April 4, 2018 – The Wisconsin Legislature passed a barrage of bills last month to close the 2017-18 session. Numerous bills impact the work of lawyers in various areas of law. This article provides an overview of bills that passed, and also notes bills that failed.
org jforward wisbar Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by org jforward wisbar email or by phone at (608) 250-6161.
This overview is not intended to cover detailed aspects of each bill, but to provide a starting place on the issues the bill addresses. Attorneys should do an independent review of bills of interest to fully understand the impact of legislative changes.
Additionally, this is not an exhaustive list of all bills considered in the last regular floor period. The article addresses selected bills the State Bar of Wisconsin, State Bar sections, or other law-related groups followed, or may be of broad interest.
Finally, some bills were already enacted. Outstanding bills that passed will go to the governor on April 12, and he will have six days from then to approve or veto.
Tort Reform Bill
Perhaps the most significant and far-reaching change is included within AB 773, as enrolled, which modifies and creates provisions relating to discovery procedure, statutes of limitations for civil actions, and procedural requirements relating to class actions.
This bill passed on party-line votes and Gov. Scott Walker signed it into law on April 3, 2018. The following highlights some, but not all, of the provisions that are included in the new law:
Changes the interest rate that insurers must pay for overdue claims from 12 percent to 7.5 percent. Wis. Stat. § 628.46(1).
Changes the scope of discovery language to “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.” Wis. Stat. 804.01(2).
Shortens the statute of limitations, from six years to three years after the action accrues, for actions to recover damages for an injury to the character or rights of another, unless a different period is expressly prescribed. Wis. Stat. § 893.53.
Shortens the statute of limitations, from 10 years to seven years, for actions for injuries resulting from improvements to real property. Wis. Stat. § 893.89(1).
Creates a provision that stays all discovery requests upon the filing of a motion to dismiss, a motion for judgment on the pleadings, or a motion for a more definite statement, “unless the court finds good cause upon the motion of any party that particularized discovery is necessary.” The stay applies for 180 days or until the court rules on the motion. Wis. Stat. § 802.06(1)(b).
Creates a provision that says a party is not required to provide discovery of certain categories of electronically stored information absent a showing by the moving party of a substantial need and good cause, subject to a proportionality assessment. Wis. Stat. § 804.01(2)(e)1g.
Creates a provision that limits a party, unless otherwise stipulated or ordered by the court, to a reasonable number of depositions, not to exceed 10 depositions, none of which may exceed seven hours in duration. Wis. Stat. § 804.045.
Creates a provision that limits a party, unless otherwise stipulated or ordered by the court, to a reasonable number of interrogatory requests, not to exceed 25 interrogatories, including all subparts.Wis. Stat. § 804.08(1)(am).
AB 773, as enrolled, also alters procedures for appeals of orders granting or denying class action certification, or denying a motion to decertify a class action. The Wisconsin Supreme Court recently adopted a petition that repeals and recreates Wisconsin’s class action statute, Wis. Stat. 803.08, to more closely align with the federal class action rule.
The new rule is effective July 1, 2018. AB 773, as enrolled, repeals and recreates one provision of the new class action rule, section 803.08(11), relating to appeals. This provision will take effect July 1, 2018.
Other Bills that Passed
The State Bar of Wisconsin or related sections took positions on a number of bills that recently passed the Legislature and now move to the governor for approval.
AB 771: This bill makes changes to landlord-tenant law and alters existing law on rental and historic properties. For instance, the bill changes the notice requirements that landlords must give tenants to terminate a lease based on failure to pay rent. It also raises the amount – from $20 to $25 – that landlords can charge for credit reports.
The bill also specifies that the reasonable costs that landlords can charge for damages to the premises, due to the acts or inaction of the tenant – including remediation, repair, or redecoration for the infestation of insects or pests – include “materials provided and labor performed by the landlord” at a reasonable hourly rate.
Under the bill, landlords can charge the tenant for time the landlord spends purchasing or providing materials, supervising the landlord’s agent, or hiring a contractor.
Under the bill, it is discrimination in housing to deny housing to individuals on the basis that they own animals trained to help disabled persons or the animal provides emotional support, well-being, comfort or companionship. However, the bill allows landlords to request documentation of a tenant’s non-apparent disabilities or to request documentation, from a health care provider, of a disability-related need for an animal.
The bill also makes changes to procedures in eviction actions. For instance, the bill eliminates any defense to an eviction action on the basis that the landlord previously waived any violation or breach of any of the terms of a rental agreement.
