High court sets public hearings for proposals to change reciprocity, evidence rules

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Reciprocity for tribal attorneys licensed in other states and the rules of evidence concerning witnesses will be up for discussion before the Wisconsin Supreme Court at public hearings held on Sept. 25.

The hearings are scheduled to start at 9:30 a.m. that day in the state Capitol’s Supreme Court Hearing Room.

The justices will be hearing comments from the public on a proposal to change the state’s reciprocity rules to allow lawyers who are licensed in another state and who have done legal work for a federally recognized Indian tribe to be waived from having to take Wisconsin’s bar exam to practice in this state.

The proposal was filed by the Stockbridge-Munsee Community, which ran into trouble last year when its newly hired tribal prosecutor’s application for admission to the bar was rejected. Although their tribal prosecutor had maintained a license in good standing in Minnesota and had more than seven years of experience in Indian law, much of it doing legal work for another tribe, her experience, under the state’s rules, did not count as “proof of practice” that would waive her from having to take the bar exam.

Lawyers can be admitted to practice in Wisconsin in three ways. They can: sit for the bar exam; attend and graduate from an in-state law school and thus gain access through the so-called diploma privilege; or present proof that they have practiced in another state or territory or for the federal government for three of the past five years.

Whether legal work for federally recognized tribes counts as proof of practice is a gray area. That’s so even though Wisconsin’s high court tried to clarify matters in 2002 with its decision in In re the bar admission of Wendy Helgemo, finding that practice as an in-house counsel for tribes cannot be the grounds for being waived into the bar.

The Stockbridge-Munsee are asking the court to instead state unequivocally that legal work for federally recognized tribes counts as proof of practice.

Also on Sept. 25, the justices will be hearing from the public about a proposal concerning witnesses and the rules of evidence. The Judicial Council is calling for changes to Wis. Stat. 906.09, which governs when past criminal convictions can be introduced to impeach a witness, saying the statute should be modified to reflect current state practice.

Although the rule has an identical federal counterpart, Judicial Council representatives and others have noted that actual practice differs greatly in Wisconsin courtrooms. For example, the federal rules limit the types of previous crimes that may be introduced to impeach witnesses and defendants who choose to testify.

The proposal would also change Wis. Stat. 901.07, a statute involving the admissibility of writings and recorded statements, to allow for the admission of oral statements. The other change would revise the state’s rule governing the impeachment of witnesses by setting up a standard for the introduction of evidence of “specific acts.” The standard would match a similar, federal rule, which was amended in 2003.

The council had previously presented the changes to the court, which sent the proposal back to the council for revision. The council re-filed a modified proposal, and the court voted last term to give it another hearing.

The proposal stems from a list of suggestions provided to the council in 2009 by Dan Blinka, a law professor at Marquette University. Blinka made his recommendations in response to comments gathered from nearly 100 trial court judges throughout the state. Follow @erikastrebel