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The Third Branch

Judicial code addresses pro se litigants

By Reserve Judge Margaret J. Vergeront, Access to Justice Commission

Judge Margaret J. Vergeront

Judge Margaret J. Vergeront

The Wisconsin Code of Judicial Conduct now provides guidance on adjudicating cases with self-represented litigants.  Effective July 1,  a new subdivision provides:

SCR 60.04 (1) (hm)  A judge shall uphold and apply the law and shall perform all duties of judicial office fairly and impartially.  A judge shall also afford to every person who has a legal interest in a proceeding, or to that person's lawyer, the right to be heard according to the law.  A judge may make reasonable efforts, consistent with the law and court rules, to facilitate the ability of all litigants, including self-represented litigants, to be fairly heard.

The obligations in the first two sentences were already contained in SCR 60.04.  The third sentence is new.  As explained in the final order adopting this rule, "[t]he majority of the court agrees that the Wisconsin Code of Judicial Conduct, SCR Ch. 60, should be amended to clarify that a judge's reasonable efforts to facilitate the ability of all litigants, including self-represented litigants, to be fairly heard are consistent with a judge's obligation to perform all judicial duties fairly and impartially."  S. Ct. Order 13-14, 2014 WI 49 (issued July 1, 2014, eff. July 1, 2014).

A new comment accompanying the new rule provides additional guidance, elaborating on the discretion that a judge "may exercise consistent the law and court rules to help ensure that all litigants are fairly heard." Id. at 7.  The new comment also lists nine non-exclusive examples of steps that "a judge may take in the exercise of such discretion."  Id. at 7-8.

As the final order explains, the new rule and comment are "not intended to change the law or impose new obligations on judges."  Id. at 5.

The final order provides that the court will evaluate the impact in three years.  To facilitate this process, a committee, convened by the Committee of Chief Judges and the Wisconsin Court of Appeals, is to file a report proposing criteria and protocol for the evaluation. 

The petition to create a new rule and comment was filed by the Access to Justice Commission. The drafting committee consisted of ten trial judges, three court commissioners and two Commission members.  At the hearing on the petition, 13 speakers – including trial judges, a court commissioner, a municipal judge, and attorneys – supported the petition; and 37 individuals and organizations submitted written comments. There were no speakers or written comments opposing the petition.  For more details on the drafting and hearing process, see the final order. Additional information about the rule petition can be found at: www.wicourts.gov/scrules/1314.htm .

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