These
internal operating procedures, which were adopted May 24, 1984, and amended
thereafter, describe the manner in which the Supreme Court currently processes,
considers and decides judicial matters brought to the court. They also set forth the administrative and
professional staff function in the conduct of the court's judicial business and
the procedure by which the Supreme Court administers the nonjudicial business
of the court. These procedures are
intended for the advice of counsel practicing in the Supreme Court and for
information to the public; they are not rules of appellate procedure.
Following
court reorganization in 1978, we experimented with various procedures that
seemed to best serve the objectives of collegiality and efficiency. The court continually reviews its procedures
to improve the efficient processing of its caseload and the effective discharge
of its administrative responsibilities.
Accordingly, these procedures may be changed without notice as circumstances
require.
It
should be reemphasized that these are not rules. They do not purport to limit or describe in binding fashion the
powers or duties of any Supreme Court personnel. These internal operating procedures are merely descriptive of how
the court currently functions. Any internal
operating procedure may be suspended or modified by majority vote of a quorum
of the court.
I. STAFF
A. Administrative
1. Director of State Courts. The director of state courts, who is
appointed by and serves at the pleasure of the court, administers the
nonjudicial business of the court system at the direction of the chief justice
and the court. The authority and
responsibilities of the director are set forth in the Supreme Court Rules,
chapter 70.
2. Clerk. The clerk of the Supreme Court, who is appointed by the Supreme
Court, performs the duties of the office prescribed by law and such other
duties as may be prescribed by the court or the chief justice. The clerk is the custodian of all court records
and is responsible for the supervision and processing of matters from the time
of filing with the court until their ultimate disposition. The clerk is also clerk of the Court of
Appeals, and the clerk's office serves both courts. Consequently, the records filed in the Court of Appeals are readily
available to the Supreme Court.
3. Chief Deputy Clerk. The chief deputy clerk, who is hired by the
clerk of the Supreme Court, assists the clerk in the performance of the duties
of that office and performs those duties in the absence of the clerk.
4. Marshal. The marshal, who is hired by the director of state courts with
the approval of the Supreme Court, attends the sessions of the court and
performs the duties assigned by the court, the director of state courts and the
clerk.
5. Deputy Marshal. The deputy marshal, who is hired by the
marshal, assists in the performance of the duties of the marshal and, in the
absence of the marshal, performs those duties.
B. Legal
1. Supreme Court Commissioners. Supreme Court commissioners are attorneys
licensed to practice law in Wisconsin who are hired by and serve at the
pleasure of the court. The
commissioners perform research, prepare memoranda and make recommendations to
the court regarding matters brought within the court's appellate and original
jurisdictions and rule-making authority, and perform other duties as the court
or the chief justice may direct.
Matters are assigned to the commissioners on a rotating basis.
2. Law Clerks. Law clerks assist the justices in performing research. Law clerks are hired by and serve at the
pleasure of the individual justice. Law
clerks are law school graduates who are customarily hired to serve for one
year. Each law clerk performs research,
prepares memoranda and performs other duties as the individual justice may
direct.
II.
DECISIONAL PROCESS - APPELLATE AND ORIGINAL JURISDICTION
The
Wisconsin Constitution confers upon the Supreme Court appellate jurisdiction
over all courts and jurisdiction to hear original actions and proceedings. As a corollary, the court has constitutional
authority to issue all writs necessary in aid of its jurisdiction.
The
court's appellate jurisdiction is sought to be invoked by the filing of a
petition for review of a decision of the Court of Appeals by a party to whom
the decision was adverse, by the filing of a petition to bypass the Court of
Appeals by a party to the circuit court action, or by certification by the
Court of Appeals of a circuit court order or judgment appealed to the Court of
Appeals. The Supreme Court may also, in
its discretion, answer questions of law certified to it by a federal court of
appeals and the highest appellate court of any state. The Supreme Court exercises its appellate jurisdiction by
granting a petition for review, a petition to bypass, or a certification or by
deciding on its own motion to review directly a matter appealed to the Court of
Appeals. The court's original and superintending
jurisdictions are sought to be invoked by the filing of a petition. The court exercises its original or
superintending jurisdiction by granting a petition therefor or by ordering the
relief sought.
When
a matter is brought to the Supreme Court for review, the court's principal criterion
in granting or denying review is not whether the matter was correctly decided
or justice done in the lower court, but whether the matter is one that should
trigger the institutional responsibilities of the Supreme Court. The same determination governs the exercise
of the court's original jurisdiction.
A. Court Schedule
Subject
to modification as needed, in the spring of each year the court sets a schedule
for its decisional process for each month from September through June. During each month the chief justice may
schedule oral arguments, decision conferences, and administrative conferences
on the agreed-upon calendar. Any
changes in court dates need unanimous approval.
