Nov. 18, 2015 – The flurry of activity at the Wisconsin Legislature this fall produced a number of new or changed state policies that directly impact the work of lawyers and judges, and the clients and citizens they serve through the justice system.
This legislative update highlights a number of bills that have passed or are still pending, and notes rule-change petitions pending before the Wisconsin Supreme Court.
The 2015-16 legislative session – which began Jan. 5, 2015, and ends on June 1, 2016 – included a recent floor period (Oct. 20 to Nov. 5), resulting in the passage of a number of bills and movement on others that the legislature may consider after the holidays.
Newly Enacted Laws
Threats Against Judges, Prosecutors, and Law Enforcement – 2015 Wisconsin Act 78 (effective Nov. 13, 2015): Previously, intentionally causing bodily harm to a law enforcement officer, a judge, or a judge’s family, or threatening a judge or a judge’s family with bodily harm was a Class H felony. Act 78 adds prosecutors to the list, and includes former judges, prosecutors, and law enforcement officers. The Act also makes it a Class H felony to threaten bodily harm against prosecutors and law enforcement officers or their families, not just judges’ families.
Another bill, AB 347, would add state public defenders to this list. That bill has already passed the Assembly and sits with the Senate’s Committee on Judiciary and Public Safety. The State Bar of Wisconsin supported Act 78 and supports AB 347.
Structured Settlements – 2015 Wisconsin Act 94 (effective date Nov. 13, 2015): Act 94 governs the transfer of structured settlements in Wisconsin. According to the Wisconsin Legislative Council, federal law imposes a 40 percent excise tax when the rights to structured settlements are transferred, “unless the transactions are approved by a court or relevant administrative body in the state in which the current recipient of the payments resides.” Act 94 governs judicial review of structured settlements.
Child Placement and Custody – 2015 Wisconsin Act 101 (effective date Nov. 13, 2015): This law adds non-biological parents of a child’s sibling to the list of “relatives” that must be notified and may be considered for placement when children are removed from their parents’ custody. The State Bar of Wisconsin’s Children and the Law Section supported Act 101.
Exemption from Civil Liability, Forcibly Entering a Vehicle – 2015 Wisconsin Act 103 (effective date Nov. 13, 2015): Under this new law, a person is immune from civil liability for property damage or injury resulting from the forcible entry into a vehicle if the person has a good faith belief that a person or domestic animal is in imminent danger of suffering harm unless removed from the vehicle.
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 email or by phone at (608) 250-6161.
Dog-Bite Liability – 2015 Wisconsin Act 112 (effective Nov. 13, 2015): Act 112 changes Wisconsin’s dog bite statute. Previously, dog owners were generally liable when the dog injures a person, domestic animal, or damages property. If the owner knew the dog caused previous injuries, owners paid double damages. Under the bill, dog owners are only liable for double damages when a dog bites a person “with sufficient force to break the skin and cause permanent physical scarring or disfigurement, and the owner or keeper knew that the dog had previously, without provocation, bitten a person with sufficient force to break the skin and cause permanent physical scarring or disfigurement.”
Act 112 also increases the forfeiture amount that can apply if a dog causes injuries to people, domestic animals, property, deer, game birds, or the nests or eggs of game birds. For first-time injuries, owners could face maximum fines up to $2,500, up from $500. If the owner knew the dog previously caused injuries, the owner faces a maximum fine of $5,000, up from $1,000. The bill also allows injured persons to seek court orders for dogs to be euthanized if the dog caused serious injury more than once. Previously, only the state and municipalities could request that dogs be killed.
Second-Chance Bill, 17-Year-Olds – SB 280: Under current law, persons charged with committing crimes while age 17 or older are treated as adults under the Wisconsin Criminal Code. Known as the “second-chance bill,” SB 280 would return nonviolent, first-time 17-year-old offenders to the juvenile court system. This has been one of the State Bar’s key initiatives since 2007. The current bill (and companion AB 378) introduced in September, has 70 bipartisan cosponsors. It is currently being considered by the Senate’s Committee on Judiciary and Public Safety.
