AB732: Bill Text

GMM:wlj:md

2009 - 2010 LEGISLATURE

2009 Assembly BILL 732

February 11, 2010 - Introduced by Representatives Kessler, Friske, Pasch, Roys, Black, A. Ott, Turner, A. Williams, Townsend, Bies, Sinicki and Berceau, cosponsored by Senators Taylor, Risser, Miller and Grothman. Referred to Committee on Corrections and the Courts.

AB732,2,13 An Act to renumber 814.78 (1), 814.79 (1), 814.80 (1) and 814.81 (1); to amend 46.215 (2) (c) 3., 46.22 (1) (e) 3. c., 48.02 (1d), 48.02 (2), 48.366 (8), subchapter IX (title) of chapter 48 [precedes 48.44], 48.44 (title), 48.44 (1), 48.45 (1) (a), 48.45 (1) (am), 48.45 (3), 118.163 (4), 125.07 (4) (d), 125.07 (4) (e) 1., 125.085 (3) (bt), 165.83 (1) (c) 1., 165.83 (1) (c) 2., 301.12 (2m), 301.12 (14) (a), 301.26 (3) (c), 301.26 (4) (d) 3., 301.26 (6) (a), 301.26 (7) (intro.), 301.26 (7) (a), 302.31 (7), 938.02 (1), 938.02 (10m), 938.12 (2), 938.18 (2), 938.183 (3), 938.255 (1) (intro.), 938.344 (3), 938.35 (1m), 938.355 (4) (b), 938.355 (4m) (a), 938.39, subchapter IX (title) of chapter 938 [precedes 938.44], 938.44, 938.45 (1) (a), 938.45 (3), 938.48 (4m) (title), 938.48 (4m) (a), 938.48 (4m) (b), 938.48 (14), 938.57 (3) (title), 938.57 (3) (a) 1., 938.57 (3) (a) 3., 938.57 (3) (b), 946.50 (intro.), 948.01 (1), 948.11 (2) (am) (intro.), 948.45 (1), 948.60 (2) (d), 948.61 (4), 961.455 (1), 961.46, 961.573 (2), 961.574 (2), 961.575 (1), 961.575 (2), 961.575 (3), 990.01 (3) and 990.01 (20); to repeal and recreate 48.02 (1d), 48.02 (2), 48.45 (1) (a), 48.45 (1) (am), 48.45 (3), 165.83 (1) (c) 1., 165.83 (1) (c) 2., 301.12 (14) (a), 301.26 (4) (d) 3., 938.02 (1), 938.02 (10m), 938.12 (2), 938.18 (2), 938.255 (1) (intro.), 938.35 (1m), 938.355 (4m) (a), 938.39, 938.45 (1) (a), 938.45 (3), 946.50 (intro.), 948.01 (1), 948.60 (2) (d), 948.61 (4), 990.01 (3) and 990.01 (20); and to create 20.410 (3) (gr), 301.26 (4) (dm), 301.265, 814.75 (1h), 814.78 (1j), 814.79 (1j), 814.80 (1j) and 814.81 (1j) of the statutes; relating to: the age at which a person who is alleged to have violated a criminal law, a civil law, or a municipal ordinance is subject to circuit court or municipal court jurisdiction rather than juvenile court jurisdiction; creating a community youth and family aids surcharge; authorizing the Department of Corrections to set the youth aids daily rates for care of a juvenile in a juvenile correctional facility or a treatment facility; providing an exemption from rule-making procedures; and making an appropriation.

