Wisconsin Judicial Council Committee Projects Update - January 2015
Summary of Current Committee Projects
Appellate Procedure Committee
- Study and reorganize procedural rules for prisoner challenges to agency decisions to provide greater clarity and reduce errors on appeal.
- Study and recommend amendment to Rule 809.15 to promote greater consistency and completeness of the record on appeal.
Criminal Procedure Committee
- Study procedures for search warrants authorizing the use of geolocation tracking devices and interception of electronic communication.
- Commencing a new project to study and make recommendations concerning preliminary examinations.
- Commencing a new project to study and make recommendations concerning discovery depositions.
Evidence and Civil Procedure Committee
- Study amending rules regarding spoliation of evidence, consistent with amendments to the federal rules.
- Study a possible update to Wisconsin’s class-action statute (Wis. Stat. § 803.08) to bring it more closely aligned with the federal class-action rule.
- Study whether to recommend codification of the expert witness privilege as recognized by the Wisconsin Supreme Court in Burnett v. Alt, 224 Wis.2d 72, 589 N.W.2d 21 (1999) and its progeny.
- Study sufficiency of notice in statutory provisions regarding service.
Judicial Council Accomplishments: 2009-2014
- Drafted and filed supreme court rule change petition amending Wis. Stat. §
809.23(3) to permit parties to cite to unpublished court of appeals decisions. Prior to the amendment, certain areas of practice (for example, small claims, termination of parental rights, juvenile, mental commitment, civil forfeiture, etc.) suffered from limited citable case law because opinions generally are issued by a single judge of the court and routinely are not published. The rule promotes greater consistency in the court’s decision-making process, which is likely to reduce the number of appeals. Rule was adopted by supreme court order 2009
- Drafted bill tolling the time limit for filing a petition for review in the supreme court while a motion for reconsideration is pending in the court of appeals. See Wis. Stat. § 809.24. The rule promotes more efficient court process and saves parties’ unnecessary attorneys’ fees incurred by filing duplicative pleadings. Bill enacted as 2009 Wisconsin Act 25.
- Drafted bill specifying that appeals in chapter 980 (sexually violent person) and section 971.17 (not guilty by reason of mental disease or defect) commitment proceedings are subject to the unified appeal procedure in Wis. Stat. sections (rules) 809.30 through 809.32, creating a more efficient and consistent court process. See Wis. Stats. §§ 809.30-.32, 48.465, 938.47, 971.17(7m), and
980.038(4)(a). Bill enacted as 2009 Wisconsin Act 26.
- Drafted bill allowing suppression of evidence issues to be raised on appeal in chapter 938 (Juvenile Justice Code) cases in which the juvenile has admitted to the delinquency petition. This amendment preserves constitutional rights of juvenile defendants, and improves judicial efficiency by avoiding unnecessary trials. See Wis. Stats. §§ 808.03(3), 938.297(8), and 971.31(10). Bill enacted as 2009 Wisconsin Act 27.
- Worked with the Wisconsin Municipal Judges Association and the Legislature on comprehensive amendments to the laws governing municipal courts. ). Bill enacted as 2009 Wisconsin Act 402.
- Drafted and filed supreme court rule change petition amending Wis. Stat. §
904.085 (4) (e) to require an in camera hearing to protect potentially confidential mediation communications from being revealed in open court prior to a ruling on admissibility. Rule was adopted by supreme court order 2010 WI 31.
- Monitored the collaborative work between the Institute for the Advancement of the American Legal System and the American College of Trial Lawyers, including efforts to identify perceived problems of cost and delay in the U.S. civil justice system and implement pilot projects to aid in developing possible solutions.
- Studied the issue of compensation of court-appointed attorneys under SCR 81, at the request of the supreme court.
- Completed recommendations for legislative amendments to the statutes regarding presentence investigation reports. This has been a huge undertaking over the past eight years, and involved collaborative work with two different advisory committees, as well as consultations with many different stakeholders, including the Department of Justice, the Department of Corrections and the District Attorneys Association. Legislative Reference Bureau (LRB) prepared a bill and analysis. Legislative introduction pending.
- Studied the need for procedural rules governing ghostwriting of legal documents.
