The Third Branch
New laws affect courts
By Nancy Rottier, Legislative Liaison
About 60 new laws adopted during the 2013-14 legislative session will affect the court system and all areas of the law, including criminal, civil, probate and juvenile. A number of other bills that would have affected the courts were defeated.
The Assembly adjourned its session on March 20; the Senate ended with a comparatively short eight-hour day on April 1. The Legislature conducted the bulk of its work in the final weeks. Of the 380 new laws enacted this session, 264 of them were passed since January 1. A more complete summary of the acts passed affecting the court system is available on CourtNet, on the page of the Legislative Committee of the Judicial Conference. Here's a rundown of some of the major acts adopted:
|On April 8, 2014, Gov. Scott Walker signed into law 2013 Wisconsin Act 251 concerning the disclosure of juvenile records to entities conducting bona fide research. Standing, from left to right, are Bethany Anderson, an aide to Rep. Joan Ballweg (R-Markesan); Ballweg; Michelle Jensen Goodwin, director of the Children's Court Improvement Program; A. John Voelker, director of state courts; Dee Pettack, an aide to Sen. Luther Olsen, (R-Ripon); and Olsen. Photo credit: Jay Salvo, Legislative Photographer|
DNA at arrest. The state budget, passed in June 2013, established a program for collecting deoxyribonucleic acid (DNA) samples at arrest that will start on April 1, 2015. Under this statute, when a law enforcement agency obtains fingerprints or other identifying data from an individual arrested for a felony, it must also obtain a biological specimen for DNA analysis.
Searches by law enforcement of persons on probation, parole or extended supervision. If an officer finds there is reasonable suspicion of a crime or a violation of a condition of probation or release, the officer may conduct a search and notify the department after the search.
Supervised release and discharge of sexually violent persons. Various changes to ch. 980 including burden of proof, timelines for hearings and criteria for release.
Warrant required for tracking cell phone. In most instances, a warrant will be required for tracking the location of a cellular telephone or other wireless communications device; a detailed process for obtaining the warrant is included.
Strip searches. A new category of persons who can be strip searched is created, with a new definition of "detainee" to include a person incarcerated, imprisoned, or otherwise detained in a jail or prison with one or more other persons for at least 12 hours.
Allowing a victim of a crime to view portions of a PSI. A victim of a crime will be allowed to view portions of a presentence investigation (PSI) report that contain sentencing recommendations and any information pertaining to the victim. A victim may not keep a copy of the PSI and must keep the information confidential.
Human trafficking. A multi-faceted approach to the problem of human trafficking was passed, including changes to definitions and penalties, seizure and forfeiture of property and expungement.
New crimes or changed penalties. Among the crimes affected are theft of communication and video services, distributing sexually explicit images, and aiding a felon. After several sessions, the law was changed to eliminate the current exception that prevents close family members from being charged with harboring or aiding a felon with intent to prevent apprehension.
Injunctions suspending or restraining enforcement or execution of statute. An injunction or restraining order that suspends or restrains the enforcement of any state statute is made immediately appealable to an appellate court or to the Wisconsin Supreme Court.
Firearm surrender procedures and other changes to restraining orders or injunctions. Several bills passed that affect restraining orders or injunctions, including a mandate for a standardized procedure for the surrender of firearms by persons subject to a temporary restraining order or injunction. Another act allows a court to grant an extension of an injunction if the court makes specific findings about certain substantial risks faced by the petitioner. Another act fills a gap in procedures that currently exists involving firearm background checks. A fourth act includes provisions relating to stalking and payment of guardian ad litem fees, among other changes.
Landlord-tenant changes. Among the many changes to landlord-tenant laws was a pre-emption of local ordinances that differ from federal or state law and changes to eviction procedures designed to speed up the process.
Lemon law. Several changes were made to Wisconsin's lemon law, including shortening the time for filing an action, allowing the court to adjust remedies and eliminating the mandatory double pecuniary damages.
Informed consent. The current reasonable patient standard has been replaced with a reasonable physician standard. The law was first changed to cover physicians; a later act made the same change for podiatrists, chiropractors, dentists, and optometrists.
Personal injury trusts. Several new provisions involving disclosure, filing of claims and admissibility of evidence at trial were added to the civil procedure code for litigation involving personal injury trusts.
Increasing funds available for TAD grants. The Legislature increased the funding for the Treatment, Diversion and Alternatives (TAD) program twice during the session. In the state budget and later in separate legislation, the level of support for TAD funding was changed from approximately $1 million per year to $3.5 million per year. In addition, the budget provided another $500,000 annually for grants to counties to establish and operate drug courts, bringing the annual total to $4 million.
Election of Chief Justice. A constitutional amendment passed the 2013 Legislature on first consideration that would require the Chief Justice of the Supreme Court to be elected for a term of two years by a majority vote of the justices then serving on the court. In order to be adopted, this constitutional amendment must be adopted in identical form by the 2015 Legislature and then be approved in a statewide referendum.
Disclosure of juvenile records to entities conducting bona fide research. The Director of State Courts office, working with the Children's Court Improvement Program, developed this legislation that will allow access to juvenile records for researchers who enter into an agreement with the director.
