AB945: Bill Text

In the process, the court must select a county — generally the person's county of residence — to prepare a report, either independently or with DHFS, identifying prospective residential options for community placement (unless the court determines that the person has not made sufficient progress in treatment to warrant supervised release). In identifying prospective residential options, the county must consider the proximity of any potential placement to the residence of certain other sex offenders. If the court determines that the prospective residential options identified in the county's report are inadequate, the court may, but is not required to, select one or more other counties to prepare another placement report.

12. Standard for granting supervised release. As noted above, under current law, if a person petitions the court for supervised release, the court must grant the petition unless the state proves that it is still substantially probable that the person will engage in future acts of sexual violence if institutionalized care is not continued. Under the bill, the court may not order that a person be placed on supervised release unless it finds, based on all of the reports, trial records, and evidence presented, that all of the following apply:

a. The person who will be placed on supervised release has made sufficient progress in treatment such that the risk that the person will reoffend can be safely managed in the community.

b. The person who will be placed on supervised release will be treated by a qualified treatment provider.

c. The provider presents a specific course of treatment for the person, agrees to provide for the person's treatment, agrees to comply with the rules and conditions of supervision imposed by the court and DHFS, agrees to report on the person's progress to the court on a regular basis, and agrees to report violations of supervised release immediately to the court and the prosecutor.

d. The person who will be placed on supervised release has housing arrangements that are sufficiently secure to protect the community, and the person or agency that is providing the housing to the person who will be placed on supervised release agrees, among other things, to report the unauthorized absence of the person immediately to the court and the prosecutor.

e. The person who will be placed on supervised release will comply with the provider's treatment requirements and all of the requirements that are imposed by DHFS and the court.

f. DHFS has made provisions for the necessary services, including sex offender treatment, other counseling, medication, community support services, residential services, vocational services, and alcohol or other drug abuse treatment.

13. Implementing a supervised release order. If the court authorizes supervised release, the court must order the county in which the person will be placed to assist DHFS in implementing the supervised release placement. If DHFS imposes rules governing supervised release beyond the conditions set by the court, it must file them with the court within 10 days of imposing the rule. In addition, the rules may not conflict with the conditions imposed by the court. If DHFS wishes to change a rule of supervision imposed by the court, it must obtain the court's approval.

14. Revoking supervised release. This bill makes the following changes related to revoking an order granting supervised release:

a. Under current law, if DHFS alleges that a person on supervised release has violated a condition or rule of supervised release or that the safety of others necessitates revocation, DHFS is authorized, but not required, to detain the person and file a revocation petition. This bill requires DHFS to detain a person on supervised release and file a revocation petition if it concludes that the person is a threat to the safety of others.

b. The bill permits DHFS to detain a person and file a revocation petition based on the person threatening to violate a rule or condition.

c. Under current law, if DHFS detains a person pending a revocation hearing, it may detain the person in the county jail; in certain hospitals (such as one that is approved by DHFS for use as a detention facility); with certain treatment agencies (such as those operating under DHFS's direction and control or providing treatment through a contract with DHFS); at a center for the developmentally disabled; in a state mental health treatment facility; or in an approved private treatment facility, if the facility agrees to detain the individual. Under the bill, DHFS may detain a person who is the subject of a revocation petition in the county jail or return him or her to institutional care.

d. Current law permits, but does not require, the court to revoke supervised release if the state proves: 1) that the person violated a condition or rule of supervised release; or 2) that the safety of others requires that supervised release be revoked. This bill requires the court to revoke supervised release if the latter condition applies. In addition, the bill permits the court to revoke extended supervision in the former case only if it finds that the violation of the rule or condition merits revocation.

e. The bill specifies that supervised release may be revoked even if the person has not yet been placed in the community.

f. The bill requires the court to make a decision on a revocation petition within 90 days after it was filed. Current law contains no such deadline.