The State Bar’s Public Interest Law Section opposes this legislation, in part because it includes a provision requiring attorneys that assist self-represented parties in preparing pleadings in eviction cases to sign their name and bar number on those documents.
This provision appears to supersede a Supreme Court Rule that allows lawyers to help pro se litigants prepare pleadings, briefs, and other documents so long as such filings indicate the document “was prepared with the assistance of a lawyer.” The court adopted the rule as of 2015 to provide more guidance on limited scope representations.
AB 825: Known as Sara’s Law, the bill makes it a class H felony to intentionally cause or threaten to cause bodily harm to lawyers (or their family members) involved in proceedings affecting children and families. The bill includes private attorneys, corporation counsel, and attorneys serving as a guardian ad litem. The bill was named in memory of Schofield attorney Sara Quirt Sann, one of four victims killed last year in a shooting rampage in the Wausau area. The State Bar supports this bill.
Adult Guardianship Law
AB 629: Relating to the adoption of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, approved and recommended for enactment in all states by the National Conference of Commissioners of Uniform State Laws. The State Bar’s Elder Law Section supports this bill. Gov. Walker signed the bill into law on April 3, 2018.
AB 551: This bill changes the procedures for relocating a child’s residence, if both parents are granted periods of physical placement with the child, if one parent intends to relocate the child 100 miles or more from the other parent. The State Bar’s Family Law Section supported the bill “to provide a clear process for a separated couple” when one parent wants to move more than 100 miles away. Gov. Walker signed the bill into law on April 3, 2018.
Real Estate Law
AB 607: Relating to nonprobate transfers of real estate, the transfer by affidavit procedure for small estates, and the payoff amount in a mortgage payoff statement. The State Bar’s Real Property, Probate, and Trust Law Section supports this bill.
Labor and Employment Law
AB 748: Prevents state or local governments from requiring any person to accept certain collective bargaining provisions or waive its rights under the National Labor Relations Act or state labor law; prohibiting local regulation of employee hours and overtime, employment benefits, wage claims and collections, an employer's right to solicit salary information of prospective employees, and professions regulated by the state; and providing a criminal penalty.
AB 114: Makes it a Class H felony to intentionally cause bodily harm or threaten to cause bodily harm to a current or former tribal judge, tribal prosecutor, or tribal law enforcement officer, or to his or her family member.
AB 581: Allows actions for a restraining order or injunction in a case of domestic abuse, child abuse, or harassment to be brought in any county within a 100-mile radius of the county seat of the county in which the petitioner resides or is temporarily living, if a petitioner is a victim advocate, an employee of the county court system, a legal professional practicing law, or a current or former law enforcement officer, or is the spouse or dating partner of one of those persons.
AB 259: Relating to the length of the recognition period for built-in gains tax; the evidentiary standard for proving a transaction has economic substance; participation by the Department of Revenue in the Multistate Tax Commission Audit Program; and reliance by a taxpayer on past audits by the Department of Revenue.
Corporation and Business Law
AB 715: Allows a foreign corporation with a certificate of authority to act in a fiduciary capacity to establish or maintain a place of business or branch office in Wisconsin for the conduct of business as a fiduciary. This bill was signed into law March 27 as 2017 Wisconsin Act 162.
AB 897: This bill eliminates certain foreign corporation filing fees. Specifically, the bill eliminates the additional capital-based fee that applies to applications for a certificate of authority to transact business in Wisconsin, for qualified new business ventures. The bill was signed into law on March 27 as 2017 Wisconsin Act 156.
AB 404: Creates an exemption to the $130 filing fee for filing articles of organization to form a limited liability company, for student entrepreneurs. This will was signed into law as 2017 Wisconsin Act 177.
Public Defender Appointments
AB 839: Relating to the determination of indigency prior to the state public defender appointing an attorney to represent a parent in a proceeding under Wis. Stat. chapters 48 and 938, the description of defendant indigency for public defender fees, and recusal from juvenile justice proceedings.
AB 855: Expands on existing regulations that prohibit the operation of drones for certain purposes, including in a manner that interferes with law enforcement, firefighters, and medical responders, and in any manner that constitutes stalking or criminal harassment.
Traffic and OWI Law
SB 135: Under this bill, a person’s driver’s license must be permanently revoked if the person has committed four or more OWI offenses or commits two or more OWI offenses and has committed two or more qualifying convictions, certain felonies involving the use of a motor vehicle. The bill was enacted as 2017 Wisconsin Act 172.
