Wisconsin Lawyer
Vol. 79, No. 5, May 2006

Working to Make Good Laws: 2005-2006 Legislative Session

by Lisa M. Roys

With the final chapter of the 2005-2006 legislative cycle yet to be written, one message is clear: the State Bar of Wisconsin and its lobbying sections were challenged to the fullest extent. There were some outstanding wins, with State Bar members able to join Gov. Doyle and legislative leaders in celebration of the enactment of new laws. More often, however, the Bar and sections were left hoping that legislation would not make it into the law books.

State Bar Positions

S.B. 391 (Guardianship Reform). For the past 11 years, the State Bar Elder Law Section has been working to overhaul the provisions within chapter 880 that relate to guardianship. With the project completed and ready to be introduced, in early 2005 the Board of Governors endorsed the project as a position of the State Bar. Senators Luther Olsen (R-Ripon) and Mark Miller (D-Monona) and Representatives John Townsend (R-Fond du Lac) and Peggy Krusick (D-Milwaukee) led the bipartisan team of 23 legislators who supported passage of this legislation. While yet to receive final approval from the Assembly, the bill has enjoyed overwhelming support from both houses of and both political parties in the Legislature.

S.B. 268 and A.B. 594 (Self-help Repossession). The Bar experienced mixed results on the issue of self-help repossession. Although Gov. Doyle vetoed a bill that would have allowed for modifications in voluntary surrender statutes related to rent-to-own transactions, he signed a bill that permits self-help repossessions for automobiles. With the recommendation of the Public Interest Law Section, the Board of Governors voted to oppose loosening the standards related to self-help repossession.

A.B. 766 and A.B. 1073 (Caps on Noneconomic Damages). In July 2005 the Wisconsin Supreme Court found unconstitutional the existing cap on noneconomic damages in medical malpractice cases. The decision brought a swift response from the Legislature, first with creation of a special task force charged with providing a rationale for a cap, followed very quickly by a proposal to cap noneconomic damages awards at $450,000 for adults and at $550,000 for minors (A.B. 766). The proposal passed both houses in November, in fewer than 25 days. That first attempt at a new cap was vetoed by Gov. Doyle in early December. However, a second proposal, to cap awards at $750,000 (A.B. 1073), was then introduced and passed in nine days' time. Gov. Doyle signed that bill into law in March. The State Bar opposed both proposals.

A.B. 764 and A.B. 1072 (Collateral Source). The State Bar opposed two efforts to modify the rules related to reductions of awards for damages in medical malpractice cases. The first bill, A.B. 764, would have required the finder of fact to reduce an award based on the receipt of collateral payments. After Gov. Doyle vetoed that bill, the Legislature introduced the second bill (A.B. 1072), which would have required the finder of fact to consider collateral payments but would have given the fact finder discretion on whether to reduce awards. Gov. Doyle vetoed that bill as well.

A.B. 1074 (Limits on Attorney Fees). Accompanying the second round of medical malpractice legislation was a third proposal that would have placed greater limits than already exist on attorney fees in medical malpractice cases. The bill would have limited attorney fees to the costs of the prosecution and 40 percent of the first $50,000 recovered, 33 and one-third percent of the next $50,000 recovered, 25 percent of the next $500,000 recovered, and 15 percent of any amount recovered in excess of $600,000. The bill would have excluded the attorney's office overhead costs and office support staff costs, payments to consulting attorneys, and charges from the costs of the prosecution. Gov. Doyle vetoed that bill on April 14, 2005.

Section Positions

State Bar sections may take positions on legislation and work in support of or in opposition to legislative proposals separate from the Bar's lobbying activities. Some of the issues and legislation in which various sections have been active include the following.

The Business Law Section has worked for several years to review and update the statutes to help Wisconsin businesses remain competitive in the global marketplace.

UCC Article 5. The Business Law Section celebrated the passage and enactment of A.B. 1036, the revision to Article 5 of the Uniform Commercial Code that updates the law governing the $200 billion U.S. letter-of-credit industry. The revision to Article 5 was recommended by the National Conference of Commissioners on Uniform State Laws and the American Law Institute in 1995 and was supported by the American Bar Association. Wisconsin was the last state to adopt the revised UCC Article 5. (2005 Wis. Act 213)

Corporation Statutes. As part of its years'-long review of Wisconsin's business entity statutes, the Business Law Section worked to update the state's corporations statutes, chapter 180. Senate Bill 619, authored by Sen. Ted Kanavas (R-Brookfield), reflects those years of review and is a positive step for Wisconsin to take as it positions itself for future economic development. The bill received final approval from the Assembly, and Gov. Doyle signed it into law on April 25. (2005 Wis. Act __)

Defense of Marriage Act. S.J.R. 53, the Defense of Marriage Act, has passed both the Assembly and the Senate the required two times and will now be placed on the November 2006 ballot as an amendment to the Wisconsin Constitution. Opposed by the Public Interest Law and the Individual Rights and Responsibilities sections.