15. Discharge proceedings. The bill changes the procedures by which a person in institutional care or on supervised release may be discharged from DHFS's custody and supervision in the following ways:

a. The bill eliminates the requirement that the court review a person's eligibility for discharge whenever DHFS conducts a periodic evaluation of the person. Under the bill, the court conducts discharge proceedings only upon the filing of a discharge petition.

b. If DHFS determines that a committed person should be discharged, DHFS — not the person — files a petition with the court.

c. The bill eliminates the probable cause hearing for discharge petitions that are filed without DHFS's approval. Instead, the court bases its determination on whether to conduct a discharge hearing on the petition, the prosecutor's written response, and any supporting documentation that either party files.

d. The bill requires that discharge hearings be held within 90 days after DHFS files the discharge petition or within 90 days after the court determines that a hearing on a petition brought by a committed person is warranted, whichever is appropriate. (Current law requires that a discharge petition filed with DHFS's approval be heard within 45 days after its filing but does not set a deadline for other discharge hearings.)

e. The bill gives DHFS the right to appear and be heard (through its agency counsel) at any discharge hearing.

f. The bill permits the prosecutor or the committed person to request that a discharge hearing be held before a six-person jury. Five members of the jury must agree to a verdict on the discharge petition for it to be valid.

16. Miscellaneous procedural provisions. Current law does not explicitly address various procedural issues relating to sexually violent person commitment and discharge proceedings. This bill creates new procedural provisions addressing a number of these issues. Among the issues addressed by new procedural provisions are the following:

a. Making motions to challenge the jurisdiction of the court or the timeliness of the filing of a petition.

b. Methods by which one party may discover and inspect material in the possession of the other party.

c. Changing the place where the trial on the petition is held.

d. Jury selection.

e. Filing a motion for relief from a commitment order and appeals of other orders.

The bill also provides that the rules applicable to appeals in criminal, juvenile and other civil commitment cases will generally apply in an appeal from an order committing a person as a sexually violent person.

17. Codification of certain case law interpretations. The bill codifies certain Wisconsin appellate court decisions relating to the sexually violent person commitment procedure, including the following:

a. The bill provides that a person may be subject to a sexually violent person commitment proceeding at the time that he or she is being paroled under or discharged from a commitment under a previous sex crimes commitment law that was repealed in 1980. This codifies a holding of State v. Post, 197 Wis. 2d 279 (1995).

b. The bill provides that, for purposes of determining the proper time to file a petition, confinement under a sentence of imprisonment that was imposed for a sexually violent offense includes confinement that was imposed consecutively to any sentence for a sexually violent offense. This codifies a holding of State v. Keith, 216 Wis. 2d 61 (Ct. App. 1997).

c. The bill provides that a person committed as a sexually violent person must be afforded the right to request a jury for a hearing on his or her petition for a discharge from the commitment. This codifies a holding of State v. Post, 197 Wis. 2d 279 (1995).

18. Enforceability of time limits. The bill specifies that a party's failure to comply with a time limit relating to proceedings involving sexually violent persons does not affect the court's jurisdiction or its ability to exercise that jurisdiction, nor is it a ground for an appeal.

Reimbursement for Brown County and Milwaukee County prosecutors

Current law requires the district attorneys for Brown County and Milwaukee County to each assign an assistant district attorney to work exclusively on sexually violent person commitment cases. These specialized prosecutors may prosecute cases in any other county at the request of the district attorney for that county. This bill requires, in those cases, that the district attorney for the county in which the case is being heard reimburse the specialized prosecutor's home county (i.e., Brown County or Milwaukee County) for reasonable costs incurred by the specialized prosecutor, including expert witness fees.

Transitional facility for supervised release of sexually violent persons

This bill creates a committee composed of officials from the city of Milwaukee and Milwaukee County and individual residents of Milwaukee County to prepare recommendations regarding the location of a proposed transitional facility for persons who have been committed to the custody of DHFS as sexually violent persons. The bill also requires DHFS to pay annually to the municipality in which the transitional facility is ultimately located a sum in lieu of property taxes for the services, improvements, or facilities that the municipality furnishes to the transitional facility. The amount of the payment may not exceed the amount that the municipality would have otherwise levied upon the transitional facility. DHFS must also make an annual grant of $100,000 to the municipality for the cost of providing additional security near the facility.

Escape

Current law provides penalties for escaping from certain types of custody, including actual physical custody in a jail, state prison, or juvenile correctional institution, actual physical custody of a law enforcement officer or institution guard, and constructive custody of prisoners and juveniles temporarily outside an institution for the purpose of work, school, medical care, or other authorized temporary leave. A person who is convicted of escape is subject to fines or imprisonment or both. The maximum term of imprisonment that may be imposed depends on the type of custody from which the person escapes. For instance, a person who escapes after being arrested for, charged with, or sentenced for a crime may be imprisoned for not more than six years or fined not more than $10,000 or both, while a person who escapes after being arrested for, charged with, or convicted of a violation of a law that is penalized with a forfeiture (a civil monetary penalty) may be imprisoned for not more than nine months or fined not more than $10,000 or both.

