Wisconsin Lawyer
Vol. 79, No. 9, September
2006
Supreme Court Orders
The Wisconsin Supreme Court will hold a public hearing on Oct. 24 to
consider petitions to amend the rules of appellate procedure (order
06-02) and to adopt procedures to suspend or deny law licenses for
delinquent state taxes (order 06-05). The court will hold an open
administrative conference on Oct. 25 to set an effective date for
amendments to the Rules of Professional Conduct for Attorneys (order
04-07).
Appellate Procedure
In the Matter of the Petition to Amend Wis. Stat. §
(Rule) 809.19(3)
Order 06-02
On March 8, 2006, the Department of Workforce Development filed a
petition proposing an amendment to Wis. Stat. § (Rule) 809.19(3)
stating that a respondent who is not a party in interest to an appeal
may file a statement that no brief will be filed.
IT IS ORDERED that a public hearing on the petition shall be held in
the Supreme Court Room in the State Capitol, Madison, Wis., on Oct. 24,
2006 at 9:30 a.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
publication of a copy of this order and of the petition in the official
state newspaper once 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 26th day of July, 2006.
By the court:
Cornelia G. Clark, Clerk of Supreme Court
Petition
Petitioner, the State of Wisconsin Department of Workforce
Development ("DWD"), hereby petitions the Wisconsin Supreme Court
pursuant to the Court's rulemaking authority under Wis. Stat. §
751.12 and its administrative authority over all courts conferred by
Article VII, § 3 of the Wisconsin Constitution, to amend the
Supreme Court Rules of Appellate Procedure, Wis. Stat. § (Rule)
809.19(3) as set forth herein.
The child support program under Wis. Stat. § 49.22, is a
federally funded, state administered program, the purpose of which is to
establish paternity and establish and enforce child support obligations.
In Wisconsin, the DWD is responsible for administration of the program,
which is operated in 71 county and 3 tribal agencies. County Boards are
required to contract with the DWD to implement and administer the
program under Title IV of the Federal Social Security Act. See
Wis. Stat. § 59.53(5).
The DWD is authorized by s. 49.22(7) to delegate its authority to
represent the State of Wisconsin in child support and paternity actions
to attorneys responsible for support enforcement under s. 59.53(6).
Attorneys responsible for support enforcement are authorized to
represent the State in actions or proceedings under ss. 49.22(7),
767.075, 767.08, 767.45 and Ch. 769. However, the authority of child
support agency attorneys under either s. 49.22 or s. 59.53(5) is limited
to representation of the State. No attorney-client relationship exists
between the agency attorney and the individuals who apply for child
support services. See Wis. Stat. § 767.075(2). Rather, a
child support agency attorney's participation in a case is limited, as a
matter of law, to issues related to establishing paternity and child
support.
It is not uncommon for an appeal to be filed in such cases that
relates to the custody or placement of the child, but not to child
support. The State is not a party of interest in those issues.
Nonetheless, DWD has been repeatedly advised that if the State
determines that an appeal does not raise issues related to child
support, it is not sufficient to simply notify the court of this fact
with a brief letter. Indeed, DWD has been advised that such a
letter:
"[D]oes not discharge [DWD's] responsibilities under our rules of
appellate procedure. If the respondent feels that the appeal does not
raise issues related to child support, it should file a brief stating
that legal position and the legal authority for it."
In another instance, after filing a letter indicating it was not a
party of interest to the appeal, the DWD was threatened with sanctions
pursuant to Wis. Stat. § 809.83(2) for failure to file a brief.
The briefing requirement is time consuming and costly for counties.
It is of no benefit to the client, the State. Therefore, the DWD hereby
petitions the Wisconsin Supreme Court for an order amending Wis. Stat.
809.19(3)(a), as follows:
Section 1. Wis. Stat. s. 809.19(3)(a)2. of the rules
of appellate procedure is amended to read:
2. The brief must conform with sub. (1), except that the statement of
issues and the statement of the case may be excluded, and, a
respondent who is not a party in interest to the appeal may file a
statement that no brief will be filed.
Respectfully submitted this 8th day of March, 2006.
By: Constance M. Chesnik
Department of Workforce Development
Madison, Wis.
Top of page
Procedure to Suspend or Deny Law License for
Delinquent Taxes
In the Matter of the Petition for Adoption of a Procedure to
Suspend or Deny the License to Practice Law of a Person Certified as
Delinquent in Payment of Wisconsin State Taxes
Order 06-05
On July 18, 2006, the Wisconsin Department of Revenue filed a
petition proposing the amendment or creation of Supreme Court Rules by
which the court would suspend an attorney's license to practice law or
refuse to grant bar admission to an applicant if the attorney or
applicant is certified to be liable for delinquent taxes, as provided by
statute.
IT IS ORDERED that a public hearing on the petition shall be held in
the Supreme Court Room in the State Capitol, Madison, Wis., on Oct. 24,
2006 at 9:30 a.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
publication of a copy of this order and of the petition in the official
state newspaper once 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 1st day of August, 2006.
By the court:
Cornelia G. Clark, Clerk of Supreme Court
Petition
Since 1997, the Wisconsin Legislature has provided for the denial,
nonrenewal, revocation and suspension of licenses of persons certified
to be delinquent in the payment of state taxes. On July 25, 2005, the
legislature enacted 2005 Wisconsin Act 25, which, inter alia, amended
Wis. Stat. §§ 73.0301(5)(b) (intro.), 73.0301(2)(b)1.a.,
73.0301(2)(b)1.b., 73.0301(2)(b)2, 73.0301(2)(c)2, 73.0301(5)(a), and
created Wis. Stat. § 73.0301(5)(am) and § 73.0301(2)(b)2m.
