2015 - 2016 LEGISLATURE
October 27, 2015 - Introduced by Representatives Kooyenga, Hebl, Kessler,
Johnson, Mason, Milroy, Jarchow, Krug, Hintz, Rohrkaste, Kitchens,
Steffen, Ohnstad, Goyke, Allen, Kolste, Tittl, Spreitzer, C. Taylor, T.
Larson, Sinicki, Hutton, Mursau, Wachs, Berceau, Zamarripa, Brostoff,
Pope, Quinn, Edming and Subeck, cosponsored by Senators Wanggaard,
Risser, Bewley, L. Taylor, Nass, Ringhand, Lassa, C. Larson and Darling.
Referred to Committee on State Affairs and Government Operations.
1An Act to renumber and amend
20.505 (4) (d), 40.51 (1), 2
227.03 (5), 775.05 (3) and (4) and 775.05 (5); and to create
20.515 (1) (ds), 3
20.515 (1) (g), 40.516, 71.05 (6) (b) 53., 227.43 (1) (bw), 301.051, 775.05 (2) (b) 4
and (c) and (2m), 775.05 (4g), 775.05 (4m) and (4r), 808.085, 977.05 (4) (jr) and 5
977.05 (4) (jw) of the statutes; relating to: resolution of claims against the state
6for wrongful imprisonment of innocent persons, exempting from taxation
7certain amounts an individual receives from the claims board or legislature,
8health benefits for wrongfully imprisoned persons, and making appropriations.
Analysis by the Legislative Reference Bureau
This bill does the following: 1) makes changes to the requirements for claims
for state compensation by wrongfully imprisoned persons; and 2) provides health
care coverage and other assistance for such persons. Except as noted below, the bill
initially applies with respect to claims filed by persons who are released on or after
January 1, 1990, from imprisonment for crimes of which they claim to be innocent.
Requirements for claims. Currently, the state claims board is directed to
hear petitions for compensation by persons who are released from imprisonment for
crimes of which they claim to be innocent. The board must find either that the
evidence is clear and convincing that the petitioner was innocent of the crime for
which he or she was imprisoned or that the evidence is not clear and convincing that
he or she was innocent. If the board finds that the petitioner was innocent and that
he or she did not by his or her act or failure to act contribute to bring about the
conviction and imprisonment for which he or she seeks compensation, the board
must award the petitioner compensation not to exceed $25,000 total nor more than
$5,000 for each year of imprisonment. This amount includes any expenses for
attorney fees, costs, and disbursements incurred by the petitioner. Any award is paid
from state general purpose revenues. If the board determines that it is not able to
award an adequate compensation, it is directed to submit a report to the legislature
specifying the amount that it considers to be adequate.
This bill provides that when the claims board receives a claim for wrongful
imprisonment filed by a petitioner who has been released from imprisonment and
who claims to be innocent of the crime for which he or she was imprisoned, the board
must refer the petition to the Division of Hearings and Appeals in the Department
of Administration (DOA). The bill then allows either DOA or the office of the
prosecutor who prosecuted the petitioner to file a written request with the claims
board for a hearing within 30 days after the original petition is filed with the board.
If a timely request for a hearing is filed, or if the division concludes that it cannot
determine the petitioner's eligibility for compensation without a hearing, the
division must hold a hearing within 60 days after the petition is filed. If a timely
request for a hearing is not filed and the division is able to determine that the
petitioner is eligible for compensation without a hearing, the division must decide
the matter without a hearing, except that the division must afford a petitioner an
opportunity for a hearing before denying compensation to the petitioner. If a hearing
is held, the bill allows the petitioner to be represented by a public defender. If a
hearing is held, the division appoints a hearing examiner to hear the petition. If no
hearing is held, the division decides the matter without a hearing.
The hearing examiner makes findings and issues a decision concerning
whether the petitioner is entitled to compensation. Under the bill, the findings must
be based upon the preponderance of evidence (a lesser evidentiary standard than
clear and convincing evidence). The petitioner need not show that he or she did not
by his or her act or failure to act contribute to bring about the conviction and
imprisonment for which he or she seeks compensation.
If the hearing examiner's finding is in the affirmative, the examiner must
transmit its findings to the claims board, which shall award compensation to the
petitioner in an amount that the board considers to be adequate and the board must
pay that amount to the petitioner. Under the bill, the amount of compensation is
fixed at a rate of $50,000 per year or any portion thereof with a $1,000,000 limit on
the total amount of an award. In addition, subject to the $1,000,000 limit, each
award must include reimbursement for reasonable, actual attorney fees, together
with all costs and disbursements incurred by the petitioner in his or her defense,
post-conviction, and compensation proceedings and all fees, surcharges, and
restitution paid by the petitioner as a result of his or her arrest and imprisonment.