Analysis by the Legislative Reference Bureau

Under current law, a person 17 years of age or older who is alleged to have violated a criminal law is subject to the procedures specified in the Criminal Procedure Code and, on conviction, is subject to sentencing under the Criminal Code, which may include a sentence of imprisonment in the Wisconsin state prisons. Currently, subject to certain exceptions, a person under 17 years of age who is alleged to have violated a criminal law is subject to the procedures specified in the Juvenile Justice Code and, on being adjudicated delinquent, is subject to an array of dispositions under that code including placement in a juvenile correctional facility. This bill raises from 17 to 18 the age at which a person who is alleged to have violated a criminal law is subject to the procedures specified in the Criminal Procedure Code and, on conviction, to sentencing under the Criminal Code. The change is effective on July 1, 2010, for a person who is alleged to have committed a misdemeanor and on July 1, 2011, for a person who's alleged to have committed a felony. The bill also provides that if between July 1, 2010, and June 30, 2011, a person 17 years of age is alleged to have committed a violation of a criminal law, the person is subject to the procedures specified in the Juvenile Justice Code until such time as the person is charged with a felony for committing that violation. If the person is charged with a felony, from that point the person is subject to the procedures specified in the Criminal Procedure Code and, on conviction, is subject to sentencing under the Criminal Code. If the person is charged with a misdemeanor, the person remains subject to the procedures specified in the Juvenile Justice Code and, on being adjudicated delinquent, to a disposition under that code.

Similarly, under current law, a person 17 years of age or older who is alleged to have violated a civil law or municipal ordinance is subject to the jurisdiction and procedures of the circuit court or, if applicable, the municipal court, while a person under 17 years of age who is alleged to have violated a civil law or municipal ordinance, subject to certain exceptions, is subject to the jurisdiction and procedures of the court assigned to exercise jurisdiction under the Juvenile Justice Code. This bill raises from 17 to 18 the age at which a person who is alleged to have violated a civil law or municipal ordinance is subject to the jurisdiction and procedures of the circuit court or, if applicable, the municipal court. The change is effective on July 1, 2010.

Under current law relating to community youth and family aids, generally referred to as "youth aids," the Department of Corrections (DOC) must allocate various state and federal moneys to counties to pay for state-provided juvenile correctional services and local delinquency-related and juvenile justice services. DOC charges counties for the cost of services provided by DOC according to per person daily cost assessments specified in the statutes. Currently, those assessments include assessments of $275 for care in a juvenile correctional facility or a treatment facility.

This bill eliminates those statutorily set assessments and instead directs DOC to set those assessments at least annually. The bill permits DOC to set one assessment for short-term placements of 30 days or less and another assessment for long-term placements of more than 30 days and permits DOC to adjust those assessments more frequently than annually as necessary to reflect the per person average daily cost of providing that care. The bill requires DOC to submit a plan for the implementation of a proposed assessment to the cochairpersons of the Joint Committee on Finance (JCF). If the proposed assessment involves an increase in the current assessment, DOC may also submit with the plan a request for supplemental funds to provide increased youth aids funding to counties to cover any increased charges expected under the proposed assessment. If the cochairpersons of JCF do not notify DOC that JCF has scheduled a meeting for the purpose of reviewing the plan and request for supplemental funds within 14 working days after submission of that plan and request to JCF, the plan and supplement are approved. If, within 14 working days after submission of the plan and request, the cochairpersons of JCF notify DOC that JCF has scheduled a meeting for the purpose of reviewing that plan and request, the plan may be implemented and the supplement may occur only as approved, or modified and approved, by JCF. The bill requires DOC to publish the assessment in the Wisconsin Administrative Register and exempts DOC from having to publish the assessment as a rule.

Under current law, when a court imposes a fine or forfeiture in certain actions, the court must also impose certain surcharges in addition to the fine or forfeiture, plus costs and fees, imposed. This bill requires a court to impose a community youth and family aids surcharge (youth aids surcharge) in the amount of $14 when the court imposes a forfeiture for a traffic violation. Youth aids surcharges must be transmitted to the secretary of administration, deposited into the general fund, and credited to an appropriation account of DOC, which must allocate those youth aids surcharges to counties for state-provided juvenile correctional services and local delinquency-related and juvenile justice services.

