757.05
757.05
Penalty surcharge. 757.05(1)(a)(a) Whenever a court imposes a fine or forfeiture for a violation of state law or for a violation of a municipal or county ordinance except for a violation of s.
101.123 (2) or
(2m), for a financial responsibility violation under s.
344.62 (2), or for a violation of state laws or municipal or county ordinances involving nonmoving traffic violations, violations under s.
343.51 (1m) (b), or safety belt use violations under s.
347.48 (2m), there shall be imposed in addition a penalty surcharge under ch.
814 in an amount of 26 percent of the fine or forfeiture imposed. If multiple offenses are involved, the penalty surcharge shall be based upon the total fine or forfeiture for all offenses. When a fine or forfeiture is suspended in whole or in part, the penalty surcharge shall be reduced in proportion to the suspension.
757.05(1)(b)
(b) If a fine or forfeiture is imposed by a court of record, after a determination by the court of the amount due, the clerk of the court shall collect and transmit the amount to the county treasurer as provided in s.
59.40 (2) (m). The county treasurer shall then make payment to the secretary of administration as provided in s.
59.25 (3) (f) 2. 757.05(1)(c)
(c) If a fine or forfeiture is imposed by a municipal court, after a determination by the court of the amount due, the court shall collect and transmit the amount to the treasurer of the county, city, town, or village, and that treasurer shall make payment to the secretary of administration as provided in s.
66.0114 (1) (bm).
757.05(1)(d)
(d) If any deposit of bail is made for a noncriminal offense to which this subsection applies, the person making the deposit shall also deposit a sufficient amount to include the surcharge under this subsection for forfeited bail. If bail is forfeited, the amount of the surcharge shall be transmitted monthly to the secretary of administration under this subsection. If bail is returned, the surcharge shall also be returned.
757.05(2)
(2)
Use of penalty surcharge moneys. All moneys collected from penalty surcharges under sub.
(1) shall be credited to the appropriation account under s.
20.455 (2) (i). The moneys credited to the appropriation account under s.
20.455 (2) (j) and
(ja) constitute the law enforcement training fund.
757.05 History
History: 1999 a. 9 ss.
2292m,
2298,
3050m to
3050o;
1999 a. 72 s.
6;
1999 a. 150 s.
672;
2001 a. 16;
2003 a. 30,
33,
139,
268,
326,
327;
2005 a. 25,
60; 455;
2007 a. 96;
2009 a. 12,
28,
276;
2011 a. 258.
757.08
757.08
Vacancy in judgeship not to affect suits. No process, proceeding or action, civil or criminal, before any court of record shall be discontinued by the occurrence of any vacancy in the office of any judge or of all the judges of such court, nor by the election of any new judge or judges of any such court, but the persons so elected shall have power to continue, hear and determine such process, proceedings or action as their predecessors might have done if no new election had been held.
757.08 History
History: 1977 c. 187 s.
96; Stats. 1977 s. 757.08.
757.10
757.10
Failure to adjourn. No omission to adjourn any such court may vitiate any proceedings in the court.
757.10 History
History: 1977 c. 187 s.
96;
1977 c. 449; Stats. 1977 s. 757.10.
757.12
757.12
Adjournment to another place. Whenever it is deemed unsafe or inexpedient, by reason of war, pestilence or other public calamity, to hold any court at the time and place appointed therefor the justices or judges of the court may appoint any other place within the same county and any other time for holding court. All proceedings in the court may be continued at adjourned times and places and be of the same force and effect as if the court had continued its sessions at the place it was held before the adjournment. Every such appointment shall be made by an order in writing, signed by the justices or judges making the appointment, and shall be published as a class 1 notice, under ch.
985, or in such other manner as is required in the order.
757.12 History
History: 1977 c. 187 s.
96;
1977 c. 449; Stats. 1977 s. 757.12.
757.13
757.13
Continuances; legislative privilege. When a witness, party or an attorney for any party to any action or proceeding in any court or any commission, is a member of the Wisconsin legislature, in session, that fact is sufficient cause for the adjournment or continuance of the action or proceeding, and the adjournment or continuance shall be granted without the imposition of terms.