Health Care Service Opt-out. In October 2005, Gov. Doyle vetoed A.B. 207, which would have allowed health care professionals to refuse to perform certain procedures or provide certain services based on their religious beliefs. Opposed by the Public Interest Law, the Individual Rights and Responsibilities, and the Elder Law sections.

Uniform Probate Code. Since the enactment of the Uniform Probate Code in the 1997-1998 legislative session, the Real Property, Probate and Trust Law Section has been working to rectify inconsistencies in the Code. The section forwarded to the Legislature A.B. 1038, authored by Rep. Jean Hundertmark (R-Clintonville). Most notably, the bill facilitates the probate of small estates by increasing the amount of property that can be passed under transfer by affidavit from $20,000 to $50,000. That bill was signed by Gov. Doyle. (2005 Wis. Act 216) Supported by the Real Property, Probate and Trust Law Section.

Principal and Income Act. A.B. 140, the Principal and Income Act, is Wisconsin's version of the federal Uniform Principal and Income Act (UPIA), which takes into account new types of investment procedures and broadens the authority of trustees to allocate funds between principal and income. Wisconsin became the 42nd state to enact the UPIA, which benefits personal representatives, trustees, and beneficiaries alike. (2005 Wis. Act 10) Supported by the Real Property, Probate and Trust Law Section.

Sexual Abuse of a Child in Substitute Care. This bill arose primarily from a La Crosse County case in which investigators reported the sexual assault of a 16-year-old foster child by his 36-year-old foster mother. Given that the victim was age 16 and that the question existed whether the relationship was "consensual," the only charging option was one of misdemeanor sexual assault under Wis. Stat. section 948.09. A.B. 511, coauthored by Rep. Jennifer Shilling (D-La Crosse) and Sen. Dan Kapanke (R-La Crosse), addresses this oversight in the criminal code and makes such contact punishable as a felony. (2005 Wis. Act 277) Supported by the Children and the Law Section.

Lien Procedures. Leaders of the Construction Law Section celebrated the enactment of S.B. 450 with Gov. Doyle at a bill signing event. This legislation focuses mainly on clarifying lien procedures to make the process easier to implement and understand and to avoid potential conflicts of interest among property owners, prime contractors, subcontractors, suppliers, service providers, lenders, public entities, and title companies that are affected by lien procedures. (2005 Wis. Act 204) Supported by the Construction Law Section.

Adult Protective Services. In addition to doing most of the heavy lifting on the guardianship reform bill (S.B. 391 discussed earlier), the Elder Law Section has been advocating for legislation to rewrite the statutes related to adult protective services in chapter 55 (A.B. 539 and A.B. 785). The bills were the result of a special Legislative Council study committee that has worked on the proposal for the past two legislative cycles. Gov. Doyle signed A.B. 785 in April. (2005 Wis. Act 264) As of April 25, 2006, the second bill, A.B. 539, has yet to receive final approval. However, the outlook for that legislation remains hopeful. Supported by the Elder Law Section.

Criminal Justice Reform. While the Criminal Law Section spent most of its energy trying to educate the Legislature on the effects of potentially damaging legislation, the section enjoyed a very significant victory with the passage of the Criminal Justice Reform Package, A.B. 648. The bill addressed several issues related to wrongful convictions. (2005 Wis. Act 60) Supported by the Criminal Law Section.

Punitive Damages. In addition to helping fight the barrage of medical malpractice legislation, the Litigation Section leadership worked diligently to derail several pieces of legislation that would have rolled back some recent Wisconsin Supreme Court decisions. A bill that would modify the court's decisions regarding punitive damages in Wischer v. Mitsubishi Heavy Indus. of America Inc. and Strenke v. Hogner was introduced as S.B. 447. Another bill, S.B. 501, would have changed the court's recent modification to statutes governing frivolous lawsuits. Gov. Doyle vetoed both bills on April 14, 2006. Opposed by the Litigation Section.

Final Chapter

While a number of issues are yet to be resolved, it is certain that this will be a near record-breaking session in terms of the amount of legislation introduced. As of late April more than 2,000 legislative proposals had been introduced for consideration. The State Bar Government Relations team will provide a full update when the session concludes.

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