This bill provides that the maximum term of imprisonment for escape is 12.5 years if the person escapes while he or she is in custody in connection with a sexually violent person commitment proceeding or while he or she is in institutional care or on supervised release after having been found to be a sexually violent person.

Because this bill creates a new crime or revises a penalty for an existing crime, the Joint Review Committee on Criminal Penalties may be requested to prepare a report concerning the proposed penalty and the costs or savings that are likely to result if the bill is enacted.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB945, s. 1 Section 1. 20.435 (2) (bm) of the statutes is amended to read:

AB945,13,6 20.435 (2) (bm) Secure mental health units or facilities; payments relating to transitional facilities. The amounts in the schedule for the general program operations of secure mental health units or facilities under s. 980.065 for persons committed under s. 980.06 and placed in a secure mental health unit or facility and for making payments to municipalities under s. 46.055 (2) (b) and grants to municipalities under s. 46.055 (2) (c).

AB945, s. 2 Section 2. 46.03 (1) of the statutes is amended to read:

AB945,13,10 46.03 (1) Institutions governed. Maintain and govern the Mendota and the Winnebago mental health institutes; the secure mental health facility established under s. 46.055 (1); and the centers for the developmentally disabled.

AB945, s. 3 Section 3. 46.055 (title) of the statutes is amended to read:

AB945,13,13 46.055 (title) Secure mental health facility Facilities for sexually violent persons.

AB945, s. 4 Section 4. 46.055 of the statutes is renumbered 46.055 (1).

AB945, s. 5 Section 5. 46.055 (2) of the statutes is created to read:

AB945,13,19 46.055 (2) (a) In this subsection, "transitional facility" means the facility that is enumerated in 2001 Wisconsin Act 16, section 9107 (1) (d) 1., and that will be a transitional facility for the housing of persons committed to the custody of the department under ch. 980.

AB945,13,25 (b) Annually, from the appropriation under s. 20.435 (2) (bm), the department shall pay a municipality in which a transitional facility is located a sum in lieu of taxes for the services, improvements, or facilities that the municipality furnishes to the transitional facility. The municipality shall determine the amount that the department shall pay, but it may not exceed the amount that would be levied as the annual property tax of the municipality upon the transitional facility.

AB945,14,4 (c) Annually, from the appropriation under s. 20.435 (2) (bm), the department shall make a grant of $100,000 to a municipality in which a transitional facility is located to reimburse the municipality for the cost of providing additional security for the area in which the transitional facility is located.

AB945, s. 6 Section 6. 46.058 (2m) of the statutes is amended to read:

AB945,14,16 46.058 (2m) The superintendents of the secure mental health facility established under s. 46.055 (1), the Wisconsin resource center established under s. 46.056 and any secure mental health unit or facility provided by the department of corrections under s. 980.065 (2) shall adopt proper means to prevent escapes of persons detained or committed to the facility, center or unit under ch. 980 and may adopt proper means to pursue and capture persons detained or committed to the facility, center or unit under ch. 980 who have escaped. In adopting means under this subsection to prevent escape and pursue and capture persons who have escaped, a superintendent may delegate to designated staff members of the facility, center or unit the power to use necessary and appropriate force, as defined by the department by rule, to prevent escapes and capture escaped persons.

AB945, s. 7 Section 7. 48.396 (1) of the statutes is amended to read:

AB945,15,12 48.396 (1) Law enforcement officers' records of children shall be kept separate from records of adults. Law enforcement officers' records of the adult expectant mothers of unborn children shall be kept separate from records of other adults. Law enforcement officers' records of children and the adult expectant mothers of unborn children shall not be open to inspection or their contents disclosed except under sub. (1b), (1d) or, (5), or (6) or s. 48.293 or by order of the court. This subsection does not apply to the representatives of newspapers or other reporters of news who wish to obtain information for the purpose of reporting news without revealing the identity of the child or expectant mother involved, to the confidential exchange of information between the police and officials of the school attended by the child or other law enforcement or social welfare agencies or to children 10 years of age or older who are subject to the jurisdiction of the court of criminal jurisdiction. A public school official who obtains information under this subsection shall keep the information confidential as required under s. 118.125 and a private school official who obtains information under this subsection shall keep the information confidential in the same manner as is required of a public school official under s. 118.125. A law enforcement agency that obtains information under this subsection shall keep the information confidential as required under this subsection and s. 938.396 (1). A social welfare agency that obtains information under this subsection shall keep the information confidential as required under ss. 48.78 and 938.78.

