October 14, 2015 - Introduced by Senators Wanggaard, Risser, Bewley, L. Taylor,
Nass, Ringhand, Darling, Lassa and C. Larson, cosponsored 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. Referred to Committee on Judiciary and Public Safety.
SB322,1,8 1An Act to renumber and amend 775.05 (2); to amend 20.505 (4) (d), 40.51 (1),
2227.03 (5), 775.05 (3) and (4) and 775.05 (5); and to create 20.515 (1) (ds),
320.515 (1) (g), 40.516, 71.05 (6) (b) 53., 227.43 (1) (bw), 301.051, 775.05 (2) (b)
4and (c) and (2m), 775.05 (4g), 775.05 (4m) and (4r), 808.085, 977.05 (4) (jr) and
5977.05 (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
changed.
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
imprisonment.
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
these individuals.
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:
SB322,1 1Section 1. 20.505 (4) (d) of the statutes is amended to read:
SB322,4,62 20.505 (4) (d) Claims awards. A sum sufficient for payment of awards made
3by the claims board or department of administration under ss. 16.007, 775.05 (4),
4775.06 and 775.11, awards of financial assistance under s. 808.085, and awards made
5by an act of the legislature arising from a claim filed with the claims board which are
6not directed by law or under s. 16.007 (6m) to be paid from another appropriation.
SB322,2 7Section 2. 20.515 (1) (ds) of the statutes is created to read:
SB322,4,118 20.515 (1) (ds) Payment of health insurance premiums for individuals who
9receive compensation for wrongful imprisonment.
A sum sufficient to pay the state's
10share of premium costs for health care benefits and the cost of administering the
11benefits for individuals under s. 40.516.
SB322,3 12Section 3. 20.515 (1) (g) of the statutes is created to read:
SB322,5,5
120.515 (1) (g) Benefit and coverage payments; health care coverage for
2individuals who receive compensation for wrongful imprisonment.
All moneys
3received from individuals under s. 40.516 who elect to be included in a health care
4coverage plan under s. 40.51 (6), for the payment of benefits and the cost of
5administering benefits for the individuals.
SB322,4 6Section 4. 40.51 (1) of the statutes is amended to read:
SB322,5,107 40.51 (1) The procedures and provisions pertaining to enrollment, premium
8transmitted 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
10or rule except as otherwise specifically provided by this chapter.
SB322,5 11Section 5. 40.516 of the statutes is created to read:
SB322,5,16 1240.516 Health care coverage for individuals who receive
13compensation for wrongful imprisonment.
(1) Beginning on January 1, 2017,
14any individual who receives compensation under s. 775.05 after the effective date of
15this subsection .... [LRB inserts date], may elect coverage under any health care
16coverage plan offered under s. 40.51 (6) for a period not to exceed 10 years.
SB322,5,23 17(2) The individual and the state shall jointly pay the full premium cost of health
18care coverage and the cost of administering the benefits under sub. (1). The amount
19that the individual must pay in health insurance premiums shall equal the amount
20required to be paid by state employees, as determined by the administrator of the
21division of personnel management in the department of administration under s.
2240.05 (4) (ah). The remainder of the premium cost for health care coverage for these
23individuals shall be paid from the appropriation account under s. 20.515 (1) (ds).
SB322,6 24Section 6. 71.05 (6) (b) 53. of the statutes is created to read:
SB322,6,5
171.05 (6) (b) 53. Any amount received by an individual, or the individual's
2estate, from the claims board under s. 775.05 (4), from the legislature under the
3process described in s. 775.05 (4), or from a financial assistance award granted under
4s. 808.085, in the taxable year that relates to the year in which the payment is
5received.
SB322,7 6Section 7. 227.03 (5) of the statutes is amended to read:
SB322,6,107 227.03 (5) This chapter does not apply to proceedings of the claims board,
8except 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
10s. 775.05
.
SB322,8 11Section 8. 227.43 (1) (bw) of the statutes is created to read:
SB322,6,1312 227.43 (1) (bw) Assign a hearing examiner to preside over each hearing
13conducted under s. 775.05.
SB322,9 14Section 9. 301.051 of the statutes is created to read:
SB322,6,18 15301.051 Wrongful imprisonment; transition plan. Not more than 5 days
16after 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
18plan shall do all of the following:
SB322,6,23 19(1) Provide the inmate with a written list of community resources available to
20the inmate upon his or her release from prison, including temporary housing and
21emergency shelters, food banks, education and job assistance, and health care
22services in the county into which the inmate will be released. The department shall
23maintain up-to-date lists with contact information for each county in the state.
SB322,7,3
1(2) Provide the inmate with an individual counseling session with a person
2trained by the department or the county into which the inmate will be released to
3assist inmates in the transition to release from prison.
SB322,7,6 4(3) Schedule an appointment, set for not later than 2 weeks after the inmate's
5date of release, for the inmate to meet with a social worker or aid program
6administrator for the county into which the inmate will be released.
SB322,10 7Section 10. 775.05 (2) of the statutes is renumbered 775.05 (2) (a) and
8amended to read:
SB322,7,179 775.05 (2) (a) Any Except as provided in pars. (b) and (c), any person who is
10imprisoned as the result of his or her conviction for a crime in any court of this state,
11of which crime the person claims to be innocent, and who is released from
12imprisonment for that crime after March 13, 1980, may petition the claims board for
13compensation for such imprisonment. Upon Within 5 days after receipt of the
14petition, the claims board department of administration shall transmit a copy
15thereof to the prosecutor who prosecuted the petitioner and the judge who sentenced
16the petitioner for the conviction which is the subject of the claim, or their successors
17in office, for the information of these persons.
SB322,11 18Section 11. 775.05 (2) (b) and (c) and (2m) of the statutes are created to read:
SB322,7,2219 775.05 (2) (b) Paragraph (a) does not apply to a person who is imprisoned as
20the result of his or her conviction for a felony in any court of this state arising from
21the same course of conduct that resulted in conviction for the crime of which the
22person claims to be innocent if the person does not claim to be innocent of that felony.
SB322,8,223 (c) Paragraph (a) does not apply to a person who is convicted of a violent crime
24specified in s. 939.632 (1) (e) 1. or 2. after his or her release from imprisonment. A

