Dec. 1, 2009 – Many practice sections of the State Bar of Wisconsin are preparing for an expected flurry of lobbying activity next year prior to the state Legislature’s planned spring adjournment. These preparations follow the recent conclusion of the regular fall 2009 legislative floor period and the close of a highly productive lobbying year for the State Bar.
Several sections which lobby have already seen some key legislative objectives achieved this year.
The State Bar’s Criminal Law Section actively supported a trio of bills which make various changes to the rules of appellate procedure. In June, Gov. Doyle signed into law 2009 Acts 25, 26 and 27. All three acts, which were introduced at the request of the Judicial Council and drafted with its assistance, took effect on Nov. 1.
The Real Property, Probate & Trust Section (RPPT) supported legislation leading to the enactment of 2009 Act 4, which reverses a 2008 Wisconsin Supreme Court decision by restoring a legal remedy available to homebuyers for intentional misrepresentations made by sellers concerning the condition of their property. Act 4 reverses Below v Norton (2008 WI 77) by providing that, in addition to any other remedies that are available, a buyer in a residential real estate transaction may maintain an action in tort against the seller for fraud committed, or an intentional misrepresentation made, by the seller in a residential real estate transaction.
The RPPT Section also actively supported passage of legislation – signed by Gov. Jim Doyle in July as 2009 Act 33 – which updates prudence standards that govern the management and investment of funds held by institutions exclusively for charitable purposes. Act 33 implements changes to the Uniform Management of Institutional Funds Act (UMIFA) recommended by the National Conference of Commissioners on Uniform State Laws in 2006. The legislation essentially replaces UMIFA, which was incorporated into Wisconsin law in 1976, with the Uniform Prudent Management of Institutional Funds Act. The new act applies to funds held by institutions exclusively for charitable purposes.
In addition, the State Bar’s Children and the Law Section as well as the Indian Law Section saw successful completion of legislative action on Senate Bill 288, which codifies in state law the federal Indian Child Welfare Act. Both sections actively supported the bill and lobbied for its passage. Governor Doyle is expected to sign the bill into law in December. [Editors note: Gov. Doyle signed SB 288 into law on Dec. 7 as 2009 Wisconsin Act 94.]
Finally, the Individual Rights and Responsibilities (IRR) Section saw one of its key legislative objectives achieved: passage of legislation (2009 Wisconsin Act 20) which, for the first time, creates a private right of action for compensatory and punitive damages for victims under several different state anti-discrimination statutes.
Many issues still in play
When the Legislature resumes its regular session in January, the State Bar’s government relations team will be kept busy as many other bills followed by individual State Bar sections are expected to continue moving through the Legislature, including legislation related to voting rights, the mortgage foreclosure crisis, financial industry reform and consumer protection.
The Children and the Law Section is actively supporting legislation (Assembly Bill 214 and Senate Bill 140) to formally recognize a form of “open adoption” in state statutes, creating a legally enforceable means for a child’s biological family to continue contact after termination of parental rights has been ordered. (Under present law, all parties to a termination of parental rights and adoption plan must rely on trust and goodwill to ensure that verbal promises made for continued contact with the family and/or child will be followed in the future.)
The Alternative Dispute Resolution (ADR) Section will continue to monitor a legislative proposal to give distressed homeowners a right to mediation when facing foreclosure. Senate Bill 255, referred to as “The Mortgage Mediation Act” by its sponsors, would require lenders undertaking a foreclosure action to inform the borrower of a right to request mediation. The section has identified several areas of concern with the proposed legislation, including whether the bill would compromise the mediator’s neutrality and conflict with other principles of alternative dispute resolution.
The ADR Section this year also concluded a more than year-long review of the proposed Uniform Mediation Act (UMA) and recommended that the Wisconsin Commission on Uniform State Laws not pursue its adoption. An ADR study group that examined the issue concluded the proposed uniform act would not provide a substantial improvement over current Wisconsin laws and “existing Wisconsin statutes are working well to ensure the fairness and integrity of the mediation process, and in some instances, offer advantages over the provisions of the UMA.”
At the request of the Elder Law Section, the State Bar in 2004-2005 supported a comprehensive bill to reform Wisconsin’s guardianship laws, 2005 Wis. Act 387, creating Wis. Stat. Ch. 54, which entirely replaced the old guardianship law. During that same session, the Legislature passed 2005 Wis. Act 264, which substantially revised Wis. Stat. Ch. 55 on protective services and protective placements. As with any major new pieces of legislation, experience with the acts has identified problems and gaps in the new laws.
