Aug. 21, 2019 – The Wisconsin Legislature will resume full-time activities next month as the 2019-20 session continues. At the same time, the State Bar of Wisconsin will continue to press its policy goals, building on momentum from a busy budget season.

The State Bar reports significant progress in the areas of funding of our justice system, including a long awaited increase in the hourly rate paid to private bar attorneys who take public defender cases and new assistant district attorney positions.

“Now let’s get to work building on our successes,” said State Bar President Jill Kastner, who will be leading the charge on other State Bar policy priorities, including increased funding for civil legal services for low-income Wisconsinites and building on strategies to encourage more lawyers to practice law in rural and underserved areas of the state.

In addition, the organization (and sections) are monitoring and taking positions on legislative proposals of interest to the State Bar’s members and the clients they serve. This article provides a high-level overview of the State Bar’s current legislative activity.

State Budget Addresses Lawyer Compensation

A decades-long effort has finally resulted in success for private bar attorneys taking appointments from the State Public Defender’s Assigned Counsel office.

The 2019-21 biennial state budget increases the compensation paid to private bar attorneys who take overflow and conflict cases on appointment from the state public defender’s office, from $40 to $70 per hour.

The $40 hourly rate has changed little since 1978, when the hourly compensation rate was set at $35 per hour. Over the decades, the State Bar has repeatedly supported an increase. The pay rate was actually reduced from $50 per hour to $40 in 1995.

The State Bar supports a rate of compensation on par with the rate for court-appointed attorneys, a rate set by the Wisconsin Supreme Court. Last year, the supreme court increased the rate paid to court-appointed attorneys from $70 to $100 per hour.

The State Bar has also long supported adequate compensation to attract and retain experienced and qualified attorneys that work for the state, including assistant district attorneys and assistant state public defenders. Those attorneys are government lawyers who are compensated under merit-based pay progression plans.

The biennial 2019-21 state budget includes a one-step pay progression increase for assistant district attorneys and deputy district attorneys and increased funding for the equivalent of 65 new assistant district attorney positions.

The budget did not include public defender staff in the stepped pay progression, which creates a gap in salary parity between public defenders and prosecutors.

The State Bar is hopeful that the legislature and the governor will work together to address this pay issue going forward in the 2019-20 legislative session.

The State Bar also supports adequate funding for civil legal services. Civil legal aid finding helps ensure fairness for all in the justice system, regardless of income.

Similar to the prior budget, the 2019-21 biennial state budget allocates $1 million in federal funds under the Temporary Assistance for Needy Families (TANF) Program for civil legal services to TANF-eligible survivors of domestic violence and sexual abuse.

The State Bar will continue the ongoing effort toward an adequately funded justice system that promotes access to justice and the retention of qualified attorneys.

In addition, the State Bar (and its sections) are closely monitoring the development of bills that impact the legal profession, State Bar members, and the clients they serve. Below is a status brief of bills that have been introduced in the current term.

Bills of Interest: Board of Governors’ Activity

The State Bar of Wisconsin’s 52-member Board of Governors represent the State Bar membership in 16 districts. Board members are elected to two-year terms. The board meets five times per year and oversees policy-making and organization operations.

The board periodically takes official policy positions on bills of interest to the legal profession, which authorizes the State Bar’s government relations team to actively engage with lawmakers and legislative staff to advance the State Bar’s position. The board supports the following bills that are pending before the Legislature.

AB 33 – Expungement of Records of Certain Crimes. Currently, persons who commit nonviolent crimes, including some felonies, while under the age of 25 can request expungement of the criminal record at the time of sentencing.

Under this bill, which has already passed the Assembly, the age restriction would be lifted, and individuals could petition the court for expungement of their criminal record even if they did not request expungement at the time of sentencing. If a record is expunged, it is not considered a conviction for employment purposes.

A companion bill, SB 39, passed out of the Senate’s Committee on Judiciary and Public Safety, and is available for a Senate vote.

AB 25 – Allowing district attorneys, deputy district attorneys, and assistant district attorneys to engage in the private practice of law for certain civil purposes. The bill would allow prosecutors to provide pro bono legal services in their communities if there are no conflicts in providing the legal services. The Assembly’s Committee on Judiciary passed the proposal 8-1 in May.