AB 882: Allows municipalities or counties to enact ordinances that allow for the immobilization, towing, impoundment, and disposal of vehicles owned by habitual parking violators.
AB 926: Exempts certain shoreline maintenance activities from DNR permitting requirements on Lake Superior, Lake Michigan, Green Bay, Sturgeon Bay, Sawyer’s Harbor, and the Fox Rover from its mouth to the De Pere dam.
AB 935: Exempts certain riparian owners from DNR permitting requirements relating to the removal of material from the bed of a navigable water. Gov. Walker signed the bill into law on April 3, 2018.
AB 599: If certain criteria are met, this bill prohibits the DNR from reversing a determination that a stream or portion of a stream is non-navigable. This bill was signed into law March 27 as 2017 Wisconsin Act 164.
SB 84: Under this bill, terminally ill-patients can access investigational drugs, devices, or biological products that are not FDA approved if the drug, device, or product has completed a phase one clinical trial, in addition to other requirements, and FDA approval is pending. The bill was signed into law as 2017 Wisconsin Act 165.
Bills that Failed
The State Bar supported or opposed a number of bills that failed this session. The following lists a number of bills the State Bar supported that did not come to pass. However, a number of bills came close to passing this session.
SB 53:Relating to expungement of certain offenses committed before the age of 25. Current law requires expungement decisions be made “at the time of sentencing.” This bill would have eliminated the requirement that expungement decisions be made at the time of sentencing and would have allowed a person to petition for expungement no sooner that one year after successfully completing the sentence.
The expungement bill had bipartisan support and passed the Senate. A different version of the bill passed the Assembly, but the Senate did not consider the Assembly’s amended version. The State Bar of Wisconsin has long supported expanded expungement options for offenders who commit crimes in their youth.
Family Law: Custody and Placement
AB 586: This bill would have “authorized a court to approve a stipulation for modifications to legal custody or physical placement that are contingent upon the occurrence of a specified future event” reasonably certain to occur within two years. The State Bar’s Family Law Section supported this bill. It passed the Assembly but was not scheduled for a vote in the Senate.
Civil Procedure: Service by Email
AB 566: This bill would have added email to the list of methods attorneys could use to serve certain requests, responses or notices required to be served on opposing counsel, including papers pertinent to discovery, if the receiving attorney consented. The bill passed the Assembly but was not scheduled for a vote in the Senate. The State Bar’s Litigation Section supported the bill.
Rural Lawyer Loan Forgiveness
AB 567: This bill, which had bipartisan support, would have established a pilot program to give private bar attorneys who accept at least 50 public defender appointments per year in rural counties up to $20,000 per year to pay law school debt. The bill, which the State Bar supported, unanimously passed the Assembly committee stage but failed to gain traction.
Second Chance Bill
AB 660: This bill would have raised, from 17 to 18, the age at which a person is subject to adult court for criminal violations. Known as the “Second Chance Bill,” it would move 17-year-olds back into the juvenile court system. The bill passed the Assembly committee stage but failed to gain traction. The State Bar supported the bill.
SB 344: Under this bill, a person who is under the age of 18 could not be prosecuted for committing an act of prostitution. Currently, prostitution is a Class A misdemeanor and applies to children under age 18 even though minors cannot consent to sexual activity. The bill aimed to protect sex trafficking victims. The bill passed the Assembly, but did not gain traction in the Senate. The State Bar’s Children and the Law Section supported this bill.
Parole and Probation, Assistant District Attorneys
SB 54: This bill would have required revocation of parole, probation, or extended supervision if a person is charged with a crime. The bill also funded the $350 million construction of a new adult prison and added 53.75 additional assistant district attorney positions to be distributed to understaffed counties. It passed the Senate and a different version passed the Assembly but the Senate did not consider the Assembly’s version.
Pay Rate for SPD Appointments to Private Bar
AB 37: This bill would have raised the rate paid to private attorneys, from $40 to $100 per hour, for cases on appointment from the State Public Defender’s Office. The State Bar supported the bill and will continue to support an increased rate for private attorneys who take public defender cases. Wisconsin’s rate is the lowest in the country. This bill never moved but a petition on this issue is still pending before the state supreme court.
Check future State Bar publications, including InsideTrack and Wisconsin Lawyer, for more in-depth coverage of legislation that may impact your practice, from tort reform and landlord-tenant cases to employment, labor, or environmental law issues.