In 2007, the Elder Law Section requested that people submit suggested changes to Ch. 54 and Ch. 55 to a central clearinghouse. Input was received from county corporation counsels, registers in probate, elder and disability advocacy agencies, guardians ad litem, and members of the section. The section is now actively lobbying for the drafting and introduction of legislation incorporating these changes, known collectively as the Adult Guardianship and Protective All Service System Trailer Bill Proposal.
The State Bar’s Litigation Section is looking forward to final passage of Assembly Bill 354 and Senate Bill 182, which would increase the statute of limitations for bringing an action for an intentional tort from the current two years to three years. The bills would conform the statute of limitations for intentional torts to that for negligent torts, which is three years.
The IRR Section will continue supporting legislation to restore voting rights to certain felons who are not incarcerated but are still on a form of community release. Under current law in Wisconsin, any person convicted of a felony who has not completed the terms of their sentence – including probation, parole or extended supervision – is prohibited from voting in any election, even if not currently incarcerated. The right to vote is restored only upon completion of the entire sentence, including community release. Under the bill supported by the IRR Section, Senate Bill 240, felons who are not currently incarcerated would be permitted to vote, even if they are still on probation, parole or extended supervision.
The IRR Section is also actively supporting legislation, Assembly Bill 231 and Senate Bill 196, which would amend the time for filing a complaint under the Wisconsin Family and Medical Leave Act to conform with the federal FMLA. Currently, a Wisconsin FLMA complaint must be filed within 30 days after an employee knew or should have known of a violation, and the time limit for filing a complaint alleging retaliation is 300 days. Federal law provides a two-year time limit for a violation of either, and a three-year time limit if the violation was willful.
The IRR Section will also be busy fighting against passage of Assembly Bill 511, which for the first time in Wisconsin would permit the collection of DNA samples from persons when they are arrested for felonies. Current law requires the collection of DNA samples from persons convicted, not just arrested, for felonies.
Finally, the State Bar’s Public Interest Law Section will continue to lobby for legislation to cap interest rates charged by payday loan operations. The bill, Assembly Bill 392, would cap payday loan interest rates at 36 percent on an annual percentage rate basis. The average APR for a payday loan is 542 percent. The section is also actively supporting Assembly Bill 131 and Senate Bill 120, which specify that the pleading requirements of the Wisconsin Consumer Act apply to the assignee of a creditor.
State Bar section 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.
Adam Korbitz is the Government Relations Coordinator for the State Bar of Wisconsin.
The State Bar of Wisconsin establishes and maintains Sections for carrying on the work of the association, each within its proper field of study defined in its bylaws. Each Section consists of members who voluntarily enroll in the Section because of a special interest in the particular field of law to which the Section is dedicated. Section positions are taken on behalf of the Section only.
These Section positions have not been approved by the Board of Governors of the State Bar of Wisconsin and are not the views of the State Bar as a whole. They are those of the Section alone.
Related articles:
State Bar celebrates a year of legislative victories as fall session ends – Nov. 11, 2009
State Bar’s ADR section tells lawmakers proposed mediation for home foreclosure raises issues – Oct. 20, 2009
Individual Rights and Responsibilities Section fights felon disenfranchisement – Oct. 14, 2009
Public Interest Law Section advocates payday loan interest limits – Oct. 12, 2009
Judicial Council takes stock of recent successes, looks to future challenges – Sept. 16, 2009
State Bar anticipates busy fall legislative session – Sept. 8, 2009
Wisconsin Lawyer: 9 Wisconsin Act 20: Changes to Wisconsin’s Fair Employment Law – Sept. 1, 2009
Senate judiciary committee approves Impartial Justice Bill, holds hearing on Family Justice Bill, other issues – Aug. 25, 2009
UPMIFA passes both houses, awaits signature from governor – July 8, 2009
Three bills amending and clarifying appellate procedures signed into law – June 26, 2009
Three proposals to improve appellate procedures heard by legislative committees – April 22, 2009
IRR Section Fights for Victims of Illegal Employment Discrimination – April 22, 2009
New law restores a consumer safeguard for Wisconsin homebuyers – April 22, 2009
Legislation would restore civil rights of state workers – Feb. 22, 2009
Legislation restoring a consumer safeguard for Wisconsin homebuyers is approved by State Senate – Feb. 21, 2009
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