Wisconsin Lawyer
Vol. 79, No. 7, July
2006
2005-2006 Legislative Cycle Ends
Here's a brief look at some recent
legislative positions taken by the State Bar or its sections that affect
the practice of law and Wisconsin citizens. Issues before the
Legislature included guardianship and criminal justice reform, updating
the business entity statutes, and more.
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.
Lisa M. Roys, Thomas M. Cooley
1998, is the State Bar's director of public affairs. For more
information, she can be reached at (800) 444-9404, ext. 6128, or at lroys@wisbar.org. Access State Bar
legislative advocacy information online, at www.wisbar.org/legislative.
Access the acts online at www.legis.state.wi.us.
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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