At least one justice expressed skepticism Monday about a proposed state Supreme Court rule change that seeks to give judges guidance on how to handle pro se litigants.
The proposal, which was not voted on during the Supreme Court’s open rules conference Monday, would permit judges to “make reasonable efforts to facilitate the ability of all litigants, including self-represented litigants, to be fairly heard.”
Justice Pat Roggensack, during a public hearing on the matter, said she was concerned the proposed change is too broad and could affect complex litigation, even if the rule only is intended to help those who bring cases in small claims and family courts.
“What you are portraying is not an adverse system,” Roggensack said to Milwaukee County Circuit Judge Mary Kuhnmuench, who testified in favor of the change.
If approved by the justices, the rule change also would offer a few examples of how a judge could better aid a self-represented litigant, such as explaining the proceedings and legal situations in plain terms, permitting narrative testimony and telling the parties what is expected of them.
The change was put forth by the Access to Justice Commission, which the court created in 2009, as a way to address the rising number of people who appear in court without an attorney. The petition received nearly three dozen letters of support from judges, attorneys and domestic violence groups; who all say the change would give judges more leeway to help those who may not know the ins and outs of a proceeding.
Commission member and retired Court of Appeals Judge Margaret Vergeront, who spearheaded the proposal, said it would affect “various geographic areas of the state.”
And while the justices did not discuss or vote on the measure, Chief Justice Shirley Abrahamson did call the hearing on the measure a “historic event.”
But Roggensack said she had heard from judges who did not send official comments about the proposal. She said she had concern that a judge who did not make any efforts would open themselves up to a potential ethics violation.
But several judges and attorneys said that is not the case. Many judges already are taking necessary steps to ensure someone without an attorney understands the proceedings, supporters said.
“It does provide some assurance to judges that most of what they are already doing is OK,” Bayfield County Circuit Judge John Anderson said during the hearing.
Justice Patrick Crooks asked several people whether “reasonable efforts” would mean “appointing counsel for that litigant.” Vergeront and others said it would not necessarily mean that, but it can’t be completely ruled out.
Still, nobody testified against the proposal on Monday. Instead, the attorneys and judges that did show up pointed out that more people than ever are showing up to small claims and family courts without an attorney.
“That’s the bench that we’re dealing with,” Kuhnmuench said.
The justices are expected to address the issue at a later date.Follow @eheisigWLJ