757.13 History
History: 1977 c. 187 s.
96; Stats. 1977 s. 757.13;
1979 c. 34.
757.13 Annotation
This section would violate the doctrine of separation of powers if construed to mandate the grant of a continuance or adjournment. Courts should consider, in the sound exercise of their discretion, that a witness, party, or party's attorney is a member of the legislature in session when that person seeks a continuance or adjournment for that reason and should accommodate the schedule of the legislature consistent with the demands of fairness and efficiency in the particular case. State v. Chvala,
2003 WI App 257,
268 Wis. 2d 451,
673 N.W.2d 401,
03-0746.
757.14
757.14
Sittings, public. The sittings of every court shall be public and every citizen may freely attend the same, except if otherwise expressly provided by law on the examination of persons charged with crime; provided, that when in any court a cause of a scandalous or obscene nature is on trial the presiding judge or justice may exclude from the room where the court is sitting all minors not necessarily present as parties or witnesses.
757.14 History
History: 1977 c. 187 s.
96; Stats. 1977 s. 757.14.
757.14 Annotation
Any citizen has the right to attend immunity hearings arising out of a John Doe proceeding. State ex rel. Newspapers, Inc. v. Circuit Court,
65 Wis. 2d 66,
221 N.W.2d 894 (1974).
757.14 Annotation
It was an abuse of discretion to exclude the public from the voir dire of potential jurors. State ex rel. La Crosse Tribune v. Circuit Ct.
115 Wis. 2d 220,
340 N.W.2d 460 (1983).
757.14 Annotation
Commitment hearings under s. 51.20 (12) are open unless the court grants the subject individual's motion for closure. State ex rel. Wisconsin State Journal v. Dane County Circuit Ct.,
131 Wis. 2d 515,
389 N.W.2d 73 (Ct. App. 1986).
757.14 Annotation
The 6th amendment right to a public trial extends to voir dire. A judge's decision to close or limit public access to a courtroom in a criminal case requires the court to go through an analysis on the record in which the court considers overriding interests and reasonable alternatives. The court must make specific findings on the record to support the exclusion of the public and must narrowly tailor the closure. State v. Pinno,
2014 WI 74,
356 Wis. 2d 106,
850 N.W.2d 207,
11-2424.
757.14 Annotation
Public access to criminal trials in particular is protected by the 1st amendment. Globe Newspaper Co. v. Superior Court,
457 U.S. 596 (1982).
757.15
757.15
Holding court, effect of holidays. A court may be open to transact business on the first day of the week and on a legal holiday in like manner and with like effect as upon any other day.
757.15 History
History: 1975 c. 159;
1977 c. 54;
1977 c. 187 s.
96;
1977 c. 449; Stats. 1977 s. 757.15;
1989 a. 261.
757.18
757.18
Process, etc., to be in English. All writs, process, proceedings and records in any court within this state shall be in the English language, except that the proper and known names of process and technical words may be expressed in the language heretofore and now commonly used, and shall be made out on paper or parchment in a fair, legible character, in words at length and not abbreviated; but such abbreviations as are now commonly used in the English language may be used and numbers may be expressed by Arabic figures or Roman numerals in the usual manner.
757.18 History
History: 1977 c. 187 s.
96; Stats. 1977 s. 757.18.
757.19
757.19
Disqualification of judge. 757.19(1)(1)
In this section, “judge" includes the supreme court justices, court of appeals judges, circuit court judges and municipal judges.
757.19(2)
(2) Any judge shall disqualify himself or herself from any civil or criminal action or proceeding when one of the following situations occurs:
757.19(2)(a)
(a) When a judge is related to any party or counsel thereto or their spouses within the 3rd degree of kinship.
757.19(2)(b)
(b) When a judge is a party or a material witness, except that a judge need not disqualify himself or herself if the judge determines that any pleading purporting to make him or her a party is false, sham or frivolous.
757.19(2)(c)
(c) When a judge previously acted as counsel to any party in the same action or proceeding.
757.19(2)(d)
(d) When a judge prepared as counsel any legal instrument or paper whose validity or construction is at issue.
757.19(2)(e)
(e) When a judge of an appellate court previously handled the action or proceeding while judge of an inferior court.
