Wisconsin Lawyer
Vol. 78, No. 10, October 2005

Supreme Court Orders

• Rules of Professional Conduct for Attorneys
• Lawyer Regulation System Cost Assessments
• Depositions Conducted Outside Wisconsin
• Appeal Procedures in TPR Cases, hearing Nov. 14
• Language Regarding BBE Fees

Rules of Professional Conduct for Attorneys

In the Matter of the Petition for Amendment to Supreme Court Chapter 20 - Rules of Professional Conduct for Attorneys

Order 04-07

On July 29, 2004, the Wisconsin Ethics 2000 Committee filed a petition seeking to amend Supreme Court Rules Chapter 20, the Rules of Professional Conduct for Attorneys. On Feb. 17, 2005, the court conducted a public hearing on the petition, in which numerous persons participated. At the open administrative conference immediately following the hearing the court acknowledged the importance of the Ethics 2000 Committee's report and the far-reaching implications of its proposal. The court resolved to consider various aspects of the petition at a series of future open administrative conferences. Therefore,

IT IS ORDERED that on Nov. 30, 2005, at 9:30 a.m., at its open administrative conference in the Supreme Court Room in the State Capitol, Madison, Wis., the court shall discuss the (proposed) Preamble to SCR Ch. 20, (proposed) Terminology, and (proposed) SCR 20:3.8 entitled Special Responsibilities of a Prosecutor.

IT IS FURTHER ORDERED any interested persons may file with the court a written submission regarding the subjects identified for this conference no later than Nov. 19, 2005. As this matter has already been the subject of a public hearing, general public testimony will not be entertained at the open conference. The court may direct questions to individuals present at the conference to aid the court's consideration of these matters.

IT IS FURTHER ORDERED that notice of this conference shall be given by a single publication of a copy of this order and of the petition in the official state newspaper and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.

Dated at Madison, Wis., this 12, day of September, 2005.

By the court:

Cornelia G. Clark,
Clerk of Supreme Court

Lawyer Regulation System Cost Assessments

In the Matter of the Petition for Amendment to Supreme Court Rule 22.001(3) Relating to Cost Assessments in the Lawyer Regulation System

Order 05-01

On Jan. 18, 2005, Keith Sellen, Director of the Office of Lawyer Regulation, filed a petition seeking to amend Supreme Court Rule 22.001(3) relating to cost assessments in the lawyer regulation system.

IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on Nov. 14, 2005, at 9:30 a.m.

IT IS FURTHER ORDERED that the court's conference in the matter shall be held promptly following the public hearing.

IT IS FURTHER ORDERED that notice of the hearing be given by a single publication of a copy of this order and of the petition in the official state newspaper and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.

Dated at Madison, Wis., this 1st day of September, 2005.

By the court:

Cornelia G. Clark,
Clerk of Supreme Court

Petition

The Petitioner, Keith L. Sellen, Director of the Office of Lawyer Regulation, hereby petitions the Supreme Court of Wisconsin for an order that amends Supreme Court Rule 22.001(3) relating to the definition of costs in the Lawyer Regulation System as follows.

PROPOSED AMENDMENT

SCR 22.001 Definitions.

(3) "Costs" means the compensation and necessary expenses of referees, fees and litigation expenses other than counsel fees of counsel for the office of lawyer regulation, a reasonable disbursement for the service of process or other papers, amounts actually paid out for certified copies of records in any public office, postage, telephoning, adverse examinations and depositions and copies, expert witness fees, witness fees and expenses, compensation and reasonable expenses of experts and investigators employed on a contractual basis, and any other costs and fees authorized by chapter 814 of the statutes.

Justification: On April 2, 2004, the agenda for the Supreme Court's annual open meeting with the components of the Lawyer Regulation System, which it conducts pursuant to Supreme Court Rule 21.09, included a discussion about the appropriateness of cost assessments in disciplinary cases.

Since the meeting, the Office of Lawyer Regulation, Board of Administrative Oversight, and State Bar Lawyer Regulation System Study Committee have discussed proposals to improve upon the present method.

The petitioner proposes that costs related to hourly fees of counsel for the office of lawyer regulation would no longer be assessed against respondents in disciplinary cases. All other costs would continue to be assessed.

