59.40 Cross-reference Cross-reference: See s. 779.07 as to keeping a lien docket.

59.40 Annotation When a clerk of court customarily supplied an affidavit form to persons claiming witness fees, the statutes, as well as custom and common sense, required the clerk to furnish the form affidavit for signing, and entitled the petitioner to expect that the service, routinely furnished others, would be available to the petitioner. State ex rel. Hurley v. Schmidley, 48 Wis. 2d 659, 180 N.W.2d 605 (1970).

59.40 Annotation Under s. 59.42 (1) [now sub. (3) (a)], a clerk retains discretion to refuse to file documents unless the fee is tendered, even though the standard may result in inconsistent policies among the counties. Giese v. LIRC, 153 Wis. 2d 212, 450 N.W.2d 489 (1989).

59.40 Annotation The payment to a county under s. 59.42 (2) [now sub. (3) (b)] of interest earned on a condemnation award deposited with the clerk is not an unconstitutional taking. Bronfman v. Douglas County, 164 Wis. 2d 718, 476 N.W.2d 611 (Ct. App. 1991).

59.40 Annotation The express powers to appoint and discharge deputies under this section are separate from those of the county and are not subject to a collective bargaining agreement entered into by the county. Crawford County v. WERC, 177 Wis. 2d 66, 501 N.W.2d 836 (Ct. App. 1993).

59.40 Annotation Crawford County, 177 Wis. 2d 66 (1993), is restricted to its facts. Deputized employees, apart from a chief deputy, are exempt from the terms of collective bargaining agreements only to the extent that they are managerial or supervisory employees. County of Eau Claire v. AFSCME Local 2223, 190 Wis. 2d 298, 526 N.W.2d 802 (Ct. App. 1994).

59.40 Annotation Removal by the clerk of court of an employee with dual employment status as deputy court clerk and judicial assistant from the judicial assistant position was not authorized by sub. (1). The removal was subject to the terms of a collective bargaining agreement. Winnebago County v. Winnebago County Courthouse Employees Ass’n, 196 Wis. 2d 733, 540 N.W.2d 204 (Ct. App. 1995), 94-2504.

59.40 Annotation For a paper to be filed, it must be properly deposited with the clerk under sub. (2). “Properly” connotes complying with formality or correctness but is not susceptible to exact definition. The delivery of papers to the clerk at the clerk’s home after business hours was too far removed from legislative guidelines to be considered properly deposited. Granado v. Sentry Insurance, 228 Wis. 2d 794, 599 N.W.2d 62 (Ct. App. 1999), 98-3675.

59.40 Annotation Except for their elected superior’s power to appoint and discharge, chief deputies are subject to the Municipal Employment Relations Act, ss. 111.70 to 111.77, and are not excluded from a collective bargaining unit as a matter of law. Oneida County v. WERC, 2000 WI App 191, 238 Wis. 2d 763, 618 N.W.2d 891, 00-0466.

59.40 Annotation When read in conjunction with s. 32.05 (7) (d), sub. (3) (c) empowers a circuit judge to veto the clerk’s authority to invest a condemnation award and to direct the clerk to transfer the award from the clerk’s control into a private account for the benefit of the persons named in the award or to otherwise invest the funds for the benefit of those persons. Sub. (3) (c) empowers a circuit judge not only to veto the clerk’s authority to invest and control the interest on condemnation awards but also to veto the clerk’s authority over “certain” other funds deposited with the clerk, so long as the funds relate to a case before the judge’s court. HSBC Realty Credit Corp. v. City of Glendale, 2007 WI 94, 303 Wis. 2d 1, 735 N.W.2d 77, 05-1042.

59.40 Annotation Granado, 228 Wis. 2d 794 (1999), holds that the court clerk as a constitutional officer has the discretion to adopt a policy, as long as the policy complies with the statutory guidelines indicating when and where the clerk’s duties should be performed. In the clerk’s discretion, the clerk may adopt a policy that is flexible or one that restricts filings to regular business hours. Hartford Citizens for Responsible Government v. City of Hartford Board of Zoning Appeals, 2008 WI App 107, 313 Wis. 2d 431, 756 N.W.2d 454, 07-1265.

59.40 Annotation A county civil service ordinance enacted under s. 59.07 (20) [now s. 59.52 (8)], or a collective bargaining agreement under s. 111.70, establishing a procedure to be followed prior to the discharge of a classified employee, supersedes and modifies s. 59.38 (1) [now sub. (1) (a)]. 63 Atty. Gen. 147.

59.40 Annotation Clerks of court may not send original records of criminal cases to the public defender prior to appeal unless a judge authorizes the release. 69 Atty. Gen. 63.

59.41 59.41 Not to act as attorney. No person acting as clerk of any circuit court in this state may practice as an attorney or solicitor in the court in which the person is acting as clerk; and the person shall not be eligible for the office of municipal judge during the time that the person holds the office of the clerk.

59.41 History History: 1977 c. 305, 449; 1995 a. 201 s. 323; Stats. 1995 s. 59.41.

59.42 59.42 Corporation counsel.

59.42(1) (1) Corporation counsel; certain counties.

59.42(1)(a) (a) Except as provided under par. (b), in counties not having a population of 750,000 or more, the board may employ a corporation counsel, and fix the salary of the corporation counsel. The corporation counsel appointed under this paragraph may be terminated at any time by a majority vote of all the members of the board.

