Wisconsin Lawyer
Vol. 81, No. 7, July 2008

Legislative Watch

Power Split Hampers
2007-2008 Legislative Session

by Adam Korbitz, Sandra Lonergan & Thomas Solberg

The 2007-2008 regularsession of the Wisconsin Legislature has adjourned. Observers generally regard the session as having been relatively unproductive because of the partisan power split among the Senate, the Assembly, and Gov. Doyle. During 2007 and 2008, the Senate met 29 days and the Assembly met 27 days.

During its regular session, the legislature enacted 225 laws, including the budget bill and one bill that Gov. Doyle vetoed in full (A.B. 676, relating to the disclosure of juvenile court records, which was vetoed at the urging of the State Bar and other interested parties). Legislators introduced 1,544 bills during the regular session: 573 bills in the Senate and 971 in the Assembly. Figure 1 shows productivity in terms of numbers of bills introduced and enacted during the five most recent regular legislative sessions.

Ethics Reform

The first issue addressed by the 2007-08 Legislature was ethics reform. 2007 Act 1 replaced the Elections Board and the Ethics Board with a new Government Accountability Board (GAB). The GAB is responsible for enforcing state elections, ethics, and lobbying laws.

The GAB consists of six formerly elected judges who serve staggered six-year terms. GAB members are precluded from holding any other state or local public office, engaging in partisan political activities, becoming a candidate for state or local elected office, making political contributions, and being a lobbyist or an employee of a person who employs a lobbyist. The limitations on political activities and certain contributions apply both during a member's term and for the 12 months preceding it.

One of the GAB's primary duties within its first 12 months is to review all existing internal operating procedures, guidelines, rules, orders, and formal opinions of the former Ethics and Elections boards. This review process is underway.

The GAB also is required to investigate violations of laws it administers and, if necessary, prosecute alleged civil violations of those laws through a special prosecutor or the GAB's legal counsel.

State Budget

Aside from enacting the ethics reform measure, during the first 10 months of the 2007-08 legislative session the legislature focused on the state's fiscal problems and engaged in protracted debate over the biennial state budget, which left little time for consideration of other legislative proposals.

Faced with dwindling revenues and partisan differences, the legislature did not pass the $58 billion budget until Oct. 26, 2007 (115 days overdue). A mere 110 days later, revenue estimates showed the state was already facing a new projected biennial shortfall of $652 million as a result of weaker than projected economic performance. Lawmakers quickly addressed this shortfall by passing a budget repair bill in May 2008. Although the bill addresses the state's short-term fiscal problems, it only prolongs the long-term problem referred to as the state's structural deficit (the gap between anticipated future revenues and future expenditure obligations). If the economy does not rebound soon, the state will begin the next biennial budget cycle $1.7 billion in the red. How the governor and the legislature deal with this problem will depend in part on the results of this November's elections.

State Bar-supported Legislation

$1 million for civil legal services to indigent people. During its regular session, the legislature passed several significant pieces of legislation that the State Bar supported. One such provision was contained in the biennial state budget bill. 2007 Act 20 appropriated $1 million annually, beginning in fiscal year 2008-09, to the Wisconsin Trust Account Foundation Inc. (WisTAF), which will make grants to programs that provide civil legal services to indigent persons. At the time, State Bar President Tom Basting said, "While modest when compared to the need and the record of other states, this will help offset the acute need for delivery of civil legal services to Wisconsin residents."

Increased SPD funding, re-creation of independent Judicial Council. The state budget bill also significantly increased funding for the State Public Defender and recreated the Judicial Council as a truly independent agency, giving the Judicial Council authority to hire staff for the first time since 1995. The budget bill also significantly increased funding for counties to pay court interpreters.

New circuit court branches, consumer protection from "notarios." The legislature also enacted several other significant stand-alone bills for which the State Bar lobbied based on policy positions taken by the Board of Governors. In November, the legislature enacted 2007 Act 28, which, in reliance on a weighted caseload study by the National Center for State Courts, created six new circuit court branches around the state. (The legislature created two additional branches in the state budget.) In March, Gov. Doyle signed 2007 Act 110, which is intended to curtail the predatory practices of "notarios" who falsely hold themselves out to the public, particularly members of the Hispanic or Latino community, as qualified lawyers.

