Wisconsin Lawyer
Vol. 79, No. 7, July 2006

2005-2006 Legislative Cycle Ends

by Lisa M. Roys

With only minor legislative action remaining on the docket, the bulk of the 2005-2006 legislative cycle has now concluded. The Wisconsin Legislature may return in mid-July for a one-day session to review and approve contracts for state employees and to review nonsubstantive bills put forth by the Revisor of Statutes.

As anticipated, the Legislature did return in May to put its final stamp of approval on several bills of interest to the State Bar and to its lobbying sections.

• S.B. 391 (Guardianship Reform). After S.B. 391 cleared its final hurdle in the State Assembly, on May 10 Gov. Jim Doyle signed the guardianship reform bill into law as Act 387. Endorsed by the Board of Governors as a position of the State Bar, the Elder Law Section has been working for more than a decade to overhaul the provisions within chapter 880 that relate to guardianship in Wisconsin. 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 cosponsored this legislation.
• S.B. 619 (Chapter 180 Reform). The Business Law Section celebrated the signing on May 30 of S.B. 619, revision of the state's corporations law, chapter 180. S.B. 619 (Act 476), authored by Sen. Ted Kanavas (R-Brookfield), reflects the section's years'-long review of the business entity statutes and is a positive step for Wisconsin to take as it positions itself for future economic development.
• A.B. 539 (Adult Protective Services). Act 388 is the final installment of the work of the Legislative Council Special Committee on Recodification of Chapter 55, Placement and Services for Persons with Disabilities. The Elder Law Section supported Act 388, which, along with the guardianship reform bill and the previously signed Act 264 (A.B. 785), completely modernizes and clarifies the state's laws related to protecting vulnerable adults.

Several bills opposed by the Criminal Law Section were signed into law, including:

• Jessica's Law (A.B. 784 - Act 430) modifies the offense of sexual assault of a child and requires minimum terms of confinement in prison for certain offenders.
• Act 436 (S.B. 526), among other changes, revises the crime of sexual assault of a person who is under the influence of an intoxicant to include alcohol beverage within the definition of intoxicant, regardless of whether it is combined with a controlled substance, a controlled substance analog, or another drug.
• Act 310 (A.B. 970) provides that in a criminal proceeding in which a person is accused of committing first-degree sexual assault or first-degree sexual assault of a child, evidence that a person was convicted of first-degree sexual assault or first-degree sexual assault of a child may be admitted to prove the person's character to show that the person acted in conformity with the demonstrated character traits.

The Litigation Section celebrated vetoes of the following legislation:

• S.B. 578 (peer review) would have, with certain exceptions, specified that records and information relating to quality improvement activities of health care organizations are confidential and privileged; are not subject to discovery, subpoena, or other means of legal compulsion requiring release or permitting inspection, including compulsion by a state agency; and are not admissible as evidence in any civil, criminal, or other judicial or administrative proceeding.
• A.B. 1021 (apology statute) would have provided that a statement or conduct of a health care provider that expresses apology, condolence, or sympathy to a patient or patient's relative or representative is not admissible into evidence or subject to discovery in any civil action or administrative hearing regarding the health care provider as evidence of liability or as an admission against interest.

Electorate to Vote on Two Questions

When voters go to the polls on Nov. 7, in addition to choosing the state's next governor, voters will be asked two questions. One will provide advice to the Legislature on whether to reinstate the death penalty in Wisconsin. The other could change the way marriage is defined in this state.

By a very narrow vote margin, the Wisconsin Legislature put the final touches on an advisory referendum related to the death penalty. This nonbinding question will ask voters, "Should the death penalty be enacted in the State of Wisconsin for cases involving a person who is convicted of first-degree intentional homicide, if the conviction is supported by DNA evidence?" The state Assembly passed the proposed referendum question, 47 - 45, after voting to move the date of the referendum from the primary election in September to the general election in November. Even if a majority of voters answer "yes" to this question, the Legislature would still need to pass legislation for a death penalty to be in effect in Wisconsin.

The State Bar of Wisconsin has a long-standing position against implementing the death penalty in Wisconsin. The policy position adopted by the Board of Governors recognizes that administration of the death penalty is significantly more expensive than other criminal litigation and other sentencing alternatives, including life without parole. These added costs would strain Wisconsin's already limited resources. The Board also recognized that the death penalty disproportionately affects poor persons and reflects racial disparity, which raises grave constitutional and administrative concerns.

The second question to be posed to voters this fall, the so-called "Defense of Marriage Act" or marriage amendment, will ask, "Shall section 13 of article XIII of the constitution be created to provide that only a marriage between one man and one woman shall be valid or recognized as a marriage in this state and that a legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state?" Unlike the death penalty question, if a majority of the voters approve the marriage amendment in November, Wisconsin's constitution would be changed immediately to include the provision. The State Bar Public Interest Law and Individual Rights and Responsibilities sections have been actively lobbying against this provision. The two sections are now collaborating on a statewide effort to educate Wisconsin citizens about the potential effects the amendment would have on gay and lesbian couples and heterosexual couples alike, and are urging the public to vote against it.

The 2007 Legislature

The electorate also will vote in November on the make-up of the Wisconsin Legislature for the 2007-2008 biennium. All 99 Assembly seats and half of the 33 Wisconsin Senate seats will be up for election. To date, a number of legislators, including several leaders, have indicated they will not seek reelection. Assembly Speaker John Gard (R-Peshtigo) is running for the Congressional seat to be vacated by Mark Green, who is running against Gov. Doyle. Also in the Republican primary for that Congressional seat is Rep. Terri McCormick of Appleton, who championed modifying the eligibility standards for public defender representation and increasing the public defender's reimbursement rate for private bar attorneys.

Rep. Curt Gielow (R-Mequon), the architect of this legislative cycle's medical malpractice agenda, has indicated he will not seek reelection, as has Greg Underheim (R-Oshkosh), long-time chair of the Assembly Health Committee. Rep. Ann Nischke (R-Waukesha), chair of the Assembly Insurance Committee, will not seek reelection. Rep. Jean Hundertmark (R-Clintonville), who authored several pieces of legislation at the request of State Bar sections, is running for lieutenant governor and will not seek reelection to her post. First-term Republican legislator Andy Lamb of Menominee also will not return next year. Rep. David Ward (R-Fort Atkinson), a member of the Legislature's budget writing committee, will not seek reelection. Rep. John Ainsworth (R-Shawano), chair of the Assembly Transportation Committee, will retire as well. Rep. Scott Jensen (R-Waukesha) resigned his post following his conviction on charges related to Capitol ethics.

On the Democrat side of the Assembly, Rep. Bob Ziegelbauer (Manitowoc) was successful in his bid to become the next county executive of Manitowoc County. Rep. John Leh-man (Racine) is running for the Senate seat being vacated by Republican Sen. Cathy Stepp, also of Racine. Stepp is the only senator to have announced her intention to not seek reelection.

For other information on 2005-2006 legislative action, please see the May 2006 Legislative Watch column.

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