Administrative
matters are discussed at open conference as they arise.
B. Staff Analysis and Reporting
1. Petition for Review. Upon filing in the office of the clerk,
petitions for review are assigned by clerk staff to the court's commissioners
for analysis prior to the court's consideration of the matters presented. Within 50 days of assignment of the
petition, the commissioner to whom a petition for review is assigned prepares
and circulates to the court a memorandum containing a thorough legal and
factual analysis of the petition, including the applicability of the criteria
for the granting of a petition for review set forth in Wis. Stat. § (Rule)
809.62(1), a recommendation for the granting or denial of the petition and,
where appropriate, a recommendation for submission of the matter to the court
for decision on briefs without oral argument.
In
addition to the written memorandum, once each month and at other times as the
court may direct, a conference is held at which each commissioner orally
reports to the court on the petitions for review. Two weeks prior to the conference at which the commissioners
report, each commissioner circulates to the court the petitions for review, the
responses to those petitions, and a memorandum on each petition, together with
an agenda sheet listing by caption and docket number the cases to be reported
on at the conference and the commissioner's recommendation in each case. Prior to the conference, each member of the
court reads the materials circulated.
At
the conference, the chief justice states the name of each case, and the members
of the court are asked whether they have any objection to the commissioner's
recommendation. If there is no
objection, the commissioner's recommendation is accepted without further
discussion.
If
any justice objects to or asks to discuss the commissioner's recommendation, a
discussion is held in which the commissioner or a justice reports on the
case. Following discussion, the court
decides whether to grant or deny the petition for review and, if the petition
is granted, whether the case will be scheduled for oral argument or for
submission on briefs and whether the court will limit the issues in the case.
A
petition for review is granted upon the affirmative vote of three or more
members of the court. The purpose of
requiring less than a majority of the court to grant a petition for review is
to accommodate the general public policy that appellate review is
desirable.
The
commissioner to whom the petition has been assigned prepares an order setting
forth the court's decision on the petition for review and arranges for the
issuance of the order by the office of the clerk. If the petition is granted, the order specifies the court's
limitation of issues, if any, and the briefing schedule. The order provides that a party may file a
brief or may stand on the brief filed in the Court of Appeals. The parties shall not, in any new brief
filed, incorporate by reference any portion of their Court of Appeals briefs or
their briefs submitted with or in response to the petition for review.
1m. Upon the filing in the office of the clerk
under Wis. Stat. § (Rule) 809.105(11) of a petition for review of the
judgment in an appeal of a decision of the circuit court on a petition to waive
parental consent prior to a minor's abortion, the clerk shall notify the chief
justice or, if the chief justice is not available, the most senior justice
available that the petition has been filed.
As soon as practicable after the petition is filed, the clerk shall
furnish a copy of the petition to each justice and assign it, with a copy, to a
court commissioner.
The
court commissioner to whom the petition for review has been assigned shall
prepare and circulate to the court within three calendar days of the assignment
a memorandum containing a thorough legal and factual analysis of the petition,
including the applicability of the criteria for the granting of a petition for
review set forth in Wis. Stat. § (Rule) 809.62(1), a recommendation for
the granting or denial of the petition and, where appropriate, a recommendation
for submission of the matter to the court for decision with or without briefs
and with or without oral argument.
Within
five calendar days after the filing of the petition for review, the chief
justice or, if the chief justice is not available, the most senior justice
available shall convene a conference of the members of the court, which may be
held by telephone conference call, and the court shall issue an order granting
or denying the petition for review. An
order granting the petition for review shall set forth a date and time for oral
argument, if any, to be held in the court's hearing room, and a date and time
for the filing of briefs, if the court orders briefs.
If
a petition for review is granted, the court shall issue its decision, with or
without a written opinion, within 10 calendar days after the petition for
review is filed.
2. Petition to Bypass, Certification and
Direct Review. A party may request
the court to take jurisdiction of an appeal or other proceeding pending in the
Court of Appeals by filing a petition to bypass pursuant to Wis. Stat.
§ (Rule) 809.60. A matter
appropriate for bypass is usually one which meets one or more of the criteria
for review, Wis. Stat. § (Rule) 809.62(1), and one the court concludes it
will ultimately choose to consider regardless of how the Court of Appeals might
decide the issues. At times, a petition
for bypass will be granted where there is a clear need to hasten the ultimate
appellate decision.
The
Court of Appeals may request the Supreme Court to exercise its appellate
jurisdiction by certifying a pending appeal to the Supreme Court prior to
hearing and deciding the matter.