Finally, the bill increases the authorized full-time equivalent positions for the circuit courts by two reserve judge positions, to be funded from general purpose revenues, to provide two additional reserve judges for proceedings under the Juvenile Justice Code.

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:

AB732, s. 1 Section 1. 20.410 (3) (gr) of the statutes is created to read:

AB732,4,5 20.410 (3) (gr) Community youth and family aids surcharges. All moneys received from community youth and family aids surcharges collected under s. 301.265 for the improvement and provision of juvenile delinquency-related services under s. 301.26.

AB732, s. 2 Section 2. 46.215 (2) (c) 3. of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB732,5,2 46.215 (2) (c) 3. A county department of social services shall develop, under the requirements of s. 301.08 (2), plans and contracts for juvenile delinquency-related care and services to be purchased. The department of corrections may review the contracts and approve them if they are consistent with s. 301.08 (2) and if state or federal funds are available for such purposes. The joint committee on finance may require the department of corrections to submit the contracts to the committee for review and approval. The department of corrections may not make any payments to a county for programs included in a contract under review by the committee. The department of corrections shall reimburse each county for the contracts from the appropriations under s. 20.410 (3) (cd), (gr), (ko), and (o) as appropriate.

AB732, s. 3 Section 3. 46.22 (1) (e) 3. c. of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB732,5,15 46.22 (1) (e) 3. c. A county department of social services shall develop, under the requirements of s. 301.08 (2), plans and contracts for juvenile delinquency-related care and services to be purchased. The department of corrections may review the contracts and approve them if they are consistent with s. 301.08 (2) and to the extent that state or federal funds are available for such purposes. The joint committee on finance may require the department of corrections to submit the contracts to the committee for review and approval. The department of corrections may not make any payments to a county for programs included in the contract that is under review by the committee. The department of corrections shall reimburse each county for the contracts from the appropriations under s. 20.410 (3) (cd), (gr), (ko), and (o) as appropriate.

AB732, s. 4 Section 4. 48.02 (1d) of the statutes is amended to read:

AB732,5,21 48.02 (1d) "Adult" means a person who is 18 years of age or older, except that for purposes of investigating or prosecuting a person who is alleged to have violated committed a violation of any state or federal criminal law or any civil law or municipal ordinance that is punishable as a felony, "adult" means a person who has attained 17 years of age.

AB732, s. 5 Section 5. 48.02 (1d) of the statutes, as affected by 2009 Wisconsin Act .... (this act), is repealed and recreated to read:

AB732,5,24 48.02 (1d) "Adult" means a person who is 18 years of age or older.

AB732, s. 6 Section 6. 48.02 (2) of the statutes is amended to read:

AB732,6,5 48.02 (2) "Child" means a person who is less than 18 years of age, except that for purposes of investigating or prosecuting a person who is alleged to have violated committed a violation of a state or federal criminal law or any civil law or municipal ordinance that is punishable as a felony, "child" does not include a person who has attained 17 years of age.

AB732, s. 7 Section 7. 48.02 (2) of the statutes, as affected by 2009 Wisconsin Act .... (this act), is repealed and recreated to read:

AB732,6,8 48.02 (2) "Child" means a person who is less than 18 years of age.

AB732, s. 8 Section 8. 48.366 (8) of the statutes is amended to read:

AB732,6,22 48.366 (8) Transfer to or between facilities. The department of corrections may transfer a person subject to an order between juvenile correctional facilities. After the person attains the age of 17 18 years, the department of corrections may place the person in a state prison named in s. 302.01, except that the department of corrections may not place any person under the age of 18 years in the correctional institution authorized in s. 301.16 (1n). If the department of corrections places a person subject to an order under this section in a state prison, that department shall provide services for that person from the appropriate appropriation under s. 20.410 (1). The department of corrections may transfer a person placed in a state prison under this subsection to or between state prisons named in s. 302.01 without petitioning for revision of the order under sub. (5) (a), except that the department of corrections may not transfer any person under the age of 18 years to the correctional institution authorized in s. 301.16 (1n).

