Biennial budget bill reduces certain first-offense motor vehicle
convictions to civil offenses, narrows "habitual traffic offender"
definition, and more
August 25, 2005
Gov. Jim Doyle signed the 2005 - 07 biennial budget bill (2005
Assembly Bill 100) into law in late July as 2005 Wis. Act 25. Except
where specific provisions set separate effective dates, Act 25 became
effective July 27. It covers state expenditures from July 1, 2005
through June 30, 2007.
The governor made 139 partial vetoes. The legislature may override
any veto with a two-thirds vote of members present in both houses.
However, a budget override has not been adopted since the 1980s.
Legislative leaders have questioned the governor's broad use in Act
25 of his partial veto authority. In one case the Governor "cherry
picked" words and phrases from whole paragraphs to create new
provisions. Another veto would give the Secretary of the Department of
Administration the authority to direct the use of millions of dollars in
state revenues. Legislators believe this veto usurps the legislature's
responsibility for appropriating funds, and are considering a lawsuit to
challenge the constitutionality of these vetoes. At the time of this
writing, a proposed constitutional amendment has just been introduced to
limit the veto powers of future governors. The amendment would prohibit
creation of a new sentence by combining parts of two or more sentences
in an enrolled bill.
The Biennial Budget (Act 25) now stands as vetoed unless the
legislature, through a two-thirds vote, acts to override the governor's
action. Time will tell if the nature of the vetoes and the unprecedented
redirection of funds to other appropriations results in any other type
of Legislative response.
Here is an overview of the provisions in Act 25 that may be of
interest to attorneys:
Revocation of Law Licenses For Tax Delinquency
Act 25 will potentially subject attorneys and law license applicants
to suspension or denial of their law license for delinquent taxes owed
to the State of Wisconsin. However, because of the unique regulatory
structure of the legal profession, by an independent and separate branch
of government, several modifications to the traditional revocation or
suspension procedure were included.
Under current law, occupational licenses may be denied, revoked, or
not renewed when the licensee or applicant owes delinquent taxes. When
Department of Revenue (DOR) discovers a delinquency, it sends a
certificate of delinquency to the occupational licensing agency
indicating that the individual's license should be revoked or not
renewed or an application for a license denied.
The individual licensee or applicant can request an administrative
hearing with DOR. If the DOR hearing examiner affirms the certificate of
tax delinquency, the licensing agency must affirm the DOR hearing
examiner's finding. The licensing agency's affirmation of the license
denial or revocation can be appealed to the Circuit Court. DOR has
entered into a number of memoranda of understanding (MOUs) with
licensing agencies to administer these provisions.
As a matter of Separation of Powers among the branches of government,
the application of the duties and powers on licensing agencies, with
respect to the Supreme Court's regulation of the practice of law, is
subject to the Supreme Court's consent and agreement. The denial or
revocation procedure used by most administrative agencies that requires
affirmation of DOR's certificate of delinquency and related license
denial, non-renewal, or revocation before the entire hearing process is
completed is inconsistent with the Supreme Court's authority over
attorney licensure. As a result, DOR and the Supreme Court have not
entered into an MOU to apply the license revocation or denial procedure
Act 25 modifies the occupational licenses tax delinquency procedure
to require that the hearing process for a law license applicant or
attorney owing delinquent taxes be concluded prior to DOR certification
to the Supreme Court that such an individual is delinquent.
In addition, the modified procedure for law licenses contained in Act
25 does not require affirmation of license denial, revocation, or
non-renewal for attorneys or law license applicants by the Supreme Court
before the entire hearing process was completed. At that time, the
Supreme Court would decide what action to take. (This issue was
previously discussed in the July 2005 issue of Wisconsin
Reduces certain first-offense operating a motor vehicle after
revocation convictions from criminal to civil offenses.
- Under current law, an individual convicted of a first violation of
operating a motor vehicle after revocation (OAR) is subject to a fine of
not more than $2,500 or imprisonment for not more than one year in the
county jail, or both.
- Act 25 creates new Wis. Stat. section. 343.44 (2)(as) that reduces
the OAR offense from a criminal to a civil offense, unless: (a) the
individual had been convicted of OAR within the preceding five-year
period; or (b) the license revocation resulted from an offense of
operating under the influence of an intoxicant or other drug, or of
operating a commercial motor vehicle with an alcohol concentration
between 0.04 and 0.08. The legislature did not approve the Governor's
proposal to lower the penalty to $500. Instead, the penalty for a civil
offense under Act 25 remains at a forfeiture of not more than $2,500.The
changes first apply to violations occurring after the effective date of
the bill, July 27, 2005.
Narrows the definition of "habitual traffic offender" to reduce the
number of persons whose operating privileges are revoked
- Redefine "habitual traffic offender" to mean any person, resident or
nonresident, whose Department of Transportation (DOT) record, showed
that the person had accumulated within a five-year period: (a) four or
more specified major civil or criminal traffic violations; or (b) 12 or
more convictions of violations of Wis. Stat. chapter 346 of the statutes
(Rules of the Road). As a result, convictions for operating after
suspension or operating after revocation would not be offenses that
trigger a finding that an individual is either a "habitual traffic
offender" or a "repeat habitual traffic offender."