Certifications are granted on the basis of the same criteria as
petitions to bypass.
Petitions
to bypass and certifications are processed according to the procedure set forth
above for petitions for review, except that these matters are given priority
over petitions for review. Petitions to
bypass and certifications are granted upon the affirmative vote of four or more
members of the court.
Before
the court on its own motion decides to review directly a matter appealed to the
Court of Appeals, the chief justice may assign the matter to a commissioner for
analysis. If the matter is so assigned,
it is processed according to the procedures set forth in this section for
petitions to bypass and certifications.
3. Original Action. Upon filing in the office of the clerk, a
petition requesting the court to take jurisdiction of an original action is
assigned to a court commissioner for analysis prior to the court's
consideration of the merits of the matter presented. The commissioner orally reports on the matter to the chief
justice as soon as practicable, and the chief justice, or in the absence of the
chief justice, the most senior justice present, determines a date on which the
matter will be considered by the court at conference. The commissioner reports on the matter at that conference. If time permits, the commissioner circulates
a memorandum to the court prior to that conference analyzing the legal and
factual issues involved and making a recommendation for the denial of the
petition ex parte or for a response to be ordered and for the scheduling of
oral argument on the question of the court's exercise of its original
jurisdiction, if oral argument is deemed necessary. If circumstances warrant, the chief justice, or in the absence of
the chief justice, the most senior justice present, may order a response to the
petition for original action and may act on nonsubstantive motions concerning
the proceeding.
If
the petition is denied, the commissioner prepares an order setting forth that
decision and arranges for its issuance through the office of the clerk; if a
response is ordered, the commissioner prepares an order setting forth that decision,
as well as the decision on oral argument.
When the order is approved by the court, the commissioner arranges for
its issuance by the office of the clerk.
Upon the filing of a response, the matter is referred to the
commissioner for analysis and reporting.
The original action is then processed according to the procedures set
forth above for petitions for review.
A
petition to commence an original action is granted upon the vote of four or
more members of the court. The criteria
for the granting of a petition to commence an original action are a matter of
case law. See, e.g., Petition
of Heil, 230 Wis. 428 (1939).
The Supreme Court is not a fact-finding tribunal, and although it may
refer issues of fact to a circuit court or referee for determination, it
generally will not exercise its original jurisdiction in matters involving
contested issues of fact. Upon granting
a petition to commence an original action, the court may require the parties to
file pleadings and stipulations of fact.
The court customarily holds oral argument on the merits of the action
and expedites the matter to decide it promptly.
4. Petition for Supervisory Writ; Petition
for Writ of Mandamus, Prohibition, Quo Warranto, Habeas Corpus. The Supreme Court has superintending authority
over all actions and proceedings in the circuit courts and the Court of
Appeals. It does not ordinarily issue
supervisory writs concerning matters pending in circuit courts, as the Court of
Appeals also has supervisory authority over all actions and proceedings in
those courts. A person may request the
Supreme Court to exercise its superintending jurisdiction by filing a petition
pursuant to Wis. Stat. § (Rule) 809.71.
Petitions
for supervisory writ and petitions for writ of mandamus, prohibition, quo
warranto, or habeas corpus are processed according to the procedure set forth
above for petition for commencement of an original action, except that if time
does not permit consideration by the court, petitions for supervisory writ may
be denied ex parte by the chief justice, or in the absence of the chief
justice, by the most senior justice present.
If it appears from the petition that it should be dismissed on
procedural grounds, the chief justice, acting for the court, may deny the
petition ex parte.
5. Regulatory Jurisdiction. A matter within the regulatory jurisdiction
of the court, e.g., bar admission, continuing legal education, lawyer
discipline, judicial discipline, Supreme Court Rules, rules of pleading,
practice and procedure in civil and criminal actions, is assigned to a court
commissioner for analysis and reporting to the court. The commissioner prepares orders in these matters as the court
may direct and arranges for their issuance by the office of the clerk.
6. Motions. When acting on motions, the chief justice, or in the absence of
the chief justice, the most senior justice present, acts on behalf of the court
and pursuant to rules of the Supreme Court promulgated from time to time.
a. Unopposed procedural motions are acted on by
the clerk. Procedural motions which do
not adversely affect another party, e.g., motions to extend time to file
briefs or to exceed page limitations of briefs, are acted on by the clerk
without a response from the adverse party, unless the clerk requests a
response. The clerk decides these
motions in consultation with the commissioner to whom the matter has been
assigned for analysis and the chief justice.
The clerk or the commissioner prepares and issues an appropriate order.
When
appropriate, the commissioner presents a motion to the chief justice, or in the
absence of the chief justice, the most senior justice present, with a
recommendation for the granting or denial of the motion, and the chief justice
or the most senior justice present either decides the motion or determines that
the matter should be submitted to the court.
