Dec. 7, 2011 – Gov. Scott Walker has signed a bill that vastly expands legislative regulation of attorney fees in as many as 280 statutory and administrative causes of action which currently allow fee-shifting.
In a bill signing Dec. 7, the governor also signed into law a bill that changes Wisconsin's self-defense law, adopting what's commonly known as an expanded "castle doctrine" law, and another bill that codifies trespasser liability law. In total the governor signed 21 bills.
Regulation of attorney fees
Gov. Walker signed the bill, Special Session Senate Bill 12, into law as 2011 Act 92 on Dec. 7, 2011. Announcing his decision to sign the bill, Gov. Walker stated in a press release, “Protecting job creators from excessive attorney fees will improve our business climate, and ultimately help create jobs in the private sector.”
The State Bar of Wisconsin opposes the new law, which will presumptively limit attorney fees at an arbitrary level of three times the amount of compensatory damages awarded in any action not governed by section 814.04 and in which fee-shifting is allowed by law. An amendment adopted by the state senate makes the hard cap proposed in the bill a presumptive cap that can be exceeded by the court if deemed reasonable.
The new limits imposed by the bill may impact as many as 280 statutes and administrative rules, including many that are frequently brought by Wisconsin businesses against those who have violated the law. These statutes also are frequently used to successfully defend against frivolous claims brought against an innocent party by someone who has actually violated the law.
Legislative committees held public hearings on the bill in the Senate and the Assembly on Oct. 19 and Oct 21, 2011, respectively. Numerous State Bar members testified against the legislation at both hearings.
In a statement sent to legislators prior to the bill’s passage, State Bar President James Brennan said, “Lost in the unnecessary haste with which this legislation is being advanced is the fact that it will harm Wisconsin businesses as much it will harm individual Wisconsin taxpayers and consumers. The members of the State Bar represent both businesses and individual taxpayers and consumers. This legislation is bad for all parties because it creates ambiguity and uncertainty in the law where none currently exists.”
“This bill is certain to have unintended, adverse consequences for Wisconsin’s business community, on whose behalf the legislation was ostensibly offered,” Brennan continued. “It is clear that this bill’s potentially vast effect and breadth is not yet understood by those advancing it. This bill will interfere with the rights of Wisconsin businesses and individual taxpayers and consumers who seek to enforce their statutory, administrative and contractual remedies.”
Legislative leaders introduced the bill on Oct. 11, 2011, as part of Gov. Walker's "Back to Work Wisconsin" special session regarding job creation. Senator Rich Zipperer (R-Pewaukee) and Rep. Robin Vos (R-Burlington) are the lead legislative sponsors. Sen. Zipperer is a member of the State Bar of Wisconsin.
The state Senate passed the bill along party lines on Thursday, Oct. 27, 2011. All 17 Republican senators voted for the bill and all 15 Democrats who were present voted against the bill. The Assembly followed suit on Nov. 3, 2011, passing the bill on a 55-39 vote. All Republican Assembly members present voted for the bill, except for Rep. Stephen Nass (R-Whitewater), the only Republican to vote against the bill. All Democrats present and voting and one Independent member voted against the bill.
Castle doctrine and trespasser bills
Gov. Walker signed Assembly Bill 69, which creates a presumption of immunity in criminal and civil actions for individuals who use substantial or deadly force against a trespasser who unlawfully and forcibly enters or was entering their home, motor vehicle, or place of business. The State Bar's Criminal Law Section, composed of approximately 600 judges, prosecutors, criminal defense lawyers, and academics, opposed the bill.
“By signing the castle doctrine into law, I am standing with those individuals who chose to protect their family and property,” Gov. Walker stated in a press release.
Also, the governor signed Special Session Senate Bill 22, which provides that a possessor of real property owes no duty of care to a trespasser and may not be found liable for an act on the property that causes injury or death to a trespasser, unless the possessor of real property willfully, wantonly, or recklessly caused the injury or death without justification.
Continue to monitor WisBar.org and visit the State Bar's Government Relations page for updated information on these issues.
By Adam Korbitz, Government Relations Coordinator, State Bar of Wisconsin
- Assembly schedules final vote on bill to regulate attorney fees – WisBar Rotunda Report, Nov. 2, 2011
- State senate passes bill to regulate attorney fees – WisBar Rotunda Report, Oct. 28, 2011
- Senate will act today on bill undercutting business and consumer rights – WisBar News, Oct. 27, 2011
- Attorney fees: Proposed bill seeks to cap reasonable attorney fees where available – WisBar InsideTrack, Oct. 19, 2011
- Special session on jobs will include tort proposals – WisBar Rotunda Report, Sept. 27, 2011
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