- Specify that these changes first apply to reports of convictions of
violations received by the DOT on July 27, 2005, but does not preclude
counting other violations as prior violations for purposes of revocation
of operating privileges by the DOT or review by a court.
Provides state funding for the court interpreter program currently
funded with expiring federal funds, and provide additional county
reimbursement funds to reflect increased demand for court interpreter
- Under Act 25 the state will continue to provides reimbursement to
counties for interpreter services for indigent persons in criminal,
delinquency, protective services, chapter 48 (children's code) and
chapter 51 (alcohol, drug abuse, developmental disabilities, and mental
health act) proceedings.
- As introduced by the governor, Assembly Bill 100 included provisions
to require that a court, in all criminal and civil proceedings, provide
an interpreter for a party or witness who has limited English
proficiency, regardless of indigence. ThelLegislature's Joint Finance
Committee deleted those provisions.
Increases surcharges imposed on fines or forfeitures to provide
revenues for executive branch programs and the general fund
- Penalty surcharge is increased from 24 to 25 percent of the fine or
forfeiture imposed for most violations of state law or municipal or
- Crime Laboratory and Drug Law Enforcement surcharge is increased
from the current $7 to $8.
(When a court imposes a sentence, places a person on probation, or
imposes a forfeiture for a violation of state law or municipal or county
ordinance, a surcharge of $7 is generally imposed.)
- Justice information fee is increased from $9 to $12.
- Crime Victim and Witness Assistance surcharge is increased from $50
to $60 for misdemeanors and from $70 to $85 for felonies.
(The reach of the victim-witness surcharge has been broadened under
new Wis. Stats. section 973.043(1m): in addition to crimes, the court
shall impose the surcharge if the complaint charged a crime and, as a
result of a deferred or suspended prosecution, the defendant paid a
forfeiture. The defendant shall pay either the felony or misdemeanor
victim-witness fee depending on the crime that was originally charged in
- Drug Abuse Program Improvement surcharge is increased from 50% to
75% of the sum of the fine and penalty surcharge.
A portion of the generated revenue would be used to support an Office
of Justice Assistance (OJA) grant program for counties to establish
alternatives to incarceration programs for non-violent criminal
offenders with identified substance abuse treatment needs.
Note: As passed by the legislature, Assembly Bill 100 would have
increased the copy fee charged by the register in probate from $1 per
page to $1.25 per page. The governor's partial veto deleted this
Create a number of new surcharges
- Create a $10 drug offender diversion surcharge to be assessed for
property crime convictions under chapter 943 of the statutes.
The revenue generated would be used to support an OJA grant program
for counties to establish alternatives to incarceration programs for
non-violent criminal offenders with identified substance abuse treatment
- Authorize the Department of Corrections to establish by rule an
annual sex offender registration fee not to exceed $50 for individuals
in its custody or under its supervision. The fee would be used to
partially offset the costs of monitoring.
An updated table of circuit court fees, civil forfeitures, criminal
fines, and surcharges is available at the court's Web
Reduce the terms of probation for certain misdemeanor offenses
Act 25 reduces terms of probation for the following misdemeanors.
One misdemeanor, Class A, B or C, or unclassified
Not less than six months nor more than two years probation
Misdemeanor involving domestic abuse, firearm possession, 4th degree
sexual assault, crimes against children, or intoxicated use of a motor
Not less than six months nor more than two years probation
One misdemeanor, Class A
Not less than six months nor more than one year probation
One misdemeanor, Class B or C, or unclassified
Not more than 12 months probation
Create a subsidized guardianship program.
(Note: In September 2004, Wisconsin received a five-year federal
Title IV-E waiver to provide a subsidized guardianship payments program.
Under the waiver terms and conditions, the state is allowed to operate a
demonstration subsidized guardianship payment program in Milwaukee
County, although the program could be expanded to other counties and
tribes in Wisconsin, with approval from the U.S. Department of Health
and Human Services (DHSS). The waiver requires changes in state law to
clarify the nature of guardianship as a permanency outcome and to allow
the payment of guardianship subsidies, as well as allowing non-relatives
to become guardians. )
- Act 25 makes changes that: (a) allow a non-relative to be appointed
as a guardian of a child in need of protection or services; (b) include
placement with a guardian as a placement option for children first
entering out-of-home care; (c) create a subsidized guardianship payment
and allow the Department of Health and Family Services (DHFS) or a
county to make the payments to a guardian of a child in need of
protection or services; (d) direct DHFS to request a federal waiver to
claim reimbursement under Title IV-E for the subsidized guardianship
payments; and (e) make changes in the court process for appointing a
guardian for a child in need of protection or services.
Create a grant program to provide reintegration services for
female nonviolent prisoners from Milwaukee County and their
- Require DHFS to award grants to an organization or a group of
organizations to provide services for female prisoners and offenders
from Milwaukee County and their children, if the prisoners or offenders
have been convicted of non-violent crimes. Require each grantee to
provide at least all of the following for up to six months before a
prisoner's release from prison and up to two years after release: (a)
screening, assessment, and treatment, including mental health and
permanency services, for the prisoners or offenders to assist in their
reintegration into the community; and (b) at-risk assessments for all
dependent children of female prisoners or offenders who receive services
under the program and comprehensive support services. Treatment and
support services would be provided to approximately 72 women and their
children over the biennium.