AB732, s. 9 Section 9. Subchapter IX (title) of chapter 48 [precedes 48.44] of the statutes is amended to read:

AB732,6,25 CHAPTER 48

AB732,7,1 SUBCHAPTER IX

AB732,7,2 JURISDICTION OVER PERSON 17 18 OR OLDER

AB732, s. 10 Section 10. 48.44 (title) of the statutes is amended to read:

AB732,7,4 48.44 (title) Jurisdiction over persons 17 18 or older.

AB732, s. 11 Section 11. 48.44 (1) of the statutes is amended to read:

AB732,7,8 48.44 (1) The court has jurisdiction over persons 17 18 years of age or older as provided under ss. 48.133, 48.355 (4), and 48.45 and as otherwise specifically provided in this chapter.

AB732, s. 12 Section 12. 48.45 (1) (a) of the statutes is amended to read:

AB732,7,19 48.45 (1) (a) If in the hearing of a case of a child alleged to be in a condition described in s. 48.13 it appears that any person 17 years of age or older has been guilty of contributing to, encouraging, or tending to cause, by any act or omission, such that is punishable as a felony, that condition of the child or that any person 18 years of age or older has been guilty of contributing to, encouraging, or tending to cause, by any act or omission that is punishable as a misdemeanor, that condition of the child, the judge may make orders with respect to the conduct of such that person in his or her relationship to the child, including orders determining the ability of the person to provide for the maintenance or care of the child and directing when, how, and where funds for the maintenance or care shall be paid.

AB732, s. 13 Section 13. 48.45 (1) (a) of the statutes, as affected by 2009 Wisconsin Act .... (this act), is repealed and recreated to read:

AB732,8,3 48.45 (1) (a) If in the hearing of a case of a child alleged to be in a condition described in s. 48.13 it appears that any person 18 years of age or older has been guilty of contributing to, encouraging, or tending to cause, by any act or omission, that condition of the child, the judge may make orders with respect to the conduct of that person in his or her relationship to the child, including orders determining the ability of the person to provide for the maintenance or care of the child and directing when, how, and where funds for the maintenance or care shall be paid.

AB732, s. 14 Section 14. 48.45 (1) (am) of the statutes is amended to read:

AB732,8,14 48.45 (1) (am) If in the hearing of a case of an unborn child and the unborn child's expectant mother alleged to be in a condition described in s. 48.133 it appears that any person 17 years of age or over has been guilty of contributing to, encouraging, or tending to cause, by any act or omission, such that is punishable as a felony, that condition of the unborn child and expectant mother or that any person 18 years of age or over has been guilty of contributing to, encouraging, or tending to cause, by any act or omission that is punishable as a misdemeanor, that condition of the unborn child and expectant mother, the judge may make orders with respect to the conduct of such that person in his or her relationship to the unborn child and expectant mother.

AB732, s. 15 Section 15. 48.45 (1) (am) of the statutes, as affected by 2009 Wisconsin Act .... (this act), is repealed and recreated to read:

AB732,8,22 48.45 (1) (am) If in the hearing of a case of an unborn child and the unborn child's expectant mother alleged to be in a condition described in s. 48.133 it appears that any person 18 years of age or older has been guilty of contributing to, encouraging, or tending to cause, by any act or omission, that condition of the unborn child and expectant mother, the judge may make orders with respect to the conduct of that person in his or her relationship to the unborn child and expectant mother.

AB732, s. 16 Section 16. 48.45 (3) of the statutes is amended to read:

AB732,9,5 48.45 (3) If it appears at a court hearing that any person 17 years of age or older has violated s. 948.40 and that the violation is punishable as a felony or that any person 18 years of age or older has violated s. 948.40 and that the violation is punishable as a misdemeanor, the judge shall refer the record to the district attorney for criminal proceedings as may be warranted in the district attorney's judgment. This subsection does not prevent prosecution of violations of s. 948.40 without the prior reference by the judge to the district attorney, as in other criminal cases.