757.19(2)(f)
(f) When a judge has a significant financial or personal interest in the outcome of the matter. Such interest does not occur solely by the judge being a member of a political or taxing body that is a party.
757.19(2)(g)
(g) When a judge determines that, for any reason, he or she cannot, or it appears he or she cannot, act in an impartial manner.
757.19(3)
(3) Any disqualification that may occur under sub.
(2) may be waived by agreement of all parties and the judge after full and complete disclosure on the record of the factors creating such disqualification.
757.19(4)
(4) Any disqualification under sub.
(2) in a civil or criminal action or proceeding must occur, unless waived under sub.
(3), when the factors creating such disqualification first become known to the judge.
757.19(5)
(5) When a judge is disqualified, the judge shall file in writing the reasons and the assignment of another judge shall be requested under s.
751.03.
757.19(6)
(6) In addition to other remedies, an alleged violation under this section or abuse of the disqualification procedure shall be referred to the judicial commission.
757.19 Note
Judicial Council Note, 1977: Section 256.19 [757.19] has been repealed and recreated to more comprehensively set out the procedure in Wisconsin for a judge to disqualify himself or herself. The new provisions apply to courts of record and municipal courts and define those situations in which a judge should in the interest of justice disqualify himself or herself from hearing a matter. Subsection (2) (g) is a catch-all provision to be used in those situations where a particular set of circumstances dictates that a judge disqualify himself or herself.
757.19 Note
The new judge disqualification section contains provisions for assuring that a disqualification is timely made and also provides for waiver of a statutory disqualification upon agreement of all interested parties and the judge. Alleged violations of this section will be brought to the attention of the judicial commission for appropriate review. [Bill 74-S]
757.19 Annotation
A judge who represented the defendant as counsel in another phase of a criminal matter had no power to act as judge in hearing a related postconviction motion and should have, sua sponte, disqualified himself. Rainey v. State,
65 Wis. 2d 374,
222 N.W.2d 620 (1974).
757.19 Annotation
Although the judge was apparently biased against defense counsel, the judge's refusal to recuse himself was harmless error under the facts of the case. State v. Walberg,
109 Wis. 2d 96,
325 N.W.2d 687 (1982).
757.19 Annotation
Under sub. (2) (g) the self-disqualification decision is subjective, and review is limited to determining whether the judge concluded disqualification was necessary. State v. American TV & Appliance,
151 Wis. 2d 175,
443 N.W.2d 662 (1989).
757.19 Annotation
That a judge's spouse was employed in the office of the district attorney, but had no connection to a particular case, did not require the judge's disqualification. State v. Harrell,
199 Wis. 2d 654,
546 N.W.2d 115 (1996),
94-1655.
757.19 Annotation
The fact that the trial judge “witnesses" the actions of the jurors, witnesses, lawyers, and parties does not transform the judge into a “material witness" under sub. (2) (b). State v. Hampton,
217 Wis. 2d 614,
579 N.W.2d 260 (Ct. App. 1998),
95-0152.
757.19 Annotation
A motion to vacate a supreme court decision on the grounds that a participating justice was disqualified, filed 1300 days after the decision was issued and 600 days after the facts on which the motion was based became known, was untimely and frivolous. Jackson v. Benson,
2002 WI 14,
249 Wis. 2d 681,
639 N.W.2d 545,
97-0270.
757.19 Annotation
Sub. (2) (g) does not require disqualification when a person other than the judge objectively believes that there is an appearance that the judge is unable to act in an impartial manner. In re Estate of Sharpley,
2002 WI App 201, 257 Wis. 2d. 152,
653 N.W.2d 124,
01-2167.
757.19 Annotation
When analyzing a judicial bias claim, there is a rebuttable presumption that the judge was fair, impartial, and capable of ignoring any biasing influences. The test for bias comprises two inquiries, one subjective and one objective, either of which can violate a defendant's due process right to an impartial judge. Actual bias on the part of the decision maker meets the objective test. The appearance of partiality can also offend due process. Every procedure that would offer a possible temptation to the average person as a judge not to hold the balance nice, clear, and true between the State and the accused, denies the latter due process of law. State v. Gudgeon,
2006 WI App 143,
295 Wis. 2d 189,
720 N.W.2d 114,
05-1528.
