Feb. 17, 2016 – The new year marked a new round of activity for the Wisconsin Legislature, which took action on a number of bills in recent weeks and days.
This update highlights a number of newly enacted laws, bills that have passed both houses, some that were gaining momentum, and others that are languishing or recently introduced. While not exhaustive, the summary hits a number of bills that are of interest to lawyers.
For instance, real property attorneys will want to know that the law on adverse possession is changing, as well as the statutes of limitations related to auto accidents and the pleading requirements under the Wisconsin Consumer Act.
In criminal cases, lawmakers are proposing to eliminate the right of defendants to request a judicial substitution, as a matter of right. And a Revised Uniform Partnership Act and a Revised Uniform Fiduciary Assets Act are on the table. So are a number of other bills impacting the work of lawyers.
Based on the 2015-16 schedule, the Wisconsin Legislature has just one major floor period left before the session ends.
Enacted or Passed by Both Houses
Statute of Limitations, Auto Accidents – 2015 Wisconsin Act 133 (effective Feb. 6, 2016): Act 133 reduces the statute of limitations (SOL) in actions involving motor vehicle insurance contracts and torts. Persons suing under motor vehicle insurance policies and attempting to recover for property damage resulting from car accidents would have three years to file instead of six years. The SOL in actions to recover damages for death, currently three years, would change to two years after the cause of action accrues if the death arises from a motor vehicle accident. A three-year SOL still applies in actions to recover damages for death or injury not arising from auto accidents.
Disclosure of Juvenile Court Records – 2015 Wisconsin Act 144 (effective Feb. 6, 2016): Act 144 permits disclosure of electronic court records in juvenile cases to a county department of human or social services for purposes of providing child welfare or juvenile justice intake or dispositional services. The State Bar of Wisconsin’s Children and the Law Section supported Act 144 as a way to streamline the provision of child welfare services to children who are in need of protection and services.
Eliminating Adverse Possession Claims against and by the Government – SB 314: This bill eliminates adverse possession and prescriptive easement claims against the state and political subdivisions. It also prohibits the state and political subdivisions of the state from bringing adverse possession or prescriptive easement claims against private property owners. SB 314 passed the Senate in January, and it passed the Assembly Feb. 10. It will become law upon Gov. Scott Walker’s signature.
Limiting Private Adverse Possession Claims – SB 344: This bill, under a substitute amendment that was adopted, establishes a new procedure allowing record title holders to interrupt an adverse possession or use and may restart the period of adverse possession or use. Under the bill, property owners must file an "affidavit of interruption," and take other required action to prevent adverse possession claims. The Senate passed SB 344 on Feb. 9. The Assembly passed it Feb. 18. It will become law upon Gov. Walker's signature. The State Bar's Real Property, Probate, and Trust Section supported the bill as amended.
Change in Placement of a Child – SB 387: This bill establishes procedures for changing the placement of children or juveniles in the juvenile court system, including children subject to guardianship orders following the termination of parental rights. SB 387 passed the Senate last week (Feb. 9), and the Assembly passed it yesterday (Feb. 16). It now goes to Gov. Walker.
Changes to the Worker’s Compensation Law – AB 724: This bill, approved by the Worker's Compensation Advisory Council, makes various changes to the state's worker’s compensation law. The Assembly passed AB 724 last week (Feb. 9), with an amendment, and the Senate unanimously passed it yesterday (Feb. 16). It now goes to Gov. Walker. The State Bar's Litigation Section actively monitored this bill.
Changing Pleading Requirements under the Wisconsin Consumer Act – AB 117: This bill modifies the pleading requirements for certain cases under the Wisconsin Consumer Act, which applies to consumer credit transactions in which the amount financed is $25,000 or less and entered into for personal, family, or household purposes. Under this bill, pleading requirements would apply to “merchants” instead of “creditors.” Merchants include an assignee of or successor to a creditor. The bill also eases the pleading requirements for merchants. The Assembly passed AB 117 last November, and the Senate passed it yesterday (Feb. 16). It now goes to Gov. Walker's desk.
Changes to Laws Governing Real Estate Practice – AB 456: According the Wisconsin Legislative Reference Bureau, this bill “1) revises the law governing the practice of real estate (real estate practice law) by real estate brokers, real estate salespersons, and time-share salespersons; 2) establishes a statute of limitations for filing an action against a real estate broker or salesperson; and 3) provides that real estate brokers and salespersons may not be considered ‘employees’ for various purposes.” The bill passed the Assembly last week (Feb. 9,) and the Senate passed it yesterday (Feb. 16). It now goes to Gov. Walker.