Cost assessment data for fiscal years 1999 through 2003 show the average annual costs assessed by the Court to be approximately $86,000.00, of which an average of approximately $55,000.00 relates to fees of counsel for the office of lawyer regulation. Actual collections of costs during these years averaged approximately $74,000.00. Proportionally, approximately $47,000.00 of annual collected costs would relate to fees of counsel for the office of lawyer regulation. The result of the rule change would be an average increase in the annual dues assessment of approximately $3.00 per dues paying attorney. For the next two fiscal years, the average increase would probably exceed $3.00 due to a temporary increase in litigation. Nevertheless, the amount should return to $3.00 for the long term.

A good method for assessing costs should allocate the cost of enforcement fairly between members of the profession and the respondent attorney, and should neither detract from the determination of truth nor require significant effort or expense in its application. The rule change would adopt the American practice: each litigant pays its own attorneys' fees. In addition to adopting the American practice, the rule change would reduce any disincentive to presenting a defense, and the effort and expense in its application.

Keith L. Sellen, Director Office of Lawyer Regulation

Depositions Conducted Outside Wisconsin

In the Matter of Proposed Amendments to Wis. Stat. Section 887.26

Order 05-06

On June 15, 2005, the Judicial Council filed a petition proposing certain amendments to Wis. Stat. s. 887.26 relating to requirements for depositions conducted outside the State of Wisconsin.

IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on Nov. 14, 2005, at 9:30 a.m.

IT IS FURTHER ORDERED that the court's conference in the matter shall be held promptly following the public hearing.

IT IS FURTHER ORDERED that notice of the hearing be given by publication of a copy of this order and of the petition in the official state newspaper once each week for three consecutive weeks and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.

Dated at Madison, Wis., this 1st day of September, 2005.

By the court:

Cornelia G. Clark,
Clerk of Supreme Court

Petition

The Wisconsin Judicial Council respectfully petitions this Court for an order pursuant to Wis. Stat. § 751.12, adopting these proposed amendments to § 887.26, Wis. Stat. The Judicial Council Evidence and Civil Procedure Committee's explanation for the proposed amendments, entitled "Judicial Council Committee Note" follows the text of the proposed amendments.

A. SECTION 887.26(1) of the statutes is amended to read:

(1) HOW TAKEN. In any civil action, proceeding or matter in which depositions may be taken within this state, the deposition of any witness without outside the state may be taken before any officer as provided in s. 804.03(1) or (2) or as provided in the rules of that state or country and uponwritten interrogatories the procedure as provided in this section.

B. SECTION 887.26(4) of the statutes is amended to read:

(4) COMMISSION TO TAKE. A commission may issue from any court of record to take the deposition of any witness without outside the state, where an issue of fact has been joined or the time therefore has expired, after commencement of the action, except as provided in s. 804.015 or as provided in s. 804.02(1), for any cause which shall be deemed sufficient by the court, or when required for use on any trial or hearing or upon any motion or proceeding. The commission shall be signed by the clerk and sealed and shall be accompanied by a copy of subs. (4), (5) and (6).

C. SECTION 887.26(5) of the statutes is amended to read:

(5) PROCURING COMMISSION. (a) The party person desiring a commission shall prepare interrogatories a notice of intent to obtain a commission and state in the caption thereof the name of the commissioner proposed by the party, the name of the witness and the his or her residence of each with particularity, and shall serve a copy thereof on the opposite party, with a notice that, at the expiration of 10 5 days from the date of such service the notice of intent, a commission will be issued directed to the court of the county of residence of the witness, requesting that a subpoena issue from that court compelling to take the deposition of the witness, and specifying the reason for taking the same. Within such time the 5-day period the opposite party may file with the clerk and serve upon the other party his or her objections to the interrogatories proposed and to the competency of the witness and to the issuance of the commission and serve his or her cross interrogatories; and state the name and residence of any person whom the opposite party desires to act as an additional commissioner, who must reside in the county in which the commissioner first named resides .

