State Supreme Court has Rich resource

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When Wisconsin Supreme Court Commissioner Julie Anne Rich reads and reviews more than 1,000 cases annually, she is well aware that only a small percentage will actually make it to court. About “95 percent” of her work ends up in the recycling bin, but that comes with job, according to Rich, who has held the position since 2001.

Fortunately for Rich, she enjoys her job and recommending petitions and cases for review is only a portion of it. She took time out of her busy schedule to sit down with Wisconsin Law Journal reporter Jack Zemlicka and discuss her favorite aspect of the job, what petitioners should avoid and why she left the geology field to attend law school.

WLJ: You graduated from UW-Madison with a science degree and did your graduate work in geology and paleontology at the University of California-Santa Barbara. At what point did you decide to go to law school in Minnesota?

Julie Anne Rich: I actually started college thinking I would go to law school. Then I started taking geology courses and I loved them. I loved doing the field work and I loved to travel. It was almost more of a spontaneous decision to go to graduate school, because at the time I was thinking of maybe going into environmental law. Then I realized when I got there, what I really liked was hiking and eating cookies in the mountains and not doing research. When I got to law school, I realized that environmental law at the time meant a lot of litigation about damages and I was not interested in doing that.

WLJ: How did you become the Supreme Court Commissioner in Wisconsin?

Rich: It was kind of luck. I took a job as a staff attorney in District II Court of Appeals, which I loved. But it was only a 12-month appointment and right about the time we learned the funding hadn’t been renewed for that position, Bill Mann retired from the job I have now, so the timing was perfect. I applied for it and I got it. I knew as soon as I saw the job opening it was something I’d enjoy.

WLJ: A portion of your job involves communicating with the justices on rules revisions. What is the biggest challenge in dealing with seven different personalities?
Rich: They are very different people, but they are uniformly gracious to me. It’s pretty easy to work with them. There are times when they will ask me a question and I may not know what they are getting at. Sometimes when you are sitting in an open conference and you know it’s being recorded and you know people are listening, you don’t really feel like you can say, I don’t have a clue what you are asking me.

WLJ: What is the most difficult aspect of your job?

Rich: I’m the only commissioner who does the (Supreme Court) rules work and that is quasi-legislative. What I find really hard is when I call somebody to talk about a pending rules matter and having to really segregate case work from rules work. It’s so easy for someone to say, you know what, there’s this petition pending and you wouldn’t know anything about what’s going on with that.

For example, I’ll call a lawyer and say you submitted a letter on this and I wanted to let you know there is going to be a hearing. We’ll talk about the process and we’ll talk about who else has filed things and then they may say, that reminds me of a case that’s pending that might bear on this and then the conversation would be really easy to let it evolve into a discussion about a pending case, and obviously I can’t do that. That’s where I have to always be thinking, is this public?

WLJ: What is your favorite part of the job?

Rich: I like the attorney discipline and judicial discipline. I do a lot of writing of material for the court to inform them of issues. I often say that 95 percent of what I do goes in the garbage. When we go into these petitions conferences, I have a stack of materials and if they decide to not take the case, the justices literally sit at a table and there are recycling bins behind each one of their chairs. That’s fine, that’s what I do, but with discipline we tend to do the first draft of per curium opinions and I like knowing that is something that will be published. You have to be careful of your word choice because it’s final and may have legal implications. I find that very challenging and really like it.

WLJ: One of your responsibilities is recommending petitions for review to the court. What tips do you have for petitioners to increase the likelihood their proposal will be heard by the court?

Rich: One thing that helps is to understand that the Supreme Court is law developing, it’s not doing error correction. Even if people really feel the Court of Appeals made a mistake, if the correct law was applied, it’s not this court’s job to go in there.
The other thing is that when you come in with seven or eight issues, that’s less compelling than if you identify one or two. Sometimes with pro se petitioners, they think if the court sees how many things went wrong here they will take the case. Instead, what we say is that sounds really fact specific, that’s sounds like you are looking for error correction and another bite at the apple and it’s less persuasive than someone who comes in and says the law really needs to be developed in this area.

WLJ: What mistakes do petitioners for review make which result in denial?

Rich: One big one that a lot of people don’t realize is that the deadline for filing a petition for review is jurisdictional, which means that we have no discretion to extend it. It’s different from almost any other filing deadline in the appellate courts. So, if you miss the filing deadline, this court literally loses jurisdiction and can’t take the case. For newer practitioners or people who haven’t practiced a lot in the appellate courts, it can be a shock because there’s nothing we can do.

WLJ: It seems the majority of rules petitions come from the State Bar or other organizations. How often do you receive proposals for rules changes from individuals?

Rich: It’s pretty rare. Generally, individuals have individual issues, so usually a rule change isn’t going to help them. We do have some exceptions as we just saw with Arnold Moncada who failed the bar exam a couple of times partly because of some pretty tragic personal circumstances. Our bar rules say you can only take it a couple of times. He came in asked the court to change it as an individual and was a perfectly appropriate request because he was seeking a rule change which would affect everyone, and he prevailed.

WLJ: How many petitions for review does the court generally receive annually?

Rich: One of the things that really impressed me about the court is that they really try to look at everything. We get about 1,000 petitions for review a year and a lot of those are filed by incarcerated individuals who are seeking another appeal or challenging some aspect of their sentence. A lot of them are handwritten and people don’t pay any attention to the rules of appellate procedure. We read every single one of them. It’s not like the comm
issioners are screening for the courts. We read them and make a recommendation, but all seven justices read every single petition that comes in. It’s an amazing amount of paperwork.

WLJ: What does it take for an average citizen to have his or her rule petition heard by the Supreme Court?

Rich: I don’t want to minimize the process, but really an interested person who has a legitimate recommendation for the court just needs to file a petition. I don’t even think there is a filing fee for it. Basically the petition consists of the request and how do you want the rule changed. Ninety-nine percent of the cases the court will consider and schedule a public hearing. We do have people who file things which are questionable at best, but the court does take each request very seriously.

WLJ: What is the most unusual petition for review you seen submitted to the court?

Rich: We get some pretty entertaining ones. I don’t like to laugh, because most of those people are either mentally ill or desperate. What’s disconcerting is when they take it personally. Occasionally, we’ll get things that are filed that almost rise to level of a threat. “If you don’t take my case, we’re going to come after you.”

WLJ: How often do the justices indicate a need for petitions relating to a specific area of the law?

Rich: Sometimes a petition is filed and there is something about that particular petition that isn’t right. One of those with regards to sentencing was the (State of Wisconsin v.) Gallion case. We received a series of requests from highly respected attorneys who were all saying, we have these criteria for sentencing, but in our judgment trial court judges are not willing to apply them. The court said we want a cluster of sentencing cases and wanted to maybe go back and look at things. Sometimes they have to wait a couple of years for particular cases, but usually there are trends.

WLJ: With the recent revisions to the Rules of Professional Conduct for attorneys taking effect in July, when will the court review the Code of Judicial Conduct?

Rich: I think they are still debating it. There has been some federal litigation on the issues of what a candidate for judicial office can say and what they can’t say. Obviously, there is a tension between free speech considerations and the public’s right to know, versus the professional sense that a judge shouldn’t be commenting on a case that they might hear. The question is do we focus on a specific provision, or because there have been some changes to the Model Rules, do we sit down and do a complete revision like we did with Ethics 2000. In a perfect world they would do the whole thing at once.

WLJ: Your legal career began in complex commercial litigation at Dorsey & Whitney in Minnesota. Do you anticipate ever going back into private practice?

Rich: I think so. I like this job a lot, but there are times I think it would be fun to go back into private prac