See generally, 2005 Wis. Act 25 at 274-275, reproduced at http://www.legis.state.wi.us/2005/data/acts/05Act25.pdf.
(2.69MB PDF)
The legislative directive now clearly encompasses licenses to
practice law in Wisconsin, see s. 73.0301(1)(d)11. Effectuating
these legislative enactments requires the amendment and creation of
certain Supreme Court Rules, to create a procedure by which the Court
would suspend an attorney's license to practice law or refuse to grant
bar admission to an applicant if the attorney or applicant is certified
to be liable for delinquent taxes, as provided by statute. See
ss. 73.0301(2)(a); 73.0301(3)(a)1, and 73.0301(4), stats.
Therefore, the Wisconsin Department of Revenue, hereby petitions the
Wisconsin Supreme Court for an order amending or creating Supreme Court
Rules, as follows:
Section 1. SCR 11.05 of the supreme court rules
is created to read:
SCR 11.05 Suspension on certification of tax
delinquency.
(1) Upon submission of a certification from the department of
revenue under s. 73.0301(2)(b)1.a., stats. that a person licensed to
practice law in this state is liable for delinquent taxes, the supreme
court may suspend the license of that person to practice law for up to
[5] years.
(2) Before entering an order suspending an attorney license
under sub. (1), the supreme court shall issue an order requiring the
attorney to show cause why his or her license to practice law should not
be suspended. The supreme court may inquire into the reasons for the
delinquency or any other matters the court considers appropriate. The
court may enter any orders that it deems appropriate.
(3) The supreme court may return the certification of tax
delinquency to the department of revenue upon a showing by the attorney
that the department or revenue failed to provide notice under s.
73.0301(2)(b)1.b., stats. of its intent to seek license suspension and
that, as a result, the attorney was not aware of the right to a hearing
as provided by s. 73.0301, stats. or has not had a reasonable
opportunity to pay the delinquency or enter into an agreement with the
department of revenue to satisfy the delinquency.
(4) A license to practice law suspended under sub. (1) shall be
automatically reinstated upon the expiration of the period for which the
attorney's license to practice law was suspended unless the license is
sooner reinstated by order of the supreme court upon notification by the
department of revenue that the attorney has paid the delinquent tax in
full or has made satisfactory payment arrangements with the department
of revenue to satisfy the delinquency.
(5) An attorney whose license to practice law is suspended under
sub. (1) shall comply with the provisions of SCR 22.26.
(6) The supreme court may disclose the social security number of
a member of the state bar to the department of revenue for the purpose
of administering s. 73.0301, stats.
Section 2. SCR 40.06(4) of the supreme court
rules is amended to read:
SCR 40.06(4) The board shall not certify an
applicant while an attorney disciplinary matter against the applicant is
pending, or the applicant is certified by the
department of workforce development as delinquent in making
court-ordered payments of support or failing to comply with a subpoena
or warrant, as those terms are defined in SCR 11.04(1), or the
applicant is certified by the department of revenue as "liable for
delinquent taxes," as defined in s. 73.0301(1)(c), stats. If an
applicant's license to practice law in another jurisdiction is suspended
or revoked for reasons related to professional responsibility at the
time the application is filed or at any time that the application is
pending, the suspension or revocation is a sufficient basis for denial
of certification.
Respectfully submitted this 18th day of July, 2006.
By: Wisconsin Department of Revenue
Michael L. Morgan, Secretary
Madison, Wis.
Top of page
Rules of Professional Conduct for
Attorneys
In the matter of the Petition for Amendment to Supreme
Court Chapter 20 - Rules of Professional Conduct for
Attorneys
Order 04-07
The Wisconsin Supreme Court is considering a petition to amend
Supreme Court Rules Chapter 20, the Rules of Professional Conduct for
Attorneys. The petition was filed on July 29, 2004, by the Wisconsin
Ethics 2000 Committee. The court conducted a public hearing on Feb. 17,
2005, in which numerous persons participated. Open administrative
conferences on the petition were conducted on Nov. 30, 2005, Dec. 15,
2005, Jan. 19, 2006, Jan. 25, 2006, Feb. 28, 2006, March 7, 2006, and
March 15, 2006. The court then released a draft of the proposed
amendments and invited interested persons to submit written corrections
or comments on or before Sept. 8, 2006. Comments may be submitted to
Cornelia G. Clark, Clerk of the Supreme Court via email at
Cornelia.Clark@wicourts.gov; by fax to (608) 267-0640; or by regular
mail to P.O. Box 1688, 110 E. Main St., Suite 215, Madison, WI
53701-1688.
On Oct. 25, 2006, at 9:30 a.m., at its open administrative
conference the court will discuss final issues relating to the proposed
draft and will determine the appropriate effective date for amendments.
As this matter has already been the subject of a public hearing, general
public testimony will not be entertained at the open conference. The
court may direct questions to individuals present at the conference to
aid the court's consideration of these matters. Therefore,
IT IS ORDERED that on Oct. 25, 2006, at 9:30 a.m., at its open
administrative conference in the Supreme Court Room in the State
Capitol, Madison, Wis., the court will discuss final issues relating to
the proposed draft and will determine the appropriate effective date for
amendments.
IT IS FURTHER ORDERED that notice of this conference 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 not more than 60 days nor less than 30 days before the date of
the hearing.
Dated at Madison, Wis., this 7th day of August, 2006.
By the court:
Cornelia G. Clark, Clerk of Supreme Court
Wisconsin Lawyer