(b) At the expiration of the 5 daystime limited , and no objection being received or sustained, the commission shall issue as provided in sub.(4). At the moving noticing party person's expense, the commission shall be transmitted to the court of the county of residence of the witness, for issuance of the deposition subpoena in accord with the statutes and rules applicable to that court.may file the notice and interrogatories, with proof of service thereof and the moving party's objections to the cross interrogatories. The moving party may also serve redirect interrogatories on the opposite party, who may, within 3 days after such service, file objections to such redirect interrogatories. Thereupon the commission shall be issued, with the interrogatories, direct, cross and redirect, and all objections, and transmitted to the commissioner first named by mail or express at the expense of the moving party. But when any defendant shall not have appeared and the time for the defendant to plead has expired, no notice is required to be given such defendant, and the commission may issue on filing the direct interrogatories. No commission shall issue if the witness's residence s are is not given as required.

(c) Where testimony is sought of a witness outside the state before commencement of an action as provided in s. 804.02(1), the order issued under s. 804.02(1)(c) shall also include a commission in the form provided by sub.(4) of this section.

D. SECTION 887.26(6) of the statutes is amended to read:

(6) Duty of commissioner. (a) The commissioner first named shall fix the time and place for executing the commission and give the other commissioner one day's notice if residing in the same place, and when not, one day's notice in addition for every 30 miles of distance between the place of residence and the place fixed for executing the commission. If the notice be by mail double time shall be allowed; but notice may be waived in writing or by appearance at the execution of the commission. If there be 2 commissioners the commission shall be executed in the county where they reside, unless they agree upon another. The commissioner first named shall have charge of and return the deposition, which return shall be in the form and manner directed by the commissioner as provided by s.804.05(7). If either commissioner shall not attend at the time and place so fixed, the other may execute the commission with like effect as if both were present, but such commissioner must certify in the return that the other had due notice but failed to attend (6) Certification and service by officer; Exhibits; Copies; Notice of Service. The officer taking or transcribing the deposition shall have charge of and return the deposition, in the same form and manner as provided by s. 804.05(7).

(b) One of the commissioners shall publicly administer an oath or affirmation to each witness that the answers which the witness shall make to each of the interrogatories propounded to the witness shall be the truth, the whole truth, and nothing but the truth. The witness's answers to each interrogatory shall be reduced to writing. Each witness shall subscribe the witness's name at the end of the witness's answer and the commissioners shall subscribe their names at the foot of each page of the testimony. If any exhibit is produced and proved or referred to in the answer of any witness, it shall be marked as an exhibit, either by letter or number, by a commissioner, and referred to in the testimony of the witness, and annexed to and returned with the deposition. If the paper be a record or other document not in the control of either party, it shall be sufficient to annex a copy, stated by the witness in the witness's answers to be a true copy thereof. The commissioners shall certify in their return that each witness, before giving the witness's evidence, was duly sworn or affirmed, and shall state the time when the testimony was taken.

(c) The proper commissioner shall enclose the commission, the interrogatories, and the deposition with the return annexed in a sealed envelope, with the title of the action endorsed thereon and immediately transmit the same by mail or express to the clerk of the court from which the commission issued.

(d) Upon the receipt of such package, the clerk shall endorse the time and manner in which the clerk received the same, and open it and file the contents thereof and give notice of the receipt of the same to the attorneys for the respective parties.

E. SECTION 887.26(7) of the statutes is amended to read:

(7) FEES. The persons who take take or transcribe the depositions and the witness shall be entitled to the fees allowed supplemental court commissioners reporters under s. 814.698 (1) and witnesses for similar service by the law of this state, or such as may be prescribed by the law of the state or country where taken.

F. SECTION 887.26(8) of the statutes is amended to read:

(8) TRANSLATIONS. When the witness is unable to speak the English language, the judge of the court from which the commission issues may appoint some competent and disinterested person to translate, at the expense of the noticing person, the commission subpoena, rules, interrogatories and cross interogatories and deposition questions and answers, or such any part thereof as may be necessary, from the English into the language spoken by the witness or vice versa; and such the translation shall be sent to the commissioner in place of the original papers that have been translated. transcribed and maintained as part of the deposition transcript. Upon the return of the commission and deposition, such judge shall in like manner cause the answers of the witness and the exhibits to be translated into English, as well as all other proceedings in a foreign language, and such translation to be filed. The translator shall append to all translations the translator's affidavit that the translator knows the English and such the foreign language of the witness, and that in making such translation the translator carefully and truly translated thesuch proceedings from the English into such the witness's foreign language or from the latter into English, and that thesuch translation is correct. Such A translation under this paragraph shall have the same effect as if all the proceedings were in English, but the trial court, upon the deposition being offered in evidence, may admit the testimony of witnesses learned in such the foreign language for the purpose of correcting errors therein; and, if it shall appear that the first translation was in any respect so incorrect as to mislead the witness, the court may, in its discretion, continue the cause for the further taking of testimony.

