Vol. 77, No. 5, May 2004

2003-2004 Legislative Session Wraps Up

by Deb Sybell

As Yogi Berra said, "It ain't over 'til it's over." That was certainly true of the 2003-2004 legislative session, which was scheduled to end on March 11, 2004, marking the death of all bills that had not passed both the Wisconsin Assembly and the Senate. With more work left to be done, the Legislature went into extra innings by calling itself into extraordinary session, which the Senate adjourned on March 25. Don't close the book on this chapter in legislative history just yet though. Senate Majority Leader Mary Panzer (R-West Bend) said the Legislature may return to deal with campaign finance reform, health care, Medicaid funding, or a taxpayers' bill of rights.

State Bar-supported Legislation

A.B. 909 (Filling Budget Gap) - 2003 Wis. Act 129. Solving the state's $3.2 billion budget deficit was a focal point of the legislative session and cast a shadow over the consideration of all other bills. In 2003, Gov. Doyle proposed, and the Legislature passed, a balanced budget without raising state taxes. However, the new year brought troubling news: lower than expected tax revenues, a hole in the Medicaid budget, and funding shortfalls in the program budgets of the Office of the State Public Defender and district attorneys statewide. The governor and legislative leaders did some creative brainstorming and reached agreement on a plan to restructure the state's debt. The product of these negotiations, Act 129, increases bonding by $175 million, transfers $123.5 million to the medical assistance fund, increases the private bar appropriation of the Office of the State Public Defender by $9.2 million, and increases the appropriation for district attorneys by $1 million.

A.B. 616 (Eligibility Standards for SPD Representation). Fiscal concerns were never far from legislators' minds as any proposal with a price tag faced obstacles to passage. Such was the case with A.B. 616, expanding eligibility for public defender representation. Authored by Rep. Terri McCormick (R-Appleton), the legislation would have allowed an individual at or below 115 percent of the Federal Poverty Level (FPL) to qualify for a public defender. The eligibility standards have not been updated in more than 15 years and today equal roughly 33 percent of the FPL. Despite broad bipartisan support, A.B. 616 stalled in the budget-writing Joint Committee on Finance due to fiscal implications for the 2005-2007 biennium.

A.B. 651 (Increases to Cost Statutes) - 2003 Wis. Act 138. The 2003-2004 legislative session did bring with it upward modifications to the cost statutes to more adequately provide for recovery of actual costs by successful litigants in a court action. Act 138 increases the amount of statutory attorney fees in a civil action to the following amounts: $100 for a money judgment under $1,000, $300 if no money judgment is demanded or the judgment is in the range of $1,000 to $5,000, and $500 for a money judgment greater than $5,000.

The new law also increases the maximum recoverable for 1) various disbursements such as postage and telephoning from $50 to $100 per item; 2) expert witness fees from $100 to $300; and 3) costs on a motion in a civil action from $50 to $300. It also modernizes the list of items for which disbursements may be recovered.

S.B. 49 (Daubert Standard for Admissibility of Witness Testimony). The State Bar of Wisconsin scored a victory when Gov. Doyle vetoed S.B. 49, which would have adopted the Daubert standard for admissibility of lay and expert witness testimony in civil cases and administrative hearings. If S.B. 49 had become law, judges would have been required to act as gatekeepers by excluding scientific evidence that they deem unreliable. Under current law, the reliability of the evidence is a weight and credibility issue for the jury, and any challenges are made through cross-examination or other means of impeachment. The Bar opposed the bill because it believes the Wisconsin Supreme Court is the best forum for considering the wisdom of revising the rules of evidence.

Section-supported Legislation

The Legislature was productive this legislative session, sending 400 or so bills to Gov. Doyle, who had until April 22 to act on them. Our State Bar sections worked with the Legislature to advance several of these bills.

The Real Property, Probate and Trust Law Section spearheaded efforts to revise estate tax law and pass the Uniform Prudent Investor Act.