The $50,000 annual rate is subject to annual adjustments based on changes in the
cost of living. The bill requires the board to make, every five years, a
recommendation to the legislature as to whether the $1,000,000 limit should be
The bill provides that no person may file a claim for wrongful imprisonment or
be paid an award for such imprisonment as a result of a conviction resulting in
imprisonment for a crime if the imprisoned person is also imprisoned as the result
of a conviction for a felony in any court of this state arising from the same course of
conduct that resulted in conviction for the crime of which the person claims to be
innocent if the person does not claim to be innocent of that felony or if the imprisoned
person is convicted of one or more certain violent crimes after his or her release from
The bill also provides that, with certain exceptions, a surviving spouse or
domestic partner, child, parent, or sibling of a person who is entitled to compensation
for wrongful imprisonment but who does not receive payment of an award may,
within one year of the death of that person, file or pursue on behalf of the deceased
person a claim for wrongful imprisonment. Under the bill, any payment that would
have been payable to the deceased person then becomes payable to the individual
who files or pursues the claim, except that if that person is only entitled under the
law governing inheritances to inherit a portion of the estate of a deceased person, the
individual may only receive the same portion of the payment. Any compensation is
independent of any rights that a claimant or any other person may have to inherit
assets under any will of the decedent.
The bill also creates requirements that apply if a person who petitions for
compensation obtains any settlement, judgment, or award against a third party in
a federal or state action for damages related to wrongful imprisonment for the crime
that is the subject of the petition. If a person obtains such a settlement, judgment,
or award in such an action before the claims board pays a claim, the claims board
must subtract the amount of the judgment, settlement, or award from the
compensation. The bill also provides that for any petition filed on or after the
effective date of the bill, the petitioner automatically assigns to the claims board the
petitioner's right to any settlement, judgment, or award obtained against a third
party in such an action. The bill specifies that the assignment is a condition of
eligibility to receive compensation from the claims board. Also, the assignment is
considered to be a statutory lien on the settlement, judgment, or award. The amount
of the lien is equal to the amount of the settlement, judgment, or award, or the
amount of compensation awarded by the claims board, whichever is less.
In addition, the bill exempts from taxation the payments that an individual, or
his or her estate, receives from the claims board, or from the state legislature as a
result of claims board action.
Health care coverage and other assistance. Under current law, the Group
Insurance Board, attached to the Department of Employee Trust Funds, contracts
on behalf of the state for the purpose of providing health care coverage to state
employees. This bill permits individuals who receive compensation from the state
for wrongful imprisonment to elect, for up to ten years, health care coverage under
plans offered by the Group Insurance Board to state employees beginning on
January 1, 2017. Under the bill, these individuals would be required to pay the same
health insurance premium amounts that state employees are required to pay, with
the balance of the premium cost paid by the state. During the time before January
1, 2017, this bill makes these individuals eligible for health care benefits through the
Medical Assistance program BadgerCare Plus, if the federal government does not
disapprove of the Department of Health Services providing Medical Assistance to
Under the bill, if a person's conviction for a crime is reversed, set aside, or
vacated on grounds consistent with the person's innocence, and the person is ordered
released from prison by a trial court, the court is required to grant the person, upon
request, temporary financial assistance, transition assistance from the Department
of Corrections and local aid agencies, and sealing of all records related to his or her
conviction. If the person pursues a successful petition for wrongful imprisonment,
any temporary financial assistance he or she received upon release from prison is
subtracted from any compensation he or she receives for wrongful imprisonment.
Because this bill relates to an exemption from state or local taxes, it may be
referred to the Joint Survey Committee on Tax Exemptions for a report to be printed
as an appendix to the bill.
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:
20.505 (4) (d) of the statutes is amended to read:
(d) Claims awards.
A sum sufficient for payment of awards made 3
by the claims board or department of administration under ss. 16.007, 775.05 (4), 4
775.06 and 775.11, awards of financial assistance under s. 808.085,
and awards made 5
by an act of the legislature arising from a claim filed with the claims board which are 6
not directed by law or under s. 16.007 (6m) to be paid from another appropriation.
20.515 (1) (ds) of the statutes is created to read:
(ds) Payment of health insurance premiums for individuals who
9receive compensation for wrongful imprisonment.
A sum sufficient to pay the state's 10
share of premium costs for health care benefits and the cost of administering the 11
benefits for individuals under s. 40.516.