Judicial Council Committee Note: Section (1) was revised to delete the restriction of depositions outside the state to depositions by written question, and now allows depositions outside the state to be oral or written. This change conforms to practice. Wisconsin litigants routinely take oral depositions; depositions upon written question are rarely conducted. Section (1) also provides that the persons before whom depositions may be taken are those as described in s. 804.03(1) or (2), or as provided by the specific rules of the state or country where the deposition is taken.

Section (4) now acknowledges that a commission also may be obtained to take out-of-state depositions prior to commencement of an action, subject to the provisions of s. 804.02(1). Where an action already has been commenced, section (4) now permits out-of-state depositions before the answer is filed. This change conforms with s. 804.05(1), which permits in-state depositions to be taken after commencement of the action.

Subsections (5)(a) and (b) eliminate the requirement for a motion to obtain a commission for foreign deposition. The motion procedure has been replaced by a simple notice procedure, subject to a 5-day rule.

Subsection (5)(a) also replaces the provision for objection to the competency of the designated witness with a general provision for objections as allowed by s. 804.05(4). This change reflects the liberalization of the law with respect to competency of a witness.

Subsection (5)(c) incorporates the commission format requirements into the procedure for seeking a deposition before an action is commenced, as described in s. 804.02(1), but does not replace the 20-day notice period provided in s. 804.02(1).

Section (6) was substantially changed. That section had provided for two commissioners to preside at the taking of the deposition by written question and to ensure that the deposition was returned to the clerk of the court which had issued the commission. The bulk of section (6) was replaced by requiring that the officer before whom the deposition is taken comply with the provisions of s. 804.05(7) for certification of the deposition transcript, and mailing and handling of exhibits.

Grammatical changes throughout s. 887.26 also were made to substitute the word "such" for more specific articles "a" or "the", in conformance with recent Revisor's bills. The phrase "without the state" was replaced with the more modern equivalent "outside the state" throughout.

Judicial Council

By James C. Alexander

Appeal Procedures in TPR Cases

In the Matter of Proposed Amendments to Wis. Stat. Sections 809.107 and 809.14

Order 05-07

On June 22, 2005, the Judicial Council filed a petition proposing certain amendments to Wis. Stat. ss. 809.107 and 809.14 of the Rules of Appellate Procedure relating to appeal procedures in termination of parental right (TPR) cases.

IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on Nov. 14, 2005, at 9:30 a.m.

IT IS FURTHER ORDERED that the court's conference in the matter shall be held promptly following the public hearing.

IT IS FURTHER ORDERED that notice of the hearing be given by publication of a copy of this order and of the petition in the official state newspaper once each week for three consecutive weeks and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.

Dated at Madison, Wis., this 1st day of September, 2005.

By the court:

Cornelia G. Clark,
Clerk of Supreme Court

Petition

The Judicial Council petitions this Court for an order pursuant to Wis. Stat. § 751.12, adopting these proposed amendments to sections 809.107 and 809.14, Rules of Appellate Procedure. The proposed amendments, governing appeal procedures in termination of parental right (TPR) cases: (1) address the responsibility of trial counsel to file a notice of intent; (2) place time limits within the rule and note when they cannot be extended; (3) create a self-executing process to preserve jurisdiction when the notice of intent is filed before the judgment or order is entered; (4) establish a time limit for the state public defender to appoint counsel; (5) establish time limits for persons denied state public defender representation; (6) require clerks and court reporters to indicate dates essential to time limit calculation in the case record; (7) require clerks to advise if transcripts are already on file; (8) shorten the time limit for a response to a motion; and (9) divide and subtitle many of the subsections to help practitioners and parties locate particular provisions.

The proposed amendments are explained in the comments to the text supplied by the Judicial Council Appellate Procedure Committee. The Judicial Council petitions this Court to order publication of the comments as Judicial Council Committee Notes to the adopted amendments.

