremanpresiding juror in his or her discretion as good and sufficient cause for the excuse. No business may be transacted at any session of the grand jury at which less than 14 members of the grand jury are in attendance and no indictment may be found by any grand jury unless at least 12 of their number shall concur in the indictment.

34. Section 756.17 of the statutes is renumbered 968.50 and amended to read:

968.50 Report progress and return indictments. Said A grand jury so selected may report progress and return indictments to the court from time to time during its session and until discharged.

35. Sections 756.18 to 756.21 of the statutes are renumbered 968.50 to 968.53.

JUDICIAL COUNCIL NOTE, 1996: Statutory provisions relating to grand juries are renumbered into ch. 968, Commencement of Criminal Proceedings. Various editorial changes are made to conform to usage in revised ch. 756.

36. Section 756.22 of the statutes is repealed.

37. Section 756.23 of the statutes is repealed.

38. Section 756.24 of the statutes is repealed.

39. Section 756.25 of the statutes is repealed and recreated to read:

756.25 Juror fees and mileage. (1) Every grand and petit juror summoned shall receive an amount, not less than $16, as fixed by the county board, for each day of attendance, and an amount equal to the mileage rate set under s. 20.916(8) for each mile traveled each day in going and returning by the most usual route. A juror may not be paid for a day when the court is not in session unless payment is ordered by the court.

(2) The county board may pay jurors by the half-day. The payment shall be for 50% of the established daily pay under sub. (1) and may not affect the payment for mileage.

(3) Notwithstanding subs. (1) and (2), if the judges in any circuit have established a system under s. 756.28 in which jurors are summoned to serve for only one day or one trial, the county board may determine the amount to be paid jurors for the first day of attendance and the amount to be paid jurors for traveling to and from the court for the first day of attendance.

(4) When a juror has completed his or her service, the clerk of circuit court shall promptly initiate the procedure for payment of the juror's fees and mileage under s. 59.64(1)(g)1.

JUDICIAL COUNCIL NOTE, 1996: Based on prior ss. 756.24 and 756.25, this section implements ABA Standard 15. The payment procedure applies regardless of whether the juror was selected under s. 756.07 or under s. 756.08. Prior s. 756.26 is repealed as unnecessary.

40. Section 756.255 of the statutes is created to read:

756.255 Leave of absence. An employer shall grant an employee a leave of absence without loss of time in service for the period of jury service. For the purpose of determining seniority or pay advancement, the status of the employee shall be considered uninterrupted by the jury service. No employer may use absence due to jury service as a basis for discharging an employee or for any disciplinary action against the employee. An employer who discharges or disciplines an employee in violation of this section may be fined not more than $200 and may be required to make full restitution to the aggrieved employee, including reinstatement and back pay. Except as otherwise provided in this section, restitution shall be in accordance with s. 973.20.

JUDICIAL COUNCIL NOTE, 1996: Based on prior s. 756.25(1), this section implements ABA Standard 15(c).

41. Section 756.26 of the statutes is repealed.

42. Section 756.27 of the statutes is repealed.

43. Section 756.28 of the statutes is repealed and recreated to read:

756.28 Length of juror service; periods of required availability. (1) ONE DAY OR ONE TRIAL. The judges in any circuit may establish a system in which a person summoned under s. 756.05 may not be required to serve or attend court for prospective service as a petit juror for more than one day in a specified period, unless more days are necessary to complete service in a particular case. The specified period may not be less than 2 nor more than 4 years. In circuits where judges have established such a system, a petit juror whose deliberation ends with a verdict may not be required to participate in a 2nd trial even though the juror may not have completed the first day of juror service at the time of commencement of the 2nd trial.

(2) General 4-year eligibility. In a county where a system has not been established under sub. (1), a person may be required to be available for service as a grand or petit juror only once in any 4-year period. The period for which any person may be required to be available for service may not exceed 31 consecutive days. No person may be required to serve, or attend court for prospective service, as a juror for a total of more than 5 days unless more days are necessary to complete service in a particular case.

JUDICIAL COUNCIL NOTE, 1996: Based on prior s. 756.28, this section implements ABA Standard 5. Subsection (1) is revised to allow greater flexibility than prior statutes with respect to the length of the period during which a juror who has served for one day/one trial cannot be summoned again.

The amendment to sub. (2) is identical to a Supreme Court rulemaking petition heard Oct. 11, 1995. The Judicial Council Note to the proposal reads as follows: Subsection (2) is revised, effective Jan. 1, 1997, to specify that a person may only be required to be available for jury service once in any 4-year period. The maximum term of jury availability is reduced to 31 consecutive days, and the maximum number of days of actual court attendance is limited to five, unless more are necessary to complete a particular trial. This change is intended to implement the recommendations of the American Bar Association that such periods be as short as possible, consistent with the needs of justice.

44. Section 756.30 of the statutes if created to read:

756.30 Penalties. (1) Whoever wilfully misrepresents any material fact on a juror qualification form under s. 756.04(6) or whoever fails to return the completed qualification form within 10 days after receipt of the form may be required to forfeit not more than $500.

(2) If the clerk of circuit court commits any fraud in the selection of jurors or prospective jurors, the clerk shall forfeit not more than $500 for each offense.

(3) Any person lawfully summoned to attend as a juror who fails to attend without any sufficient excuse shall pay a fine not exceeding $40, which shall be imposed by the court to which the person was summoned and shall be paid into the county treasury.

JUDICIAL COUNCIL NOTE, 1966: Subsection (1) carries forward the penalty in prior s. 756.04(2)(b). Subsection (2) is based on prior s. 756.041, and carries the same penalty. Subsection (3) is based on prior s. 756.23.