Drafted recommendations to the Planning and Policy Advisory Committee (PPAC). PPAC drafted proposed rules and the Supreme Court issued an order to amend and create rules and statutes to support and expand "limited scope representation." Rules were adopted by supreme court order 2014 WI 45.
- Studied and made recommendations concerning calculation of time for appeals and requests for new trials in small claims cases. The State Court’s Records Management Committee amended the instructions on the applicable small claims form to provide clarification consistent with the Council’s recommendation.
- Studied and issued recommendation regarding precedential value of overruled court of appeals’ decisions following Blum v. 1st Auto & Cas. Ins. Co., 2010 WI
- Created rules to govern the discovery of electronically stored information. See Wis. Stats. §§ 802.10, 804.01, 804.08, 804.09, 804.12, and 805.07. These amendments increase judicial efficiency by improving consistency and predictability in the discovery process which thereby can eliminate the need for multiple motion hearings; the amendments also reduce the economic burden on the parties that can result from this type of discovery. Adopted by the supreme court. Rules were adopted by supreme court order 2010 WI 67; 2010 WI 129.
- Studied and issued recommendations concerning plea withdrawal, at the request of the court of appeals.
- Studied and drafted rules to address inadvertent disclosure of privileged information. See Wis. Stat. §§ 804.01(7), 805.07(2)(d), 905.03(5), and Wis. Stat.
§ 804.01(2)(c). The proposed amendments resolve uncertainty in the courts about the effect of certain disclosures of communications or information protected by the lawyer– client privilege or as work product. Adopted by the supreme court. Rules were adopted by supreme court order 2012 WI 114.
- Studied and made recommendation concerning the issue of “presence” and provided a recommendation regarding whether a definition should incorporated into the Code of Criminal Procedure.
- Studied the need for a law governing the transfer of structured settlement payments. Provided recommendation to the Legislative Council, which accepted the project and appointed a study committee. A draft bill was unanimously approved by the study committee. Legislative introduction pending.
- Drafted and filed supreme court rule change petition to protect the identity of victims in appellate documents that are publically available via the internet. Rule was approved by the court at its administrative conference on December 5, 2014. Supreme court order currently pending.
- Studied the Uniform Interstate Depositions and Discovery Act, at the request of the Wisconsin Uniform Law Commission. Filed a supreme court rule change petition to adopt a proposed rule based on the uniform act. A public hearing was held by the court on September 29, 2014, and the petition is currently pending.
- Studied and made recommendations regarding possible revisions to the Wisconsin Rules of Evidence, including the Deadman’s Statute (Wis. Stat. §
885.16), the addition of a bias rule, the rule of completeness (Wis. Stat.§ 901.07), statements of injured persons (Wis. Stat. § 904.12, “other acts” evidence (Wis. Stat. § 904.04), witnesses’ character for truthfulness (Wis. Stat. § 906.08), authentication of records of regularly conducted activity (Wis. Stat. § 908.03), impeachment by prior criminal conviction (Wis. Stat. § 906.09), definition of hearsay (Wis. Stat. § 908.01), statements of recent perception (Wis. Stat. §
908.045 (2)), and privileged communications (Wis. Stat. § 885.205). Recommendations are currently being circulated for public comment prior to filing a supreme court rule change petition.
- Studied and drafted 2013 Assembly Bill 383, containing a comprehensive revision to the Code of Criminal Procedure (except Chapter 973, Sentencing) that was introduced in the Legislature in 2013. It received an informational hearing before the Assembly Judiciary Committee on September 26, 2013 and a public hearing before the Senate and Assembly Judiciary Committees on October 11, 2013. At the request of several criminal justice stakeholders, the bill was held to allow additional consideration. The Judicial Council appointed a broad committee of criminal justice stakeholders to work throughout the summer of 2014 to recommend several amendments, which were approved by the full Judicial Council. The bill includes provisions to encourage prompt disposition of misdemeanors, and encourage earlier and more complete discovery. It also includes a general consolidation and reorganization to make the rules more accessible and easier to understand; and several new statutes to codify case law, to provide authority, or to clarify procedures. The Council is currently working with the LRB to finalize the amendments. Reintroduction is anticipated in January 2015.