757.19 Annotation
Absent a pervasive and perverse animus a judge may assess a case and potential arguments based on what he or she knows from the case in the course of the judge's judicial responsibilities. Opinions formed by the judge on the basis of facts introduced or events occurring in the course of current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. State v. Rodriguez,
2006 WI App 163,
295 Wis. 2d 801,
722 N.W.2d 136,
05-1265.
757.19 Annotation
A court's rejection of a plea does not in and of itself become a “personal interest in the outcome of the matter," and sub. (2) (f) is not implicated. State v. Conger,
2010 WI 56,
325 Wis. 2d 664,
797 N.W.2d 341,
08-0755.
757.19 Annotation
In lieu of exclusive reliance on a judge's personal inquiry, or on appellate review of the judge's determination respecting actual bias, the due process clause has been implemented by objective standards that do not require proof of actual bias. In defining these standards the U.S. Supreme Court has asked whether, under a realistic appraisal of psychological tendencies and human weakness, the interest poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented. Caperton v. A. T. Massey Coal Co.
556 U.S. 868,
129 S. Ct. 2252,
173 L. Ed. 2d 1208 (2009).
757.19 Annotation
There is a serious risk of actual bias, based on objective and reasonable perceptions, when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent. The inquiry centers on the contribution's relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect the contribution had on the outcome of the election. Whether campaign contributions were a necessary and sufficient cause of a judge's victory is not the proper inquiry. Due process requires an objective inquiry into whether the contributor's influence on the election under all the circumstances would offer a possible temptation to the average judge to lead the judge not to hold the balance “nice, clear, and true." Caperton v. A. T. Massey Coal Co.
556 U.S. 868,
129 S. Ct. 2252,
173 L. Ed. 2d 1208 (2009).
757.19 Annotation
Under the due process clause there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant's case. Williams v. Pennsylvania, 579 U.S. ___ ,
136 S. Ct. 1899, 195 L. Ed. 2sd 132 (2016).
757.22
757.22
Judge not to act as attorney, etc.; attorneys not to have office with judge. 757.22(1)(1)
No judge, while holding office, may be in any manner engaged or act as attorney or counsel; and no judge or his or her clerk or any person employed by the judge in or about his or her office, court commissioner or other judicial officer shall be allowed to give advice to parties litigant in any matter or action pending before the judge or officer, or which the judge has reason to believe will be brought before him or her for decision, or draft or prepare any papers, including wills, or other proceedings relating to any such matter or action except when expressly authorized by law; and no court commissioner or other judicial officer may be allowed to demand or receive any fees or compensation for services as such commissioner or judicial officer, except those expressly authorized by law, upon penalty, for any violation hereof, of removal from office.
757.22(2)
(2) No practicing attorney may hold office in the office of the clerk of any court in which he or she practices nor may he or she hold office in the same room with a judge.
757.22(3)
(3) No practicing attorney may have his or her office in the same room with any district attorney, municipal judge or court commissioner, unless he or she is a partner of the district attorney, municipal judge or court commissioner, in which case he or she shall not practice as an attorney before the municipal judge or court commissioner nor act as attorney in any case in which it is the duty of the district attorney to appear or prosecute for the state; except that the law partner of any district attorney may, at the request of the district attorney, without fee or compensation therefor, assist the district attorney in the prosecution of any case on the part of the state.
757.22(4)
(4) No law partner of any district attorney may act as a municipal judge or court commissioner in any case in which the state may be a party or defend in any court any person charged with any offense, or appear in any civil action against the state in which it is the duty of the district attorney to prosecute or appear for the state.
757.22(5)
(5) Any attorney who violates sub.
(2),
(3) or
(4), and any municipal judge or court commissioner who violates or knowingly permits any such violation, may be fined not to exceed $100 for each such offense.
757.22 History
History: 1977 c. 187 s.
96;
1977 c. 305 ss.
52,
64; Stats. 1977 s. 757.22.