45. Section 788.03 of the statutes is amended to read:

788.03 Court order to arbitrate; procedure. The party aggrieved by the alleged failure, neglect or refusal of another to perform under a written agreement for arbitration, may petition any court of record having jurisdiction of the parties or of the property for an order directing that such arbitration proceed as provided for in such agreement. Five days' notice in writing of such application shall be served upon the party in default. Service thereof shall be made as provided by law for the service of a summons. The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. If the making of the arbitration agreement or the failure, neglect or refusal to perform the same is in issue, the court shall proceed summarily to the trial thereof. If no jury trial is demanded, the court shall hear and determine such issue. Where such an issue is raised, either party may, on or before the return day of the notice of application, demand a jury trial of such issue, and upon such demand the court shall make an order referring the issue to a jury called and impaneled as provided in s. 756.096 summoned and selected under s. 756.06. If the jury finds that no agreement in writing for arbitration was made or that there is no default in proceeding thereunder, the proceeding shall be dismissed. If the jury finds that an agreement for arbitration was made in writing and that there is a default in proceeding thereunder, the court shall make an order summarily directing the parties to proceed with the arbitration in accordance with the terms thereof.

JUDICIAL COUNCIL NOTE, 1996: This proposal changes "impaneled" to "selected" whenever a statute refers to choosing jurors or prospective jurors, for statutory uniformity.

46. Section 805.08(2) of the statutes is amended to read:

805.08(2)(title) NUMBER OF JURORS DRAWN. A sufficient number of jurors shall be called summoned in the action so that the number applicable under s. 756.096(3)(b) 756.06 remains after the exercise of all peremptory challenges to which the parties are entitled under sub. (3). The court may order that additional jurors be impaneled selected. In that case, if the number of jurors remains more than required at the time of the final submission of the cause, the court shall determine by lot which jurors shall not initially participate in deliberations and. The court may hold the additional jurors until the verdict is rendered or discharge them at any time.

JUDICIAL COUNCIL NOTE, 1996: This proposal changes "impaneled" to "selected" whenever a statute refers to choosing jurors or prospective jurors, for statutory uniformity. Adding the last sentence is intended to allow courts to keep additional jurors to replace any juror who might not be able to complete deliberations. Deliberations would begin anew with the additional juror in place.

47. Section 805.08(3) of the statutes is amended to read:

805.08(3) PEREMPTORY CHALLENGES. Each party shall be entitled to 3 peremptory challenges which shall be exercised alternately, the plaintiff beginning; and when any party declines to challenge in turn, the challenge shall be made by the clerk by lot. The parties to the action shall be deemed 2, all plaintiffs being one party and all defendants being the other party, except that in a case where 2 or more defendants have adverse interests, the court, if satisfied that the due protection of their interests so requires, in its discretion, may allow peremptory challenges to the defendant or defendants on each side of the adverse interests, not to exceed 3. Each side shall be entitled to one peremptory challenge in addition to those otherwise allowed by law if additional jurors are to be impaneled selected under sub. (2).

48. Section 805.09(1) of the statutes is amended to read:

805.09 (1) Jury. The jury shall consist of a number of persons determined under s. 756.096(3) 756.06(2)(b).

49. Section 805.18(2) of the statutes is amended to read:

805.18 (2) No judgment shall be reversed or set aside or new trial granted in any action or proceeding on the ground of drawing, selection or misdirection of the jury, or the improper admission of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court to which the application is made, after an examination of the entire action or proceeding, it shall appear that the error complained of has affected the substantial rights of the party seeking to reverse or set aside the judgment, or to secure a new trial.

50. Section 879.45(5) of the statutes is amended to read:

879.45(5) Selection of jurors. Jurors and trial juries shall be drawn selected under ss. 756.04 to 756.096 ch. 756 and trials by jury shall be under ss. 756.04 to 756.096 and ch. 805.

JUDICIAL COUNCIL NOTE, 1996: This proposal changes "drawn" to "selected" whenever a statute refers to choosing jurors or prospective jurors, for statutory uniformity.

51. Section 880.33(2)(a)1. of the statutes is amended to read:

880.33(2)(a)1. The proposed ward has the right to counsel whether or not present at the hearing on determination of competency. The court shall in all cases require the appointment of an attorney as guardian ad litem in accordance with s. 757.48(1) and shall in addition require representation by full legal counsel whenever the petition contains the allegations under s. 880.07(1m) or if, at least 72 hours before the hearing, the alleged incompetent requests; the guardian ad litem or any other person states that the alleged incompetent is opposed to the guardianship petition; or the court determines that the interests of justice require it. The proposed ward has the right to a trial by a jury if demanded by the proposed ward, attorney or guardian ad litem, except that if the petition contains the allegations under s. 880.07(1m) and if notice of the time set for the hearing has previously been provided to the proposed ward and his or her counsel, a jury trial is deemed waived unless demanded at least 48 hours prior to the time set for the hearing. The number of jurors shall be determined under s. 756.096(3) 756.06(2)(b). The proposed ward, attorney or guardian ad litem shall have the right to present and cross-examine witnesses, including the physician or psychologist reporting to the court under sub. (1). The attorney or guardian ad litem for the proposed ward shall be provided with a copy of the report of the physician or psychologist at least 96 hours in advance of the hearing. Any final decision of the court is subject to the right of appeal.

