Vol. 79, No. 5, May
Working to Make Good Laws: 2005-2006 Legislative Session
Here's a brief look at some recent
legislative positions taken by the State Bar or its sections that affect
the practice of law and Wisconsin citizens. Issues before the
Legislature ran the gamut from caps on noneconomic damages and limits on
attorney fees to guardianship and criminal justice reform to updating
the business entity statutes, lien procedures, and more.
by Lisa M. Roys
With the final chapter of the 2005-2006 legislative cycle yet to be
written, one message is clear: the State Bar of Wisconsin and its
lobbying sections were challenged to the fullest extent. There were some
outstanding wins, with State Bar members able to join Gov. Doyle and
legislative leaders in celebration of the enactment of new laws. More
often, however, the Bar and sections were left hoping that legislation
would not make it into the law books.
Lisa M. Roys, Thomas M. Cooley 1998, is the
State Bar's director of public affairs. For more information, she
can be reached at (800) 444-9404, ext. 6128, or at org lroys wisbar wisbar lroys org. Access State Bar
legislative advocacy information online, at www.wisbar.org/legislative.
Access the acts online at www.legis.state.wi.us.
State Bar Positions
S.B. 391 (Guardianship Reform). For the past 11
years, the State Bar Elder Law Section has been working to overhaul the
provisions within chapter 880 that relate to guardianship. With the
project completed and ready to be introduced, in early 2005 the Board of
Governors endorsed the project as a position of the State Bar. Senators
Luther Olsen (R-Ripon) and Mark Miller (D-Monona) and Representatives
John Townsend (R-Fond du Lac) and Peggy Krusick (D-Milwaukee) led the
bipartisan team of 23 legislators who supported passage of this
legislation. While yet to receive final approval from the Assembly, the
bill has enjoyed overwhelming support from both houses of and both
political parties in the Legislature.
S.B. 268 and A.B. 594 (Self-help Repossession). The
Bar experienced mixed results on the issue of self-help repossession.
Although Gov. Doyle vetoed a bill that would have allowed for
modifications in voluntary surrender statutes related to rent-to-own
transactions, he signed a bill that permits self-help repossessions for
automobiles. With the recommendation of the Public Interest Law Section,
the Board of Governors voted to oppose loosening the standards related
to self-help repossession.
A.B. 766 and A.B. 1073 (Caps on Noneconomic
Damages). In July 2005 the Wisconsin Supreme Court found
unconstitutional the existing cap on noneconomic damages in medical
malpractice cases. The decision brought a swift response from the
Legislature, first with creation of a special task force charged with
providing a rationale for a cap, followed very quickly by a proposal to
cap noneconomic damages awards at $450,000 for adults and at $550,000
for minors (A.B. 766). The proposal passed both houses in November, in
fewer than 25 days. That first attempt at a new cap was vetoed by Gov.
Doyle in early December. However, a second proposal, to cap awards at
$750,000 (A.B. 1073), was then introduced and passed in nine days' time.
Gov. Doyle signed that bill into law in March. The State Bar opposed
A.B. 764 and A.B. 1072 (Collateral Source). The
State Bar opposed two efforts to modify the rules related to reductions
of awards for damages in medical malpractice cases. The first bill, A.B.
764, would have required the finder of fact to reduce an award based on
the receipt of collateral payments. After Gov. Doyle vetoed that bill,
the Legislature introduced the second bill (A.B. 1072), which would have
required the finder of fact to consider collateral payments but would
have given the fact finder discretion on whether to reduce awards. Gov.
Doyle vetoed that bill as well.
A.B. 1074 (Limits on Attorney Fees). Accompanying
the second round of medical malpractice legislation was a third proposal
that would have placed greater limits than already exist on attorney
fees in medical malpractice cases. The bill would have limited attorney
fees to the costs of the prosecution and 40 percent of the first $50,000
recovered, 33 and one-third percent of the next $50,000 recovered, 25
percent of the next $500,000 recovered, and 15 percent of any amount
recovered in excess of $600,000. The bill would have excluded the
attorney's office overhead costs and office support staff costs,
payments to consulting attorneys, and charges from the costs of the
prosecution. Gov. Doyle vetoed that bill on April 14, 2005.
State Bar sections may take positions on legislation and work in
support of or in opposition to legislative proposals separate from the
Bar's lobbying activities. Some of the issues and legislation in which
various sections have been active include the following.
The Business Law Section has worked for several years to review and
update the statutes to help Wisconsin businesses remain competitive in
the global marketplace.