757.22 Annotation
Under sub. (1), a judge may not draft or prepare legal papers even on a gratuitous basis. In re Van Susteren,
82 Wis. 2d 307,
262 N.W.2d 133 (1978).
757.22 Annotation
A probate registrar is an official of the court. An attorney who serves as probate registrar is prohibited from practicing law in the court. 63 Atty. Gen. 55.
757.23
757.23
Court commissioner, when disqualified. A municipal, circuit, or supplemental court commissioner, or any judge acting as a court commissioner, shall not act or take part in the decision of, or make any order in any matter or proceeding in which he or she is a party, or in which his or her rights would be in any manner affected by his or her decision or order thereon, or in which he or she is interested, or in which his or her law partner, or any person connected with him or her as employer, employee or clerk, or in the law business in any manner, shall be interested or appear as a party, agent, attorney or counsel. Any municipal, circuit, or supplemental court commissioner or judge, acting as a court commissioner, violating this section shall forfeit $25 for each violation, and shall also be subject to removal from office.
757.23 History
History: 1977 c. 187 s.
96; Stats. 1977 s. 757.23;
1997 a. 27;
2001 a. 61.
757.24
757.24
Liability of judicial officers. Circuit judges and circuit and supplemental court commissioners shall be held personally liable to any party injured for any willful violation of the law in granting injunctions and appointing receivers, or for refusing to hear motions to dissolve injunctions and to discharge receivers if the motions are made in accordance with law or such rules as are promulgated by the supreme court.
757.24 History
History: 1977 c. 187 s.
96;
1977 c. 449; Stats. 1977 s. 757.24;
2001 a. 61.
757.25
757.25
Money in court, how deposited. The judge of any court of record on the application of a party to any action or proceeding therein who has paid $1,000 or more into court in the action or proceeding may order the money to be deposited in a safe depository until the further order of the court or judge thereof. After the money has been so deposited it shall be withdrawn only upon a check signed by the clerk of the court pursuant to whose order the deposit was made and upon an order made by the court or the judge thereof. The fee for the clerk's services for depositing and disbursing the money is prescribed in s.
814.61 (12) (a).
757.25 History
History: 1977 c. 187 s.
96; Stats. 1977 s. 757.25;
1981 c. 317.
757.25 Annotation
This section has two prerequisites for a fee under s. 814.61 (12) (a): 1) a party to the action has paid at least $1000 into court; and 2) the same party has obtained from the judge an order directing the clerk of court to deposit the money in a safe depository. HSBC Realty Credit Corporation v. City of Glendale,
2007 WI 94,
303 Wis. 2d 1,
734 N.W.2d 874,
05-1042.
757.25 AnnotationThis section applies only in those instances when a court order exists.
73 Atty. Gen. 3.
757.26
757.26
Court officers, liability of to arrest. The officers of the several courts of record shall be liable to arrest and may be held to bail in the same manner as other persons, except during the actual sitting of any court of which they are officers; and when sued with any other person such officers shall be liable to arrest and may be held to bail as other persons during the sitting of the court of which they are officers. No attorney or counselor may be exempt from arrest during the sitting of a court of which he or she is an officer unless he or she is employed in some case pending and then to be heard in the court.
757.26 History
History: 1977 c. 187 s.
96; Stats. 1977 s. 757.26.
757.293
757.293
Trust accounts required. 757.293(1)(1)
A member of the state bar shall not commingle the money or other property of a client with his or her own, and he or she shall promptly report to the client the receipt by him or her of all money and other property belonging to the client. Unless the client otherwise directs in writing, whenever an attorney collects any sum of money upon any action, claim or proceeding, either by way of settlement or after trial or hearing, he or she shall promptly deposit his or her client's funds in a bank, trust company, credit union, savings bank or savings and loan association, authorized to do business in this state, in an account separate from his or her own account and clearly designated as “Clients' Funds Account" or “Trust Funds Account", or words of similar import. The attorney, with the written consent of the client, may deposit the client's funds in a segregated client's trust account with all interest accruing thereon to the client. Unless the client otherwise directs in writing, securities of a client in bearer form shall be kept by the attorney in a safe deposit box at a bank, trust company, credit union, savings bank or savings and loan association authorized to do business in this state, which safe deposit box shall be clearly designated as “Clients' Account" or “Trust Account", or words of similar import, and be separate from the attorney's own safe deposit box.