52. Section 968.49 of the statutes is created to read:

968.49 Fine for nonattendance. Any person lawfully summoned to attend as a grand juror who fails to attend without any sufficient excuse shall pay a fine not exceeding $40, which shall be imposed by the court to which the person was summoned and shall be paid into the county treasury.

53. Section 971.04(1)(c) of the statutes is repealed and recreated to read:

971.04(1)(c) During voir dire of the trial jury;

JUDICIAL COUNCIL NOTE, 1996: This statute defines the proceedings at which a criminal defendant has the right to be present. The prior statute's reference to "all proceedings when the jury is being selected" was probably intended to include only those at which the jurors themselves were present, not the selection of names from lists which occurs at several stages before the defendant is charged or the trial jury picked.

54. Section 971.165(1)(c)2. and 3. of the statutes are amended to read:

971.165(1)(c)2. If the jury is discharged prior to reaching a verdict on the 2nd plea, the defendant shall not solely on that account be entitled to a redetermination of the first plea and a different jury may be drawn selected to determine the 2nd plea only.

3. If an appellate court reverses a judgment as to the 2nd plea but not as to the first plea and remands for further proceedings, or if the trial court vacates the judgment as to the 2nd plea but not as to the first plea, the 2nd plea may be determined by a different jury drawn selected for this purpose.

JUDICIAL COUNCIL NOTE, 1996. This proposal changes "drawn" to "selected" whenever a statute refers to choosing jurors or prospective jurors.

55. Section 972.01 of the statutes is amended to read:

972.01 Jury; civil rules applicable. The summoning of jurors, the impaneling selection and qualifications of the jury, the challenge of jurors for cause and the duty of the court in charging the jury and giving instructions and discharging the jury when unable to agree shall be the same in criminal as in civil actions, except that s. 805.08(3) shall not apply.

JUDICIAL COUNCIL NOTE, 1996: This proposal changes "impaneled" to "selected" whenever a statute refers to choosing jurors or prospective jurors, for statutory uniformity.

56. Section 972.02(1) of the statutes is amended to read:

972.02(1) Except as otherwise provided in this chapter, criminal cases shall be tried by a jury drawn selected as prescribed in s. 756.096(3)(a) or (am), whichever is applicable, and ch. 805 805.08, unless the defendant waives a jury in writing or by statement in open court or under s. 967.08(2)(b), on the record, with the approval of the court and the consent of the state.

JUDICIAL COUNCIL NOTE, 1996: This proposal changes "drawn" to "selected" whenever a statute refers to choosing jurors or prospective jurors, for statutory uniformity.

57. Section 972.03 of the statutes is amended to read:

972.03 Peremptory challenges. Each side is entitled to only 4 peremptory challenges except as otherwise provided in this section. When the crime charged is punishable by life imprisonment, the state is entitled to 6 peremptory challenges and the defendant is entitled to 6 peremptory challenges. If there is more than one defendant, the court shall divide the challenges as equally as practicable among them; and if their defenses are adverse and the court is satisfied that the protection of their rights so requires, the court may allow the defendants additional challenges. If the crime is punishable by life imprisonment, the total peremptory challenges allowed the defense shall not exceed 12 if there are only 2 defendants and 18 if there are more than 2 defendants; in other felony cases 6 challenges if there are only 2 defendants and 9 challenges if there are more than 2. In misdemeanor cases, the state is entitled to 3 peremptory challenges and the defendant is entitled to 3 peremptory challenges, except that if there are 2 defendants, the court shall allow the defense 4 peremptory challenges, and if there are more than 2 defendants, the court shall allow the defense 6 peremptory challenges. Each side shall be allowed one additional peremptory challenge if additional jurors are to be impaneled selected under s. 972.04(1).

JUDICIAL COUNCIL NOTE, 1996: This proposal changes "impaneled" to "selected" whenever a statute refers to choosing jurors or prospective jurors, for statutory uniformity.

58. Section 972.04(1) of the statutes is amended to read:

972.04(1) The number of jurors impaneled selected shall be prescribed in s. 756.096(3) 756.06(2)(a) or (am), whichever is applicable, unless a lesser number has been stipulated and approved under s. 972.02(2) or the court orders that additional jurors be impaneled selected. That number, plus the number of peremptory challenges available to all the parties, shall be called initially and maintained in the jury box by calling others to replace jurors excused for cause until all jurors have been examined. The parties shall thereupon exercise in their order, the state beginning, the peremptory challenges available to them, and if any party declines to challenge, the challenge shall be made by the clerk by lot.

JUDICIAL COUNCIL NOTE, 1996: This proposal changes "impaneled" to "selected" whenever a statute refers to choosing jurors or prospective jurors, for statutory uniformity.

59. Section 972.10(7) of the statutes is amended to read:

972.10(7) If additional jurors have been impaneled selected under s. 972.04(1) and the number remains more than required at final submission of the cause, the court shall determine by lot which jurors shall not participate in deliberations and discharge them.

JUDICIAL COUNCIL NOTE, 1996: This proposal changes "impaneled" to "selected" whenever a statute refers to choosing jurors or prospective jurors, for statutory uniformity.

60. Section 975.06(1)(b) (intro.) of the statutes is amended to read:

975.06(1)(b)(intro.) The hearing shall be to a jury, unless the defendant waives a jury. The number of jurors shall be determined under s. 756.096(3) 756.06(2)(b). The procedure shall be substantially like a jury trial in a civil action. The judge may instruct the jurors in the law. No verdict is valid or received unless agreed to and signed by five-sixths of the jurors. At the time of ordering a jury to be summoned, the court shall fix the date of hearing, which date shall be not less than 30 days nor more than 40 days after the demand for the jury was made. The court shall submit to the jury the following form of verdict:

61. Section 978.05(4) of the statutes is amended to read:

978.05(4) Grand jury. When requested by a grand jury under s. 756.15 968.47, attend the grand jury for the purpose of examining witnesses in their presence; give the grand jury advice in any legal matter; draw bills of indictment; and issue subpoenas and other processes to compel the attendance of witnesses.