The Judicial Council further petitions the Court to direct the Wisconsin Court Records Management Committee to create a form similar to CR-233 (used in criminal cases), that would require the circuit court to notify a person subject to TPR proceedings of appeal time limits and require the person to indicate on the form at the end of the dispositional hearing whether the person intends to pursue postdisposition relief.

I. SECTION 809.107 of the statutes is amended to read:

809.107 Appeals in proceedings related to termination of parental rights.

(1) Applicability. This section applies to the appeal of an order or judgment under s. 48.43 and supersedes all inconsistent provisions of this chapter.

(2) Initiating the appeal. Appeal or postdisposition motion. (a) Appeal procedure; counsel to continue. A person seeking postdisposition or appellate relief shall comply with this section. If the person desires to pursue postdisposition or appellate relief, counsel representing the person during circuit court proceedings under s. 48.427 shall continue representation by filing a notice under par. (b), unless sooner discharged by the person or by the circuit court.

Judicial Council Committee Note to Rule 809.107(2)(a): The amendment to § 809.107(2)(a) requires counsel representing a parent who wants to appeal the TPR disposition to file a notice of intent to pursue postdisposition or appellate relief. Trial counsel's representation continues until the notice of intent is filed.

(b) Notice of intent to pursue postdisposition or appellate relief. A person shall initiate an appeal under this section by filing, within the time 30 days after the date of entry of the judgment or order appealed from, as specified in s. 808.04(7m), a notice of intent to appeal pursue postdisposition or appellate relief with the clerk of the trial circuit court in which the judgment or order appealed from was entered. This time period may not be enlarged. Also within that time period, the person shall serve a copy of the notice of intent on the person representing the interests of the public, opposing counsel, the guardian ad litem appointed under s. 48.235(1)(c) for the child who is the subject of the proceeding, the child's parent and any guardian and any custodian appointed under s. 48.427(3) or 48.428 (2). The notice of intent shall include all of the following:

(a) 1. The circuit court case name, number, and court caption.

(b) 2. An identification of the judgment or order from which the person filing the notice intends to appeal intends to seek postdisposition or appellate relief and the date on which it was granted or entered.

(c) 3. The name and address of the person filing the notice of intent to appeal and the person's his or her trial counsel.

(d) 4. For a person other than the state, whether the trial counsel for the person filing the notice of intent to appeal was appointed by the state public defender and, if so, whether the person's financial circumstances have materially improved since the date on which the person's his or her indigency was determined.

5. Whether the person requests representation by the state public defender for purposes of postdisposition or appellate relief.

(e) 6. For a person other than the state, whether the person filing the notice of intent to appeal a person who does not request representation by the state public defender will represent himself or herself or will be represented by retained counsel or requests the state public defender to appoint counsel for the appeal . If the person has retained counsel to pursue postdisposition or appellate relief, the counsel's name and address shall be included.

Judicial Council Committee Note to Rule 809.107(2)(b): Subsection 809.107(2)(b) contains the substance of former sub. (2)(a). The amendment adds the case number to the content requirements for the notice of intent and specifies that the time period for filing a notice of intent cannot be enlarged. Subsection (2)(b)2. deletes a reference to the date on which the judgment or order was granted because the time limits in s. 808.04(7m) commence on the date the judgment or order was entered.

(c) Early notice of intent to pursue postdisposition or appellate relief. If the record discloses that the judgment or order appealed from was entered after the notice of intent to pursue postdisposition or appellate relief was filed, the notice of intent shall be treated as filed after such entry and on the date the judgment or order was entered.

Judicial Council Committee Note to Rule 809.107(2)(c): The amendment to § 809.107(2)(c) addresses the practical concern that arises when a notice of intent is filed before the final judgment or order is entered. Similar to § 808.04(8), the amendment allows the filing date of the notice of intent to be deemed the date that the judgment or order was entered, and thereby preserves appellate jurisdiction.

