Wisconsin Attorney General Opinions

Opinion # OAG 11-83,

9 March 1983

Court Commissioner;
Non-lawyer court reporters cannot be
delegated power to issue criminal warrants
and conduct initial appearances pursuant to
Section 757.69(1)(b), Stats.

LAVERNE MICHALAK,
District Attorney Trempealeau County

You request my opinion regarding the powers
of a part-time court commissioner who is
not a licensed attorney but is
an official court reporter.

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The individual was originally appointed as
court commissioner on February 1, 1974, by
the County Judge for Trempealeau County,
Albert L. Twesme, with approval of
Circuit Judge Merrill R. Farr.

The individual was again appointed as court
commissioner on August 1, 1978, by order of
then Circuit Judge Twesme, who also approved
the appointment as Chief Judge of the
District 7 Judicial Administrative District.

On January 19, 1981, Judge Twesme, acting in
his capacity as both Circuit and Chief Judge,
issued and approved an order delegating to
the individual court commissioner the powers
specified in Section 757.69(1)(b), Stats.

You specifically inquire whether a part-time
court commissioner who is not licensed as an
attorney has power to issue arrest or search
warrants and conduct initial appearances
pursuant to authority delegated under
Section 767.69(1)(b).

It is my opinion that such a commissioner
does not have these powers.

Section 757.69(1)(b) provides,
in material part:

757.69(1)

   On authority delegated by a judge, which
   may be by a standard order, and with the
   approval of the chief judge of the
   judicial administrative district, a
   court commissioner appointed under
   Section 757.68 may: . . . . . .

757.69(1)(b)

In criminal matters issue summonses,
arrest warrants or search warrants and
conduct initial appearances of persons
arrested and set bail to the same
extent as a judge.

In the instant case, the court commissioner
was originally appointed in 1974 pursuant
to Section 252.14(1), Stats. (1973),
to a term which,

unless removed by the judge, shall
continue until the expiration of the
term of the judge who appointed him and
until the successor of such commissioner
is appointed and qualified.

Under Section 252.15, Stats. (1973), court
commissioners, whether or not licensed
attorneys, did not have power to issue
warrants or preside over initial
appearances in criminal cases.

Chapter 252 was renumbered to chapter 753
of the statutes by Section 92 of
Chapter 187, Laws of 1977.

Section 753.14(1) was then amended and
renumbered to Section 757.68(2) by Section 7
of Chapter 323, Laws of 1977.

72 OAG 39  40  41  42  43  END

Section 757.68(2) in essentially its current
form became effective May 16, 1978, and
requires court commissioners appointed
after that date to be attorneys,
except court reporters who may
perform only certain duties.

Section 757.68(2) currently provides
in material part:

All court commissioners appointed
after May 16, 1978, other than official
court reporters acting under Section
814.68(1)(b) performing duties or
exercising powers specified for
court reporters, shall be attorneys
licensed to practice in this state.

The appointing judge may remove, at
will and without cause, any court
commissioner appointed by the judge
or the judge's predecessor in office.

Unless he or she is so removed, the
term of each court commissioner shall
continue until the expiration of the
term of the appointing judge and until
the successor of the commissioner is
appointed and qualified.

The only change in Section 757.68(2) since
1978 was in the cross reference, replacing
"Section 757.71(2)(b)" with "814.68(1)(b)."

See Chapter 317, Section 2202, Laws of 1981.

Section 814.68(1)(b) which was recreated
by Chapter 317, Laws of 1981, establishes
fees to be charged by a part-time court
commissioner, and is similar in content to
former Section 757.71(2)(b), Stats. (1979),
and provides:

814.68(1)(b)

For the following duties performed by a
part-time court commissioner held in the
county courthouse or other court
facilities provided by law, reasonable
compensation as fixed by the court but
not more than the hourly equivalent of
the salary of a judge of the court:

1. Every attendance upon the hearing
   of any motion for an order which a
   court commissioner is authorized to
   grant and for attendance upon any
   motion or an official act to be
   done by the court commissioner.

2. Conducting a hearing and deciding
   on the issuance of a writ of habeas
   corpus, certiorari, ne exeat and
   alternate writs of mandamus.

3. Attendance upon the taking of
   testimony or examination of
   witnesses in any matter held
   outside the county courthouse or
   other court facilities provided by
   law, whether acting as a referee or
   otherwise.

72 OAG 39  40  41  42  43  END

In my opinion an official court reporter who
is not licensed as an attorney can be
appointed as part-time court commissioner
after May 16, 1978, but is limited in the
powers he or she may exercise to those set
forth under Section 814.68(1)(b)and those
which other statutes provide are within
the duties or powers specified for
court reporters.

Such powers and duties would not include the
issuance of warrants and conducting initial
appearances in criminal matters.[*]

In the instant case, the official court
reporter was reappointed as court
commissioner by judicial order
on August 1, 1978.

Because this appointment occurred after the
effective date of Section 757.68(2), such
appointment is certainly governed by
that statute.

It is my opinion that the term of the
part-time court commissioner which began on
February 1, 1974, terminated on August 1,
1978, when Circuit Judge Twesme, acting
pursuant to Section 757.68(2), in effect
removed such person from office and
appointed that person again for a new term.

Since the new appointment is governed by
Section 757.68(2), and the court commissioner
is an official court reporter but not a
licensed attorney, the appointee's powers as
court commissioner are limited to those set
forth under Section 814.68(1)(b) and those
which other statutes provide are within
the duties of powers specified
for court reporters.

Again, such powers and duties would not
include the issuance of warrants and
conducting initial appearances
in criminal matters.

Even had the court commissioner's term not
expired by reappointment, I do not believe a
non-attorney can legally issue criminal
warrants or conduct initial appearances.

The authority of court commissioners is
strictly defined and limited by statute.

The provisions of Section 757.68(2) appear
to demonstrate the Legislature's clear
intention that only attorneys can exercise
the expanded duties of court commissioners
under Section 757.69(1).

It would seem that a non-attorney who was
appointed court commissioner before the
duties were expanded does not have the powers
now limited to attorney court commissioners
merely because his term never expired.

72 OAG 39  40  41  42  43  END

This would appear contrary to the language
of the statute and the intent
of the Legislature.

BCL:RJV:TH

[*]

In so concluding, I express no opinion
as to the validity of past warrants
issued and initial appearances conducted
by non-attorney court commissioners.

72 OAG 39  40  41  42  43  END