The commissioner prepares an appropriate order and, when the order is
approved, arranges for its issuance by the office of the clerk.
b. Substantive motions are assigned by clerk
staff to the court's commissioners for review and reporting to the court, with
or without a memorandum, as time may permit and circumstances may
indicate. If the motion is filed in a
case that has been assigned to a justice, clerk staff transmits the motion to
the court. When the motion has been
decided, the commissioner or clerk staff, at the court's direction, prepares an
appropriate order and, when the order is approved, arranges for its issuance by
the office of the clerk.
c. A motion to file a brief by a person not a
party to a proceeding is assigned to the court commissioner to whom the matter
has been assigned for analysis, who may grant the motion if it appears that the
movant has a special knowledge or experience in the matter at issue in the
proceedings so as to render a brief from the movant of significant value to the
court. If the commissioner questions
the propriety of granting the motion or if it appears that the motion should be
denied, the commissioner reports the matter to the court with a recommendation
that it be denied. The decision to deny
a motion to file an amicus brief is that of the court. The commissioner prepares an appropriate
order and arranges for its issuance by the office of the clerk.
If
the motion is filed in a case that has been assigned to a justice, clerk staff
transmits the motion to the court for review and decision. Clerk staff, at the court's direction,
prepares and issues an appropriate order.
d. Motions for temporary relief concerning
matters pending in the Supreme Court are assigned to the court or to the
commissioner to whom the underlying matter has been assigned and with whom it
remains at the time of the filing of the motion. The matter is reported to the court or to the chief justice, or
in the absence of the chief justice, to the most senior justice present, with
or without a memorandum, as time and circumstances may indicate. The court or the chief justice or the most
senior justice present decides the motion, and the commissioner or the court
prepares an appropriate order and arranges for its issuance by the office of
the clerk.
C. Submission Calendar
The
clerk of the court, in consultation with the chief justice, prepares and
distributes to the court for each month from September through June, inclusive,
a list of cases for submission to the court that month. The clerk assigns cases to the submission
calendar in the order of the anticipated filing of the last brief, except that
criminal cases and cases involving child custody and termination of parental
rights are given priority to the extent possible. The chief justice sets the cases to be assigned each month based
on the court’s calendar.
The
calendar sets the date of oral argument for cases assigned for submission with
oral argument and lists the cases assigned for submission on briefs. The date of submission of the oral argument
cases is the date of oral argument, and the date of submission of cases
assigned for submission on briefs is the date set by the chief justice Generally, cases are assigned for
submission with oral argument unless it appears from the issues or the briefs
that oral argument would not be sufficiently informative to the court to
justify the additional expenditure of court time or cost to the parties or
there is another case or cases assigned for submission with oral argument
presenting the same issue(s). At least
30 days prior to the first day of oral argument on the calendar, the clerk
makes the calendar public and distributes a copy of it to the court, to the
parties to the cases on the calendar, and to others who have arranged with the
clerk to receive it.
As
soon as each month's submission calendar is distributed, the court's marshal
delivers a copy of the calendar and the briefs filed to date for each case on
that calendar to the office of each justice.
Each justice's law clerk prepares memoranda thoroughly analyzing the
factual and legal issues in the cases on the calendar as the law clerk's
justice may direct. Prior to oral
argument, each justice reads the briefs and legal memoranda in each case on the
calendar.
D. Oral Argument; Pre-argument Conference
At
8:45 a.m. on each day of oral arguments the court meets in conference to
discuss the cases scheduled for oral argument that day. After the submission calendar is circulated,
each justice is randomly assigned cases on it for purposes of leading the
discussion of those cases at pre-argument conference on the day of oral
argument. At the pre-argument
conference the court isolates issues, determines what has not been adequately
presented by the parties in the briefs, and determines what issues the parties
should address during oral argument and what questions the court should address
to counsel to clarify the issues.
At
this conference, the court may discuss those cases assigned for submission on
briefs presenting the same issue(s) as a case scheduled for oral argument that
same day. The court discusses other
cases assigned for submission on briefs on the date set by the chief justice.
The
submission calendar lists those cases to be argued in the morning, beginning at
9:45 a.m., and those cases to be argued in the afternoon, beginning at 1:30
p.m. Attorneys are to be present and
prepared to argue at the time indicated, which is the earliest time at which
their case may be called. Upon their
arrival for oral argument, attorneys are to check in with the clerk's office
staff outside the courtroom.
When
a case is called by the chief justice, counsel are to take their places
immediately. The petitioner is to take
his or her place to the right of the podium facing the court and the respondent
is to be seated to the left of the podium facing the court.