State Bar-opposed Proposals

The State Bar also successfully lobbied against several pieces of legislation that did not pass. Four proposed constitutional amendments - Assembly Joint Resolutions 24, 30, 31, and 56 - would have, respectively, compelled open supreme court decision conferences; eliminated the current $50 WisTAF assessment on attorneys; eliminated mandatory State Bar membership; and effectively eliminated any regulation of attorneys. None of these proposals advanced further than the committee stage of the legislative process.

In addition, the State Bar successfully lobbied against several perennial "tort reform" bills, none of which passed. These included A.B. 121, which would have imposed the federal Daubert standard on Wisconsin courts, and A.B. 147, which would have significantly curtailed product liability law in Wisconsin.

State Bar-supported Proposals that Were Not Enacted

Several significant pieces of legislation supported by the State Bar's Board of Governors did not pass this session; the issues involved might be addressed during the next legislative session, which begins in January 2009. These include legislation to:

• increase public financing of supreme court campaigns;
• return most 17-year-old defendants to the jurisdiction of the juvenile court;
• raise financial eligibility limits for the State Public Defender;
• increase the number of authorized assistant district attorney positions;
• permit damages in medical malpractice claims for loss of society and companionship of an adult child or parent of an adult child; and
• eliminate the 180-day notice requirement that applies to medical malpractice claims against the state.

Legislative Work of Lobbying Sections

State Bar sections that lobby also were active during the legislative session. The Elder Law Section gained enactment of guardianship law "clean-up" provisions (2007 Act 45) early in January 2008. The Public Interest Law Section successfully lobbied for legislation to require hospitals to offer emergency contraception to rape victims (2007 Act 102). The Individual Rights and Responsibilities Section successfully fought against legislation that would have permitted certain employers to discriminate against convicted felons.

The Business Law Section also succeeded in passing proactive legislation. The section has been working for several years on a review of Wisconsin's securities law. Since 2002, Business Law Section study groups have reviewed language passed by the National Conference of Commissioners of Uniform State Laws and made changes as necessary to better meet Wisconsin's needs in securities regulation. In March, Gov. Doyle signed 2007 Act 196 into law.

The Real Property, Probate and Trust (RPPT) Section helped pass A.B. 305, which gives Wisconsin residents the option, in an advance directive, to specify their intentions regarding their funeral arrangements and the disposition of their remains. The "final rights" legislation is designed to prevent uncertainties that frequently arise at an individual's death regarding who will make decisions affecting the funeral and disposition of remains. The legislature passed A.B. 305, and Gov. Doyle signed the bill into law as 2007 Wisconsin Act 58.

The RPPT Section also worked with the Taxation Section in opposing A.B. 580, which allows local units of government the ability to change the current appeals process for opposing changes in property tax assessments. This bill allows local governments to eliminate a taxpayer's right to a de novo trial in court to contest property tax assessments under Wis. Stat. section 74.37. This appeal process ensures that a Wisconsin property owner can seek the protection of the Wisconsin courts in appropriate cases, when the owner believes that the taxation district was unfairly demanding that the owner pay an inequitable share of property tax. Although the sections acknowledged that legislation was needed to make some improvements to the board of review process, they argued that the cost of making those improvements should not include depriving property owners of their opportunity for an independent review by the court. In January the legislature passed A.B. 580, which was signed into law as 2007 Wisconsin Act 86.

Outlook for November

As of early June 2008, 13 incumbent legislators had announced their retirement from their seats. In the Assembly, 11 districts will be open with six Republicans and five Democrats creating the vacancies. In the Senate, two districts will be open with one Republican and one Democrat retiring. This is not a particularly high number of retirements, but with the majority parties holding such slim margins in each chamber, we should all be prepared for a robust and spirited campaign season.

Wisconsin Lawyer