Nov. 11, 2009 – The Wisconsin Legislature concluded its regular fall 2009 floor period on Nov. 6, drawing to a close a highly productive lobbying year for the State Bar of Wisconsin.

The fall session ended on a high note for the State Bar, with final legislative passage of a landmark bill to greatly increase public financing of campaigns for the Wisconsin Supreme Court, achieving a long-standing objective of the State Bar’s Board of Governors. Governor Jim Doyle has said he will sign the bill.

Achieving passage of the Impartial Justice Bill, Senate Bill 40, caps a highly successful year that also included several significant and long-sought victories in the 2009-11 state budget enacted in June.

In addition to the Impartial Justice Bill, legislators last week gave final passage to Senate Bill 259, which significantly increases the homestead exemption from $40,000 to $75,000. The bill also raises the value of various forms of property that are exempt from execution. (Exempt property is property that individuals can keep from execution or seizure by creditors or a bankruptcy trustee.) This bill, also backed by the State Bar’s Board of Governors, was introduced by two State Bar members, Senator Lena Taylor and Representative Gary Hebl.

While the Legislature’s floor period for regular business has concluded for 2009, legislators may yet return this year in special or extraordinary session to finish work on legislation related to drunk driving and/or governance of the Milwaukee public school system. The legislature will return in January to continue its regular session, which is scheduled to end in April.

State budget victories

In addition to the passage this fall of the Impartial Justice Bill and the exemptions bill, the State Bar enjoyed several long-sought victories in the 2009-11 state budget enacted in June, including a massive boost in state funding for civil legal services for the indigent, as well as a provision that permits insureds to stack coverage limits under automobile insurance policies (an option that the Legislature eliminated in 1995).

The new state budget also codifies the current collateral source rule set forth in Leitinger v. Van Buren Management, 2007 WI 84, which states that a tortfeasor cannot introduce evidence of the amount actually paid by collateral sources, such as reimbursement by a victim’s health insurance company for medical treatment, in order to prove the reasonable value of the medical treatment.

In addition, the new state budget contained several other provisions backed by the State Bar, including increased biennial funding to reimburse counties for court interpreter services and mileage reimbursement paid to interpreters. The budget also continued funding of one staff person for the Judicial Council (the Legislature restored this position two years ago, for the first time since 1995).

The State Bar also achieved one victory through the governor’s veto. The governor vetoed a budget provision that proposed a $5 increase in the fee collected by clerks of court for judgments, writs, executions, liens, warrants, awards and certificates.  The State Bar also opposed that proposed fee increase.

The State Bar won several other victories during the budget process by successfully fighting to remove certain provisions before the budget reached the governor’s desk.

The final budget restored $5.4 million in cuts that the Joint Finance Committee had proposed for the Wisconsin Department of Justice budget. The Assembly first restored these cuts when it passed its initial version of the budget, but the Senate did not follow suit when it gave initial passage to the budget. Fortunately, the final conference committee version approved by both houses on Friday, June 26 restored the funding, and Governor Doyle did not veto the restoration. The State Bar’s Board of Governors has adopted a public policy position supporting adequate funding for the Department of Justice to ensure that it can meet its responsibilities to support the legal community and the justice system in order to ensure the protection of Wisconsin’s citizens.

The final version of the state budget also restores funding for six administrative law judge (ALJ) positions in the Department of Workforce Development’s Equal Rights Division. As introduced by the governor, the budget would have eliminated these positions and associated funding. The State Bar’s Board of Governors supported the restoration of both the positions and the associated funding. In February, the Board of Governors had also voted to oppose the proposed elimination of “no probable cause” hearings for many types of complaints made to the Equal Rights Division, including allegations of discrimination in employment, housing, and public accommodations. The Joint Finance Committee subsequently removed that provision from the budget, preserving the no probable cause hearings, and later restored the ALJ positions and associated funding. Therefore, both the hearings and the ALJ positions have been preserved.

Fortunately, the final state budget as passed by the Legislature did not include an expansion of the sales tax to legal or other professional services, a measure some legislators had recently advocated publicly. Although the 2009-11 budget process has concluded, the State Bar’s government relations staff will continue to work with legislators to head off any efforts to impose such a tax through future legislation. The State Bar has joined with other professional associations to resist any plans to expand the sales tax to include various services, including legal services. State Bar Past President Diane Diel has also expressed the State Bar’s opposition to such a step.

Unfinished legislative business

With the Legislature scheduled to return to the floor for regular business in early 2010 and to conclude the current legislative session by mid-April, several initiatives backed by the State Bar remain in play, including several important pieces of civil justice reform as well as legislation to expand financial eligibility for public defender representation, among other initiatives endorsed by the Board of Governors.