At
oral argument, each side is allowed 30 minutes or such other period of time as
the court may grant to present argument supplementing or clarifying arguments
set forth in the briefs, to present argument on issues specified by the court
prior to oral argument and to discuss developments in applicable law which have
occurred subsequent to the filing of the briefs. Requests for additional time for oral argument are to be made in
writing to the clerk, but such requests are rarely granted. Oral arguments are recorded by the marshal
for the court's use, and the recordings are retained for at least 120 days
following remittitur. The court may
permit parties or interested persons to listen to the recordings. Oral arguments may also be listened to
on-line as they occur and are posted to the court's website for listening at
any time.
The
court's marshal monitors the time for oral argument by the use of light signals
on the podium.
(a) Opening Argument. A green light signals the beginning of the
opening argument of the petitioner or other party having the burden of going
forward. Twenty-five minutes is
allotted for opening argument, leaving five minutes for rebuttal. Five minutes prior to the expiration of the
time allowed for opening argument, the green light goes off and a yellow light
comes on. When the time reserved for
opening argument has expired, the yellow light goes off and a red light comes
on, and attorneys are to terminate their argument immediately. The division of oral argument time in cases
where there is a cross-appeal is to be agreed to by the parties; no more than
five minutes may be reserved for rebuttal.
A party may cede part of its time to an amicus.
(b) Respondent's Argument. The same procedure outlined above for
opening argument is used.
(c) Rebuttal. A yellow light signals commencement of the time for rebuttal
argument by the petitioner or other party having the burden of going forward;
five minutes is allotted for rebuttal unless more than 25 minutes has been used
in the opening argument. A red light
comes on when the time expires, and attorneys are to terminate their argument
immediately.
E. Post-argument Decision Conference
Following
each day's oral arguments, the court meets in conference to discuss the cases
argued that day. The chief justice
presides at the conference, conducts the court's discussion, and calls for the
vote on the decision of each case.
For
each case, the justice to whom the case was assigned for presentation at the
pre-argument conference gives his or her analysis and recommendation, the court
discusses the issues in the case, and the vote of each member of the court on
the decision is taken, beginning with the justice who has given the
recommendation. When possible, the
court reaches a decision in each of the cases argued that day, but any decision
is tentative until the decision is mandated.
Prior to a tentative decision, any justice may have a case held for
further consideration and discussion.
Following the court's tentative decision, any justice may request
reconferencing for further discussion of the case. In a week following the oral arguments, the court decides the
cases (usually discipline cases) on the month's submission calendar that are
not decided at post-argument conference.
F. Assignment of Cases
Immediately
after the court reaches its tentative decision in a case, whether at
post-argument decision conference or at a succeeding conference, the case is
assigned to a member of the court for preparation of the court's opinion. No case is assigned to a justice until after
oral argument and after the court has reached its tentative decision.
Each
month at least one case is assigned for opinion writing to each justice; an
additional case may be assigned to any justice after all justices have been
assigned at least one case. Cases are
assigned by lot: each justice is
assigned a number from one to seven according to seniority, and the next senior
justice to the chief justice draws one of seven numbered tokens lying
numbered-side down on the conference table.
The number drawn for each case determines the justice to whom the
writing of the opinion is assigned. A
case is assigned only to a justice who has voted with the majority. In the event a justice to whom a case has
been assigned subsequently decides to change his or her vote on the decision of
the case and ceases to be among the majority, he or she may withdraw from the
assignment; the case is then reassigned by lot to a justice who is among the
majority, and another case is assigned to the justice who has withdrawn.
After
the cases are assigned, the justice prepares a draft opinion for circulation to
the court.
G. Opinion
To
place a draft opinion on the conference agenda, a justice must circulate his or
her draft opinion at least seven calendar days prior to the conference. Justices are encouraged to submit objections
or suggestions in writing to the author, with copies to all justices prior to
the conference.
The court considers
each draft opinion carefully as to language and substance, and if there are any
changes to be made that are of more than minimal importance, the opinion is
recirculated and reconferenced. Any justice,
whether in the majority or dissent, may at any time prior to the issuance of
the mandate ask that an opinion be held and reconferenced.
Each
justice who elects to write an opinion concurring in or dissenting from the
court's opinion ordinarily announces that intention at an opinion
conference. The author of a concurring
or dissenting opinion and a justice who has asked that an opinion be held
should give first priority to the concurring or dissenting opinion and to the
opinion being held. Justices must
circulate concurring or dissenting opinions and remove the hold on any opinion
before circulating opinions in cases assigned to them. Any justice may reconsider his or her vote
on the court's decision or opinion until the decision is mandated.