59.42(1)(b) (b) In any county with a county executive or county administrator, the county executive or county administrator shall have the authority to appoint and supervise the corporation counsel if the board authorizes the establishment of the office of corporation counsel. Such appointment shall be subject to confirmation by the board unless the board, by ordinance, elects to waive confirmation or unless the appointment is made under a civil service system competitive examination procedure established under s. 59.52 (8) or ch. 63. The corporation counsel may be removed by the county executive or county administrator with the concurrence of the board unless the corporation counsel is appointed under such an examination procedure.

59.42(1)(c) (c) The corporation counsel may, when authorized by a majority of the board, appoint one or more assistant corporation counsels to aid the corporation counsel in the performance of the duties of corporation counsel. The assistants so appointed shall have authority to perform all the duties of the corporation counsel. The duties of the corporation counsel shall be limited to civil matters and may include giving legal opinions to the board and its committees and interpreting the powers and duties of the board and county officers. Whenever any of the powers and duties conferred upon the corporation counsel are concurrent with similar powers or duties conferred by law upon the district attorney, the district attorney’s powers or duties shall cease to the extent that they are so conferred upon the corporation counsel and the district attorney shall be relieved of the responsibility for performing such powers or duties. Opinions of the corporation counsel on all such matters shall have the same effect as opinions of the district attorney. The corporation counsel may request the attorney general to consult and advise with the corporation counsel in the same manner as district attorneys as provided by s. 165.25 (3).

59.42(2) (2) Corporation counsel in special counties; appointment, dismissal and duties.

59.42(2)(a) (a) In a county with a population of 750,000 or more there is created the office of corporation counsel, and such deputy corporation counsels, assistants, stenographers and clerks at such salaries as are authorized by the board. The corporation counsel and deputy and assistant corporation counsels shall be attorneys at law licensed to practice in this state. All such offices and positions shall be in the classified civil service of the county except the corporation counsel, who is in the unclassified service. The corporation counsel shall be appointed by the county executive, with the concurrence of a majority of the board and shall not serve at the pleasure of the county executive. Any incumbent corporation counsel serving on August 1, 1990, shall retain that position and title until a new appointee is confirmed by the board. The corporation counsel may be dismissed at any time by the county executive with the concurrence of a majority of the members-elect of the board. The corporation counsel may also be dismissed at any time by a majority vote of the board. If the county executive vetoes an action by the board to dismiss the corporation counsel, the board may override the veto by a two-thirds vote of the members-elect of the board. The corporation counsel shall appoint deputies, assistants and clerical and stenographic help. Deputy corporation counsels shall have, according to their rank and seniority, the powers and duties of the corporation counsel in his or her absence or disability. The corporation counsel and deputy corporation counsels shall take and file the constitutional oath of office.

59.42(2)(b) (b) The duties of the corporation counsel and assistant corporation counsels shall be, without limitation because of enumeration, to:

59.42(2)(b)1. 1. Prosecute and defend all civil actions, proceedings, applications and motions in any court, commission, board, tribunal or body in any jurisdiction of this or other states or of the nation in which the county or any board, commission, committee or officer thereof is interested or a party by virtue of the office; and shall in like manner represent or assist in representing the state, or any commission, board, agency or tribunal of the state, in such civil actions or proceedings when requested to do so by the attorney general or when the district attorney of the county is required by any statute to do so.

59.42(2)(b)2. 2. Give advice to the board, county park commission, county department under s. 46.215 or 46.22 and other departments, boards, commissions, committees, agencies or officers of the county, when requested, in all civil matters in which the county or state is interested or relating to the discharge of the official duties of such departments, boards, commissions, committees, agencies or officers; examine all claims against the county for officers’, interpreters’, witnesses’ and jurors’ fees in civil actions and examinations, when presented to the county board of supervisors, and report in writing thereto as to the liability of the county for any and all claims of whatever nature filed against it; and act as legislative counsel for the county board of supervisors when so authorized by it.

59.42(2)(b)3. 3. Serve as legal adviser to the county highway commissioner and county highway committee, draw all papers required in the performance of their duties and attend to all civil legal matters in and out of court where the commissioner or committee is a party or wherein the acquisition of lands for state or county highway purposes is concerned.

59.42(2)(b)4. 4. Perform all duties in connection with civil matters relating to the county or any agency, board, commission or officer thereof or to the state within the county that are imposed by any statute upon the district attorney of the county and for such purposes the term “district attorney” wherever it appears in the statutes relating to duties of a civil nature shall, with regard to counties containing a population of 750,000 or more, mean the corporation counsel. Opinions of the corporation counsel shall have the same force and effect as opinions of the district attorney except that in matters relating to elections the district attorney shall have the right of review. After May 17, 1957, the district attorney’s powers and duties as to civil matters shall cease to the extent that they are conferred upon the corporation counsel and the district attorney shall be relieved of the responsibility of performing such duties. The corporation counsel may request the attorney general to consult and advise with the corporation counsel in the same manner as district attorneys under s. 165.25 (3).

59.42(2)(b)5. 5. Review and countersign all contracts to verify that the contracts comply with all statutes, rules, ordinances, and the county’s ethics policy. This subdivision applies only in a county with a population of 750,000 or more.

59.42(3) (3) Corporation counsel; attorney designee. In lieu of employing a corporation counsel under sub. (1) or in addition to employing a corporation counsel under sub. (1) or (2) (a), a board shall designate an attorney to perform the duties of a corporation counsel as the need arises. Two or more counties may jointly designate an attorney to perform the duties of a corporation counsel. If an attorney has been designated to perform the duties of a corporation counsel, that person may exercise any powers and perform any duties of the corporation counsel.