UCC Article 5. The Business Law Section celebrated
the passage and enactment of A.B. 1036, the revision to Article 5 of the
Uniform Commercial Code that updates the law governing the $200 billion
U.S. letter-of-credit industry. The revision to Article 5 was
recommended by the National Conference of Commissioners on Uniform State
Laws and the American Law Institute in 1995 and was supported by the
American Bar Association. Wisconsin was the last state to adopt the
revised UCC Article 5. (2005 Wis. Act 213)
Corporation Statutes. As part of its years'-long
review of Wisconsin's business entity statutes, the Business Law Section
worked to update the state's corporations statutes, chapter 180. Senate
Bill 619, authored by Sen. Ted Kanavas (R-Brookfield), reflects those
years of review and is a positive step for Wisconsin to take as it
positions itself for future economic development. The bill received
final approval from the Assembly, and Gov. Doyle signed it into law on
April 25. (2005 Wis. Act __)
Defense of Marriage Act. S.J.R. 53, the Defense of
Marriage Act, has passed both the Assembly and the Senate the required
two times and will now be placed on the November 2006 ballot as an
amendment to the Wisconsin Constitution. Opposed by the Public
Interest Law and the Individual Rights and Responsibilities
Health Care Service Opt-out. In October 2005, Gov.
Doyle vetoed A.B. 207, which would have allowed health care
professionals to refuse to perform certain procedures or provide certain
services based on their religious beliefs. Opposed by the Public
Interest Law, the Individual Rights and Responsibilities, and the Elder
Uniform Probate Code. Since the enactment of the
Uniform Probate Code in the 1997-1998 legislative session, the Real
Property, Probate and Trust Law Section has been working to rectify
inconsistencies in the Code. The section forwarded to the Legislature
A.B. 1038, authored by Rep. Jean Hundertmark (R-Clintonville). Most
notably, the bill facilitates the probate of small estates by increasing
the amount of property that can be passed under transfer by affidavit
from $20,000 to $50,000. That bill was signed by Gov. Doyle. (2005 Wis.
Act 216) Supported by the Real Property, Probate and Trust Law
Principal and Income Act. A.B. 140, the Principal
and Income Act, is Wisconsin's version of the federal Uniform Principal
and Income Act (UPIA), which takes into account new types of investment
procedures and broadens the authority of trustees to allocate funds
between principal and income. Wisconsin became the 42nd state to enact
the UPIA, which benefits personal representatives, trustees, and
beneficiaries alike. (2005 Wis. Act 10) Supported by the Real
Property, Probate and Trust Law Section.
Sexual Abuse of a Child in Substitute Care. This
bill arose primarily from a La Crosse County case in which investigators
reported the sexual assault of a 16-year-old foster child by his
36-year-old foster mother. Given that the victim was age 16 and that the
question existed whether the relationship was "consensual," the only
charging option was one of misdemeanor sexual assault under Wis. Stat.
section 948.09. A.B. 511, coauthored by Rep. Jennifer Shilling (D-La
Crosse) and Sen. Dan Kapanke (R-La Crosse), addresses this oversight in
the criminal code and makes such contact punishable as a felony. (2005
Wis. Act 277) Supported by the Children and the Law
Lien Procedures. Leaders of the Construction Law
Section celebrated the enactment of S.B. 450 with Gov. Doyle at a bill
signing event. This legislation focuses mainly on clarifying lien
procedures to make the process easier to implement and understand and to
avoid potential conflicts of interest among property owners, prime
contractors, subcontractors, suppliers, service providers, lenders,
public entities, and title companies that are affected by lien
procedures. (2005 Wis. Act 204) Supported by the Construction Law
Adult Protective Services. In addition to doing most
of the heavy lifting on the guardianship reform bill (S.B. 391 discussed
earlier), the Elder Law Section has been advocating for legislation to
rewrite the statutes related to adult protective services in chapter 55
(A.B. 539 and A.B. 785). The bills were the result of a special
Legislative Council study committee that has worked on the proposal for
the past two legislative cycles. Gov. Doyle signed A.B. 785 in April.
(2005 Wis. Act 264) As of April 25, 2006, the second bill, A.B. 539, has
yet to receive final approval. However, the outlook for that legislation
remains hopeful. Supported by the Elder Law Section.
Criminal Justice Reform. While the Criminal Law
Section spent most of its energy trying to educate the Legislature on
the effects of potentially damaging legislation, the section enjoyed a
very significant victory with the passage of the Criminal Justice Reform
Package, A.B. 648. The bill addressed several issues related to wrongful
convictions. (2005 Wis. Act 60) Supported by the Criminal Law
Punitive Damages. In addition to helping fight the
barrage of medical malpractice legislation, the Litigation Section
leadership worked diligently to derail several pieces of legislation
that would have rolled back some recent Wisconsin Supreme Court
decisions. A bill that would modify the court's decisions regarding
punitive damages in Wischer v. Mitsubishi Heavy Indus. of America
Inc. and Strenke v. Hogner was introduced as S.B. 447.
Another bill, S.B. 501, would have changed the court's recent
modification to statutes governing frivolous lawsuits. Gov. Doyle vetoed
both bills on April 14, 2006. Opposed by the Litigation
While a number of issues are yet to be resolved, it is certain that
this will be a near record-breaking session in terms of the amount of
legislation introduced. As of late April more than 2,000 legislative
proposals had been introduced for consideration. The State Bar
Government Relations team will provide a full update when the session