H. Per Curiam Opinion
Per
curiam opinions may be prepared by a justice or a court commissioner for
consideration by the court. Per curiam
opinions in judicial and attorney disciplinary proceedings are prepared by a
court commissioner for the court's consideration. The decisions in all cases are made by the court, and the per
curiam opinions are reviewed by the entire court and are approved as to form
and substance by the court prior to issuance.
I. Mandate
The
court's decision in a case is mandated promptly upon approval of the opinion by
the court and upon notification by the chief justice to the clerk. The court's opinion is issued simultaneously
with any concurring or dissenting opinions.
When
a decision is ready to be mandated, the court's opinion, along with any
concurring or dissenting opinions, is transmitted to the clerk's office where
it is reviewed and assigned a public domain citation. The case name and number of opinions that are scheduled for
release are ordinarily posted on the court's website two days prior to the
scheduled release date. On the day of
mandate, the clerk's office telephones the attorneys for the parties, notifying
them of the court's decision, releases the opinion to the parties and makes
copies of the opinion available for public inspection. The opinion is also posted to the court's
website. The opinion remains subject to
further editing and modification. The
office of the clerk arranges for the publication of the final version of the
opinion in the official publications.
J. Reconsideration
The
court does not reconsider its decision on petitions for review or petitions to
bypass. Motions for reconsideration of
the judgment or order of the court in other matters are assigned in rotation by
the office of the clerk to a member of the court who participated in but did
not author the court's opinion or write a dissent in the case. The justice reports on the motion at
conference and makes a recommendation.
Every motion for reconsideration is discussed by the entire court at conference.
Reconsideration,
in the sense of a rehearing of the case, is seldom granted. A change of decision on reconsideration will
ensue only when the court has overlooked controlling legal precedent or
important policy considerations or has overlooked or misconstrued a controlling
or significant fact appearing in the record.
A motion for reconsideration may result in the court's issuing a
corrective or explanatory memorandum to its opinion without changing the
original mandate.
The
justice to whom a motion for reconsideration is assigned informs the office of
the clerk of the court's decision on reconsideration, and the clerk issues an
appropriate order. If reconsideration
is granted and further briefing required, the case is placed with other pending
cases and processed accordingly.
K. Remittitur
The
clerk transmits to the Court of Appeals or to the circuit court, as
appropriate, the mandate and opinion of the court together with the record in
the case as follows: 31 days after the filing of the opinion of the court when
no motion for reconsideration is filed; upon completion of reconsideration when
reconsideration is granted; promptly upon the court's decision denying a motion
for reconsideration.
L. Miscellaneous
1. Recusal or Disqualification of Justices. A justice may recuse himself or herself
under any circumstances sufficient to require such action. The grounds for disqualification of a
justice are set forth in Wis. Stat. § 757.19. The decision of a justice to recuse or disqualify himself or
herself is that of the justice alone.
When a justice recuses or disqualifies himself or herself, the justice
takes no further part in the court's consideration of the matter. A justice who recuses himself or herself may
file with the court or as part of a published opinion only the statement that:
(a) the justice took no part; (b) the justice did not participate; or (c) the
justice withdrew from participation.
The court's orders and the opinion in the matter bear the notation that
the justice took no part or did not participate or withdrew from consideration
of the case.
2. Indigency. If a person seeking to proceed in the Supreme Court claims to be
indigent, that claim will generally be accepted if an indigency determination
as to that person previously has been made in the Supreme Court or in the Court
of Appeals. If more than one year has
elapsed since the indigency determination or if the subsequent case is of a
substantially different type than the one in which the indigency determination
was originally made, the clerk may request the person to submit a new affidavit
of indigency form. If no indigency
determination has been made previously, the clerk sends the person an affidavit
of indigency to be completed and returned.
The affidavit is accompanied by a form order requiring completion and
filing of the affidavit within 10 days of the date of the order or, failing
which, ordering the dismissal of the proceedings.
The
clerk makes indigency determinations.
If the person is determined to be indigent, the clerk issues an order
waiving payment of the filing fee in the proceeding. If the affidavit of indigency is incomplete or is not credible,
the clerk issues an order stating that the affidavit is incomplete or the
reasons for which the affidavit is deemed not credible, stating that the
affidavit is not approved and requiring the person either to pay the
appropriate filing fee or submit a credible and completed affidavit within five
days of the date of the order, failing which the proceedings will be dismissed.
If
the clerk determines on the basis of a complete and credible affidavit that a
person is not indigent, the clerk issues an order directing the person to pay
the appropriate filing fee in the proceedings.
If the person does not respond to a court order concerning indigency,
the clerk assigns the matter to a commissioner for review; the commissioner
reports to the court with recommendations.
