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Justice voices concern about proposed change to default-judgment rule (UPDATE)

Starting Jan. 1, state trial court judges will have the authority to find in default plaintiffs and other parties who don’t respond to cross claims or counterclaims.

In a closed conference Thursday, the Wisconsin Supreme Court voted unanimously to grant a rule-change petition filed by the Judicial Council after a short public hearing.

The hearing, the first of the current term, was about the Judicial Council’s plan to close what it deems a loophole in the state’s default-judgment rule, Wis. Stat. 806. 02.  The council, a 21- member body charged with proposing changes to the state’s courts procedures, is seeking to add language that would let defendants file for a default judgement when an opposing party fails to answer a counterclaim or cross claim. The current rule is silent on what happens in such a situation.

Tom Shriner, a lawyer and member of the Judicial Council, presented the proposal at Thursday’s hearing, calling the omission in the rule “unexplainable” and noting that the state Court of Appeals first pointed it out 30 years ago.

Judge Eugene Gasiorkiewicz, also a member of the council, said current rules now require him to schedule one to two additional proceedings should a defendant ask him to find a party in default for failing to respond to a cross claim or counterclaim.

“These are dangling participles that are out there,” Gasiorkiewicz said, prompting chuckles from the justices.

Only three of the seven justices on the state Supreme Court made comments at Thursday’s hearing, which lasted for less than an hour.

The first remarks came from Justice Dan Kelly, who said he was delighted to see Shriner whip out a pocket version of the Federal Rules of Civil Procedure, noting that it’s more common to see lawyers with a pocket version of the U.S. Constitution.

Chief Justice Pat Roggensack said she became aware of the omission that the Judicial Council is now working to eliminate when she was a lawyer practicing privately. In her case, though, she was simply granted a default judgment by then-Judge Jon Wilcox.

Justice Ann Walsh Bradley was the only justice with concerns about the council’s proposal. She said the service requirements that take hold whenever a plaintiff files a lawsuit are designed specifically to get defendants’ attention. The same cannot be said for counterclaims.

“Why is there parity in the result but not the process?” she said.

The Judicial Council filed the rules-change proposal in April. The justices voted in June to take up it at a public hearing.

No one submitted written comments either supporting or opposing the proposal. However, the State Bar of Wisconsin’s Litigation Section Board recently voted to support the petition, and the bar’s Board of Governors took the same step last month.

The justices will issue a formal written order in the coming weeks describing why they voted to adopt the petition. The rule-change will take effect starting Jan. 1.


About Erika Strebel, erika.strebel@wislawjournal.com

Erika Strebel is the law beat reporter for the Wisconsin Law Journal and a law school student at UW-Madison. She can be reached at 414-225-1825.

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