Mandatory e-filing in circuit courts will be the law of the land in Wisconsin starting July 1, but making it officially so proved to be a monumental task for the state’s highest court on Thursday.
Although the state’s Wisconsin Supreme Court justices had unanimously agreed in February to give preliminary approval of mandatory e-filing in circuit courts across the state, not all the justices voted in favor of the proposal when it came time to give it their final blessing on Thursday.
In the end, the justices voted 5-2 at an open rules conference to approve the order. Justices Shirley Abrahamson and Ann Walsh Bradley concurred.
E-filing will now become mandatory on July 1 in certain pilot counties that already have voluntary e-filing. The requirements will eventually be expanded throughout the state, both to counties that already allow voluntary e-filing as well as to those that now do not.
Even so, e-filing will at first only be required in civil cases, small-claims, family and paternity cases. For counties that now do not offer voluntary e-filing, they would have to begin offering it for the specific sorts of cases by the end of 2017.
E-filing for case types other than civil, small-claims, paternity and family cases would eventually also be required, but not until the end of 2019.
Fifty-two of Wisconsin’s 72 counties now allow parties to e-file documents in certain types of cases. In adopting the statewide requirements on Thursday, the Supreme Court elected to put in place a new system of e-filing. The old rules governing e-filing will be replaced when the new ones go into effect on July 1.
Bradley said she had concerns that the $20 fees that parties will have to pay to e-filing documents will prevent the working poor and others who could not afford that amount from accessing the courts. The new rule specifically waives the fees for indigent parties and for governmental units, such as district attorneys, public defenders, child-support agencies, the state Department of Justice, and county and municipal attorneys.
Even so, Bradley said, the language does not make it clear whether a losing party can ask the court to waive the fee.
“I am supportive as I have been since the beginning of this wonderful project,” said Bradley. “I concur in it, but I do not embrace the provision of which I spoke.”
Abrahamson likewise said that she has always supported mandatory e-filing but was concerned that the justices were approving it without having given lawyers and the public a formal means of paying the filing fees. There also questions over how the state will pay for the new system.
Wisconsin’s Circuit Court Access Program — a system, commonly called CCAP, that lets the public access certain court records online — has been charged with putting the new e-filing procedures in place. The project is expected to cost about $2 million a year from 2017 to 2019. Revenue from the $20 fees is expected to start covering the cost in 2018, according to a news release from the Supreme Court.
Abrahamson said she would like to see reports on the project’s progress be compiled by the Director of State Courts Office.
“They are going to have to keep updated on the expenses and revenue in order to know whether they are in the hole, and if they are in the hole, something else in CCAP is going to have to pay for it,” Abrahamson said. “As you very well know, CCAP is short of funds, and so e-filing cannot increase their expenses because that is going to dip further on their other matters.”
She noted that most businesses, if they took on a project like e-filing — one promising to last for years and cost a lot of money — would have a business plan projecting revenue, expenses and likely difficulties.
“And what I requested at the last meeting was ‘Where is the business plan?’” Abrahamson said. “And there was none.”
She moved to amend the order, seconded by Bradley. But the motion failed 0-2.
Chief Justice Pat Roggensack and Justice David Prosser said they did not support the amendment because the most important thing was to get the process going rather than take a step that might bog the Director of State Courts Office down with the responsibility of collecting data for the court.
While Abrahamson continued expressing concerns about paying for e-filing, Roggensack tried to move the discussion on to the court’s second order of business of the day.
“We all know it’s going to be $20 to start out for every filer,” Roggensack said. “We’ve adopted it. We’re now going to move on to the matter for tribal courts that a lot of people are here to talk about. So we are done with this issue, Justice Abrahamson.”
The court’s second order of business of the day was discussing a petition regarding transfers of circuit-court cases to tribal courts.