757.293(2)
(2) A member of the state bar shall maintain and preserve for at least 6 years complete records pertaining to client's funds or assets received by him or her which are required to be distributed or segregated by sub.
(1). The records shall include his or her trust fund checkbooks and the stubs or copies thereof, statements of the account, vouchers and canceled checks or share drafts thereon or microfilm copies thereof and his or her account books showing dates, amounts and ownership of all deposits to and withdrawals by check or share draft or otherwise from the accounts, and all of the records shall be deemed to have public aspects as related to such member's fitness to practice law. Upon request of the board of attorneys professional responsibility, or upon direction of the supreme court, the records shall be submitted to the board for its inspection, audit, use and evidence under such conditions to protect the privilege of clients as the court may provide. The records, or an audit thereof, shall be produced at any disciplinary proceeding involving the attorney wherever material. Failure to produce the records shall constitute unprofessional conduct and grounds for disciplinary action.
757.293(3)
(3) A member of the State Bar of Wisconsin shall file with the state bar annually, with payment of the member's state bar dues or upon other date as approved by the supreme court, a certificate stating whether the member is engaged in the private practice of law in Wisconsin and, if so, the name of each bank, trust company, credit union, savings bank, or savings and loan association in which the member maintains a trust account, safe deposit box, or both, as required by this section. A partnership or professional legal corporation may file one certificate on behalf of its partners, associates, or officers who are required to file under this section. The failure of a member to file the certificate required by this section is grounds for automatic suspension of the member's membership in the state bar in the same manner as provided in section 6 of rule 2 of the Rules of the State Bar of Wisconsin for nonpayment of dues. The filing of a false certificate is unprofessional conduct and is grounds for disciplinary action. The state bar shall supply to each member, with the annual dues statement or at other time as directed by the supreme court, a form on which the certification must be made and a copy of this section.
757.293 History
History: Sup. Ct. Order, 48 Wis. 2d vii (1970); Sup. Ct. Order, 74 Wis. 2d ix, xvii (1976);
1977 c. 187 s.
96;
1977 c. 272; Stats. 1977 s. 757.293; Sup. Ct. Order, eff. 1-1-80;
1981 c. 319;
1983 a. 369;
1991 a. 221;
2001 a. 103.
Effective date note
NOTE: The Sup. Ct. Order dated 12-11-79, eff. 1-1-80, states in section 5 that this section is repealed as an equivalent provision is contained in the Supreme Court Rules. See
SCR 20:1.15. Section 757.293 is shown as affected by ch. 319, laws of 1981,
1983 Wis. Act 369 and
1991 Wis. Act 221.
757.293 Annotation
The issuance by an attorney of 49 checks drawn upon his clients' trust account within a 13-month period, some for personal purposes or for loans to others, and all dishonored by the bank for lack of sufficient funds, constituted unprofessional conduct. State v. Stoveken,
68 Wis. 2d 716,
229 N.W.2d 224 (1975).
757.295(1)(1)
Soliciting legal business. Except as provided under
SCR 20:7.1 to 20:7.5, no person may solicit legal matters or a retainer, written or oral, or any agreement authorizing an attorney to perform or render legal services.
757.295(2)
(2)
Solicitation of a retainer for an attorney. Except as provided under
SCR 20:7.1 to 20:7.5, no person may communicate directly or indirectly with any attorney or person acting in the attorney's behalf for the purpose of aiding, assisting or abetting the attorney in the solicitation of legal matters or the procurement through solicitation of a retainer, written or oral, or any agreement authorizing the attorney to perform or render legal services.
757.295(3)
(3)
Employment by attorney of person to solicit legal matters. Except as provided under
SCR 20:7.1 to 20:7.5, no attorney may employ any person for the purpose of soliciting legal matters or the procurement through solicitation of a retainer, written or oral, or of any agreement authorizing the attorney to perform or render legal services.
757.295(4)
(4)
Penalty. Any person guilty of any violation of this section shall be imprisoned not more than 6 months or fined not exceeding $500.