(3) Duties of clerk of trial court. Clerk to send materials. Within 5 days after a notice under sub. (2)(b) is filed, the clerk of the circuit court shall:

(a) If the person filing the notice of intent to appeal under sub. (2) requests representation by the state public defender for purposes of the appeal postdisposition or appellate relief, send to the state public defender's appellate intake office a copy of the notice that shows the date on which it was entered, a copy of the judgment or order specified in the notice and that shows the date on which it was entered, a list of the court reporters for each proceeding in the action in which the judgment or order was entered, and a list of those proceedings for which a transcript already has been filed with the clerk of circuit court.

(b) If the person filing the notice of intent to appeal does not request representation by the state public defender for purposes of the appeal , send or furnish to the person, if the person is appearing without counsel, or to the person's attorney, if one has been retained, a copy of the judgment or order specified in the notice and that shows the date on which it was entered, a list of the court reporters for each proceeding in the action in which the judgment or order was entered, and a list of those proceedings in which a transcript already has been filed with the clerk of circuit court.

Judicial Council Committee Note to Rule 809.107(3): To facilitate compliance with the time limits in this section, the amendment requires the clerk to send a copy of the judgment or order that shows the date on which it was entered and a list of transcripts already on file to the state public defender's intake office, or to the person if appearing without counsel, or to retained counsel.

(4) Request for transcript and circuit court case record.

(a) State public defender appointment of counsel. Within 15 days after the state public defender appellate intake office receives the materials from the clerk of circuit court under sub. (3)(a), the state public defender shall appoint counsel for the person and request a transcript of the reporter's notes and a copy of the circuit court case record.

(b) Person not represented by public defender. A person filing a notice of intent to appeal under sub. (2) who does not request representation by the state public defender for purposes of postdisposition or appellate relief shall request a transcript of the reporter's notes, and may request a copy of the circuit court case record within 15 days after filing the notice under sub. (2)(b). A person who is denied representation by the state public defender for purposes of postdisposition or appellate relief shall request a transcript of the reporter's notes, and may request a copy of the circuit court case record, within 30 days after filing a notice under sub. (2)(b).

(4m) Filing and service of transcript and circuit court case record. The court reporter shall file the transcript with the circuit court and serve a copy of the transcript on the person filing the notice of intent to appeal pursue postdisposition or appellate relief within 30 days after the transcript is requested. The clerk of circuit court shall serve a copy of the circuit court case record on the person filing the notice of intent to appeal within 30 days after the court case record is requested, and shall indicate in the case record the date and manner of service.

Judicial Council Committee Note to Rule 809.107(4) and (4m): New § 809.107(4)(a) codifies existing practice and establishes a time limit for the state public defender to appoint counsel and request transcripts and circuit court case records. The public defender's time limit commences on the date that the public defender's office receives the materials from the circuit court clerk, rather than on the date the notice of intent is filed, so as to reduce the number of extension motions that must be filed when the clerk does not timely send the materials under sub. (3)(a).

The amendment to § 809.107(4)(b) clarifies the procedure applicable to persons who are not represented by the state public defender and creates time limits applicable to a person who has applied for and has been denied public defender representation. In the latter case, the rule provides an additional 15 days for the person to obtain private counsel and request a copy of the transcript and case record. The time limit is set at 30 days because 15 days will have expired while the public defender's office determines whether the person is eligible for appointed counsel. This time limit commences on the date the notice of intent was filed, rather than the date of the public defender's determination because that determination does not appear in the case record.

Subsection (4m) is the last two sentences of former sub. (4). Subsection (4m) also creates a new requirement for the circuit court clerk to indicate the date and manner of service in the case record. The new requirement is necessary because the notice of appeal time limit is measured from the date of service of the case record or transcript, whichever is later.

(5) Notice of appeal; transmittal of record . (a) Filing; copy and service of notice of appeal. Within 30 days after the later of the service of the transcript or the circuit court case record, the person filing a notice of intent to appeal under sub. (2)(b) shall file a notice of appeal as provided in s. 809.10(1) and serve a copy of the notice on the persons required to be served under sub. (2)(b). This time period may not be enlarged.

(b) Transmittal of record by clerk. The clerk of circuit court shall transmit the record to the court of appeals as soon as the record is prepared, but in no event more than 15 days after the filing of the notice of appeal.

(c) Requesting transcripts for other parties. The appellant shall request a copy of the transcript of the reporter's notes of the proceedings for each of the parties to the appeal and make arrangements to pay for the transcript and copies within 5 days after the filing of the notice of appeal.

