Go to Related Article in Feb. 1997 Wisconsin Lawyer: Expanding the Use of Court Commissioners

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

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