December 13, 2019—As the days grow shorter, the holidays approach, and the year draws to a close, it’s worth taking a look back on the legislative priorities of the State Bar of Wisconsin. The 2019-2021 budget saw some huge victories for access to justice, while other legislative efforts await further action. This article will review supported new laws and the executive budget, as well as other bills that we hope will advance before the end of the session.
Private Bar Public Defense Rate
The biggest achievement this session is an increase in the rate of compensation paid to private bar attorneys who take public defense cases. Beginning January 2020, for the first time since 1995, the rate will increase, from $40 to $70 per hour. This substantial investment by the state is thanks to the tireless advocacy of the State Public Defender’s office, the State Court system, the State Bar of Wisconsin and hundreds of stakeholders throughout the justice system. The State Bar will continue to advocate on behalf of a justice system that provides the resources necessary to provide everyone access to justice.
Justice System Funding
Along with the private bar rate, the 2019-21 budget provided funding and authorization for nearly 65 new prosecutor positions around the state and funded pay progression for eligible assistant district attorneys. The budget maintains civil legal aid funding of $1 million over the biennium, and keeps in place existing restrictions that the funds assist those dealing with domestic violence and abuse.
State Public Defender Pay Progression
Assembly Bill 501/Senate Bill 468 would provide for “stepped pay progression” for attorneys in the Public Defender’s office. The State Bar believes that retaining staff attorneys with knowledge and experience is critical to help ensure that all citizens, including the indigent and poor, are guaranteed their constitutional Sixth Amendment right to legal counsel. An imbalance occurred when funding for a full step of pay progression for State Public Defenders (SPD) did not continue in the 2019-2021 budget process. Like state prosecutors offices, which received pay progression in the budget, the SPD uses pay progression to retain staff with the knowledge and expertise for complex cases and the ability to mentor new attorneys. The State Bar strongly supports AB 501/SB 468.
Update: Both AB 501 and SB 468 received a public hearing in late October. The State Bar continues to work with the authors and other stakeholders to push passage of the bill during the Legislature’s 2020 floor period.
Assembly Bill 513/Senate Bill 460 would create an 11-member prosecutor board consisting of district attorneys and prosecutors from across the state and the Attorney General (or his designee). The bills also create the State Prosecutors Office (SPO) consisting of an executive director and a legislative liaison. Similar to other public employee groups, this bill would provide for a legislative liaison in place to handle the duties assigned to the prosecutor board and SPO. The State Bar of Wisconsin supports the creation of an independent prosecutor board and a State Prosecutors Office. The board will serve to protect the interests and funding for elected District Attorneys and assistant district attorneys in Wisconsin.
Update: Assembly Bill 513 was passed out of committee and awaits a floor vote in the Assembly. The Senate has not yet held a hearing or voted on SB 460 in committee. Last session, a similar bill passed out of both the Assembly and Senate committees.
Public Defender Tuition Reimbursement Pilot Program
According to the bill sponsors, Assembly Bill 512/Senate Bill 461 “establishes a pilot program for tuition reimbursement for public defenders in rural Wisconsin counties. To be eligible, the attorney must perform the majority of their legal work in a county with 25,000 people or less, or with a population density of 55 persons per square mile or less. Eligible attorneys would receive up to $20,000 in reimbursement per year.”
The State Bar of Wisconsin supports legislative efforts to reduce the cost of a legal education and to provide loan repayment assistance programs. It believes that this program can be an important tool to bringing more attorneys to rural areas, ensuring access to justice for victims and defendants alike, and encouraging attorneys to establish their practices and put down roots in rural communities.
Update: AB 512 has passed through committee and is awaiting scheduling in the Assembly, while SB 461 has yet to have a public hearing or committee vote. Last session, an identical bill passed out of both the Assembly and Senate committees, but was not scheduled for a floor vote in either chamber.
New Circuit Courts
Assembly Bill 470/Senate Bill 458 would create 12 additional circuit court branches to be phased-in over the next three years: four in 2020; four in 2021; and four in 2022.
For a county to be eligible for an additional circuit court branch, the county must pass a resolution requesting an additional circuit court branch, as well as have appropriate infrastructure in place to support an additional circuit court branch by May 31st of the year the circuit branch commences. If a county has met those requirements, the director of state courts will determine where to allocate the branches. Additionally, the director of state courts may also require a county to apply for a drug treatment court grant if it does not already have a program. Elections will be held for all new circuit court branches in the spring of their creation.
The most recent circuit court branch additions were in 2007-2008. Since then, courts’ dockets across the state have become more challenging with the changing dynamics of cases. The State Bar of Wisconsin Supports AB 470/SB 458.
Update: AB 470 passed the Assembly on November 12 on a vote of 94-1. The Senate has held a public hearing on SB 458 but the bill has not been voted out of committee.