The State Bar will continue lobbying for two pieces of much-needed reform legislation related to the State Public Defender. The first bill is  recently introduced  legislation (Assembly Bill 395 and Senate Bill 263) to expand and update standards for financial eligibility for public defender representation. Those standards have not been updated for more than 20 years. Legislators held a joint Assembly/Senate hearing in early October, and both bills received favorable bipartisan committee votes in both houses and have been referred to the Joint Committee on Finance. The bills will be ready for floor votes in both houses when Joint Finance reports them out of committee.

In August, Representative Gary Sherman (a past president of the State Bar of Wisconsin) and Senator Spencer Coggs introduced the bills, which would expand state financial eligibility for public defender representation from the antiquated 1987 AFDC limits to current W-2 limits, which generally are 115 percent of the federal poverty level. The proposal is similar to a measure legislators passed earlier this year in the state budget and which the governor subsequently vetoed.

The State Bar’s Board of Governors has a long-standing position in favor of using federal poverty guidelines as minimum financial criteria for determining indigence and eligibility for constitutionally mandated appointment of counsel, and consistent with that position State Bar lobbyists have been working with the State Public Defender (SPD) to enlist legislative support for the bills.

The State Bar will also continue lobbying for Assembly Bill 224, which would increase the statutory $40 per hour rate for private bar SPD appointments to $70. That bill is still pending in the Assembly Judiciary committee, chaired by Representative Hebl, which gave the bill a well-attended public hearing in June but has not yet scheduled a vote on the bill.

State Bar lobbyists are also working with another State Bar member, Representative Frederick Kessler, on yet-to-be-introduced legislation to return most 17-year-olds who are charged with a crime to the jurisdiction of the juvenile court rather than adult court. In March 2007, the State Bar’s Board of Governors voted to back such legislation, which failed to pass during the 2007-2008 legislative session.

In addition to legislation to improve the public defender system and return minors to the jurisdiction of the juvenile court, State Bar lobbyists expect further legislative action on two significant pieces of civil justice reform, both supported by long-standing public policy positions of the State Bar’s Board of Governors.

The first major civil justice reform bill, Assembly Bill 179 and Senate Bill 127, introduced by Representative David Cullen and Senator Fred Risser, would remove the requirement that a person injured by medical malpractice involving a state officer, employee, or agent serve notice of claim with the Attorney General within 180 days of the injury. The bill would effectively apply the same 3-year statute of limitations for medical malpractice cases currently in place for privately run health systems to state officers and other governmental bodies.

The second major civil justice reform bill, Assembly Bill 291 and Senate Bill 203, referred to as the Family Justice Bill, would permit a parent to recover for the loss of society and companionship of an adult child whose injuries are the result of medical malpractice. Current law does not allow a parent to recover for loss of society and companionship under those circumstances. Similarly, an adult child cannot recover for loss of society and companionship if the adult child’s parent dies as the result of medical malpractice. Under SB 203, both the parent and the adult child would be allowed to recover in these situations. The legislation was introduced this year by Representative Jon Richards and Senator Jeffrey Plale.

Both Senate Bill 127 and the Assembly and Senate versions of the Family Justice Bill received public hearings this summer. State Bar President Douglas W. Kammer testified for the State Bar in favor of Senate Bill 127 and Senate Bill 203 at a Senate hearing  on August 18. Senate Bill 127 has not yet been voted out of committee, but the Family Justice Bill has received positive committee recommendations in both houses and is ready for a floor vote in either house.

The State Bar’s activities regarding legislation and lobbying are coordinated by the State Bar’s government relations team. Continue to monitor WisBar.org and visit the State Bar’s Government Relations page for updated information on this legislation.

Related articles:

Legislature passes Impartial Justice Bill; Governor expected to sign – Nov. 6, 2009
Impartial Justice Bill receives public support at statewide events – Oct. 28, 2009
State Bar supports expanded public defender eligibility limits at joint hearing  – Oct. 7, 2009
State Bar anticipates busy fall legislative session  – Sept. 8, 2009
Lawmakers continue push for increased public defender eligibility limits  – Sept. 2, 2009
Senate judiciary committee approves Impartial Justice Bill, holds hearing on Family Justice Bill, other issues  – Aug. 25, 2009
New state budget permits auto policy stacking, mandates coverage – July 24, 2009
New state budget significantly boosts funding for indigent civil legal needs – July 22, 2009
Governor signs state budget into law – June 29, 2009
Assembly committee approves Impartial Justice Bill, increasing public financing of supreme court campaigns  – June 25, 2009
U.S. Supreme Court Issues Massey v. Caperton Ruling – June 9, 2009
State Bar testifies in support of the Impartial Justice Bill – May 28, 2009
Statement of State Bar President Diane Diel in Support of Senate Bill 40, the "Impartial Justice Bill" – Feb. 10, 2009

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