Traffic and OWI
Penalties and testing for OWI. This act requires a court to impose a bifurcated sentence for a seventh or subsequent OWI offense. In State v. C. Williams, 2013 WI App 74, the Court of Appeals said the previous statutory language was not mandatory. The act also creates a mandatory penalty of 30 days for an OWI with an injury.
Tribal treatment facility participation. This act allows an offender who is a tribal member or spouse of a tribal member to receive assessment and treatment services at a facility provided by the tribe.
Inattentive driving. The Legislature modified inattentive driving to account for various electronic devices within a vehicle.
Agricultural vehicles on highways. This act updates and changes the regulation of an "implement of husbandry," a vehicle or piece of machinery designed for agricultural purposes that is used principally off the highway.
Juvenile and Family Law
Waiver of parent's right to counsel for failure to appear in contested adoption or involuntary TPR. This act would allow the court, in a contested adoption or involuntary termination of parental rights case, to make a finding a parent has waived his or her right to counsel. The court must find the parent's conduct in failing to appear in person as ordered was egregious and without clear and justifiable excuse. The act was developed in response to the Supreme Court's decisions on this issue in State v. Shirley E., 2006 WI 129, and earlier cases. Under the act, failure to appear as ordered at consecutive hearings is presumed to be egregious and without clear and justifiable excuse, but also requires the court to wait at least two days before holding a dispositional hearing on an involuntary termination of parental rights or a contested adoption.
"Rehoming" of adoptive children. This act prohibits Internet advertising related to adoption of a child and amends the process for delegation of parental powers in order to address the issue of "rehoming" of adopted children. As requested in this act, the Joint Legislative Council is forming study committee on adoption disruption and dissolution.
Out-of-home care to children over 18 with individualized education programs. The Legislature passed an act that will permit a child who is in out-of-home care and who has an individualized education program (IEP) to continue in such care until the child obtains a high school diploma or reaches 21 years of age, whichever occurs first. Under current law, out-of-home care placements generally end when the child reaches 18 years of age.
Placement of child under voluntary agreement. This act permits a child to be placed in a shelter care facility for up to 20 days under a voluntary agreement. Shelter care facilities are non-secure places for the temporary care and physical custody of children and are licensed by the Department of Children and Families.
Uniform Trust Code, Uniform Principal and Income Act, Powers of Appointment, and Changes to Estate Recovery and Divestment. This act replaces current law related to trusts with the Wisconsin Trust Code, a modified version of the Uniform Trust Code, as amended in 2005. The act also repeals a number of changes to the laws relating to estate recovery and divestment and financial eligibility for Medical Assistance (MA) that had been enacted as part of the 2013-15 budget.
Emergency detention, involuntary commitment, and admission of minors for inpatient treatment. The Legislature passed several bills affecting treatment for mental illness, some developed by the Joint Legislative Council's Special Committee on Review of Emergency Detention and Admission of Minors Under Chapter 51 and some developed by the Speaker's Task Force on Mental Health. One act changed several provisions dealing with emergency detention, involuntary commitment, and privileged communications. Another eliminated several current requirements affecting the admission of minors for inpatient treatment. One of the acts created a procedure for the corporation counsel to make a limited appearance in certain involuntary commitment proceedings. This act also contains required time limits for the court to review the three-person petition and determine whether an order of detention should be issued.
Other New Acts of Interest
Investigations of officer-involved deaths. After a great deal of discussion and negotiation, the Legislature adopted an act that relates to the investigation of an "officer-involved death." The act requires law enforcement agencies to have a written policy regarding the investigation, contains provisions regulating the disclosure of an investigatory report and grants certain rights to crime victims under the Victim's Basic Bill of Rights.
County and municipal prisoners in border counties. This act authorizes a county to enter into a contract with a bordering county in a different state to detain or imprison county or municipal prisoners.
Municipal court fees. Municipal courts are now allowed to increase their maximum court fee that may be imposed for municipal ordinance violations to $38. The previous range of court fees is from $15 to a maximum of $28.
Sometimes success or failure in a legislative session is measured more by what proposals did not pass. Among the defeated proposals that we opposed because of their cost or adverse impact on the court system:
- Restricting access to or limiting the information provided on the Wisconsin Circuit Court Access website.
- Reinstating contributions to crime prevention organizations.
- Maximizing equal physical placement and changing child support.
Many other bills that we watched closely because of their potential impact on the court system will likely be introduced in the next session, including:
- Returning certain 17-year-olds to the jurisdiction of the juvenile court.
- Bills increasing the penalties for operating while intoxicated (OWI), including making first offense a misdemeanor, mandatory minimum penalties for causing bodily harm and mandatory court appearances.
- Reducing the length of time an operating license can be suspended for failure to pay judgment.
- Reinstating the right to appoint counsel for a parent in CHIPS proceedings and eliminating jury trials in TPR cases .
- Psychiatric and behavioral care and treatment for persons with dementia, in response to the Helen E.F. case.
At the same time, we were disappointed that a number of proposals that we supported were unsuccessful. These include:
- Comprehensive revisions to the criminal code, as developed over many years by the Judicial Council.
- An expungement initiative that would expand the current statute and deal with dismissed or not guilty cases.
- Expanding TAD grants to include mental illness.
During the coming months, the Legislative Committee will be developing a positive agenda for the 2015-2016 session and is seeking input and suggestions.
For more information, contact Legislative Liaison Nancy Rottier, firstname.lastname@example.org or (608) 267-9733.