2013 Wisconsin Statutes & Annotations
757. General provisions concerning courts of record, judges, attorneys and clerks.
757.69 Powers and duties of circuit court commissioners.
757.69 Powers and duties of circuit court commissioners.
(1) A circuit court commissioner may:
(a) Direct a case to the proper court if the defendant wishes to enter a plea after intelligent waiver of rights.
(b) In criminal matters issue summonses, arrest warrants or search warrants, determine probable cause to support a warrantless arrest, conduct initial appearances of persons arrested, set bail, inform the defendant in accordance with s. 970.02 (1), refer the person to the authority for indigency determinations specified under s. 977.07 (1), conduct the preliminary examination and arraignment, and, with the consent of both the state and the defendant, accept a guilty plea. If a court refers a disputed restitution issue under s. 973.20 (13) (c) 4., the circuit court commissioner shall conduct the hearing on the matter in accordance with s. 973.20 (13) (c) 4.
(c) Conduct initial appearances in traffic cases and county ordinance cases, in traffic regulation cases and county ordinance cases receive noncontested forfeiture pleas, order the revocation or suspension of operating privileges and impose monetary penalties according to a schedule adopted by a majority of the judges of the courts of record within the county, and refer applicable cases to court for enforcement for nonpayment.
(d) In small claims actions, conduct initial return appearance and conciliation conferences.
(e) Conduct noncontested probate proceedings.
(f) Issue warrants and capiases for those who do not appear as summoned.
(g) When assigned to assist a court in juvenile matters:
1. Issue summonses and warrants.
2. Order the release or detention of children or expectant mothers of unborn children taken into custody.
3. Conduct detention and shelter care hearings.
4. Conduct preliminary appearances.
5. Conduct uncontested proceedings under s. 48.13, 48.133, 938.12, 938.13, or 938.18.
6. Enter into consent decrees.
7. Exercise the powers and perform the duties specified in par. (j) or (m), whichever is applicable, in proceedings under s. 813.122 or 813.125 in which the respondent is a child.
8. Conduct hearings under s. 48.21 or 938.21 and thereafter order a child or juvenile held in or released from custody.
9. Conduct hearings under s. 48.213 and thereafter order an adult expectant mother of an unborn child to be held in or released from custody.
10. Conduct plea hearings.
11. Conduct prehearing conferences.
12. Issue orders requiring compliance with deferred prosecution agreements.
13. Conduct all proceedings on petitions or citations under s. 938.125.
14. Conduct permanency reviews under s. 48.38 (5) or 938.38 (5) and permanency hearings under s. 48.38 (5m) or 938.38 (5m).
(h) Hear petitions for commitment and conduct probable cause hearings under ss. 51.20, 51.45, 55.13, and 55.135, conduct reviews of guardianships under ch. 54 and reviews of protective placements and protective services under ch. 55, advise a person alleged to be mentally ill of his or her rights under the United States and Wisconsin constitutions, and, if the person claims or appears to be unable to afford counsel, refer the person to the authority for indigency determinations specified under s. 977.07 (1) or, if the person is a child, refer that child to the state public defender who shall appoint counsel for the child without a determination of indigency, as provided in s. 48.23 (4).
(i) Conduct inquests under ch. 979.
(j) Hold hearings, make findings and issue temporary restraining orders under s. 813.122 or 813.123.
(k) Administer oaths, take, certify, and report depositions and testimony, take and certify acknowledgments, allow accounts, and fix the amount and approve the sufficiency of bonds.
(m) Hold hearings, make findings, and issue temporary restraining orders and injunctions under s. 813.12 or 813.125.
(n) Hold hearings, make findings and issue orders under s. 49.856 (4).
(o) Hold hearings and issue orders on petitions under s. 173.23 (3).
(p) When assigned to assist in matters affecting the family:
1. Preside at any hearing held to determine whether a judgment of divorce shall be granted, if both parties state that the marriage is irretrievably broken and that all material issues, including but not limited to division of property or estate, legal custody, physical placement, child support, spousal maintenance and family support, are resolved or if one party does not participate in the action for divorce. A circuit court commissioner may grant and enter judgment in any action over which he or she presides under this subdivision unless the judgment modifies an agreement between the parties on material issues. If the circuit court commissioner does not approve an agreement between the parties on material issues, the action shall be certified to the court for trial.
2. Conduct hearings and enter judgments in actions for enforcement of, or revision of judgment for, maintenance, custody, physical placement or visitation.
3. Except when prohibited by the chief judge of the judicial administrative district, conduct hearings and enter orders and judgments in actions to establish paternity, in actions to establish or enforce a child support or a family support obligation and in actions to revise orders or judgments for child support or family support.