The State Bar’s Board of Governors supports the proposal, but other groups – such as the League of Women Voters of Wisconsin and the Wisconsin Civil Justice Council Inc. – oppose the bill on grounds that it could create conflicts or the appearance of conflicts.

AB 145 – Creation of a prosecutor board and a state prosecutors office; funding for the department of justice, assistant district attorneys, the public defender, and the courts; Public Defender Board regulation, and making an appropriation. This bill would create an independent prosecutor board to oversee and set policies for a state prosecutors’ office. It also expands the Public Defender Board’s rule-making authority with respect to private bar certification, decertification, and recertification to represent indigent clients by appointment from the State Public Defender’s Office. The bill includes other measures already addressed through the state budget process, including appropriations to pay counties for court-appointed attorneys.

Bills of Interest: Section Activity

The 16 State Bar sections participating in the State Bar’s Government Relations Program are authorized to monitor and take policy positions on bills, so long as the section’s position is not in conflict with Board of Governors position.

Section members authorize section board members to take policy positions, and engage the State Bar’s government relations team to help advance positions.

AB 41 – Prosecuting a person under the age of 18 with committing an act of prostitution. The State Bar’s Children and the Law Section supports this legislation, which bars prostitution charges against minors (those under age 18). The legislation recognizes the victimization of children who are sex trafficked.

The Assembly’s Committee on Children and Families unanimously (12-0) passed the bill, the first step before a bill can be considered by the full Assembly.

AB 47 – Guardianships of children. This bill creates a new process and standards for appointment of a guardianships for minors. The State Bar’s Children and the Law Section supports the legislation, which had a public hearing before the Assembly’s Family Law Committee last May.

AB 58 – Service of notice of claim against state officer, employee, or agent. The bill changes the requirements for service of a notice of claim against a state officer, employee, or agent. Currently, the notice must be served on the attorney general at the state capitol by certified mail. This bill would allow personal service or service by certified mail at the capitol or in the attorney’s general’s office at the Wisconsin Department of Justice. The State Bar’s Litigation Section supports the bill, which has passed the Assembly and awaits a final floor vote in the Senate.

AB 59 – Service of certain pleadings and other papers by electronic mail. Currently, service of pleadings and other papers must be served by traditional methods unless a responding party has agreed in writing to accept electronic service or service by some other method. This bill would allow service by email, regardless of consent. The bill passed the Assembly in June. The Senate is now considering it. The State Bar’s Litigation Section supports the bill, which passed the Assembly in June and awaits Senate floor action this fall.

AB 95 – Modifications to legal custody or physical placement contingent upon a future event. This bill authorizes a court to approve a stipulated agreement for modifications to legal custody or physical placement of children upon the occurrence of life events of the adult parties or child, or developmental and educational needs of the child, that are reasonably certain to occur within two years of the date of the stipulation. Currently, a court cannot modify, substantially, an order for legal custody or physical placement within two years of a judgment, unless a child would be emotionally or physically harmed without a modification. The State Bar’s Family Law Section supports the bill, which received a public hearing before the Assembly’s Family Law Committee earlier this summer. The July/August Wisconsin Lawyerdiscusses this bill, as well as other proposals related to child support and placement.

AB 100 – Judicial notice of certain court records relating to domestic violence or child abuse. The bill allows a court in a family law action to take judicial notice of court records relating to domestic violence, including battery, stalking, sexual assault, damage to property, disorderly conduct, and other specified crimes. The State Bar’s Family Law Section supports the bill. The July/August Wisconsin Lawyerdiscusses this bill, as well as other proposals related to child support and placement. The Assembly’s Committee on Judiciary unanimously supported the bill last month.

AB 166– Presumption and conclusive determination of paternity on the basis of genetic test results and orders that may be granted on the basis of genetic test results. The bill creates a new presumption of paternity and a “new way to conclusively determine paternity under the law using genetic testing.” Additionally, “the bill allows a court that determines that a judicial determination of whether a man is the father of the child is not in the best interest of the child to dismiss the paternity action with respect to that man, regardless of whether genetic tests have already been performed or what the results of those genetic tests were.” The State Bar’s Family Law Section supports the legislation. The Assembly’s Committee on Family Law is considering the bill, while the companion bill, SB 158, is scheduled for a public hearing before the Senate’s Committee on Universities, Technical Colleges, Children and Families later this month.

