History: 2001 a. 61
Powers of courts.
The several courts of record of this state shall have power:
To issue process of subpoena, requiring the attendance of any witness, residing or being in any part of this state, to testify in any matter or cause pending or triable in such courts.
To administer oaths to witnesses in any such matter or cause, and in all other cases where it may be necessary in the exercise of the powers and duties of such court.
To devise and make such writs and proceedings as may be necessary to carry into effect the powers and jurisdiction possessed by them.
To exercise any of the powers and duties of a circuit court commissioner.
History: 1977 c. 187
; Stats. 1977 s. 757.01; 2001 a. 61
Justices and judges and municipal judges; oath of office; ineligibility to other office; salary; conservators of peace. 757.02(1)(1)
Every person elected or appointed justice of the supreme court, judge of the court of appeals, judge of the circuit court or municipal judge, shall take, subscribe and file the following oath:
State of Wisconsin,
County of ....
I, the undersigned, who have been elected (or appointed) to the office of ...., but have not yet entered upon the duties thereof, do solemnly swear that I will support the constitution of the United States and the constitution of the state of Wisconsin; that I will administer justice without respect to persons and will faithfully and impartially discharge the duties of said office to the best of my ability. So help me God.
Subscribed and sworn to before me this .... day of ...., .... (year)
The judge of any court of record in this state shall be ineligible to hold any office of public trust, except a judicial office, during the term for which he or she was elected or appointed.
The judges of such courts shall be conservators of the peace, and have power to administer oaths and take the acknowledgments of deeds and other written instruments throughout the state.
Except for retired judges appointed under s. 753.075
, each supreme court justice, court of appeals judge and circuit court judge included under ch. 40
shall accrue sick leave at the rate established under s. 230.35 (2)
for the purpose of credits under s. 40.05 (4) (b)
and for premium payment determinations under s. 40.05 (4)
The period of time constituting the “term for which elected" is set when a judge or justice is elected, and is thereafter unalterable by means of resignation. Wagner v. Milwaukee County Election Commission, 2003 WI 103
, 263 Wis. 2d 709
, 666 N.W.2d 816
Judge to file affidavit as to work done to receive salary. 757.025(1)(1)
No judge of a court of record may receive or be allowed to draw any salary, unless he or she first executes an affidavit stating that no cause or matter which has been submitted in final form to his or her court remains undecided that has been submitted for decision for 90 days, exclusive of the time that he or she has been actually disabled by sickness or unless extended by the judge under sub. (2)
. The affidavit shall be presented to and filed with every official who certifies in whole or in part, the judge's salary.
If a judge is unable to complete a decision within the 90-day period specified in sub. (1)
, the judge shall so certify in the record and the period is thereupon extended for one additional period of not to exceed 90 days.
History: 1977 c. 187
; Stats. 1977 s. 757.025.
This section is an intrusion by the legislature into the exclusively judicial area of judicial decision-making and, as such, is an unconstitutional violation of the separation of powers doctrine. In Matter of Complaint Against Grady, 118 Wis. 2d 762
, 348 N.W.2d 559
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)
, 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.
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.
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)
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.
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)
constitute the law enforcement training fund.
History: 1999 a. 9
; 1999 a. 72
; 1999 a. 150
; 2001 a. 16
; 2003 a. 30
; 2005 a. 25
; 455; 2007 a. 96
; 2009 a. 12
; 2011 a. 258
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.
History: 1977 c. 187
; Stats. 1977 s. 757.08.
Failure to adjourn.
No omission to adjourn any such court may vitiate any proceedings in the court.
History: 1977 c. 187
; 1977 c. 449
; Stats. 1977 s. 757.10.
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.
History: 1977 c. 187
; 1977 c. 449
; Stats. 1977 s. 757.12.
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.
History: 1977 c. 187
; Stats. 1977 s. 757.13; 1979 c. 34
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
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.
History: 1977 c. 187
; Stats. 1977 s. 757.14.
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
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
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).
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
Public access to criminal trials in particular is protected by the 1st amendment. Globe Newspaper Co. v. Superior Court, 457 U.S. 596
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.
History: 1975 c. 159
; 1977 c. 54
; 1977 c. 187
; 1977 c. 449
; Stats. 1977 s. 757.15; 1989 a. 261
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.
History: 1977 c. 187
; Stats. 1977 s. 757.18.
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.
Any judge shall disqualify himself or herself from any civil or criminal action or proceeding when one of the following situations occurs:
When a judge is related to any party or counsel thereto or their spouses within the 3rd degree of kinship.
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.
When a judge previously acted as counsel to any party in the same action or proceeding.
When a judge prepared as counsel any legal instrument or paper whose validity or construction is at issue.
When a judge of an appellate court previously handled the action or proceeding while judge of an inferior court.
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.
When a judge determines that, for any reason, he or she cannot, or it appears he or she cannot, act in an impartial manner.
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.
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.
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
In addition to other remedies, an alleged violation under this section or abuse of the disqualification procedure shall be referred to the judicial commission.
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.
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]
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
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
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
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
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
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
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
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
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
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
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
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
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).
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.
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.
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.