Relating to Landlord-Tenant Law and Local Regulation – AB 568: This bill would give landlords more rights to terminate tenancies, makes it easier for cars to be towed from private property, and broadens the definition of “criminal trespassing.” It also changes requirements for municipalities to designate properties as historic landmarks. This bill passed the Assembly last week (Feb. 11), and the Senate passed it yesterday (Feb. 16). It now goes to Gov. Walker.
Eased Collection Agencies Requirements – SB 438: The bill would allow employees of licensed collection agencies, debt collectors, to work from home without being separately licensed. The State Bar’s Public Interest Law Section (PILS) actively opposes the bill. PILS believes that debt collectors must be closely monitored to avoid debt collection abuses, and the bill “could open the floodgates to have small collection operations open in Wisconsin that are hard to stop and hold accountable.” The Senate passed SB 438 last month (Jan. 20), and the Assembly passed it yesterday (Feb. 16). It now goes to Gov. Walker.
Passed One House
Increased Compensation for Wrongfully Convicted – AB 460: This bill increases the state-paid compensation for wrongfully convicted persons who serve prison time for crimes they did not commit, from $5,000 per year (capped at $25,000) to $50,000 per year (capped at $1 million). The bill also provides other support to exonerees, including access to state health insurance and financial and other transition assistance. The bill unanimously passed the Assembly on Feb. 9. The Senate was set to vote on it yesterday (Feb. 16), but returned it to the Joint Committee on Finance. The State Bar’s Criminal Law Section supports it.
Revised Uniform Fiduciary Assets Act – AB 695 / SB 715: This bill would provide default provisions related to a fiduciary’s right to access digital property. The bill would not impair the rights of custodians (and fiduciaries) under a terms of service agreement to access and use digital assets. It also sets up a three-tiered system to address contrary directions regarding disclosure of digital property to a fiduciary, among other things. The State Bar’s Real Property, Probate, and Trust Section supports the bill. The Assembly passed an amended version of the bill Feb. 18. It goes to the Senate for consideration.
Disclaimer of Parental Rights – AB 528: This bill, as amended, permits an adult birth parent to consent to a termination of his or her parental rights by disclaimer in any case, not just adoption cases, unless the case involves an Indian child. The State Bar’s Children and the Law Section opposes the bill, which passed the Assembly on Feb. 9. The bill has been referred to the Senate's Committee on Judiciary and Public Safety.
Visitation of Parents by Adult Children – AB 674 / SB 487: The bill would allow an adult child to petition the court for visitation if prevented from visiting or communicating with his or her parent who is a resident of a hospital, hospice, nursing home, or community-based residential facility. The State Bar’s Elder Law Section is actively monitoring this bill and may suggest amendments. The Assembly passed the bill on Feb. 16. It has been referred to the Senate's Committee on Health and Human Services.
Permanent License Revocation for Repeat OWI Offenders – AB 432 / SB 335: This bill would require the permanent license revocation of persons who commit five or more OWI offenses, or if they have three or more OWI convictions with two or more convictions for homicide or certain felonies involving the use of a motor vehicle. The Assembly passed AB 674 on Feb. 18. SB 335, which passed a Senate committee on Feb. 17, is now available to be scheduled for a full Senate vote.
Requiring First-time OWI Defendants to Appear in Court – AB 352: Currently, a first-time OWI-related offense is a traffic violation punishable by civil forfeiture. First-time offenders can choose to pay the associated fine and not appear in court. Under this bill, as amended, first-time offenders must appear in court. Failing to appear will result in a default judgment, penalties and forfeiture, and a $300 surcharge for failing to appear. The Assembly passed AB 352 on. Feb. 16. It has been reffered to the Senate's Committee on Judiciary and Public Safety.
Revised Uniform Partnership Act – AB 837 / SB 657: This bill would adopt, with modifications, the Revised Uniform Partnership Act (1997), as last amended in 2013. RUPA provides default rules in the absence of partnership agreements or agreement terms. The State Bar’s Business Law Section actively supports this legislation. The Assembly passed AB 837 on Feb. 18. It goes to the Senate for consideration. The Senate's version is still in committee.