AB732, s. 17 Section 17. 48.45 (3) of the statutes, as affected by 2009 Wisconsin Act .... (this act), is repealed and recreated to read:

AB732,9,12 48.45 (3) If it appears at a court hearing that any person 18 years of age or older has violated s. 948.40, the judge shall refer the record to the district attorney for criminal proceedings as may be warranted in the district attorney's judgment. This subsection does not prevent prosecution of violations of s. 948.40 without the prior reference by the judge to the district attorney, as in other criminal cases.

AB732, s. 18 Section 18. 118.163 (4) of the statutes is amended to read:

AB732,9,15 118.163 (4) A person who is under 17 18 years of age on the date of disposition is subject to s. 938.342.

AB732, s. 19 Section 19. 125.07 (4) (d) of the statutes is amended to read:

AB732,9,20 125.07 (4) (d) A person who is under 17 18 years of age on the date of disposition is subject to s. 938.344 unless proceedings have been instituted against the person in a court of civil or criminal jurisdiction after dismissal of the citation under s. 938.344 (3).

AB732, s. 20 Section 20. 125.07 (4) (e) 1. of the statutes is amended to read:

AB732,9,23 125.07 (4) (e) 1. In this paragraph, "defendant" means a person found guilty of violating par. (a) or (b) who is 17, 18, 19, or 20 years of age.

AB732, s. 21 Section 21. 125.085 (3) (bt) of the statutes is amended to read:

AB732,10,4 125.085 (3) (bt) A person who is under 17 18 years of age on the date of disposition is subject to s. 938.344 unless proceedings have been instituted against the person in a court of civil or criminal jurisdiction after dismissal of the citation under s. 938.344 (3).

AB732, s. 22 Section 22. 165.83 (1) (c) 1. of the statutes is amended to read:

AB732,10,8 165.83 (1) (c) 1. An act that is committed by a person who has attained the age of 17 and that is a felony or an act that is committed by a person who has attained the age of 18 and that is a misdemeanor.

AB732, s. 23 Section 23. 165.83 (1) (c) 1. of the statutes, as affected by 2009 Wisconsin Act .... (this act), is repealed and recreated to read:

AB732,10,12 165.83 (1) (c) 1. An act that is committed by a person who has attained the age of 18 and that is a felony or a misdemeanor.

AB732, s. 24 Section 24. 165.83 (1) (c) 2. of the statutes is amended to read:

AB732,10,18 165.83 (1) (c) 2. An act that is committed by a person who has attained the age of 10 but who has not attained the age of 17 and that would be a felony or misdemeanor if committed by an adult or an act that is committed by a person who has attained the age of 10 but who has not attained the age of 18 and that would be a misdemeanor if committed by an adult.

AB732, s. 25 Section 25. 165.83 (1) (c) 2. of the statutes, as affected by 2009 Wisconsin Act .... (this act), is repealed and recreated to read:

AB732,10,23 165.83 (1) (c) 2. An act that is committed by a person who has attained the age of 10 but who has not attained the age of 18 and that would be a felony or misdemeanor if committed by an adult.

AB732, s. 26 Section 26. 301.12 (2m) of the statutes is amended to read:

AB732,11,3 301.12 (2m) The liability specified in sub. (2) shall not apply to persons 17 18 and older receiving care, maintenance, services, and supplies provided by prisons named in s. 302.01.

AB732, s. 27 Section 27. 301.12 (14) (a) of the statutes is amended to read:

AB732,11,15 301.12 (14) (a) Except as provided in pars. (b) and (c), liability of a person specified in sub. (2) or s. 301.03 (18) for care and maintenance of persons under 17 18 years of age in residential, nonmedical facilities such as group homes, foster homes, treatment foster homes, residential care centers for children and youth, and juvenile correctional institutions is determined in accordance with the cost-based fee established under s. 301.03 (18). The department shall bill the liable person up to any amount of liability not paid by an insurer under s. 632.89 (2) or (2m) or by other 3rd-party benefits, subject to rules which that include formulas governing ability to pay promulgated by the department under s. 301.03 (18). Any liability of the resident not payable by any other person terminates when the resident reaches age 17 18, unless the liable person has prevented payment by any act or omission.