AB945, s. 8 Section 8. 48.396 (5) (a) (intro.) of the statutes is amended to read:

AB945,15,17 48.396 (5) (a) (intro.) Any person who is denied access to a record under sub. (1), (1b) or, (1d), or (6) may petition the court to order the disclosure of the records governed by the applicable subsection. The petition shall be in writing and shall describe as specifically as possible all of the following:

AB945, s. 9 Section 9. 48.396 (6) of the statutes is created to read:

AB945,16,6 48.396 (6) Records of law enforcement officers and of the court assigned to exercise jurisdiction under this chapter and ch. 938 shall be open for inspection by and production to authorized representatives of the department of corrections, the department of health and family services, the department of justice, or a district attorney for use in the evaluation or prosecution of any proceeding under ch. 980, if the records involve or relate to an individual who is the subject of or who is being evaluated for a proceeding under ch. 980. The court in which the proceeding under ch. 980 is pending may issue any protective orders that it determines are appropriate concerning information made available or disclosed under this subsection. Any representative of the department of corrections, the department of health and family services, the department of justice, or a district attorney may disclose information obtained under this subsection for any purpose consistent with any proceeding under ch. 980.

AB945, s. 10 Section 10. 48.78 (2) (e) of the statutes is created to read:

AB945,16,19 48.78 (2) (e) Notwithstanding par. (a), an agency shall, upon request, disclose information to authorized representatives of the department of corrections, the department of health and family services, the department of justice, or a district attorney for use in the evaluation or prosecution of any proceeding under ch. 980, if the information involves or relates to an individual who is the subject of or who is being evaluated for a proceeding under ch. 980. The court in which the proceeding under ch. 980 is pending may issue any protective orders that it determines are appropriate concerning information made available or disclosed under this paragraph. Any representative of the department of corrections, the department of health and family services, the department of justice, or a district attorney may disclose information obtained under this paragraph for any purpose consistent with any proceeding under ch. 980.

AB945, s. 11 Section 11. 48.981 (7) (a) 8s. of the statutes is created to read:

AB945,17,6 48.981 (7) (a) 8s. Authorized representatives of the department of corrections, the department of health and family services, the department of justice, or a district attorney for use in the evaluation or prosecution of any proceeding under ch. 980, if the reports or records involve or relate to an individual who is the subject of or who is being evaluated for a proceeding under ch. 980. The court in which the proceeding under ch. 980 is pending may issue any protective orders that it determines are appropriate concerning information made available or disclosed under this subdivision. Any representative of the department of corrections, the department of health and family services, the department of justice, or a district attorney may disclose information obtained under this subdivision for any purpose consistent with any proceeding under ch. 980.

AB945, s. 12 Section 12. 51.30 (3) (a) of the statutes is amended to read:

AB945,17,10 51.30 (3) (a) Except as provided in pars. (b) and, (bm), (c), and (d), the files and records of the court proceedings under this chapter shall be closed but shall be accessible to any individual who is the subject of a petition filed under this chapter.

AB945, s. 13 Section 13. 51.30 (3) (b) of the statutes is amended to read:

AB945,17,17 51.30 (3) (b) An individual's attorney or guardian ad litem and the corporation counsel shall have access to the files and records of the court proceedings under this chapter without the individual's consent and without modification of the records in order to prepare for involuntary commitment or recommitment proceedings, reexaminations, appeals, or other actions relating to detention, admission, or commitment under this chapter or ch. 971 or, 975, or 980.

AB945, s. 14 Section 14. 51.30 (3) (bm) of the statutes is created to read:

AB945,18,5 51.30 (3) (bm) The files and records of court proceedings under this chapter shall be released to authorized representatives of the department of corrections, the department of health and family services, the department of justice, or a district attorney for use in the evaluation or prosecution of any proceeding under ch. 980, if the files or records involve or relate to an individual who is the subject of or who is being evaluated for a proceeding under ch. 980. The court in which the proceeding under ch. 980 is pending may issue any protective orders that it determines are appropriate concerning information made available or disclosed under this paragraph. Any representative of the department of corrections, the department of health and family services, the department of justice, or a district attorney may disclose information obtained under this paragraph for any purpose consistent with any proceeding under ch. 980.