62. Section 979.05(2) and (3) of the statutes are amended to read:

979.05(2) The inquest shall be conducted before a jury unless the district attorney, coroner or medical examiner requests that the inquest be conducted before the judge or court commissioner only. If the inquest is to be conducted before a jury, a sufficient number of names of potential prospective jurors shall be drawn from the master tumbler containing the names of jurors who will be drawn for petit juries in the circuit courts of selected from the prospective juror list for the county in which the inquest is to be held by the clerk of circuit court in the manner provided in s. 756.04(3), except that the reserve panel and time requirements do not apply 756.06. The judge or court commissioner conducting the inquest shall summon the persons drawn as prospective jurors to appear before the judge or court commissioner at the time fixed in the summons. The summons may be served by mail, or by personal service if the judge, court commissioner or district attorney determines personal service to be appropriate. The summons shall be in the form used to summon petit jurors in the circuit courts of the county. Any person who fails to appear when summoned as an inquest juror is subject to a forfeiture of not more than $40. The inquest jury shall consist of 6 jurors. If 6 jurors do not remain from the number originally summoned after establishment of qualifications, the judge or court commissioner conducting the inquest may require the clerk of the circuit court to draw select sufficient additional jurors' names. Those persons shall be summoned forthwith by the sheriff of the county.

(3) The judge or court commissioner shall examine on oath or affirmation each person who is called as a juror to discover whether the juror is related by blood or marriage to the decedent, any member of the decedent's family, the district attorney, any other attorney appearing in the case, any members of the office of the district attorney or any other attorney appearing in the case or has expressed or formed any opinion regarding the matters being inquired into or is aware of or has any bias or prejudice concerning the matters being inquired into in the inquest. If any potential prospective juror is found to be not indifferent or is found to have formed an opinion which cannot be laid aside, that juror shall be excused. The judge or court commissioner may impanel select one or more alternate jurors if the inquest is likely to be protracted. This subsection does not limit the right of the district attorney to supplement the judge's or court commissioner's examination of any potential prospective jurors as to qualifications.

JUDICIAL COUNCIL NOTE, 1996: Editorial changes are made to conform to revisions in ch. 756, including increased penalty for nonattendance by juror.

IT IS FURTHER ORDERED that the Notes of the Judicial Council are not adopted but shall be printed for information purposes.

IT IS FURTHER ORDERED that notice of these amendments of the rules of pleading, practice and procedure 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 16th day of January, 1997.

By the court:
Marilyn L. Graves, Clerk

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Venue in prisoner cases

In the Matter of the Amendment of Supreme Court Rules: (Proposed) SCR 70.40 - Venue in Prisoner Case

Order 96-14

On Dec. 3, 1996, the Committee of Chief Judges filed a petition requesting the
creation of a rule of court administration to establish a procedure by which
proper venue in inmate conditions of confinement and grievance proceedings would be determined by the court in which the proceeding is filed and if an evidentiary hearing is deemed likely to be required and a county other than where the proceeding was filed appears more convenient for the parties and witnesses, the case would be sent to the more convenient county by the court in which the proceeding was filed. The rule would further provide that indigency determination and a decision on the arguable merit of the proceeding would be made by the court to which the proceeding is sent or the court in which it remains.

IT IS ORDERED that a public hearing on the petition be held in the Supreme Court Room in the State Capitol, Madison, Wis., on April 15, 1997, at 1:30 p.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 22nd day of January, 1997.

By the court:
Marilyn L. Graves, Clerk

Petition

WHEREAS, in the State of Wisconsin, there are now 11 adult correctional facilities located in nine counties, and 18 adult correctional centers located in an additional seven counties; and

WHEREAS, the Department of Corrections is currently in the process of expanding existing prisons and building a new "super max" prison that will add 1,050 new beds by November 1997, and have also requested funds in the 1997-99 budget for an additional 1,100 new beds; and

WHEREAS, it is estimated the increase in prisoner-generated litigation will keep pace with, if not exceed, the growth in prison population, and that filings will occur in a greater number of counties; and

WHEREAS, during the current calendar year an estimated 600 cases are expected to be initiated in Wisconsin circuit courts by inmates of Wisconsin prisons; cases such as writs of certiori, mandamus and habeas corpus, actions filed under 42 U.S.C. 1983 and tort actions for property loss, damages, slander or negligence; and

WHEREAS, inmates are often in error with their assumptions of correct or convenient venue and attempt to file cases in inappropriate and/or multiple courts, leading to delays in processing and misunderstanding among judges and court personnel; and

WHEREAS, a Supreme Court Rule will provide guidance to judges and court personnel and consistent treatment of these cases, which is good public policy; and

WHEREAS, on Aug. 9, 1996, the chief judges agreed in concept on how venue should be addressed in these cases, and at the suggestion of the Director of State Courts, agreed that a rulemaking petition to the court was the appropriate course to pursue to implement these concepts;

THEREFORE, the chief judges hereby petition the supreme court to create the following rule effective Jan. 1, 1997, or as soon thereafter as practicable:

SCR 70.40 Venue in Prisoner Cases

The Incarcerated Person (IP) case type designation shall be used by a Clerk of Circuit Court to identify pleadings filed by any jail or prison inmate when the intention is to initiate a court case dealing with conditions of imprisonment or other grievance matters not including family, small claims, or criminal post-judgment issues related to conviction. The only issues before the court at this stage of the proceedings are whether the petitioner is indigent and whether the pleadings state a claim for which relief might be granted. Upon determination that a case has merit and states a cause of action, and after resolution of indigency and/or filing fee questions, the IP case shall be transferred and assigned a civil (CV) case type designation and number and shall proceed before the assigned judge. The IP case designation is not intended to replace family, criminal or civil case type designations when those designations are appropriate.