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
Interest Rate on Small Claims Judgments – AB 95: This bill would change the interest rate on judgments for the recovery of money in small claims actions (amount claimed is $10,000 or less) to eight percent per year. Currently, interest accrues on judgments at an annual rate of 1 percent plus the applicable prime rate. Under the bill, as amended, the eight percent interest rate would also accrue on rejected settlement offers from the day the offer of settlement was made. The original bill set the rate at 12 percent. The Assembly passed AB 95 as amended on Feb. 18. It goes to the Senate for consideration. The Senate's bill is still in committee.
Family Treatment Courts – AB 657: This allocates an additional $2 million for fiscal year 2016-17 to the Wisconsin Department of Justice to provide grants for counties that establish alternatives to prosecution and incarceration. The Assembly unanimously passed the bill on Feb. 16. The Senate has not yet considered it.
Passed Committee
Collateral Source Payments–SB 405: Under current law, courts may not admit evidence regarding payments to compensate a party for injuries from persons other than the defendant (collateral source payments), except for collateral source payments in medical malpractice cases and cases involving negligence by a long-term care provider. Under this bill, evidence of collateral source payments would be allowed to determine the reasonable value of actions for damages caused by personal injury or wrongful death, or in uninsured or underinsured motorist coverage cases. The State Bar of Wisconsin opposes the bill. It has passed the Senate’s Committee on Judiciary and is available for a full Senate vote. The Assembly’s version (AB 539) is still in committee.
Still in Committee
Criminal Procedure Code Overhaul – AB 90 / SB 82: This bill overhauls Wisconsin’s criminal procedure code. A similar bill failed to pass last session. AB 90 and companion SB 82, both introduced in March 2015, are currently stalled in committees. The State Bar of Wisconsin has an interest in updating the criminal code but has not taken a position for or against the bill. Substitute amendments were offered on Feb. 9, but neither bill has moved much since introduction last year. Passage is not likely.
Second-Chance Bill, 17-Year-Olds – SB 280 / AB 378: Under current law, persons charged with committing crimes while age 17 or older are treated as adults under the Wisconsin Criminal Code. Known as the “second-chance bill,” these bills return nonviolent, first-time 17-year-old offenders to the juvenile court system. This has been one of the State Bar’s key initiatives since 2007, and the State Bar is among a large coalition of second chance proponents. The proposal has 70 bipartisan cosponsors, but remains pending in committees with little movement in 2016.
Driving Without Insurance, Proof of Auto Insurance and Penalties – AB 92: This bill would increase the maximum penalty for driving without auto insurance depending on the number of infractions, and increase the fine for persons who operate motor vehicles without proof of insurance. The bill sits with the Assembly’s Committee on Judiciary and numerous amendments have been offered for consideration.
Pay Rate for Private Attorneys Taking SPD Appointments – AB 275: This bill would increase the rate of pay, from $40 per hour to $85 per hour, for private attorneys who take court-appointed cases from the State Public Defender. The ongoing effort to raise pay has failed numerous times in prior years. Proponents note that Wisconsin’s rate is the lowest in the country and has not changed in 20 years. The State Bar of Wisconsin supports AB 275. It sits in the Assembly’s Committee on Judiciary.
Allowing Prosecutors to Do Pro Bono Work – AB 276: This bill would allow full-time district prosecutors to provide pro bono legal services to persons of limited means or to charitable, religious, civic, community, governmental, or educational organizations. Under current law, full-time district prosecutors cannot engage in the private practice of law, even pro bono. The bill was introduced in June 2015 and the Committee on the Judiciary has not taken action since. The State Bar of Wisconsin supports AB 276.
Loss of Society and Companionship in Medical Malpractice Cases – AB 498 / SB 378: This bill would give parents the right to recover for loss of society and companionship if their adult child dies before age 27 as a result of medical malpractice. Introduced in last November, it remains in the Assembly’s Committee on Judiciary with no movement. The State Bar’s Litigation Section is actively monitoring the bill.
Judicial Substitution – AB 801: This bill would eliminate the right of criminal defendants to substitute a judge in a criminal proceeding without a reason. A request for substitution could only be granted in five situations: 1) the judge was engaged as counsel in the action prior to being appointed or elected as a judge; 2) the judge is otherwise interested in the action; 3) the judge is related to either party to the action; 4) the judge is a material witness in the action; or; 5) the defendant has reason to believe that he or she cannot obtain a fair and impartial trial on account of the judge's bias, prejudice, or interest of the judge. The State Bar of Wisconsin opposes the bill. It has been referred to the Assembly’s Committee on the Judiciary.