AB 201 – Creating a nonrefundable individual income tax credit for certain adoption expenses and modifying eligibility for the adoption expenses tax deduction. The bill would create a state individual income tax credit for adoption expenses for those eligible for the federal adoption expense credit. The State Bar’s Children and the Law Section supports the bill, which is pending before the Assembly’s Committee on Ways and Means.

AB 209 – Mandatory parenting classes. This bill would require courts to order parties to attend parenting classes in actions affecting the family in which a minor child is involved or in an action to determine paternity of a child. The State Bar’s Family Law Section opposes this bill, which is pending before the Assembly’s Committee on Family Law.

SB 98 – Modification of bail in a criminal action. The bill, introduced by the Joint Legislative Council, “requires a court to review the bail of a defendant within 72 hours of initial appearance if the defendant remains in custody as a result of his or her inability to meet the bail. Thereafter, the court must review the bail every 7 days. The bill requires the court to set forth the reasons for requiring the continuation of the bail, unless the bail is adjusted and the defendant is released. The bail review requirement only becomes effective if an amendment to Article I, section 8 (3) of the Wisconsin Constitution, the provision relating to pretrial detention, is ratified.” The bill is pending before the Committee on Insurance, Financial Services, Government Oversight, and Courts. The State Bar’s Criminal Law Section is actively monitoring this bill.

SB 99 – Pretrial detention. The bill, introduced by the Joint Legislative Council, would allow court commissioners to conduct pretrial detention hearings, expand the criteria for pretrial detention decisions, and make other changes with respect to pretrial detention procedures. The bill is pending Committee on Insurance, Financial Services, Government Oversight, and Courts. The State Bar’s Criminal Law Section is actively monitoring this bill.

SB 101 – Use of a pretrial risk assessment when setting conditions for pretrial release. The bill, introduced by the Joint Legislative Council, allows courts to consider the results of a validated pretrial assessment in imposing bail or other pretrial release conditions. It is pending Committee on Insurance, Financial Services, Government Oversight, and Courts. The State Bar’s Criminal Law Section is actively monitoring this bill.

Senate Joint Resolution 13– Release of a person accused of a crime prior to conviction (first consideration). The resolution, introduced by the Joint Legislative Council, is a proposed constitutional amendment to “allow the legislature to authorize circuit courts to deny release prior to conviction. It replaces all of the requirements the Wisconsin Constitution currently specifies the legislature must include in a pretrial detention law with three requirements.” Under the resolution, any law authorizing circuit courts to deny release prior to conviction must: “(1) specify the circumstances under which an accused may be denied release prior to conviction; (2) limit the period of time an accused may be denied release prior to conviction; and (3) require that the court conduct a pretrial detention hearing. The joint resolution also removes language from the Wisconsin Constitution that prohibits the legislature from enacting a law requiring courts to deny release to a defendant prior to conviction.” The State Bar’s Criminal Law Section is actively monitoring this resolution.

Other State Bar sections participating in the Government Relations Program include: Business Law; Bankruptcy, Insolvency and Creditors’ Rights, Civil Rights and Liberties; Construction and Public Contract; Dispute Resolution; Elder Law and Special Needs; Health Law; Indian Law; Public Interest Law; Real Property, Probate and Trust Law; and Taxation Law.

Conclusion

As of Aug. 12, 2019, there were 355 bills introduced in the Assembly, 343 in the Senate. Eighteen bills have been signed into law in whole or in part. Five bills were vetoed.

The Wisconsin Legislature is not expected to come back into session until October, reserving the months of August and September for committee activity. Beyond October, the legislature has floor periods scheduled every month through April 2020, except for December.

Have questions for the State Bar’s Government Relations Program? Contact the State Bar’s Advocacy & Access to Justice Director Lisa Roys by email or by phone at (608) 250-6128.