April 11, 2012 – Several practice sections of the State Bar of Wisconsin enjoyed legislative achievements during the recently concluded 2011-12 legislative session, which ended when the Legislature adjourned for the year on March 15-16, 2012.
State Bar practice sections worked on numerous bills this session, which began in January 2011. The fate of several pieces of legislation was not clear until the final days of the spring floor session.
Unless called into special or extraordinary session, the Legislature is not expected to reconvene until January 2013, following the November 2012 general election. During the November election, the entire 99-member state Assembly and 16 of the state Senate’s 33 seats will stand for election. In addition, four Republican state Senators will face recall elections later this spring, and efforts to recall two Democratic Senators have also recently been announced.
An earlier article recapped how various public policy positions of the State Bar’s Board of Governors fared during the recently concluded legislative session.
Juvenile power of attorney
Gov. Scott Walker Wisconsin signed 2011 Wisconsin Act 87 into law on Nov. 23, 2011. The legislation, which was supported by the State Bar’s Children and the Law Section, allows parents with legal custody of a child to delegate parental authority to a third party through a power of attorney (POA), along with other child-related legislation. The legislation was sponsored by Rep. Dale Kooyenga (R-Brookfield).
Under the new law, a parent will be able to draft a POA document delegating full or partial parental authority to a third person without court or social services involvement. Under such an agreement, the delegating parent will maintain full control over the arrangement subject only to the other parent’s equal authority, as long as the other parent also has legal custody.
The new law addresses situations in which a parent seeks to designate temporary decision-making and care-taking responsibility to a competent adult during required absences, such as those required to deal with medical, emotional, or addiction issues or that are required by imprisonment, military service, or other obligations.
Prior to Act 87, parents in need of assistance had limited options, and a third party accepting care of a child was required to have a foster care license.
Access to juvenile records
On April 9, 2012, Gov. Walker signed 2011 Wisconsin Act 270 into law, which makes changes to the law governing access to juvenile records by law enforcement, district attorneys, and litigants in juvenile proceedings.
The bill was supported in its final version by the State Bar’s Children and the Law Section. However, the section supported the bill only after changes were made to the bill to allow access to juvenile records by attorneys for the litigants in an action. The section also supported changes limiting access to mental health and medical information as well as changes limiting re-release of the information contained in the files.
The new law, co-authored by Sen. Alberta Darling (R-River Hills) and Rep. Robin Vos (R-Rochester), makes the following changes, among others:
Criminal courts and district attorney's may access juvenile court records.
Law enforcement agencies may access delinquency records to investigate alleged criminal activity or activity that could result in a court exercising delinquency jurisdiction over the juvenile.
The law expands access to electronic court records on juvenile cases to district attorneys, child welfare agencies, other courts, and law enforcement regardless of whether the entity is a party to the case in question.
Guardians ad litem and defense attorneys assigned to the case are granted access to juvenile records.
The bill requires that those who receive information via the statute keep the information confidential, and includes forfeitures for a failure to do so.
UCC Article 9 amendments
On April 2, 2012, Gov. Walker signed 2011 Wisconsin Act 206 into law, which makes various changes to Article 9 of the Uniform Commercial Code. The legislation, sponsored by Sen. Glenn Grothman (R-West Bend) and Rep. Joan Ballweg (R-Markesan), was recommended by the National Conference of Commissioners on Uniform State Laws (NCCUSL). The State Bar’s Business Law Section actively supported the bill.
UCC Article 9 governs transactions that involve the granting of credit secured by personal property of a debtor. Wisconsin adopted UCC Article 9 in 2001. Act 206 makes various technical, substantive and definitional changes to Article 9, including changes to:
how a debtor’s name must be identified on a financing statement
the rules governing the filing of a financing statement when the debtor has changed location to a new state and a security interest attaches within four months after this change of location
various definitions, including changes to improve compatibility of provisions with the use of electronic records
Several bills defeated or amended
State Bar lobbying sections were also successful in defeating or making significant changes to several major pieces of legislation that they opposed as originally introduced. For example, the Criminal Law Section successfully lobbied against Assembly Bill 567, which would have brought the bail bondsman industry back to Wisconsin. The bill received a public hearing in March 2012, but never advanced to a floor vote. Gov. Walker vetoed a similar plan out of the state budget bill when he signed that act into law in June 2011.
The Children and the Law Section and the Family Law Section both actively opposed Assembly Bill 54, which would have mandated joint legal custody and 50/50 physical placement in most child custody cases. The bill received a public hearing in April 2011 but never advanced for a floor vote.
The Public Interest Law Section actively opposed Assembly Bill 582, which would have deregulated the rent-to-own industry in Wisconsin by exempting it from the application of the Wisconsin Consumer Act, the Uniform Commercial Code and Truth in Lending statutes. The bill, which was introduced late in the session, was passed by the Assembly on that house’s last scheduled day for regular business but was not taken up by the Senate.
The Litigation Section actively monitored Assembly Bill 147 and Senate Bill 103, neither of which ultimately passed this session. While the section supported the concept that health care providers should be encouraged to express to their patients words of sympathy or concern without fear of liability arising from such expressions, it opposed the exclusion from evidence of admissions of fault by health care providers. To the extent these bills would have had the effect of making admissions of fault by health care providers non-evidentiary, the Litigation Section opposed them. The bill passed the Assembly in October 2011, but never advanced to a floor vote in the Senate.
The Public Interest Law Section and the Bankruptcy, Insolvency and Creditor’s Rights Section both opposed September Special Session Senate Bill 14 as originally introduced, because it would have lowered the interest rate for judgments in tort and consumer law cases but not in other cases. However, during debate the Legislature amended the bill in response to criticism on this point. As enacted into law, 2011 Wisconsin Act 69 lowers the interest rate that applies to all judgments.
Significant bills passed despite section opposition
Several major pieces of legislation were enacted into law this session despite opposition from various State Bar lobbying sections. For example, the Criminal Law section actively opposed legislation leading to the enactment of 2011 Wisconsin Act 94, the so-called “Castle Doctrine” law. The new law 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 Public Interest Law Section actively opposed legislation leading to the enactment of 2011 Wisconsin Act 143, which extensively modifies landlord-tenant law in Wisconsin, including that applicable to both residential and commercial leases. The new law rolls back several significant statutory and administrative protections for tenants.
Finally, the Individual Rights and Responsibilities Section actively opposed legislation leading to the enactment of 2011 Wisconsin Act 83. The new law makes it legal for educational agencies to engage in employment discrimination against unpardoned felons. According to the section, the new law will “close doors to employment opportunities for ex-offenders without justification ... frustrating the State’s efforts to reintegrate ex-offenders into society and its efforts to reduce recidivism.”
State Bar section activities regarding legislation and lobbying are coordinated by the State Bar’s government relations team. Continue to monitor WisBar.org and visit the State Bar’s Government Relations page for updated information on this legislation.
By Adam Korbitz
, Government Relations Coordinator, State Bar of Wisconsin
The State Bar of Wisconsin establishes and maintains Sections for carrying on the work of the association, each within its proper field of study defined in its bylaws. Each Section consists of members who voluntarily enroll in the Section because of a special interest in the particular field of law to which the Section is dedicated. Section positions are taken on behalf of the Section only.
These Section positions have not been approved by the Board of Governors of the State Bar of Wisconsin and are not the views of the State Bar as a whole. They are those of the Section alone.
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