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Supporting judicial discretion to ensure fair hearings

On February 24 the Wisconsin Supreme Court held a public hearing on Petition 13-14, which requests amendments in the Wisconsin Code of Judicial Conduct to provide better guidance to judges in addressing the challenges raised by the growing number of self-represented litigants. The petition, filed by the Access to Justice Commission last September, proposes modifying Supreme Court Rule 60.04 to make it clear that “reasonable efforts to facilitate the ability of all litigants, including self-represented litigants, to be fairly heard” are consistent with a judge’s obligation to perform all judicial duties fairly and impartially. A new proposed comment contains a nonexclusive list of reasonable steps judges may take in the exercise of their discretion.

Thirty-seven letters in support of the petition were filed. Supporters include the State Bar of Wisconsin, judges, court commissioners, private practice attorneys, legal service organizations and social service organizations from all over the state. At the hearing, twelve people spoke in support of the petition — six judges, two attorneys, a court commissioner, the president of the State Bar, the dean of the Wisconsin Judicial College, and a member of the Access to Justice Commission. No one appeared in opposition to the petition and no written submissions opposing the petition were filed.

Speakers noted that the landscape has changed and that our current adversary system presumes that parties are represented by attorneys, a situation that is increasingly rare, especially in most family law matters.

During the hearing, the justices asked about what judges and commissioners are currently doing to facilitate proceedings involving self-represented litigants and how this affects the court system. Judges and court commissioners explained the measures they are currently taking and why they believe those measures are necessary to provide a fair hearing to all litigants. Speakers noted that the reasons for the petition are twofold: (1) judges who are already making these efforts need reassurance that they are not violating the Code of Judicial Conduct; and (2) judges who are not making these efforts need encouragement to take some of these steps. Speakers emphasized that the rule does not require judges to take any particular steps to facilitate hearings but leaves this to the judges’ discretion. It was also noted that the same rule could be used by a judge in a case where an attorney in a case needs similar help to ensure a fair proceeding.

Those who appeared in person and those who submitted letters of support all agreed that the proposed rule change would improve access to justice for self-represented litigants and improve efficiency, not only for the judges and commissioners hearing these cases but for all parties involved.

In the coming months, the court will conduct an open administrative conference where this and other pending rules petitions will be discussed and decided.

Video of the hearing is available through WisconsinEye.

Update: The court’s final order modifying the judicial code is available here.