Thursday, January 13, 2005

Legal Research Tip 6: Specific Primary Law Sources Part 3

These are the back issues of the e-newsletter Legal Research Tips from 2004. Since these tips are a little longer, each back issue will be published separately. Starting in 2005, all issues will be published here and no longer distributed via email.

Legal Research Tip 6: Specific Primary Law Sources Part 3
Last month we examined the sources of the executive branch, administrative code and rules, as well as the process of updating and creating new codes and rules. This month we will examine the Judicial Branch (sometimes called the Third Branch). Once again, we will concentrate on state and local resources, not federal. This tip is a little longer than usual so that I can accurately cover this material.

Judicial Branch: Case Law
Laws are created and amended by the legislative branch, enforced or carried out through the rules and codes of the administrative branch, and interpreted by the judicial branch. At it's core, the third branch settles legal disputes over an interpretation and application of the law. For example, two people share a legal dispute. One interprets the law in their favor, and ditto for the other. They take their dispute to a third party who decides on what is a fair interpretation and makes a ruling for or against one of the parties. That is the essential nature of the third branch of government. The workproduct of these disputes are cases or caselaw. That includes the decision or opinion rendered in each case, sometimes with comments or notes or written arguments (called briefs). Depending on the issues being disputed, the cases will be heard in an appropriate court. The divisions of the court system will be discussed below, along with other workproduct and agencies that are part of the Judicial Branch.

Referenced Links:
The Court System
WI State Law Library
WI Supreme Court/Court of Appeals Case Access
WI Circuit Court Access/CCAP

Municipal and Circuit Courts
The issues being disputed will determine what court will issue a decision on a case. If a person has a local dispute, perhaps over an ordinance violation, the case will often go before the municipal court, if there is one. As of September 2003, there were 225 municipal courts and 227 municipal judges in Wisconsin. Milwaukee has the largest municipal court, with three full-time judges and three part-time court commissioners handling more than 190,000 cases annually. Madison has the only other full-time municipal court. Municipal courts have exclusive jurisdiction over ordinance violations. If a municipality does not have a municipal court, ordinance violations are heard in circuit court. Cities, villages and towns are authorized to establish municipal courts.

Most cases start at the Circuit Court level. The Circuit Courts of Wisconsin are known as the trial courts. These cases are binding on the parties involved in accordance with local court rules (more about them later). This means that a case heard in Dane County may get a different result in Green County because the local rules, and perhaps the local laws, may be different between the two counties. There are 69 Circuit Courts in Wisconsin (some counties have joined together for one circuit court). The Circuit Courts are joined together geographically into 10 Judicial Districts. You can find a map of the districts at the WI Courts System link above. Within these Courts, there are currently 241 judges. Each circuit court is divided into branches with at least one branch in every county, with the exception of six counties that are paired off and share judges. Milwaukee Circuit Court has the most branches with 47. Dane County has 17 branches.

The decisions rendered in Circuit Court are not published and hold no precedent, meaning a decision cannot be cited as authoritative support to help another case. In part, this is because of the reason listed above, that each local jurisdiction has local rules that help guide court proceedings and rulings. Secondly, many decisions are issued orally from the judge and are only transcribed as necessary for the court record. So if the cases are not published, how do we know that the law was applied properly in any case? We rely on the appellate courts. Before we dive into that area, I'll mention that many decisions rendered at the Circuit Court level are not issued by judges, but by commissioners. Court commissioners are attorneys appointed by the Chief Judge of a Judicial District and are assigned to certain tasks, some of which may be to render decisions in certain types of cases. The areas where there are Court Commissioners, at least in Dane County, are Family Court, Probate Court, Small Claims Court, Juvenile Court, and Arraignment Court. A decision by a court commissioner, with few exceptions, can be appealed to be heard before a Circuit Court Judge.

In addition to Uniform Rules of Trial Court Administration, each Circuit Court may choose to create local court rules to assist with local court procedures and administration. The rules are available online on the State Bar website at . Some Circuit Courts do not have local court rules. In addition, there are Supreme Court Rules that are for the entire Court System (more about them below).

