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
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.
Filed rules petitions are discussed at open conference as
they may require. No matter, except filed rules petitions, shall be on the
agenda for or discussed in open administrative conference unless a majority of
the court gives prior approval in closed conference or by email for the
placement of that matter on the open conference agenda.
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
B. Open Conference
After a
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 rules petition. The court also holds open conference on other
administrative matters if a majority of the court has given prior approval in
closed conference or by email for the placement of such administrative matter
on the open conference agenda. The
following provisions apply to the open conference on rules petitions:
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 rules 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 rules 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 rules petition will be discussed.
b. Upon vote of the
majority in open court, the court may discuss and act on the rules 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.
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
One
attorney from outside the
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; May 4, 2012.