March 28, 2012 – The Wisconsin Legislature has adjourned its 2011-12 floor period for regular business, drawing the curtain on a historically contentious legislative session.
The state Senate adjourned on March 15, 2012, and the Assembly followed suit the next day. The Legislature will not return for regular business until January 2013, following the November elections during which the entire Assembly and half the Senate will stand for election. In addition, four Republican state Senators are expected to face recall elections later this spring. Efforts to recall two Democratic Senators have also been announced.
January 2011 tort reform bill
On Jan. 27, 2011, Gov. Scott Walker signed 2011 Wisconsin Act 2 into law, only 23 days after legislators first introduced the legislation.
The Legislature debated, passed and sent the bill to Gov. Walker in an unusually short time. Gov. Walker and the Republican leadership in the Legislature placed the bill on a fast-track for passage during a special legislative session called to address job creation and the governor’s declaration of an economic emergency.
The controversial tort reform bill generated heated debate from the moment it was introduced. The Wisconsin Defense Counsel, a statewide association of litigation defense attorneys, immediately praised the bill upon its release. Likewise, the Wisconsin Association for Justice, a statewide association of litigation plaintiffs’ attorneys, immediately condemned the bill.
The rapid passage of the tort reform bill illustrated the strength and degree of Republican control over the Legislature when the 2011-12 session started. Following November 2010 general election, Republicans controlled the Assembly by a 57-38-1 margin. (Three more seats in the Assembly had been held by Republicans after the fall election but were vacant in January 2011 due to gubernatorial appointments. The Republicans ultimately held onto those two of those three seats in special elections, giving them a 59-39-1 advantage for the balance of the session.)
Republicans likewise gained control the Senate by a 19-14 margin in the November 2010 general election. The Republican margin subsequently fell to 17-16 following the August 2011 recalls of Senators Dan Kapanke and Randy Hopper.
This degree of control allowed Republicans to steer the tort reform bill through the Legislature quickly and with few changes that they didn’t want, foreshadowing how much of the rest of the legislative session would unfold.
The new tort reform law has several provisions that were opposed by the State Bar of Wisconsin’s Board of Governors. The three provisions opposed by the State Bar extensively rewrote state product liability law; imposed caps on non-economic damages in lawsuits against various providers of long-term care such as nursing homes, hospice centers and assisted living facilities; and conformed Wisconsin law regarding the opinions of lay and expert witnesses to Federal Rules of Evidence 702 and the so-called Daubert standard.
The act also maintained current law regarding the legal standard necessary to impose punitive damages, but imposed a cap on punitive damages of two times compensatory damages or $200,000, whichever is greater.
Other provisions of the tort reform act included measures to reverse the Wisconsin Supreme Court’s lead paint liability decision in Thomas v. Mallett, 2005 WI 129; rewrite state rules relating to damages for frivolous claims; provide for the confidentiality of health care quality improvement reviews; and apply a three-year statute of limitations to lawsuits against long-term care providers.
The act also included other provisions that immunize a health care provider from criminal prosecution for death or bodily harm to a patient resulting from negligent conduct.
Other major initiatives enacted despite State Bar opposition
In addition to 2011 Wisconsin Act 2, several other major pieces of legislation passed the Legislature this session and were signed into law by Gov. Walker despite the opposition of the State Bar.
On April 12, 2011, Gov. Walker signed into law 2011 Wisconsin Act 14 which, among many other changes to Wisconsin law regulating automobile insurance, eliminated the ability of insureds to stack policy limits. The State Bar’s Board of Governors has a long-standing position supporting the ability of insureds to stack automobile policy limits. The State Bar took no position on other changes the law made, which included lowering the minimum liability limits Wisconsin drivers are required to purchase.
On June 26, 2011, Gov. Walker signed the 2011-13 state budget bill, 2011 Wisconsin Act 32, at a ceremony in Green Bay. The state budget bill contained several provisions opposed by the State Bar’s Board of Governors. For example, the budget act completely eliminated funding for indigent civil legal needs as well as public financing of Supreme Court campaigns.
The Legislature first provided funding for civil legal services for low-income individuals in the 2007-09 state budget when it included $1 million for that purpose, a move long-supported by the State Bar. A study released by the State Bar in March 2007 (Bridging the Justice Gap: Wisconsin’s Unmet Legal Needs) showed that more than 500,000 state residents routinely cope with evictions, divorces, and other critical legal issues on their own.
The state budget for the subsequent 2009-11 biennium, which ended on June 30, 2011, significantly boosted state funding for indigent civil legal needs by adding $4 to the justice information fee and designating that money be used to provide grant funding for civil legal services through the Wisconsin Trust Account Foundation, Inc. (WisTAF). The 2011-13 budget act signed by Gov. Walker eliminates that funding completely.
The budget act also completely eliminated public funding of Wisconsin Supreme Court campaigns. The State Bar’s Board of Governors has long supported public financing for Supreme Court campaigns using general purpose tax revenues.
The battle over so-called litigation reform was reopened in October 2011 when Republican legislators introduced bills ultimately leading to the enactment of 2011 Act 92, which Gov. Walker signed into law on Dec. 7, 2011.
The State Bar opposed the new law, which presumptively limits 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 a court if doing so is deemed reasonable by the court.
The new limits imposed by the act 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.
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.”
On June 22, 2011, Gov. Walker signed into law 2011 Act 29, which repealed a program that required law enforcement officers around the state to record and report racial and ethnic information about people they detain in traffic stops.