Appellate Courts: Court of Appeals
The decision of a Circuit Court Judge can be appealed to the Court of Appeals. What this means is that one or both of the parties think that the decision rendered at the Circuit Court level was not correct. The reasons people file for appeals range from the technical (improper procedure: a default judgment because a party filed the response too late) to the subjective (ethical violations: "The judge has it in for me!"), but the Court of Appeals' primary function is to correct errors that occurred at the circuit court level. The court is composed of 16 judges from four districts headquartered in Milwaukee, Waukesha, Wausau, and Madison. The published opinions of the Court are binding precedent until overruled by the Supreme Court.

The Court of Appeals generally sits in three-judge panels to decide the merits of an appeal. Several categories of cases, however, are decided by a single judge. The Court of Appeals issues a written decision in every case. The Court's publication committee determines which decisions will be published. If a decision is published, it may be cited as precedential authority. No testimony is taken in the Court of Appeals. The Court relies on the circuit court record and the written arguments of the parties.

Appellate Courts: Supreme Court
The Wisconsin Supreme Court, composed of seven justices, is the state's highest court. Located in the state Capitol, it has appellate jurisdiction over all Wisconsin courts and has discretion to determine which appeals it will hear. The Supreme Court may also hear original actions -- cases that have not been heard in a lower court. The Wisconsin Supreme Court has three primary functions: Case deciding, Administrative, and Regulatory. When the Court agrees to decide a case, it receives written briefs from all sides and schedules oral argument (carefully timed presentations by attorneys, punctuated by frequent questions from the justices). The Court publishes its decision in virtually every case it agrees to decide.

Beyond deciding cases, the Supreme Court administers the entire Wisconsin Court System. In this capacity, the Court works to ensure that the court system operates fairly and efficiently. The Court's administrative role has many facets including budgeting, long-range planning, and rules of pleading and practice.

Supreme Court: Other agencies
Another important function of the Supreme Court is to regulate the legal profession in Wisconsin. The Court has established a Board of Bar Examiners (BBE) which oversees bar admissions. The Court also sets Rules of Professional Conduct for Attorneys and has established the Office of Lawyer Regulation (OLR), which investigates and prosecutes grievances involving attorney misconduct or medical incapacity. These are called "Supreme Court Rules" or SCR, and are considered a piece of primary law for Wisconsin.

The Supreme Court also regulates the Wisconsin judiciary. Through the Office of Judicial Education, the Court administers the requirement that judges attend educational programs. The state Constitution also gives the Court authority to discipline judges according to procedures established by the Legislature.

One final, yet vital, agency of the Supreme Court is the WI State Law Library (WSLL) and its branches: Milwaukee Legal Resource Center (MLRC) and Dane County Legal Resource Center (DCLRC). The State Law Library is where attorneys, justices, and staff of state agencies and legislature go to find legal resources. WSLL is also open to the public. DCLRC and MLRC are focused on providing resources for participants in the local trial courts: lawyers, judges/court staff and the public. In addition to providing the access to resources, local courts are now providing more assistance services for the public because the number of people choosing to go to court without the assistance of a lawyer is still climbing.

Resources of the Judicial Branch
Caselaw of the Appellate Courts are published in Callaghan's Official Wisconsin Reports and in West's Northwestern Reporter. They are also published online back to about 1995 on both the Court System's website and the State Bar's website. The citation for a case is formatted in this way: 45 Wis.2d 235 where the first number is the volume and the last number is the page. The middle letters indicate the name of the Reporter series, so Wis.2d is the Callaghans Official WI Reports, second series. This formula is similar for many other legal resources.

Supreme Court Rules are published at the very end of v. 5 of the WI Statutes, as well as in a separate publication and online. Local Court Rules are on the WI State Bar's website, as well as in printed format in the local Courthouse.

One final resource is the court docketing system database. For the trial courts, this is called WCCA or CCAP (WI Circuit Court Access....Consolidated Court Automation Program) and for the appellate courts, this is WSCCA (WI Supreme Court/Court of Appeals Case Access). Both systems will give you details about cases, including the status and outcome. Many people use WCCA/CCAP to perform background checks to check a person's court record. In addition, the WSCCA database will link to a published opinion if it is available online.