State Bar of Wisconsin

Wisconsin Lawyer
Vol. 79, No. 8, August 2006

Legal News & Trends

• Bar members invited to a celebration honoring chief justice
• Court rules CCAP records cannot be used to prove habitual criminality
• New legislation changes time period for service of a responsive pleading, Bar seeks feedback on Act 442
• Family and civil forms updated

Bar members invited to a celebration honoring chief justice

Chief Justice Shirley S. Abrahamson of the Wisconsin Supreme Court questions an attorney during oral argument in State v. Sherrie S. Tucker, Thursday September 12, 2002, in the Supreme Court Hearing Room in the State Capitol. The case is a Racine County case.
Photo Mark Hertzberg (c) Racine Journal Times

On Sept. 6, 1976, the State of Wisconsin celebrated a milestone: the investiture of the first woman ever to serve on the Wisconsin supreme court. On Sept. 6, 2006, a celebration will be held in honor of Chief Justice Shirley S. Abrahamson, who, in addition to marking 30 years on the supreme court, is celebrating her 10th anniversary as chief justice and 50 years as a lawyer. Members of the Bar are cordially invited to join the celebration on Wednesday, Sept. 6, from 4 to 6 p.m., in the State Capitol Rotunda.

The State Bar honored Chief Justice Abrahamson at the 50-year Members' Recognition Luncheon held during the 2006 Annual Convention last May.

Then-President G. Michael Guerin presented a plaque to the chief justice, saying, "It is a distinct honor to recognize Chief Justice Abrahamson for 50 years of faithful service to the practice of law and to recognize her special efforts in furtherance of the highest standards and ideals of the legal profession."

The State Bar and the U.W. and Marquette law schools are cosponsoring this event.

If you are able to attend, RSVP online by August 30, 2006 at www.law.wisc.edu/events/abrahamson.htm

Questions regarding this event:
Contact Brian Berg at (608) 262-5918 or brianberg@wisc.edu

Court rules CCAP records cannot be used to prove habitual criminality

On June 30, the Wisconsin Supreme Court ruled that prosecutors and courts cannot rely solely on Consolidated Court Automation Programs (CCAP) records to prove a defendant's status as a habitual criminal at sentencing.

Jamale A. Bonds pled not guilty to a charge of misdemeanor battery as a habitual criminal and was convicted after a jury trial. The criminal complaint that originally charged Bonds relied on three misdemeanor convictions for the enhancer allegation. At sentencing, Bonds did not admit the prior convictions, and the state changed the basis for the repeater allegation to a single prior felony conviction. The state sought to prove that conviction by submitting a CCAP report regarding the prior felony. Bonds objected to allowing the state to change the basis of the repeater allegation from three misdemeanors to a single felony and to the use of the CCAP report to prove that felony. The circuit court allowed the amendment over Bonds' objection and accepted the report. The circuit court imposed an enhanced sentence. Bonds appealed, and the court of appeals affirmed the circuit court in an unpublished opinion.

By separate majorities, the supreme court held that 1) with sufficient notice and proof of conviction the state could be permitted to amend the basis for the repeater allegation from three misdemeanors to the single felony, but that 2) in this case the CCAP report was insufficient to prove that single felony conviction absent other proof or the defendant's admission to it. The court rejected the use of CCAP reports as prima facie evidence to prove repeater status under Wis. Stat. section 939.62, because CCAP explicitly warns users that it does not warranty the accuracy of the data contained in its records. The court reversed the court of appeals and remanded the case to the circuit court with orders to vacate the enhancer portion of the sentence.

New legislation changes time period for service of a responsive pleading, Bar seeks feedback on Act 442

On May 23, Gov. Doyle signed into law 2005 Wisconsin Act 442, which takes effect Oct. 1, 2006, and first applies to actions commenced on or after that date. Act 442 changes the time period for service of a responding pleading in certain cases.

Prior to the enactment of Act 442, the time period for serving a responsive pleading was 45 days. This was the basic rule in civil procedure and in specified proceedings including appeals in worker's comp cases and appeals of alcohol licensing decisions.

Act 442 provides that a responsive pleading must be made within 20 days, except that a 45-day period applies when: 1) the defendant is the state or an officer, agent, employee or agency of the state; or 2) the defendant in an action is an insurance company or the complaint alleges that a tort occurred.

The Litigation Section seeks member feedback regarding problems posed by this Act. Direct questions to, Adam Korbitz at (800) 444-9404, ext. 6140, or akorbitz@wisbar.org. Read the full text of the Act at www.wisbar.org/act442.

Family and civil forms updated

As of June 1, 2006, the Wisconsin Records Management Committee has updated the following family (FA) and Civil (CV) forms.

• FA-4108 Petition with Minor Children
• FA-4110 Joint Petition for Divorce/Legal Separation with Minor Children
• CV-427 Poverty Guidelines for Earnings

Forms and summaries are available in PDF or MS Word format at www.wisbar.org/forms. For information, contact Terri Borrud at (608) 266-7143 or terri.borrud@wicourts.gov.

Wisconsin Lawyer