July 2014

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By David A. Ambrosh, Shareholder
1.      The Wisconsin Supreme Court Confirms That Judges Can Assist Pro Se Litigants
At its open administrative conference held on May 27, 2014, the Wisconsin Supreme Court voted 6-1 to tentatively approve in principle a petition submitted by the Wisconsin Access to Justice Commission to authorize state court judges to use techniques to help level the playing field for self-represented litigants. That is, judges can use certain techniques that facilitate the proceedings without the risk of being charged with ethics violations that ensure judges remain impartial. 
The petition will effectively amend and create Wisconsin Code of Judicial Conduct rules to make clear that judges can take “reasonable efforts” to facilitate the ability of all litigants, including self-represented litigants, to be fairly heard. Examples of such “reasonable efforts” include:
-          Providing information or explanation about proceedings
-          Explaining legal concepts in everyday language
-          Asking neutral questions to elicit or clarify information
-          Permitting narrative testimony
-          Referring litigants to helpful resources
-          Informing litigants what will be happening next in the case and what is expected of them
To a large degree, many Wisconsin judges and court commissioners are already doing this in practice. It is important to note that even with this petition, judges are still prohibited from giving legal advice. In addition, the petition does not allow judges to favor litigants due to their self-represented status; judges still need to remain impartial.

2.      Wisconsin Court of Appeals Upholds Extra-Territorial Wage Garnishments
In the case of Midland Funding LLC v. Mizinski, Appeal No. 2013AP2422, 2014 Wis. App. LEXIS 478 (Ct. App. 2014), Midland commenced a post-judgment wage garnishment action to attach Mizinski’s wages. Mizinski resided in Wisconsin, but worked for a business that was headquartered in Texas. Mizinski testified that all but 2% of his work was done outside of Wisconsin. Mizinski moved to quash the garnishment, arguing that wage garnishments are in rem proceedings and therefore a Wisconsin court needed in rem jurisdiction over his wages in order to garnish them. 
Midland, represented by Kohn Law Firm, argued that pursuant to long-standing precedent in the case of Dalton v. Meister, 71 Wis. 2d 504, 239 N.W.2d 9 (1976), wage garnishments are in personam proceedings and thus a Wisconsin court only needed personal jurisdiction over a garnishee. In other words, Midland argued that extra-territorial wage garnishments are legal so long as a garnishee has sufficient contacts within Wisconsin. The circuit court denied Mizinski’s motion to quash, but for reasons other than that argued by either party. 
The circuit court concluded that wage garnishments are both in rem and in personam proceedings (i.e. quasi in rem). As such, the circuit court agreed with Mizinski that the location of the wages matters. However, the court, citing to Livingston v. Naylor, 920 A.2d 34, 51-53 (Md. Ct. Spec. App. 2007), concluded that because Mizinski worked at least partially in Wisconsin, his wages were located in Wisconsin. In other words, the circuit court upheld the wage garnishment only because Mizinski did not work exclusively outside of Wisconsin.
Mizinski appealed. Both parties made the same arguments. The Court of Appeals affirmed the circuit court’s decision, but concluded that the circuit court’s reasoning was flawed.  Specifically, the Court of Appeals agreed with Midland, finding that Dalton remained good precedent and an extra-territorial garnishment was legal so long as Wisconsin courts had personal jurisdiction over the garnishee. The Court of Appeals concluded that the circuit court did not attempt to exercise in rem jurisdiction over Mizinski’s wages. It merely issued an in personam order to the garnishee to remit a portion of Mizinski’s wages to Midland. Because the garnishee business had sufficient contacts within Wisconsin, the circuit court had personal jurisdiction over the garnishee such that the in personam order was legal.
Posted: 7/7/2014 2:25:18 PM by Tom Connor | with 0 comments