Statute of Limitations, Auto Accidents – AB 223: This bill reduces the statute of limitations (SOL) in actions involving motor vehicle insurance policies, property damage, personal injury, or death. Under the bill, persons suing under motor vehicle insurance policies and attempting to recover for property damage would have three years to file instead of six years. The SOL in actions to recover damages for death, currently three years, would change to two years after the cause of action accrues if the death arises from a motor vehicle accident. The Assembly passed the bill on Nov. 3, 2015. It’s now in the hands of a Senate Committee. The State Bar’s Litigation Section is actively monitoring this bill.
Driving Without Insurance, Proof of Auto Insurance and Penalties – AB 92: This bill would increase the maximum penalty for driving without auto insurance depending on the number of infractions. Currently, driving without insurance is subject to a fine not more than $500. The bill, as introduced, would increase penalties as follows: $1,000 to $5,000 for first offense; and $2,500 to $7,500 for second or subsequent offense occurring within three years of the previous offense. Also under the bill, persons who knowingly drive without auto insurance coverage and cause bodily harm or property damage are guilty of a Class I felony and face a maximum fine of $10,000 or imprisonment not exceeding three-and-a-half years, or both. If death occurs, uninsured persons face a Class H felony subject to a $10,000 fine and six years in prison.
The bill also increases the fine for persons who operate motor vehicles without proof of insurance. Currently, violators face a $10 fine. Under the bill, first-time offenders face a maximum fine of $125. The maximum penalty goes up to $300 for a second offense within three years, and $500 for a third or subsequent offense within three years. The bill sits with the Assembly’s Committee on Judiciary.
Changing Pleading Requirements under the Wisconsin Consumer Act – AB 117: This bill modifies the pleading requirements for certain cases under the Wisconsin Consumer Act, which applies to consumer credit transactions in which the amount financed is $25,000 or less, and which is entered into personal, family, or household purposes. Under this bill, pleading requirements would apply to “merchants” instead of “creditors.” Merchants include an assignee of or successor to a creditor. The bill also eases the pleading requirements for merchants.
For instance, attaching a billing statement showing an outstanding customer balance is sufficient in lieu of copies of writings evidencing any transactions on the open-ended credit plan. Also, a merchant’s failure to comply with pleading requirements would not prohibit a judgment for the merchant, only a “default judgment,” and there would be no penalties for failing to comply “unless the customer establishes by a preponderance of the evidence that the failure to comply was willful or intentional.” The Assembly passed the bill on Nov. 3, 2015. The bill is now in the Senate’s hands.
Limiting Private Adverse Possession Claims – SB 344 (companion AB 465): This bill would limit the ability of persons to claim title to land by adverse possession. See “An End to the Doctrine of Adverse Possession in Wisconsin?”
Eliminating Adverse Possession Claims Against Government – SB 314: This bill eliminates adverse possession claims against the state and political subdivisions. See “An End to the Doctrine of Adverse Possession in Wisconsin?”
Requiring First-time OWI Defendants to Appear in Court – AB 352: Currently, a first-time OWI-related offense is a traffic violation punishable by civil forfeiture. First-time offenders can choose to pay the associated fine and not appear in court. Under this bill, first-time offenders of OWI-related offenses must appear in court. Failing to appear will result in a warrant for the person’s arrest and a $300 fine. A public hearing was held on Oct. 15, 2015, but the bill is still pending in the Assembly’s Committee on Judiciary.
Permanent License Revocation for Repeat OWI Offenders – AB 432: This bill would require the permanent license revocation of persons who commit five or more OWI offenses, or if they have three or more OWI convictions with two or more convictions for homicide or certain felonies involving the use of a motor vehicle. The Assembly Committee on Judiciary held a hearing on this bill last week but took no action.
Family Treatment Courts – AB 51: This bill would create family treatment court grant programs – directed by the Department of Children and Families – that screen, assess, and provide new dispositional alternatives for parents whose children have come under the jurisdiction of the juvenile court due to parental problems related to mental illness or substance abuse, and to juveniles who have problems related to mental illness or substance abuse. The State Bar of Wisconsin’s Children and the Law Section supports AB 51, which sits before the Assembly’s Committee on Corrections. A public hearing was held in September.
Pay Rate for Private Attorneys Taking SPD Appointments – AB 275: This bill would increase the rate of pay, from $40 per hour to $85 per hour, for private attorneys who take court-appointed cases from the State Public Defender. This ongoing effort to increase the pay has failed numerous times in prior years. Proponents note that Wisconsin’s rate is the lowest in the country and has not changed in 20 years. The State Bar of Wisconsin supports AB 275.