(1m) Circuit court commissioners assigned to assist a court in juvenile matters shall sit at the children's court center, the usual court facility for juvenile matters, or such other facility designated by the chief judge of the judicial administrative district. Those commissioners may not do any of the following:
(a) Conduct fact-finding or dispositional hearings except on petitions or citations under s. 938.125 and except as provided in sub. (1) (g) 5.
(b) Make dispositions other than approving consent decrees, ordering compliance with deferred prosecution agreements and ordering dispositions in uncontested proceedings under s. 48.13, 48.133, 938.12, or 938.13.
(c) Conduct hearings for the termination of parental rights or for adoptions.
(d) Make changes in placements of children, of juveniles, or of the expectant mothers of unborn children, or revisions or extensions of dispositional orders, except pursuant to petitions or citations under s. 938.125 and in uncontested proceedings under s. 48.13, 48.133, 938.12, or 938.13.
(e) Conduct hearings, make findings, or issue orders in proceedings under s. 48.977 or 48.978.
(f) Conduct waiver hearings under s. 938.18, except as provided in sub. (1) (g) 5.
(g) Make any dispositional order under s. 938.34 (4d), (4h), or (4m).
(2) A judge may refer to a circuit court commissioner cases in which:
(a) The trial of an issue of fact requires the examination of an account, in which case the circuit court commissioner may be directed to report upon any specific question of fact involved therein.
(b) The taking of an account is necessary for the information of the court before judgment or for carrying a judgment or order into effect.
(c) A question of fact other than upon the pleadings arises.
(d) Proposed findings of fact and conclusions of law are to be prepared pertaining to default mortgage and land contract foreclosures and mechanics liens.
(2m) Circuit court commissioners may exercise, under their own authority, all of the powers listed under s. 757.675 (2) to (5).
(2t) A circuit court commissioner shall cooperate with the county and the department to ensure that all dependent children receive reasonable and necessary child support.
(8) Any decision of a circuit court commissioner shall be reviewed by the judge of the branch of court to which the case has been assigned, upon motion of any party. Any determination, order, or ruling by a circuit court commissioner may be certified to the branch of court to which the case has been assigned, upon a motion of any party for a hearing de novo.
History: 1977 c. 323, 449; 1979 c. 32; 1979 c. 89; 1979 c. 209 s. 4; 1979 c. 352, 356; 1983 a. 279; 1985 a. 126, 202, 234, 332; 1987 a. 3, 27, 71, 378, 398; 1989 a. 7, 12, 31, 246; Sup. Ct. Order, 158 Wis. 2d xxv (1990); 1991 a. 39, 269; 1993 a. 318, 451, 481; 1995 a. 77; 1997 a. 191, 192, 292; 1999 a. 32; 2001 a. 16; 2001 a. 61 ss. 93 to 109, 173, 175, 177, 180; 2001 a. 105; 2005 a. 264, 387; 2007 a. 45, 179; 2009 a. 79; 2011 a. 181.
Section 970.04 specifically limits the availability of a second preliminary examination in a criminal matter and precludes a request for a de novo hearing under the more general sub. (8). State v. Gillespie, 2005 WI App 35, 278 Wis. 2d 630, 693 N.W.2d 320, 04-1758.
A party who requests a hearing de novo under sub. (8) is entitled to a hearing that includes testimony from the parties and their witnesses. Stuligross v. Stuligross, 2009 WI App 25, 316 Wis. 2d 344, 763 N.W.2d 241, 08-0311.
The issuance of a search warrant is not an exercise of "[t]he judicial power," as that phrase is employed in Art. VII, s. 2. Instead, issuance of a valid search warrant requires that the individual be authorized by law to issue the warrant, that he or she be neutral and detached, and that the warrant be issued only upon a showing of probable cause. Sub. (1) (b) does not impermissibly intrude upon "[t]he judicial power" granted to the courts by Art. VII, s. 2 and is constitutional. State v. Williams, 2012 WI 59, 341 Wis. 2d 191, 814 NW 2d 460, 10-1551.
The provision in sub. (8) for a circuit court to conduct a "hearing de novo" on review of a court commissioner's order presupposes that the court commissioner has conducted a hearing. A de novo hearing is a new hearing of a matter, conducted as if the original hearing had not taken place. Thus, a local rule precluding a new hearing upon stipulation or default does nothing more than expressly advise as to the practical consequences of consenting to a court commissioner's order. Nehls v. Nehls, 2012 WI App 85, 343 Wis. 2d 499, 819 N.W.2d 335, 11-2330.
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