3. Statistics. The clerk prepares a monthly statistical report setting forth the
status of matters pending with the court and a cumulative accounting of matters
disposed by the court from the preceding September. The clerk distributes a copy of these statistical reports to the
court and to the director of state courts.
4. Voluntary Dismissal. If a notice of voluntary dismissal of a
proceeding on a petition for review, petition for bypass or certification or of
an original action or supervisory writ proceeding is filed before all of the
briefs in the proceeding are filed, the chief justice may act on the notice; if
a notice of voluntary dismissal is filed after all of the briefs in the
proceeding are filed, the chief justice shall bring the notice to the court for
action.
A. Public Hearing
The court notices and
holds a public hearing on a petition for the creation or amendment of rules
governing pleading, practice and procedure in judicial proceedings in all
courts, provided that the court deems the petition to have arguable merit. In the event the court deems a petition
meritless, it may, without holding a public hearing, summarily dismiss the
petition or decline to take any action.
See Wis. Stat. § 751.12.
The court also holds a public hearing on a petition for amendment of the
Supreme Court Rules except, in the court's discretion, when the petition
concerns ministerial or otherwise non-substantive matters or when exigent
circumstances exist.
B. Open Conference
Subject to par. g,
after the public hearing is held the court meets in open conference in the
Supreme Court Hearing Room to discuss the merits of and act on the
petition. The court also holds open
conference on other administrative matters.
The following provisions apply to the open conference:
1. Notice. The court gives notice prior to the conference as promptly and as
widely circulated as feasible. Written
notice of the conference is mailed to persons who appeared at the public
hearing, filed material with the court in the matter or made a written request
to the clerk of the court for notice of conference. If the court schedules the conference to be held immediately
following the public hearing, notice of the conference is given in the order
setting the petition for public hearing.
2. Procedure. Members of the court convene at the attorneys table in the
Supreme Court Hearing Room and the chief justice presides. Microphones are provided for sound
amplification and to provide a recording of the conference.
3. Public Attendance. The public is invited to observe the
conference from the area designated for public seating but may not participate
in it.
4. Media Coverage. The rules governing electronic media and
still photography coverage of judicial proceedings, SCR chapter 61, apply to
open conferences.
5. Staff. All matters within the court's rule-making jurisdiction are
assigned to a court commissioner for analysis and reporting to the court. See IOP. II. B. 5. The commissioner prepares and circulates
material to the court for its assistance at the conference, participates in the
conference at the court's discretion, and drafts rules and prepares orders at
the court's direction.
6. Adjournment. If the court does not complete discussion of
the petition at the conference, it adjourns the conference to a specified date
or a date to be determined. If not
adjourned to a specific date, notice of an adjourned conference is given
pursuant to par. B.1.
7. Exceptions.
a. An open conference is not held when it appears that only non-substantive aspects of the petition will be discussed.
b. Upon vote of the majority in open court, the
court may discuss and act on the petition in conference closed to the public.
c. Upon motion of a member of the court at open
conference to discuss matters pertaining to personnel, the conference is
adjourned to closed session and reconvenes in open session upon vote of the
majority.
C.
Private Discussion
Members of the court
are not precluded from discussing privately the subject of a pending rule
petition among themselves or with others.
IV. APPOINTMENT PROCESS
The
Wisconsin Supreme Court, pursuant to statutory authority and the court's rules,
regularly appoints lawyers and nonlawyer members of the public to various
boards, committees, and other entities.
In making those appointments, it is the court's objective to maximize
the participation of lawyers and the public in the work of those entities. To avoid the appearance of favoritism or
patronage in the appointment process, the court has created a committee
independent of the court to assist in the process. The Appointment Selection Committee solicits and evaluates
persons for appointment and nominates for the court's consideration the persons
it determines are best qualified to serve.
In evaluating the qualifications of persons interested in appointment, the
Appointment Selection Committee applies the criteria established by the court
for each of the entities to which appointment is made.
In order
to ensure the integrity of the appointment process and avoid any perception
that individual members of the court are interested or involved in the
selection of specific individuals to be nominated by the Committee for
appointment, the Appointment Selection Committee itself is not appointed by the
court but by persons—lawyers and members of the public—designated not by name
but by positions held in organizations related to the bar and state
government. In this way, any perception
that an individual member of the court is in a position to exert influence over
any member of the Appointment Selection Committee or any of its decisions is
obviated. No member of the court
participates in the appointment process until after the Appointment Selection
Committee has submitted nominations for specific appointment.
In
making appointments, the court's objective is to provide quality and promote
diversity on the boards, committees and other entities. The appointment procedure established by the
court is designed to produce appointments based solely on the qualities of
integrity, intelligence, experience and commitment.