(d) Statement on transcript. The appellant shall file a statement on transcript with the clerk of the court of appeals, shall file a copy of the statement on transcript with the clerk of circuit court, and shall serve a copy of the statement on transcript on the other parties to the appeal within 5 days after the filing of the notice of appeal in the circuit court. The statement on transcript shall either designate the portions of the transcript that have been requested by the appellant or contain a statement by the appellant that a transcript is not necessary for prosecution of the appeal. If a transcript is necessary for prosecution of the appeal, the statement on transcript shall also contain a statement by the court reporter that the appellant has requested copies of the transcript or designated portion thereof for each of the other parties; that the appellant has made arrangements to pay for the original transcript and for all copies for other parties; the date on which the appellant requested the transcript and made arrangements to pay for it; and the date on which the transcript must be served on the parties.

(e) Service of transcript on other parties. The court reporter shall serve copies of the transcript on the parties indicated in the statement on transcript within 5 days after the date the appellant requested copies of the transcript under par. (c).

Judicial Council Committee Note to Rule 809.107(5): The amendment to § 809.107(5)(a) clarifies that the time limit for filing a notice of appeal commences 30 days from the later of the service of the transcript or case record. Persons contemplating filing a notice of appeal are better able to assess grounds for relief after reviewing both the transcripts and the circuit court case record.

II. SECTION 809.14(1) of the statutes is amended to read:

809.14 Rule (Motions).

(1) A party seeking an order or other relief in a case shall file a motion for the order or other relief. The motion must state the order or relief sought and the grounds on which the motion is based and may include a statement of the position of other parties as to the granting of the motion. A motion may be supported by a memorandum. Except as provided in sub. (1m), A any other party may file a response to the motion within 11 days after service of the motion.

809.14(1m) of the statutes is created to read:

(1m) If a motion is filed in an appeal under s. 809.107, any other party may file a response to the motion within 5 days after service of the motion.

Judicial Council

By James C. Alexander

Language Regarding BBE Fees

In the Matter of the Petition for Amendment to Supreme Court Rule 40.14 Relating to Technical Changes in Language Regarding Board of Bar Examiner Fees

Order 05-08

On July 15, 2005, the Board of Bar Examiners, by its Director, Gene Rankin, filed a petition proposing certain technical changes to the language of Supreme Court Rule 40.14 regarding fees payable to the Board of Bar Examiners.

IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on Nov. 30, 2005, at 9:30 a.m.

IT IS FURTHER ORDERED that the court's conference in the matter shall be held promptly following the public hearing.

IT IS FURTHER ORDERED that notice of the hearing be given by a single publication of a copy of this order and of the petition in the official state newspaper and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.

Dated at Madison, Wis., this 1st day of September, 2005.

By the court:

Cornelia G. Clark,
Clerk of Supreme Court

Petition

The Petitioner, Gene R. Rankin, Director of and on behalf of the Board of Bar Examiners of the Supreme Court of Wisconsin, hereby petitions the Supreme Court of Wisconsin for an order that amends Supreme Court Rule SCR 40.14 (3) (e), (g) and (h) relating to definitions of fees charged by the Board of Bar Examiners as follows:

PROPOSED AMENDMENT:

SCR 40.14 APPLICATION; FEES.

SCR 40.14 (3) (e) Fee for reinstatement, or readmission, admission on or for application by diploma privilege character and fitness investigation if filed later than the latest date specified by the board or late enrollment in the bar $200

(g) Fee for a diploma privilege character and fitness investigation under SCR 40.06(3m) $210

(h) Late fee for a diploma privilege character and fitness investigation under SCR 40.06(3m) $100

Justification: The change to (e) clarifies the applicability of the latest filing date, as set by SCR Chapter 40 Appendix BA 14.04, for diploma privilege, character and fitness application and deletes an unused provision.

The changes to (g) and (h) distinguish diploma privilege character and fitness from the character and fitness investigations conducted pursuant to other modes of admission to the Wisconsin Bar. Some jurisdictions charge one fee for the bar examination and another for the character and fitness investigation. This amendment clarifies that Wisconsin does not do so.

Gene R. Rankin, Director
Board of Bar Examiners

Wisconsin Lawyer