When an Incarcerated Person (IP) case is initiated, the circuit court shall determine on the pleadings, in the following order:

1)if venue is statutorily proper;

2)if venue is proper in more than one county;

3)if an evidentiary hearing is likely to be needed; and,

4)if another county is more convenient for parties and witnesses.

If 2), 3) and 4) are all answered in the affirmative, then the case shall be forwarded to the Clerk of Circuit Court in the more convenient county, with notice to the parties. The judge ultimately responsible for the case shall determine indigency and merit.

If a case is forwarded to another circuit court and the judge of the receiving court believes an error has been made in establishing venue, the matter shall be referred to the chief judge(s) of the district(s) involved who shall resolve the dispute. The chief judge of the receiving jurisdiction shall have the final authority.

COMMENT: This rule is intended to have three positive results. Circuit judges will determine proper venue in a consistent manner throughout the state. The IP case designation will be used in a standard manner, permitting statewide analysis of prisoner litigation workloads. Finally, only the judge in the jurisdiction where the case is filed after all changes in venue have been made will make the determinations as to merit and indigency.

Respectfully submitted this 3rd day of December, 1996.

Committee of Chief Judges

J. Denis Moran
Director of State Courts

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Clients' Security Fund

In the Matter of the Amendment of Supreme Court Rules, SCR 12.04(2) and (3) - Clients' Security Fund

Order 96-15

On Dec. 12, 1996, the Board of Governors of the State Bar of Wisconsin filed a petition requesting the amendment of SCR 12.04(2) and (3) to increase from $150,000 to $250,000 the balance required to be maintained in the Clients' Security Fund. The proposed amendment would not increase the maximum amount of any annual assessment of attorneys.

IT IS ORDERED that a public hearing on the petition be held in the Supreme Court Room in the State Capitol, Madison, Wis., on April 15, 1997, at 1:30 p.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 22nd day of January, 1997.

By the court:
Marilyn L. Graves, Clerk

Petition

To the Justices of the Wisconsin Supreme Court:

The Board of Governors of the State Bar of Wisconsin hereby petitions the Wisconsin Supreme Court to amend SCR 12.04(2) and (3) as follows:

(2)Annual Assessments. Commencing with the state bar's July 1, 1982, fiscal year, every attorney shall pay to the fund such annual assessments as are necessary to maintain a balance in the fund of $150,000 250,000, but in no event shall any annual assessment exceed $15. An attorney whose annual state bar membership dues are waived for hardship shall be excused from the payment of the annual assessment for that year. An attorney shall be excused from the payment of the annual assessment for the fiscal year during which he or she is admitted to practice law in Wisconsin.

(3)Certificate of Sufficiency. The committee shall determine the net value of the fund as of May 1 of each year. Whenever the value of the fund shall equal or exceed $150,000 250,000, after deducting all claims which the committee has determined to pay and which are not disposed of at the date of valuation and all expenses properly chargeable against the fund, the committee shall file with the supreme court prior to May 31 of that year a certificate of sufficiency to that effect. When a certificate of sufficiency is filed with the supreme court, there shall be no annual assessment for the next fiscal year.

DISCUSSION. 1. Background. The Clients' Security Fund (Fund) was established in 1981 to financially compensate clients who have lost money or other property because of the dishonest conduct of their attorneys. Since 1981, the Fund has made more than $1.2 million in reimbursements to over 170 clients.

The Fund is financed by mandatory annual assessments on all licensed Wisconsin attorneys. Each year, the State Bar Clients' Security Fund committee determines the amount of the assessment based upon past and anticipated future claims experience and the current Fund balance. By rule, the committee cannot set the annual assessment in excess of $15. SCR 12.04(2). In addition, if, on May 1 of a given year, the Fund balance equals or exceeds the fund sufficiency level of $150,000, there may be no assessment for the next fiscal year. SCR 12.04(3).

In 1992, the committee requested, and the Court approved, an increase in the fund sufficiency level from $100,000 to $150,000. At that time, the committee advised that an increase in the fund sufficiency level was required to offset the effects of inflation as well to counteract the potential for increased Fund activity due to the rising number of attorneys practicing law in Wisconsin.

In addition, since 1981 the committee has increased the maximum reimbursement amount allowed for an individual claim from $25,000 to $45,000 to provide more complete compensation to clients who have suffered large financial losses at the hands of their attorneys. In 1996, the Board of Governors, following the recommendation of the State Bar/BAPR Joint Trust Account committee, requested the Clients' Security Fund committee to further increase this maximum reimbursement amount to $75,000 to more fully protect clients who have suffered extreme financial hardship. The committee has agreed to increase the maximum reimbursement amount to $75,000 if the fund sufficiency level is proportionally increased.