Wisconsin Estate Tax. A.B. 793 prohibits the imposition of the estate tax on intangible personal property in Wisconsin of nonresidents, beginning in 2005. The legislation was introduced to avoid an anticipated economic drain to Wisconsin in 2005 when the state death tax credit under federal law will no longer exist, clearing the way for Wisconsin's existing estate tax to kick in. States that do not currently have an estate tax on the books, such as Florida, California, and Nevada, would have provided a more welcoming climate for nonresidents' assets if A.B. 793 had not become law. (2003 Wis. Act 258)

Uniform Prudent Investor Act. S.B. 492 allows fiduciaries to use modern portfolio theory to guide investment decisions, measures a fiduciary's performance based on the performance of the whole portfolio rather than specific assets, allows the fiduciary to delegate investment decisions to qualified supervised agents, and requires sophisticated risk-return analysis to guide investment decisions. (2003 Wis. Act 264)

The Business Law Section worked closely with Sen. Cathy Stepp (R-Sturtevant) to gain legislative approval for business and corporate statute revisions. S.B. 218 would have brought Wisconsin's corporate law in line with the laws of other states, eliminated the redundant plan of merger filing, corrected a glitch in the 2001 Next Economy Law, fixed certain formulas that are inconsistent with the anti-takeover laws, and allowed waivability by the board of an anti-takeover provision. Unfortunately, the governor vetoed the bill.

Other section highlights from the legislative session include:

Huber Privileges. A.B. 352 specifies that Huber law privileges include allowing a county jail or house of corrections inmate to leave the detention facility to attend counseling, therapy, or treatment; a parenting education program; or a meeting with the inmate's probation, parole, or extended supervision officer. (2003 Wis. Act 141) Supported by the Criminal Law Section.

Surcharge Consolidation. A.B. 421 consolidates all of the court assessments, surcharges, and restitution payments into the chapter of the statutes that requires the courts to impose costs and fees and clarifies which assessments, surcharges, and restitution payments apply to which type of violation. The bill also changes the name of all of these assessments, surcharges, and restitution payments to surcharges. (2003 Wis. Act 139) Supported by the Criminal Law Section.

HCPOA Portability. A.B. 554 directs that out-of-state Health Care Power of Attorney (HCPOA) documents be enforceable in Wisconsin to the extent they allow a health care agent to make decisions that such an agent is allowed to make under Wisconsin law. (2003 Wis. Act 290) Supported by the Elder Law and Public Interest Law sections.

Child Support Statute of Limitation. A.B. 624 provides that an action to collect child or family support owed under a judgment or order is barred if not commenced within 20 years after the youngest child under the order reaches the age of 18 or, if the child is enrolled full-time in high school or its equivalent, reaches the age of 19. (2003 Wis. Act 287) Supported by the Family Law Section.

Looking Ahead

Even though the legislative session has wrapped up, for now, the Senate and Assembly Health committees are reviewing a proposed administrative rule (CR 03-111) setting the maximum fees health care providers can charge for reproducing health care records, regardless of whether a lawsuit has been commenced. The rule contemplates a two-tiered fee structure, depending on who is asking for the health care records. If an individual or his or her personal representative is requesting the records, the rule sets the maximum fee at $0.31 per page. All other requesters, including attorneys requesting records for their clients, can be charged no more than $0.31 per page plus a maximum retrieval fee of $12.50 per request for fewer than five pages and $15 per request for five or more pages.

The Avery Task Force also is meeting to hear from noted criminal justice experts with the goal of developing recommendations to avoid wrongful convictions in Wisconsin, including improving eyewitness identification procedures. The committee is named for Steven Avery, who spent 17-plus years behind bars for a sexual assault he did not commit until he was cleared by DNA evidence that pointed to another man as the assailant. Chaired by Rep. Mark Gundrum (R-New Berlin), the task force is made up of lawmakers, judges, prosecutors, criminal defense attorneys, and law enforcement officials from across the state.

The State Bar Government Relations Team is hard at work preparing for the 2005-2006 legislative session, which begins in January 2005. Issues on the horizon include a Uniform Securities Act, guardianship reform, Uniform Principal and Income Act, Probate Code modifications, and updates to the eligibility standards for public defender representation.

Wisconsin Lawyer