The Legislature had enacted the now-repealed data collection program, which took effect Jan. 1, 2011, in order to compile empirical data regarding racial profiling in Wisconsin. Passed three years ago as part of the 2009-11 state budget, the program that Act 29 repealed also required law enforcement training designed to prevent racial profiling or race−based discrimination as a basis for detaining, searching, or arresting a person.
“For the public to have trust and confidence in the justice system, it must believe that all persons are treated equally,” James C. Boll (State Bar President at the time) told legislators in a memo. “The State Bar supports the collection and analysis of data with regard to racial and ethnic profiling. Further, upon the empirical evidence of such practices, we support mandates to end such practices as well as funding for training of law enforcement to address such practices.”
Major initiatives defeated which the State Bar opposed
The State Bar’s legislative agenda did meet with some success during the 2011-12 legislative session, in that several major initiatives that the Board of Governors opposed were defeated or failed to pass.
Those defeated measures include 2011 Senate Bill 74 and Assembly Bill 109, which, as introduced, would have repealed Wis. Stat. section 971.20, thereby eliminating the right of judicial substitution in criminal cases. The bill passed the Senate in June 2011 but never advanced in the Assembly. The Board of Governors has a longstanding public policy position opposing restrictions on the substitution of judges.
Likewise, Assembly Bill 173, an anti-immigration bill patterned after similar, controversial legislation in Arizona, never even received a public hearing. The Board of Governors voted unanimously to oppose this and similar legislation at its September 2011 meeting.
Several bills that would have further significantly changed product liability law in Wisconsin – beyond the changes made previously in the session in Act 2 – also failed to advance this session. Bills that failed to advance this session included Assembly Bill 538 and Senate Bill 373, which would have applied to product liability law generally, as well as September 2011 Special Session Assembly Bill 13 and Senate Bill 13, which would have sharply curtailed the liability of drug and medical device manufacturers and sellers.
Initiatives passed with State Bar support
Act 32, the 2011-13 budget bill, did contain some initiatives the State Bar of Wisconsin supports, including funding of new State Public Defender staff positions authorized in SPD eligibility legislation passed during the preceding session.
When the previous 2009-10 Legislature enacted 2009 Wisconsin Act 164, expanding financial eligibility for public defender representation from the antiquated 1987 Aid to Families With Dependent Children limits to current W-2 limits, it also authorized 45 new SPD staff positions to handle the anticipated increased caseload. The budget act as signed by Gov. Walker fully funded those new positions, which under Act 164 were created effective June 19, 2011.
In addition, the budget act increased funding to help fill the hole in the perennially underfunded SPD private bar appropriation, which has repeatedly run out of money during the first half of odd-numbered years. The budget act increased the private bar appropriation by $3.6 million, which will help to fill the hole but will not cover the entire shortfall in the current biennium.
The State Bar’s Board of Governors has long-standing public policy positions in favor of both expanded SPD eligibility standards and adequate compensation of private bar attorneys who take SPD cases.
The budget act also increased biennial funding to reimburse counties for court interpreter services by $366,700. The State Bar supports the continued funding of the court interpreter program.
On March 15, 2012, the Assembly gave final passage to 2011 Senate Bill 394, which, if eventually funded, should improve compensation and retention rates for experienced prosecutors. If the bill is signed into law by Gov. Walker, it will establish a pay progression program for assistant district attorneys that is intended to improve retention of mid-level prosecutors. However, the bill does not fund the program in the current biennium, leaving that issue for a future Legislature to address in the next state budget starting July 1, 2013.
The State Bar supported the bill, based on an existing Board of Governors position supporting adequate funding for additional staff necessary to maintain reasonable caseloads.
Initiatives defeated despite State Bar support
The State Bar supported an initiative to create a Judicial Compensation Commission, but Gov. Walker vetoed the proposal in its entirety when he signed the 2011-13 state budget, Wisconsin Act 32, into law in June 2011. The vetoed provision would have created a judicial compensation commission to study and make recommendations on judicial pay. The purpose of the commission would have been to assure that highly qualified individuals serve on the bench without unreasonable economic hardship.
The State Bar’s Board of Governors has a long-standing public policy position in favor of a judicial compensation commission.
Under the plan Gov. Walker vetoed, every biennium the judicial compensation commission would have reviewed judicial salaries in Wisconsin and made a recommendation to the governor and the Legislature. Those recommendations would have been incorporated into the governor’s biennial budget bill but could have been modified by the Legislature. Generally, the salaries of judges and justices would have been increased by the same percentage as that given to state employees as part of a general salary increase or by the amount recommended by the commission, whichever was larger.
What’s next for the Legislature: Recalls and the November 2012 election
As stated earlier, the Legislature will not return for regular business until January 2013, following the election of a new body. The entire Assembly and 16 of 33 state Senators will stand for election in the November 2012 general election. In the meantime, however, four Republican Senators will face recall elections later this spring, with any primaries to be held May 8, 2012 and the general elections on June 5, 2012. In addition, efforts to recall two Democratic state Senators have also recently been announced.
To date, seven Assembly members (four Republicans, two Democrats and one Independent) have announced their retirement from elective office. Three other Assembly members (one Republican and two Democrats) are giving up their seats to seek federal office. Two state Senators (one Republican facing recall and one Democrat) have likewise announced their retirements, and several legislators are running for other office this spring in local races, in the Senate recalls, and in the recall race against Gov. Walker.
A separate article will address the fate of legislative proposals supported or opposed by the various practice sections of the State Bar that are authorized to lobby independently.
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
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