2.Current Request to Increase Fund Sufficiency Amount. The Clients' Security Fund committee advises that an increase in the fund sufficiency level is necessary to keep pace with the need to increase the maximum reimbursement amount allowed per claim. Under the current fund sufficiency requirements, the committee would have to approve three maximum-level claims of $45,000 each before the Fund, carrying a minimum reserve of $150,000, would be nearly depleted. An increase in the fund sufficiency level to $250,000 would allow the committee to increase the maximum reimbursement amount to $75,000 while keeping that amount at 30 percent of the fund sufficiency level. While it has no realistic way of predicting the number of payable claims that will exceed the maximum reimbursement amount, the committee feels that the proposed higher level of reserve will help to avoid surges in assessments in the future to cover unanticipated high levels of claims activity. Increasing the fund sufficiency amount should also permit the mandatory attorney assessment to remain at no more than $15 per year.

The undersigned respectfully submits this petition on behalf of the Board of Governors and prays for an order accordingly this 9th day of December, 1996.

David A. Saichek, President
State Bar of Wisconsin

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Electronic data dissemination

In the Matter of the Amendment of Supreme Court Rules: (Proposed) SCR Chapter 75 - Electronic Data Dissemination

Order 96-16

On Dec. 30, 1996, the Director of State Courts filed a petition requesting the adoption of rules governing access to and release of electronic database information in the courts, applicable to circuit and appellate courts and the Office of the Director of State Courts.

IT IS ORDERED that a public hearing on the petition be held in the Supreme Court Room in the State Capitol, Madison, Wis., on May 6, 1997, at 1:30 p.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 22nd day of January, 1997.

By the court:
Marilyn L. Graves, Clerk

Petition

WHEREAS, with the development of the Circuit Court Automation Program (CCAP), the Wisconsin judiciary has embarked on a major effort to modernize circuit court computerized case management, financial management, and jury management systems; and

WHEREAS, the use of computers in the circuit and appellate courts has generally changed the environment in which the courts operate because technology allows for greater access to personally identifiable information regarding individuals and makes it easier to compile a dossier on an individual; and

WHEREAS, in January, 1996, the Director of State Courts convened a Court Data Access Workgroup to make recommendations for policies and procedures governing access to and release of electronic court database information; and

WHEREAS, the Court Data Access Workgroup considered the competing interests of privacy in and public access to the information accumulating in the courts' computer systems in making their recommendations; and

WHEREAS, the concepts contained in the Court Data Access Workgroup's June 5, 1996, "Draft Wisconsin Court Data Dissemination Policy and Procedures" document have been endorsed by the Committee of Chief Judges, the CCAP Steering Committee, and the Wisconsin Records Management Committee; and

WHEREAS, various interested groups throughout the court system have had the opportunity to review and comment on the "Draft Wisconsin Court Data Dissemination Policy and Procedures" document; and

WHEREAS, the Wisconsin Supreme Court has "superintending and administrative authority over all courts," pursuant to Art. VII, 3 of the Wisconsin Constitution and the authority extends to matters governing access to court records;

THEREFORE, the Director of State Courts hereby petitions the Supreme Court to adopt and promulgate Chapter 75 of the Supreme Court Rules, governing electronic data dissemination for the courts of Wisconsin, as follows:

SCR Chapter 75

Rules Governing Electronic Data Dissemination for the Court of Wisconsin SCR 75.01 Purpose and Scope.

(1)This chapter governs access to and release of electronic court database information and applies to circuit courts, appellate courts and to the director of state courts office. These rules are to be administered in the context of the Wisconsin Open Records Law, which states that:

"[A]ll 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."

These rules do, however, distinguish between information about the workings of government and its officials and information the government has on private individuals.

(2)These rules do not apply to:

(a)requests initiated by or with the consent of the chief justice, chief judge of the court of appeals, or the director of state courts to respond to the internal business of the courts; or

(b)the verbatim record of a court hearing until a certified transcript has been filed with the court.

COMMENT: "Internal business of the courts" includes, but is not limited to, case management and jury management information.

(3)Duties and responsibilities of custodians of court records under the Wisconsin Open Records Law have not changed except as specifically noted in this chapter. A custodian of a record may choose to provide information beyond what is required by rule or statute if to do so would advance the mission of the court. Such efforts do not obligate the custodian to similar efforts on subsequent occasions.

(4)Each circuit court and appellate court may promulgate local rules governing the procedures, responsible officials or staff, and production, retention, and distribution schedules of electronic database information consistent with these or other supreme court policies or rules.

SCR 75.02 Definitions.

In this chapter:

(1)"Ad hoc report" means a compilation of aggregate or court official-specific data created on a single or nonrecurring basis at the direction of the director of state courts, chief judge of a judicial administrative district, district court administrator, clerk of circuit court, chief judge or presiding judge of the court of appeals, chief justice of supreme court, or clerk of supreme court and court of appeals.

(2)"Custodian" means the person responsible for the safekeeping of records held by a court. In the circuit court the clerk of the circuit court is the presumptive custodian. In the appellate court and supreme court the clerk of supreme court and court of appeals is the presumptive custodian. Temporary handling of records is not custodianship.

(3)"New record or report" means any reordering, sorting, compilation, or tabulation of existing data not regularly generated through routine reports or previously generated through an ad hoc report. To the extent that a search of electronically stored records is available through public access terminals, the information obtained shall not be considered a new record or report.

(4)"Record" means the electronic representation of court information stored within a computer system that may be generated electronically and transformed into a comprehensible form. This definition incorporates s. 19.32(2), Wis. Stats., as it relates to the electronic representation fo court information.

(5)"Routine report" means a compilation of data created on a recurring basis for court use; may be aggregate or court official-specific.

SCR 75.03 Standards.