20.515 (1) (g) of the statutes is created to read:
(g) Benefit and coverage payments; health care coverage for
2individuals who receive compensation for wrongful imprisonment.
All moneys 3
received from individuals under s. 40.516 who elect to be included in a health care 4
coverage plan under s. 40.51 (6), for the payment of benefits and the cost of 5
administering benefits for the individuals.
40.51 (1) of the statutes is amended to read:
The procedures and provisions pertaining to enrollment, premium 8
transmitted and coverage of eligible employees and individuals eligible for health
9care coverage under s. 40.516
for health care benefits shall be established by contract 10
or rule except as otherwise specifically provided by this chapter.
40.516 of the statutes is created to read:
1240.516 Health care coverage for individuals who receive
13compensation for wrongful imprisonment. (1)
Beginning on January 1, 2017, 14
any individual who receives compensation under s. 775.05 after the effective date of 15
this subsection .... [LRB inserts date], may elect coverage under any health care 16
coverage plan offered under s. 40.51 (6) for a period not to exceed 10 years.
The individual and the state shall jointly pay the full premium cost of health 18
care coverage and the cost of administering the benefits under sub. (1). The amount 19
that the individual must pay in health insurance premiums shall equal the amount 20
required to be paid by state employees, as determined by the administrator of the 21
division of personnel management in the department of administration under s. 22
40.05 (4) (ah). The remainder of the premium cost for health care coverage for these 23
individuals shall be paid from the appropriation account under s. 20.515 (1) (ds).
71.05 (6) (b) 53. of the statutes is created to read:
(b) 53. Any amount received by an individual, or the individual's 2
estate, from the claims board under s. 775.05 (4), from the legislature under the 3
process described in s. 775.05 (4), or from a financial assistance award granted under 4
s. 808.085, in the taxable year that relates to the year in which the payment is 5
227.03 (5) of the statutes is amended to read:
This chapter does not apply to proceedings of the claims board, 8
except as provided in ss. 775.05 (5),
775.06 (7) and 775.11 (2), and except that
9proceedings under s. 775.05 are subject to this chapter, unless otherwise provided in
227.43 (1) (bw) of the statutes is created to read:
(bw) Assign a hearing examiner to preside over each hearing 13
conducted under s. 775.05.
301.051 of the statutes is created to read:
15301.051 Wrongful imprisonment; transition plan.
Not more than 5 days 16
after a court issues an order for a plan requested by an inmate pursuant to 808.085 17
(1) (a), the department shall create a transition to release plan for the inmate. The 18
plan shall do all of the following:
Provide the inmate with a written list of community resources available to 20
the inmate upon his or her release from prison, including temporary housing and 21
emergency shelters, food banks, education and job assistance, and health care 22
services in the county into which the inmate will be released. The department shall 23
maintain up-to-date lists with contact information for each county in the state.
Provide the inmate with an individual counseling session with a person 2
trained by the department or the county into which the inmate will be released to 3
assist inmates in the transition to release from prison.
Schedule an appointment, set for not later than 2 weeks after the inmate's 5
date of release, for the inmate to meet with a social worker or aid program 6
administrator for the county into which the inmate will be released.
775.05 (2) of the statutes is renumbered 775.05 (2) (a) and 8
amended to read:
(a) Any Except as provided in pars. (b) and (c), any
person who is 10
imprisoned as the result of his or her conviction for a crime in any court of this state, 11
of which crime the person claims to be innocent, and who is released from 12
imprisonment for that crime after March 13, 1980, may petition the claims board for 13
compensation for such imprisonment. Upon Within 5 days after
receipt of the 14
petition, the claims board department of administration
shall transmit a copy 15
thereof to the prosecutor who prosecuted the petitioner and the judge who sentenced 16
the petitioner for the conviction which is the subject of the claim, or their successors 17
in office, for the information of these persons.
775.05 (2) (b) and (c) and (2m) of the statutes are created to read:
(b) Paragraph (a) does not apply to a person who is imprisoned as 20
the result of his or her conviction for a felony in any court of this state arising from 21
the same course of conduct that resulted in conviction for the crime of which the 22
person claims to be innocent if the person does not claim to be innocent of that felony.
(c) Paragraph (a) does not apply to a person who is convicted of a violent crime 24
specified in s. 939.632 (1) (e) 1. or 2. after his or her release from imprisonment. A
person who is ineligible to petition for compensation under this paragraph is also 2
ineligible to receive any award of compensation that has not been paid.
(a) In this subsection, an individual who has the right to inherit assets 4
of a person is limited to a surviving spouse or domestic partner, child, parent, or 5
sibling, who would have a right to inherit assets of the person under s. 852.01.