Assembly Bill 33 / Senate Bill 39 would reform Wisconsin’s expungement law by:
Eliminating the state mandate on judges to grant/deny expungement at the time of sentencing. Wisconsin is the only state that requires the decision on expungement to be made at the time of sentencing rather than after a sentence has been completed. This bill allows judges to approve (or deny) an expungement petition at the completion of the sentence.
Provide employers and employees with clarity and certainty in regards to criminal background disclosures on employment applications.
Clarify that only low-level offenders are eligible for expungement. The bill does not make any changes to current law regarding the types of crimes that are eligible.
Define what it means to successfully complete a sentence, to ensure that only individuals that have successfully completed their sentences (and have not re-offended) will be eligible for expungement.
Remove the arbitrary age limit of 25.
The State Bar supports legislative efforts to expand the ability of certain persons to expunge court records.
Update: AB 33 passed the Assembly by voice vote on March 15. The Senate has passed the bill out of committee, but has yet to schedule it for a floor vote. You can help encourage your Senators to take action on this important legislation by sending them a message today.
State Bar Section Legislation
Wisconsin Act 29, signed by Gov. Evers in November, allows a plaintiff to personally serve a government entity instead of requiring service via certified mail.
Act 30, also enacted in November, permits, if parties agree, email as an alternative method for serving certain documents in ongoing litigation.
Both of these bills (AB 58 and AB 59) were supported by the Litigation Section, which provided assistance and feedback when the bills were initially being drafted and helped the bill sponsors navigate the bills through the legislative process.
Real Property, Probate, and Trust Law Section
Wisconsin Act 65 updates law regarding financial institutions. RPPT supported the passage of these bills (AB 504/SB 457) as amended with removal of payable-on-death account language.
Assembly Bill 293/Senate Bill 317 provide a process for remote (including online) notarization. The RPPT Section supports these bills. The Assembly has passed AB 293 and a Senate Committee Hearing is scheduled for SB 317 on December 18, 2019.
Family Law Section
Assembly Bill 95, allowing for modification of custody or placement orders contingent upon a future event or change in conditions, has been a longtime initiative of the section. The bill became part of the Child Support and Placement Study Committee bill package in 2018. This bill has passed the Assembly Committee on Family Law and awaits a vote in the full Assembly before moving to the Senate to repeat the process.
Family Law also supports Assembly Bill 100, another bill in the study committee package regarding judicial notice of records. The bill would allow judges to look at Wisconsin Circuit Court Access records (WCCA, commonly referred to as CCAP) in certain cases to discover instances of domestic abuse when determining custody and placement of a minor child. The bill passed committee on September 12 and awaits a vote on the Assembly floor before Senate action can take place.
Finally, Family Law supports Assembly Bill 166 /Senate Bill 158, which would allow for DNA testing when determining paternity. The Senate has passed SB 158, while the Assembly bill has passed out of committee and awaits a full Assembly vote.
Children & the Law Section
Assembly Bill 47 creates a new process and standards for appointment of a guardian. This bill has been a decade-plus long project of the Children & the Law Section and became the focus of the Minor Guardianship Study Committee in 2018, which helped to educate lawmakers on the issue and helped with its eventual passage in the Assembly on November 12. The bill has been sent to the Senate Committee on Universities, Tech Colleges, Children and Families for action.
Assembly Bill 41/Senate Bill 49, “Safe Harbor” legislation would protect underage victims of sex trafficking from being prosecuted for prostitution. The Senate has passed SB 49, and AB 41 has been passed out of committee and awaits further action.
Other bills that Children & the Law supports include Speaker Vos’ bill regarding children’s code authority (AB 502/SB 432) and bills extending the tax credit for certain adoption expenses (AB 201/SB 191).
Public Interest Law Section
Assembly Bill 204/Senate Bill 214 would update Municipal Court procedures. PILS supports the bill as currently amended. The bill has been passed by the full Senate and passed out of Assembly Committee, where it is awaiting floor action.
Elder Law Section
Assembly Bill 287/Senate Bill 254, regarding certifications for advance directives and findings of incapacity related to powers of attorney for health care. Elder Law and PILS both oppose this bill. It has passed the full Assembly but awaits action in Senate.
Assembly Bill 481/Senate Bill 429, regarding financial exploitation of adults, and Assembly Bill 482/Senate Bill 428, a similar bill regarding exploitation of adults with securities accounts, are both opposed by the Elder Law Section. For both bills, hearings were held in Assembly, but there has been no action in the Senate.
Bankruptcy, Insolvency, and Creditor’s Rights
Assembly Bill 541/Senate Bill 488 – BICR Supports this bill which would exempt Health Savings Accounts from executions of judgment. As of now, there has been no action on these bills in either house.