AB732, s. 28 Section 28. 301.12 (14) (a) of the statutes, as affected by 2009 Wisconsin Acts 28 and .... (this act), is repealed and recreated to read:

AB732,12,3 301.12 (14) (a) Except as provided in pars. (b) and (c), liability of a person specified in sub. (2) or s. 301.03 (18) for care and maintenance of persons under 18 years of age in residential, nonmedical facilities such as group homes, foster homes, residential care centers for children and youth, and juvenile correctional institutions is determined in accordance with the cost-based fee established under s. 301.03 (18). The department shall bill the liable person up to any amount of liability not paid by an insurer under s. 632.89 (2) or (2m) or by other 3rd-party benefits, subject to rules that include formulas governing ability to pay promulgated by the department under s. 301.03 (18). Any liability of the resident not payable by any other person terminates when the resident reaches age 18, unless the liable person has prevented payment by any act or omission.

AB732, s. 29 Section 29. 301.26 (3) (c) of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB732,12,8 301.26 (3) (c) Within the limits of the appropriations under s. 20.410 (3) (cd), (gr), (ko), and (o), the department shall allocate funds to each county for services under this section.

AB732, s. 30 Section 30. 301.26 (4) (d) 3. of the statutes, as affected by 2009 Wisconsin Act 28, section 2677, is amended to read:

AB732,12,19 301.26 (4) (d) 3. Beginning on July 1, 2010, and ending on June 30, 2011, the per person daily cost assessment to counties shall be $275 the dollar amount set by the department under par. (dm) 1. for care in a Type 1 juvenile correctional facility, as defined in s. 938.02 (19), $275 the dollar amount set by the department under par. (dm) 1. for care for juveniles transferred from a juvenile correctional institution under s. 51.35 (3), $313 for care in a residential care center for children and youth, $200 for care in a group home for children, $75 for care in a foster home, $130 for care in a treatment foster home, $103 for departmental corrective sanctions services, and $41 for departmental aftercare services.

AB732, s. 31 Section 31. 301.26 (4) (d) 3. of the statutes, as affected by 2009 Wisconsin Act 28, section 2678, and 2009 Wisconsin Act .... (this act), is repealed and recreated to read:

AB732,13,7 301.26 (4) (d) 3. Beginning on July 1, 2010, and ending on June 30, 2011, the per person daily cost assessment to counties shall be the dollar amount set by the department under par. (dm) 1. for care in a Type 1 juvenile correctional facility, as defined in s. 938.02 (19), the dollar amount set by the department under par. (dm) 1. for care for juveniles transferred from a juvenile correctional institution under s. 51.35 (3), $313 for care in a residential care center for children and youth, $200 for care in a group home for children, $75 for care in a foster home, $130 for care in a treatment foster home under rules promulgated under s. 48.62 (8) (c), $103 for departmental corrective sanctions services, and $41 for departmental aftercare services.

AB732, s. 32 Section 32. 301.26 (4) (dm) of the statutes is created to read:

AB732,13,17 301.26 (4) (dm) 1. The department shall set the per person cost assessments to counties under par. (d) 2. and 3. for care in a Type 1 juvenile correctional facility, as defined in s. 938.02 (19), and for care for juveniles transferred from a juvenile correctional institution under s. 51.35 (3). In setting those assessments, the department may set one assessment for short-term placements of 30 days or less and another assessment for long-term placements of more than 30 days. The department shall set those assessments at least annually, effective on July 1 of each year, and may adjust those assessments more frequently as necessary to reflect the average per person daily cost of providing that care.