The following standards shall be adhered to:

(1)Public access is prohibited to records that are closed pursuant to statute, case law, rule, or other authority; or to court records that would personally identify the following:

(a)jurors, whether before or after service;

(b)victims; and

(c)witnesses, unless they have testified in open court.

COMMENT: Because technology makes it feasible to compile numerous electronic database records into a dossier on an individual, this section creates an exception to the Wisconsin Open Records Law for certain court records involving jurors, victims, and witnesses because of the special circumstances of these court participants and their right to privacy. Personally identifiable information includes, but is not limited to, name, address, telephone number, and social security number.

(2)No person may disclose information pertaining to other than their own jurisdiction unless the custodian of the original record has previously disclosed the information or consented to the disclosure.

(3)Requests for copies of information will be granted using only the technology or outside resources deemed necessary by the custodian of the record. If programs exist to permit copying, requests for computer-based information may be granted using only the type, style and format of diskette, tape, or other medium compatible with the court technology and supplied by the court.

COMMENT: The record custodian should disclose information using the medium that is most available to the custodian. Because of security and data integrity concerns, the court record custodian must provide the medium to prevent computer viruses or other technological problems.

(4)A custodian need not provide access to routine reports that are customarily released on a recurrent schedule except according to that schedule.

(5)Someone requesting to view court information on-line shall be granted reasonable use of an available public access terminal during regular office hours.

(6)Unregulated access to a court database by noncourt personnel is prohibited. Authorized direct access is provided through public access terminals, data links or other electronic means.

(7)In shared governmental systems, agreements shall be negotiated and signed by the parties relative to what information generated by one party may be disseminated by the other party or parties involved in the data sharing without notice to the originating agency.

COMMENT: Because of an increase in data sharing among governmental agencies, this section mandates that written agreements address what types of shared information can be disclosed to other agencies or to the public.

(8)The director of state courts or other records custodians may enter into agreements with commercial providers of access services to disseminate records that are otherwise open under this chapter. If the agreement would involve connection to equipment owned or provided by the supreme court, the director of state courts shall be notified and must approve the plan before a connection is made.

SCR 75.04 Procedure.

(1)Except for access provided under agreements under 75.03(7) and (8), requests for records shall be in writing and must include:

(a)information identifying the requester, including the name, telephone number, and address, if any, of where the electronic record is to be sent;

(b)a specific and detailed description of the information requested; and

(c)the format requested.

COMMENT: The telephone number is specifically requested so that a custodian who needs clarification can telephone the requester. The name and address are specifically requested so that a denial, which must be in writing, can be sent to the requester. "Address" may be an electronic address.

(2)If the request is unclear, or stated in terms inconsistent with the form and manner of data maintained by the custodian, the custodian may request clarification from the requester. If the request remains ambiguous or if accurate retrieval of the information is not possible, the request may be denied. If, according to local rule, certain requests are to be granted or denied by another authority within the jurisdiction, the request form must be forwarded immediately to that authority. Denials shall be in writing to the requester and shall state the reason or reasons for denial as well as contain notice of the right to appeal and the procedure to follow in making the appeal.

COMMENT: The appeal procedure may be used by requesters seeking review short of bringing a circuit court case.

(3)When presented with a request for information not generated by that custodian, the first choice of a custodian shall be to refer the requester to the presumptive custodian of the record. A custodian cannot, however, refuse access to a record on the basis that the record is available from another source. If access is provided by the secondary custodian, that custodian shall inform the presumptive custodian of the request and the fact that access was granted.

COMMENT: As a matter of courtesy, if a secondary custodian makes an independent determination and grants access, they are to provide notification to the presumptive custodian.

(4)Requests for circuit court information.

(a)Request for information concerning a single county. When presented with a request for circuit court information that is generated or stored in a county as well as the director of state courts office, the clerk of circuit court may either provide access or request that the director of state courts office provide access. If the director of state courts office declines the clerk's request, the clerk of circuit court shall maintain the custodial responsibility for determining an appropriate level of access and fees.

COMMENT: The option of allowing the clerk of circuit court to request that the director of state courts office provide access is to accommodate the common occurrence where a requester, seeking statewide circuit court information, makes an individual records request to each clerk of circuit court in the state.

(b)Request for information concerning more than one county. Requests for information concerning more than one county or statewide circuit court information should be directed to the director of state courts office.

(5)Requests for supreme court and court of appeals information. Requests for information concerning the supreme court and court of appeals shall be directed to the clerk of supreme court and court of appeals.

(6)Information shall be provided as soon as practicable and without delay, consistent with the conduct of governmental business. If the record cannot be provided within ten (10) working days, no later than the end of that period the custodian shall respond to the requester in writing explaining the reason for the delay and giving an estimated time of completion.

COMMENT: The ten-day period is consistent with interpretation of the "reasonable" time frame under the Open Records Law for responding to requests.

(7)If a request is made for information on a computer medium, the custodian shall provide the medium.

COMMENT: To address security and data integrity concerns, the court record custodian must provide the medium in order to prevent computer viruses or other technological problems.

(8)Information disseminated in an electronic medium shall be accompanied by a disclaimer regarding certification and accuracy which shall be in substantially the following language:

"Disclaimer. The custodian has made a reasonable effort to ensure that data/records are up-to-date, accurate, complete, and comprehensible at the time of disclosure. Authenticated information is only accurate as of the time of authentication. The court is not responsible for data that is misinterpreted or changed by anyone. Tampering with public records is a felony under s. 946.72, Wis. Stats."