A. Appointment
Selection Committee
The Appointment Selection
Committee (Committee) consists of the following 12 persons:
One attorney from the Milwaukee
metropolitan area selected by the dean of the Marquette University Law School.
One attorney from outside the
Milwaukee metropolitan area selected by the dean of the University of Wisconsin
Law School.
The president of a county bar
association located within the Eastern District of Wisconsin chosen by the
court by lot, or his or her designee.
The president of a county bar
association located within the Western District of Wisconsin chosen by the
court by lot, or his or her designee.
The chair of the Family Law
Section of the State Bar of Wisconsin, or his or her designee.
The chair of the General
Practice Section of the State Bar of Wisconsin, or his or her designee.
The president of the Government
Lawyers Division of the State Bar of Wisconsin, or his or her designee.
One former member of the Board
of Attorneys Professional Responsibility or the Board of Bar Examiners who has
not served within the preceding five years, chosen by the court by lot.
The chair of one of the
district professional responsibility committees provided in SCR 21.08, chosen
by the court by lot.
One nonlawyer member of the
public designated by the Senate Co-Chair of the Legislative Council.
One nonlawyer member of the
public designated by the Assembly Co-Chair of the Legislative Council.
One nonlawyer member of the
public designated by the chair of the State Ethics Board.
To be eligible to serve on the
Appointment Selection Committee, a lawyer must have practiced law for more than
five years.
The term of a member is three
years; the terms of the initial members are staggered by the court by lot to
provide for the expiration of four members' terms each year.
Vacancies on the Appointment
Selection Committee are filled by the persons identified above,
respectively. Where the person is
specified to be chosen by lot, a person is chosen by lot each time there is a
vacancy in that position.
The Committee selects its chair
at the first meeting of each calendar year.
Staff support is provided to the Committee.
B. Meetings
The Committee meets at such
times as considered necessary by its chair.
The meetings are held at locations and times so as to enable the
greatest number of members to participate.
C. Nomination
Procedure
1. Notice of
Vacancy. Each
board, committee and other entity to which the Supreme Court makes appointment
of lawyers and nonlawyer members of the public notifies the clerk of the court
as soon as practicable of appointments that need to be made. The clerk of the court notifies the
Committee chair of those appointments.
2. Information to
and Solicitation of Interested Persons. In addition to
the information disseminated by the court regarding the appointment of lawyers
and nonlawyer members of the public, the Committee publicizes the appointments
to be made by such means as, in the Committee's discretion, will provide notice
to the greatest number of persons likely to be interested in being
appointed. To the extent it deems
necessary, the Committee may conduct in-person information and solicitation sessions
to produce qualified persons interested in being appointed.
3. Resumes;
Interviews. The Committee invites persons interested in being
appointed to submit a written resume of their qualifications. The Committee may personally interview those
persons whose resumes demonstrate qualifications that appear to warrant a
personal, confidential interview before the full Committee or any number of its
members the Committee may designate.
4. Nomination. Not
less than 30 days prior to the expiration of a term or other applicable date
that requires an appointment by the Supreme Court, the Committee submits to the
Supreme Court the names of at least two persons it nominates for
appointment. If more than one position on
a particular board, committee or other entity is to be filled by appointment at
the same time, the Committee, in its discretion, may submit the number of names
it considers appropriate for appointment to the positions generally or in
respect to each position separately.
Together with the nominations, the Committee submits to the court the
resumes and other material it has considered regarding the persons
nominated. The court may ask the
Committee to submit additional nominations.
5. Reappointment. When
a member of a board, committee or other entity is eligible for reappointment to
a successive term, the Committee ascertains whether the member regularly
attended meetings of the board, committee or other entity, made significant
contribution to its work, and is willing to accept reappointment. If the member's participation has been
satisfactory and the member is willing to accept reappointment, and the
Committee nominates the member for reappointment to a successive term, it is
unnecessary for the Committee to nominate other persons for appointment to the
position. If the member's participation
has been unsatisfactory or the member is not willing to accept reappointment,
the Committee proceeds as in the case of an appointment.
6. Criteria. In
determining the qualifications of persons for appointment, the Committee
applies the criteria for the specific position established by the court from
time to time and provided to the Committee in writing. The Committee may, with the approval of the
court, apply additional specific criteria.
D. Reimbursement
Members of the Committee are
reimbursed for travel, lodging and related expenses reasonably incurred in
carrying out their duties.
Amended July 1, 1991; February 18, 1992; June 24, 1992; June 1, 1995; September 16, 1996; June 22, 1998; March 16, 2000; April 2006.