Allowing Prosecutors to Do Pro Bono Work – AB 276: This bill would allow full-time district prosecutors to provide pro bono legal services to persons of limited means or to charitable, religious, civic, community, governmental, or educational organizations. Under current law, full-time district prosecutors cannot engage in the private practice of law, even pro bono. The bill was introduced in June and the Committee on the Judiciary has not taken action. The State Bar of Wisconsin supports AB 276.
Criminal Procedure Code Overhaul – AB 90: This bill overhauls Wisconsin’s criminal procedure code. A similar bill failed to pass last session. AB 90 and companion SB 82, both introduced in March 2015, are currently stalled in committees. A public hearing was held in August, but the bill has not moved since. The State Bar has an interest in updating the criminal code but has not taken a position for or against the bill.
Interest Rate on Small Claims Judgments – SB 76: This bill would change the interest rate on judgments for the recovery of money in small claims actions (amount claimed is $10,000 or less) to 12 percent per year. Currently, interest accrues on judgments at an annual rate of 1 percent plus the applicable prime rate. Under the bill, the 12 percent interest rate would also accrue on rejected settlement offers from the day the offer of settlement was made. Introduced in March 2015, the bill has not moved.
Immunity for Private Campgrounds – SB 131: Under this bill, owners and operators of private campgrounds would have immunity from civil liability for property damage or for the death of or injury to an individual that is caused by or occurred during use of the campground, unless the damage, death, or injury is caused by a willful or wanton act or omission of the owner or operator, or employees or agents. This bill passed the Senate’s Committee on Judiciary and Public Safety in June but has not moved since.
Changes to the Worker’s Compensation Law – AB 501: This bill, introduced last week, would make major changes to Wisconsin’s worker’s compensation system. The State Bar of Wisconsin’s Litigation Section is actively monitoring this bill.
Loss of Society and Companionship in Medical Malpractice Cases – AB 498: This bill, introduced last week, would give parents the right to recover for loss of society and companionship if their adult child dies before age 27 as a result of medical malpractice.
Pending Supreme Court Rule Changes
Discretionary Transfer of Civil Cases to Tribal Court – Last week the Wisconsin Supreme Court held a public hearing on petition 14-02, filed by six members of the Oneida Tribe of Indians of Wisconsin. They seek to repeal Wis. Stat. section 801.54 (effective Jan. 1, 2009), which grants circuit courts discretionary authority to transfer civil actions to Indian tribal courts in cases where the circuit and tribal court have concurrent jurisdiction, including transfer of post-judgment child support cases. The supreme court also held a public hearing to review and assess whether section 801.54, after five years in operation, is serving its intended purpose. The court has not yet taken action. The State Bar of Wisconsin supports the continued operation of the rule.
Mandatory e-Filing in the Circuit Courts – Wisconsin’s Committee of Chief Judges filed a petition (14-03) in 2014 that would require a county-by-county transition from paper case files in circuit courts to electronic files and mandate electronic filing of court documents by attorneys and high-volume small claims filers. The State Bar of Wisconsin’s Board of Governors endorsed the petition in January 2015.
The plan was premised on a $2.1 million general purpose revenue appropriation in the 2015-17 state budget. However, the budget did not include an appropriation for mandatory e-filing. Thus, a revised e-filing plan is under consideration, and Chief Justice Patience Roggensack has indicated that an e-filing plan will be approved.
Electronic Banking Procedures for Lawyer Trust Accounts – On Dec. 4, 2015, the supreme court will hold a public hearing on petition 14-07, which would allow electronic banking transactions to and from attorneys’ trust accounts through new and modernized procedures and record-keeping requirements. The Office of Lawyer Regulation (OLR) filed the petition in December 2014. The State Bar of Wisconsin supports the petition.
Electronic Appellate Records – In October, the supreme court held a hearing on petition 15-02, which would amend Wisconsin’s Rules of Appellate Procedure to authorize and facilitate the use of electronic appellate records. The clerk of the Wisconsin Supreme Court and Court of Appeals filed the petition in June 2015.
The State Bar supports the petition, which would allow clerks to transmit court records electronically and give multiple users access to the electronic record.
This week, the supreme court unanimously voted to adopt the petition but did request slight amendments relating to the effective date and the records that would be subject to the rule. A final order is expected in due course with a July 1, 2016 effective date.