AB945, s. 15 Section 15. 51.30 (4) (b) 8m. of the statutes is amended to read:

AB945,18,10 51.30 (4) (b) 8m. To appropriate examiners and facilities in accordance with s. 971.17 (2) (e), (4) (c), and (7) (c), 980.03 (4) or 980.08 (3). The recipient of any information from the records shall keep the information confidential except as necessary to comply with s. 971.17 or ch. 980.

AB945, s. 16 Section 16. 51.30 (4) (b) 8s. of the statutes is created to read:

AB945,18,23 51.30 (4) (b) 8s. To appropriate persons in accordance with s. 980.031 (4) and to authorized representatives of the department of corrections, the department of health and family services, the department of justice, or a district attorney for use in the evaluation or prosecution of any proceeding under ch. 980, if the treatment records involve or relate to an individual who is the subject of or who is being evaluated for a proceeding under ch. 980. The court in which the proceeding under ch. 980 is pending may issue any protective orders that it determines are appropriate concerning information made available or disclosed under this subdivision. Any representative of the department of corrections, the department of health and family services, the department of justice, or a district attorney may disclose information obtained under this subdivision for any purpose consistent with any proceeding under ch. 980.

AB945, s. 17 Section 17. 51.30 (4) (b) 10m. of the statutes is repealed.

AB945, s. 18 Section 18. 51.30 (4) (b) 11. of the statutes is amended to read:

AB945,19,5 51.30 (4) (b) 11. To the subject individual's counsel or guardian ad litem and the corporation counsel, without modification, at any time in order to prepare for involuntary commitment or recommitment proceedings, reexaminations, appeals, or other actions relating to detention, admission, commitment, or patients' rights under this chapter or ch. 48, 971, or 975, or 980.

AB945, s. 19 Section 19. 51.375 (1) (a) of the statutes is amended to read:

AB945,19,10 51.375 (1) (a) "Community placement" means conditional transfer into the community under s. 51.35 (1), conditional release under s. 971.17, parole from a commitment for specialized treatment under ch. 975, or conditional supervised release under ch. 980.

AB945, s. 20 Section 20. 109.09 (1) of the statutes is amended to read:

AB945,20,7 109.09 (1) The department shall investigate and attempt equitably to adjust controversies between employers and employees as to alleged wage claims. The department may receive and investigate any wage claim which is filed with the department, or received by the department under s. 109.10 (4), no later than 2 years after the date the wages are due. The department may, after receiving a wage claim, investigate any wages due from the employer against whom the claim is filed to any employee during the period commencing 2 years before the date the claim is filed. The department shall enforce this chapter and ss. 66.0903, 103.02, 103.49, 103.82, 104.12 and 229.8275. In pursuance of this duty, the department may sue the employer on behalf of the employee to collect any wage claim or wage deficiency and ss. 109.03 (6) and 109.11 (2) and (3) shall apply to such actions. Except for actions under s. 109.10, the department may refer such an action to the district attorney of the county in which the violation occurs for prosecution and collection and the district attorney shall commence an action in the circuit court having appropriate jurisdiction. Any number of wage claims or wage deficiencies against the same employer may be joined in a single proceeding, but the court may order separate trials or hearings. In actions that are referred to a district attorney under this subsection, any taxable costs recovered by the district attorney shall be paid into the general fund of the county in which the violation occurs and used by that county to meet its financial responsibility under s. 978.13 (2) (b) for the operation of the office of the district attorney who prosecuted the action.

AB945, s. 21 Section 21. 118.125 (2) (ck) of the statutes is created to read:

AB945,20,20 118.125 (2) (ck) The school district clerk or his or her designee shall make pupil records available for inspection or disclose the contents of pupil records to authorized representatives of the department of corrections, the department of health and family services, the department of justice, or a district attorney for use in the evaluation or prosecution of any proceeding under ch. 980, if the pupil records involve or relate to an individual who is the subject of or who is being evaluated for a proceeding under ch. 980. The court in which the proceeding under ch. 980 is pending may issue any protective orders that it determines are appropriate concerning pupil records made available or disclosed under this paragraph. Any representative of the department of corrections, the department of health and family services, the department of justice, or a district attorney may disclose information obtained under this paragraph for any purpose consistent with any proceeding under ch. 980.

AB945, s. 22 Section 22. 146.82 (2) (c) of the statutes is amended to read: