Chapter 757

757.69 Annotation The issuance of a search warrant is not an exercise of “[t]he judicial power,” as that phrase is employed in article VII, section 2. Instead, issuance of a valid search warrant requires that the individual be authorized by law to issue the warrant, that he or she be neutral and detached, and that the warrant be issued only upon a showing of probable cause. Sub. (1) (b) does not impermissibly intrude upon “[t]he judicial power” granted to the courts by article VII, section 2 and is constitutional. State v. Williams, 2012 WI 59, 341 Wis. 2d 191, 814 NW 2d 460, 10-1551.

757.69 Annotation The provision in sub. (8) for a circuit court to conduct a “hearing de novo” on review of a court commissioner’s order presupposes that the court commissioner has conducted a hearing. A de novo hearing is a new hearing of a matter, conducted as if the original hearing had not taken place. Thus, a local rule precluding a new hearing upon stipulation or default does nothing more than expressly advise as to the practical consequences of consenting to a court commissioner’s order. Nehls v. Nehls, 2012 WI App 85, 343 Wis. 2d 499, 819 N.W.2d 335, 11-2330.

757.70 757.70 Hearings before court commissioners.

757.70(1) (1) All proceedings and hearings before a court commissioner, including proceedings held by telephone or videoconferencing technology, shall be public and open to every citizen, except juvenile proceedings or when it is necessary for the court in which the action or proceeding is pending to impose by order restrictions under its inherent power to conduct proceedings in camera.

757.70(2) (2) All hearings before a circuit or supplemental court commissioner shall be held in accordance with s. 753.24. This provision does not apply to nontestimonial proceedings, supplementary hearings on the present financial status of a debtor under s. 757.675 (2) (h), or depositions taken before a circuit or supplemental court commissioner.

757.70 History History: 1977 c. 323; 2001 a. 61; Sup. Ct. Order No. 21-03, 2022 WI 23, 401 Wis. 2d xv; s. 35.17 correction in (2).

757.81 757.81 Definitions. In ss. 757.81 to 757.99:

757.81(1) (1) “Commission” means the judicial commission created by s. 757.83.

757.81(3) (3) “Judge” means a judge of any court established by or pursuant to article VII, section 2 or 14, of the constitution, or a supreme court justice.

757.81(4) (4) “Misconduct” includes any of the following:

757.81(4)(a) (a) Willful violation of a rule of the code of judicial ethics.

757.81(4)(b) (b) Willful or persistent failure to perform official duties.

757.81(4)(c) (c) Habitual intemperance, due to consumption of intoxicating beverages or use of dangerous drugs, which interferes with the proper performance of judicial duties.

757.81(4)(d) (d) Conviction of a felony.

757.81(5) (5) “Panel” means a judicial conduct and disability panel constituted under s. 757.87.

757.81(6) (6) “Permanent disability” means a physical or mental incapacity which impairs the ability of a judge or circuit or supplemental court commissioner to substantially perform the duties of his or her judicial office and which is or is likely to be of a permanent or continuing nature.

757.81 History History: 1977 c. 449; 1983 a. 378; 1991 a. 269; 1995 a. 77; 2001 a. 61.

757.81 Annotation The provisions for judicial disciplinary proceedings under ss. 757.81 to 757.99 are constitutional. In Matter of Complaint Against Seraphim, 97 Wis. 2d 485, 294 N.W.2d 485 (1980).

757.81 Annotation A violation of the code of judicial conduct is “willful” for purposes of sub. (4) when the judge’s conduct was not the result of duress or coercion and when the judge knew or should have known that the conduct was prohibited by the code. Although a judge may commit a “willful” violation constituting judicial misconduct when the judge has no actual knowledge that his or her conduct is prohibited by the code, the judge’s actual knowledge, or lack thereof, of the code is relevant to the issue of discipline. Wisconsin Judicial Commission v. Ziegler, 2008 WI 47, 309 Wis. 2d 253, 750 N.W.2d 710, 07-2066.

757.83 757.83 Judicial commission.

757.83(1) (1) Membership; appointment; terms.

757.83(1)(a) (a) There is created a judicial commission of 9 members: 5 nonlawyers nominated by the governor and appointed with the advice and consent of the senate; one trial judge of a court of record and one court of appeals judge appointed by the supreme court; and 2 members of the State Bar of Wisconsin, who are not judges or court commissioners, appointed by the supreme court. The commission shall elect one of its members as chairperson.

757.83(1)(b) (b) The term of a member is 3 years, but a member shall not serve more than 2 consecutive full terms. A vacancy is filled by the appointing authority for the unexpired term. Members of the commission shall receive compensation of $25 per day for each day on which they were actually and necessarily engaged in the performance of their duties and shall be reimbursed for expenses necessarily incurred as members of the commission.

757.83(2) (2) Quorum; voting. A majority of the commission constitutes a quorum. The commission may issue a formal complaint or a petition only upon a finding of probable cause by a majority of the total membership not disqualified from voting. A member must be present to vote on the question of probable cause. A member shall not participate in any matter if a judge similarly situated would be disqualified in a court proceeding.

757.83(3) (3) Rules. The commission shall promulgate rules under ch. 227 for its proceedings.

757.83(4) (4) Staff. The judicial commission shall hire an executive director, and may hire one staff member, in the unclassified service. The executive director shall be a member of the State Bar of Wisconsin and shall provide staff services to the judicial commission.

757.83 History History: 1977 c. 449; 1979 c. 34, 154; 1983 a. 27, 378; 1987 a. 27; 1991 a. 269; 1995 a. 27; 2001 a. 103; 2007 a. 20.

757.83 Cross-reference Cross-reference: See also JC, Wis. adm. code.

757.85 757.85 Investigation; prosecution.

757.85(1) (1) 

757.85(1)(a) (a) The commission shall investigate any possible misconduct or permanent disability of a judge or circuit or supplemental court commissioner. Misconduct constitutes cause under article VII, section 11, of the constitution. Except as provided in par. (b), judges, circuit or supplemental court commissioners, clerks, court reporters, court employees and attorneys shall comply with requests by the commission for information, documents and other materials relating to an investigation under this section.

757.85(1)(b) (b) The judge or circuit or supplemental court commissioner who is under investigation is not subject to the request procedure under par. (a) but is subject to the subpoena procedure under sub. (2).

757.85(2) (2) The commission may issue subpoenas to compel the attendance and testimony of witnesses and to command the production of books, papers, documents or tangible things designated in the subpoena in connection with an investigation under this section.

757.85(3) (3) The commission may notify a judge or circuit or supplemental court commissioner that the commission is investigating possible misconduct by or permanent disability of the judge or circuit or supplemental court commissioner. Before finding probable cause, the commission shall notify the judge or circuit or supplemental court commissioner of the substance of the complaint or petition and afford the judge or circuit or supplemental court commissioner a reasonable opportunity to respond. If the judge or circuit or supplemental court commissioner responds, the commission shall consider the response before it finds probable cause.

757.85(4) (4) The commission may require a judge or circuit or supplemental court commissioner who is under investigation for permanent disability to submit to a medical examination arranged by the commission.

757.85(5) (5) The commission shall, upon a finding of probable cause that a judge or circuit or supplemental court commissioner has engaged or is engaging in misconduct, file a formal complaint with the supreme court. Upon a finding of probable cause that a judge or circuit or supplemental court commissioner has a permanent disability, the commission shall file a petition with the supreme court. If the commission requests a jury under s. 757.87 (1), the request shall be attached to the formal complaint or the petition.

757.85(6) (6) The commission shall prosecute any case of misconduct or permanent disability in which it files a formal complaint or a petition.

757.85(7) (7) Insofar as practicable, the procedures applicable to civil actions apply to proceedings under ss. 757.81 to 757.99 after the filing of a complaint or petition.

757.85 History History: 1977 c. 449; 1983 a. 192; 1983 a. 378 s. 11m; 1985 a. 332; 1987 a. 72; 1991 a. 269; 2001 a. 61.

757.85 Cross-reference Cross-reference: See also JC, Wis. adm. code.

757.87 757.87 Request for jury; panel.

757.87(1) (1) After the commission has found probable cause that a judge or circuit or supplemental court commissioner has engaged in misconduct or has a permanent disability, and before the commission files a formal complaint or a petition under s. 757.85 (5), the commission may, by a majority of its total membership not disqualified from voting, request a jury hearing. If a jury is not requested, the matter shall be heard by a panel constituted under sub. (3). The vote of each member on the question of a jury request shall be recorded and shall be available for public inspection under s. 19.35 after the formal complaint or the petition is filed.

757.87(2) (2) If a jury is requested under sub. (1), the hearing under s. 757.89 shall be before a jury selected under s. 805.08. A jury shall consist of 6 persons, unless the commission specifies a greater number, not to exceed 12. Five-sixths of the jurors must agree on all questions which must be answered to arrive at a verdict. A court of appeals judge shall be selected by the chief judge of the court of appeals to preside at the hearing, on the basis of experience as a trial judge and length of service on the court of appeals.

757.87(3) (3) A judicial conduct and permanent disability panel shall consist of either 3 court of appeals judges or 2 court of appeals judges and one reserve judge. Each judge may be selected from any court of appeals district including the potential selection of all judges from the same district. The chief judge of the court of appeals shall select the judges and designate which shall be presiding judge.

757.87 History History: 1977 c. 449; 1981 c. 335 s. 26; 1983 a. 378 ss. 8g, 11m; 1991 a. 269; 2001 a. 61.

757.89 757.89 Hearing. A record shall be kept of any hearing on a formal complaint or a petition. The allegations of the complaint or petition must be proven to a reasonable certainty by evidence that is clear, satisfactory and convincing. The hearing shall be held in the county where the judge or circuit or supplemental court commissioner resides unless the presiding judge changes venue for cause shown or unless the parties otherwise agree. If the hearing is by a panel, the panel shall make findings of fact, conclusions of law and recommendations regarding appropriate discipline for misconduct or appropriate action for permanent disability and file the findings, conclusions and recommendations with the supreme court. If a jury hearing is requested under s. 757.87 (1), the presiding judge shall instruct the jury regarding the law applicable to judicial misconduct or permanent disability, as appropriate. The presiding judge shall file the jury verdict and his or her recommendations regarding appropriate discipline for misconduct or appropriate action for permanent disability with the supreme court.

757.89 History History: 1977 c. 449; 1983 a. 378 s. 11m; 1991 a. 269; 2001 a. 61.

757.91 757.91 Supreme court; disposition. The supreme court shall review the findings of fact, conclusions of law and recommendations under s. 757.89 and determine appropriate discipline in cases of misconduct and appropriate action in cases of permanent disability. The rules of the supreme court applicable to civil cases in the supreme court govern the review proceedings under this section.

757.91 History History: 1977 c. 449; 1983 a. 378 s. 11m.

757.93 757.93 Confidentiality of proceedings.

757.93(1) (1) 

757.93(1)(a) (a) All proceedings under ss. 757.81 to 757.99 relating to misconduct or permanent disability prior to the filing of a petition or formal complaint by the commission are confidential unless a judge or circuit or supplemental court commissioner waives the right to confidentiality in writing to the commission. Any such waiver does not affect the confidentiality of the identity of a person providing information under par. (b).

757.93(1)(b) (b) Any person who provides information to the commission concerning possible misconduct or permanent disability may request that the commission not disclose his or her identity to the judge or circuit or supplemental court commissioner prior to the filing of a petition or a formal complaint by the commission.

757.93(2) (2) If prior to the filing of a formal complaint or a petition an investigation of possible misconduct or permanent disability becomes known to the public, the commission may issue statements in order to confirm the pendency of the investigation, to clarify the procedural aspects of the disciplinary proceedings, to explain the right of the judge or circuit or supplemental court commissioner to a fair hearing without prejudgment, to state that the judge or circuit or supplemental court commissioner denies the allegations, to state that an investigation has been completed and no probable cause was found or to correct public misinformation.

757.93(3) (3) The petition or formal complaint filed under s. 757.85 by the commission and all subsequent hearings thereon are public.

757.93(4) (4) This section does not preclude the commission, in its sole discretion, from:

757.93(4)(a) (a) Referring to the director of state courts information relating to an alleged delay or an alleged temporary disability of a judge or circuit or supplemental court commissioner.

757.93(4)(b) (b) Referring to an appropriate law enforcement authority information relating to possible criminal conduct or otherwise cooperating with a law enforcement authority in matters of mutual interest.

757.93(4)(c) (c) Referring to an attorney disciplinary agency information relating to the possible misconduct or incapacity of an attorney or otherwise cooperating with an attorney disciplinary agency in matters of mutual interest.

757.93(4)(d) (d) Disclosing to the chief justice or director of state courts information relating to matters affecting the administration of the courts.

757.93(4)(e) (e) Issuing an annual report under s. 757.97.

757.93 History History: 1977 c. 449; 1983 a. 378 ss. 8r, 11m; 1987 a. 72; 1991 a. 269; 2001 a. 61.

757.93 Cross-reference Cross-reference: See also s. JC 3.01, Wis. adm. code.

757.94 757.94 Privilege; immunity.

757.94(1) (1) A complaint or communication alleging judicial misconduct or permanent disability with the commission, executive director, commission staff or panel and testimony in an investigation under this section is privileged.

757.94(2) (2) A presiding judge, executive director or a member of the commission, commission staff or panel is immune from civil liability for any conduct in the course of the person’s official duties under ss. 757.81 to 757.99.

757.94 History History: 1977 c. 449; 1983 a. 27, 378.

757.95 757.95 Temporary suspension by supreme court. The supreme court may, following the filing of a formal complaint or a petition by the commission, prohibit a judge or circuit or supplemental court commissioner from exercising the powers of a judge or circuit or supplemental court commissioner pending final determination of the proceedings.

757.95 History History: 1977 c. 449; 1991 a. 269; 2001 a. 61.

757.97 757.97 Annual report. The commission shall issue an annual report on or before April 1 of each year which provides information on the number and nature of complaints received and their disposition, and the nature of actions it has taken privately concerning the conduct of judges or court commissioners. Information contained in the annual report shall be presented in a manner consistent with the confidentiality requirements under s. 757.93. The report shall be filed with the chief justice of the supreme court, the governor and the presiding officers of the senate and the assembly.

757.97 History History: 1983 a. 378; 1987 a. 72; 1991 a. 269.

757.99 757.99 Attorney fees. A judge or circuit or supplemental court commissioner against whom a petition alleging permanent disability is filed by the commission shall be reimbursed for reasonable attorney fees if the judge or circuit or supplemental court commissioner is found not to have a permanent disability. A judge or circuit or supplemental court commissioner against whom a formal complaint alleging misconduct is filed by the commission and who is found not to have engaged in misconduct may be reimbursed for reasonable attorney fees. Any judge or circuit or supplemental court commissioner seeking recovery of attorney fees authorized or required under this section shall file a claim with the claims board under s. 16.53.

757.99 History History: 1977 c. 449; 1981 c. 20; 1983 a. 378 s. 11m; 1991 a. 269; 2001 a. 61.