- Though not in the bill, the administration has provided the
following program details: To be eligible under the program, women would
be required to have multiple needs, which could include substance abuse
or dependence, mental health, employment, housing, and basic daily
living skills. Program participants would receive the following types of
services: (a) risk assessment and support services for the children of
these women; (b) intensive preparation ("reach-in" services) for these
women to reenter the community; (c) institution-based transition
activities, such as substance abuse and mental health treatment
services, job-readiness, and parenting activities; and (d)
community-based support activities, based on a coordinated care plan
that identifies the roles and responsibilities of all formal and
informal team members.
Create a grant program to provide alternatives to prosecution and
incarceration for criminal offenders who abuse alcohol or other
- The legislature added provisions to create a grant program to enable
counties to establish and operate programs, including suspended and
deferred prosecution programs and programs based on principles of
restorative justice, that provide alternatives to prosecution and
incarceration for criminal offenders who abuse alcohol or other drugs.
Direct that the grant program be administered by the Office of Justice
Assistance (OJA), in collaboration with the departments of Corrections
and Health and Family Services.
- Grant funding will be provided from program revenue generated from
creating a $10 drug offender diversion surcharge to be assessed for
property crime convictions under Chapter 943 of the statutes. The
Department of Corrections must adopt rules requiring that money be used
for reasonable support of an inmate's family or dependents before it is
allocated for the drug offender diversion surcharge.
- As passed by the legislature, Assembly Bill 100 requires
partnerships, limited liability companies (LLCs), tax-option
corporations, and estates or trusts that are treated as pass-through
entities for federal income tax purposes and that have Wisconsin income
for the tax year that is allocable to a nonresident partner, nonresident
member, nonresident shareholder, or nonresident beneficiary to pay
withholding taxes, effective with tax year 2005.
- A nonresident is defined as: (a) an individual not domiciled in the
state; or (b) a partnership, LLC, or corporation whose commercial
domicile is outside the state; or (c) an estate or trust that is
nonresident under state law. The amount of withholding is equal to the
partner's, member's, shareholder's, or beneficiary's share of income
attributable to Wisconsin multiplied by: (a) the highest state
individual income tax rate for the taxable year for a single individual
(6.75%), if the recipient is an individual, estate, or trust; or (b) the
highest corporate tax rate (7.9%) for the taxable year for a
partnership, LLC, or tax-option corporation. Members of pass-through
entities that are also pass-through entities would be subject to the
same withholding requirements. The Governor's partial veto makes a
technical correction to these provisions to clarify that the withholding
requirements apply to all nonresidents who are members of pass-through
Items Not Included in the Act 25:
Funding for Civil Legal Services
As introduced by the governor, Assembly Bill 100 would have created a
civil legal services grant program administered by the Office of Justice
Assistance and would have provided $500,000 in GPR funding for legal
services in Fiscal Year 2006 - 07. The Legislature's Joint Finance
Committee deleted this proposed funding and related provisions.
Consolidation of State Attorneys
As introduced by the governor, Assembly Bill 100 would have
transferred all staff attorneys from a large number of different state
agencies and consolidated them into a single office in the Department of
Administration (DOA). The legislature's Joint Finance Committee
deleted this proposed transfer but did direct the Secretary of DOA to
delete 13.0 FTE executive branch agency attorney positions, other than
those at the U W System, that become vacant before June 30, 2007, and
lapse or transfer the associated salary and fringe benefits
amounts to the general fund in 2006 - 07.
Transfer of State Administration of the District Attorney
As introduced by the governor, Assembly Bill 100 would have
transferred the duties and responsibilities associated with the state
administration of the District Attorneys function from the Department of
Administration (DOA) to the Department of Justice (DOJ). The
Legislature's Joint Finance Committee deleted this proposed
Transfer of Consumer Protection Staff And Functions
As introduced by the governor, Assembly Bill 100 would have
transferred most consumer protection functions from the Department of
Agriculture, Trade and Consumer Protection (DATCP) to the Department of
Justice (DOJ). The legislature's Joint Finance Committee deleted this
Streamlined Sales and Use Tax (SSUT) Agreement Provisions
As introduced by the governor, Assembly Bill 100 would have modified
state statutes to
conform to the Streamlined Sales and Use Tax (SSUT) Agreement, which
is the product of a multi-state initiative intended to establish more
uniform sales tax systems among states in order to ease the
administrative burden for multi-state retailers. The legislature
deleted the SSUT provisions.
 As a result of
changes to first offense OAR and various surcharge amounts contained in
2005 Wis. Act 25, the biennial budget bill, the Uniform State Bond Book
has been revised. The Judicial Conference approved a deposit amount of
$100 for first offense OAR. With the new surcharge levels, the total
deposit will be $248. The appropriate surcharge changes were made
throughout the Bond Book. The updated Bond Book can be found at www.wicourts.gov/about/pubs/index.htm.