COMMENT: The disclaimer reminds requesters of their responsibility to use public records wisely and that any effort to tamper with records could be prosecuted as a crime.

SCR 75.05 Procedure for Requests for Special Programming of New Records or Reports.

(1)Requests for special programming to create new records or reports shall comply with all requirements of 75.04(1). Requests related to a circuit court shall be directed to the custodian of the record, who will consult with the director of state courts office. Requests involving multiple jurisdictions or the state as a whole shall be directed to the director of state courts office. Requests involving the supreme court or court of appeals shall be directed to the clerk of supreme court and court of appeals.

(2)In determining whether to grant or deny special programming requests, the following criteria are to be considered:

a)availability of data;

b)specificity of the request;

c)potential for infringement of personal privacy;

d)potential for effect on ongoing business; and

e)the advantage to the court in providing the information through programming as opposed to manual means.

COMMENT: The "potential for infringement of personal privacy" criteria acknowledges that the compilation of numerous electronic database records could more adversely affect an individual's privacy than the existence of numerous open paper files that are unlikely to be compiled into a dossier.

SCR 75.06 Uniform Fee Schedule.

(1)A uniform fee schedule is established for circuit and appellate courts and the director of state courts office. Fees are payable to the court or office that provides the record, information, or service at the time the record, information, or service is provided, except that prepayment may be required if the total amount exceeds $5.00 as provided in s. 19.35(3)(f), Wis. Stats.

(2)The fee is a combination of the cost of medium; personnel time; mail or delivery cost; and cost of special programming.

(a)Cost of medium. Copies are made of court records only. The term "copies" includes the original production.

1.paper: $1.25 per sheet.
2.microfiche: $1.00 per card.
3.audiotape: $5.00 per tape.
4.videotape: $15.00 per tape.
5.diskette: $15.00 per diskette.
6.compact disk (CD): $40.00 per CD.

(b)Personnel time. The fee for personnel time to copy an audiotape, videotape, diskette, or compact disk is the actual cost. For other copying, there is no fee for the first 15 minutes of personnel time. The fee for time beyond the first 15 minutes is charged in 15-minute increments for any part thereof. Personnel time is charged at the actual cost, including wages and benefits, for the least expensive employee capable of identifying and providing the record.

(c)Mail or delivery cost. The fee for mailing or delivery is the actual cost and shall include necessary transmittal between courts or offices for which a public or private carrier is used.

(d)Cost for special programming. The fee for special programming will be determined by the custodian of the record on a case-by-case basis after investigation and justification of actual, necessary and direct costs for materials, equipment, staff, mailing or other justifiable location costs or required resources.

(3)Fees may be waived for government agencies or at the discretion of the custodian.

COMMENT: The fee schedule reflects the variety of media in which copies might be made and the cost of each. The costs for personnel time, mail or delivery costs, and special programming provide more specific guidance to the "actual, necessary, and direct" costs of providing records outlined in the Wisconsin Open Records Law.

SCR 75.06 Review of Rules.

The director of state courts or his or her designee shall review the rules under this chapter annually and report to the supreme court any recommendations for their modification.

COMMENT: Because of rapidly evolving technology, it is prudent to have in place a mechanism for regular review and revision of these rules.

This petition is respectfully submitted this 30th day of December, 1996.

J. Denis Moran
Director of State Courts

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Required court reporting

In the Matter of the Amendment of Supreme Court Rules: SCR 71.01 - Required Court Reporting

Order 96-17

The court held a public hearing May 20, 1996, in No. 96-04 on the court's proposal to amend SCR 71.01(2)(d) to require the reporting of opening statements and closing arguments in all proceedings. Following the public hearing, at the request of the Committee of Chief Judges, the court held the matter in abeyance to afford the Committee the opportunity to study the matter and file a response. On Nov. 29, 1996, the Committee of Chief Judges filed with the court a proposal for an amendment of SCR Chapter 71 as follows:

SCR CHAPTER 71 REQUIRED COURT REPORTING

SCR 71.01 Reporting.

(1) "Reporting" means making a verbatim record.

(2)All proceedings in Circuit Court shall be reported, except:

(a)any proceeding before a court commissioner which may be reviewed de novo; and,

(b)any matter related to scheduling, settlement conferences, pretrial conferences or other matters preceding the filing of a criminal complaint.

(3)The Director of State Courts shall develop guidelines and publish as a Rule of Trial Court Administration the use of alternate means of making a verbatim record.

IT IS ORDERED that a public hearing on the proposal of the Committee of Chief Judges shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on May 6, 1997, at 1:30 p.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 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 22nd day of January, 1997.

By the court:
Marilyn L. Graves, Clerk

Additional authority of the chief judge

In the Matter of the Amendment of Supreme Court Rules: SCR 70.21 - Additional Authority of the Chief Judge

Order 97-02

The legislature repealed Wis. Stat. 48.22 and 48.346 and created corresponding provisions as Wis. Stats. §§ 938.22 and 938.346, 95 Wis. Act 77. Accordingly, it is necessary to make corresponding changes to the references to those statutes in SCR 70.21(8) and (8e).

IT IS ORDERED that, effective the date of this order, SCR 70.21(8) and (8e) are amended to read:

(8)Section 48.22 938.22 (1)(b) and (3)(a): approval of policy and the appointment of superintendent of secure detention facilities.

(8e)Section 48.346 938.346 (5): establishment of procedure for notice to victims of children's acts.

IT IS FURTHER ORDERED that notice of this amendment 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 13th day of January, 1997.

By the court:
Marilyn L. Graves, Clerk

Wisconsin Lawyer