1person who is ineligible to petition for compensation under this paragraph is also
2ineligible to receive any award of compensation that has not been paid.
SB322,8,5 3(2m) (a) In this subsection, an individual who has the right to inherit assets
4of a person is limited to a surviving spouse or domestic partner, child, parent, or
5sibling, who would have a right to inherit assets of the person under s. 852.01.
SB322,8,226 (b) Any individual specified in par. (a) who has the right to inherit assets of a
7person who has the right to petition the claims board for compensation under sub.
8(2) may, within one year after the death of such a person, exercise the rights of the
9person to petition for compensation under sub. (2) (a) on behalf of the deceased
10person. If more than one individual has that right, the individuals having that right
11may file a joint petition or any individual or individuals may file a petition for
12whatever portion of the compensation that would otherwise be payable to the
13deceased person that the individual or individuals would be entitled to receive as an
14inheritance had the award been paid before the death of the decedent. If, at the time
15of death of a person, the person qualified or would qualify to receive compensation
16under sub. (4) but has not been paid, any such individual or individuals may, within
17one year of the death of the person, file a claim with the claims board for
18compensation to be awarded on the decedent's behalf in whatever share of the
19compensation that was payable to the petitioner that the individual or individuals
20would be entitled to receive as an inheritance. The claims board shall pay a claim
21filed by any individual under this subsection if the board determines that the
22individual or individuals are entitled to be paid under this subsection.
SB322,9,223 (c) An individual's right to exercise the rights of a deceased person or to file a
24claim on a decedent's behalf is independent of any right to inherit from the decedent

1under the decedent's will. Any compensation paid to any individual under this
2subsection is not a part of the decedent's estate for purposes of the decedent's will.
SB322,12 3Section 12. 775.05 (3) and (4) of the statutes are amended to read:
SB322,9,224 775.05 (3) After hearing the evidence on the petition, the claims board Within
55 days after the claims board receives a petition under sub. (2) (a), the department
6of administration shall refer the petition to the division of hearings and appeals. No
7later than 30 days after the petition is filed, the department of administration or the
8office of the prosecutor who was responsible for prosecuting the petitioner may file
9a written request with the claims board for an evidentiary hearing on the petition.
10The department of administration shall refer the request to the division within 5
11days after the claims board receives the request. If a timely request for a hearing is
12filed, or if the division concludes that it cannot determine the petitioner's eligibility
13for compensation without a hearing, the division shall hold a hearing on the petition
14no later than 60 days after the petition is filed. If no request for a hearing is filed
15within the time specified in this subsection, and the division is able to determine that
16the petitioner is eligible for compensation without a hearing, the division shall decide
17the matter without a hearing, except that the division shall not deny a petition for
18compensation without affording the petitioner an opportunity for a hearing. The
19division
shall find either that the preponderance of evidence is clear and convincing
20demonstrates that the petitioner was innocent of the crime for which he or she
21suffered imprisonment, or that the preponderance of evidence is not clear and
22convincing
does not demonstrate that he or she was innocent.
SB322,9,25 23(4) If the claims board division of hearings and appeals finds that the
24preponderance of evidence demonstrates that the petitioner was innocent and that
25he or she did not by his or her act or failure to act contribute to bring about the

1conviction and imprisonment for which he or she seeks compensation, the claims
2board
of the crime for which he or she was imprisoned, the division shall transmit
3its findings to the claims board. The claims board
shall find the amount which will
4equitably compensate the petitioner, not to exceed $25,000 and at a rate of
5compensation not greater than $5,000 of $50,000, or the amount determined under
6sub. (4m) (a), whichever applies,
per year or any portion thereof, for the
7imprisonment. Compensation awarded by the claims board In addition, the claims
8board
shall include find any amount to which the board finds the petitioner is
9entitled for reasonable, actual attorney fees, together with all costs and
10disbursements incurred by the petitioner in his or her defense, post-conviction, and
11compensation proceedings and all fees, surcharges, and restitution paid by the
12petitioner as a result of his or her arrest and imprisonment. The claims board shall
13subtract any moneys received by the petitioner under s. 808.085
. If the claims board
14finds that the amount it is able to award find is not an adequate compensation it shall
15submit a report specifying an amount which it considers adequate to the chief clerk
16of each house of the legislature, for distribution to the legislature under s. 13.172 (2).
17The claims board shall, subject to sub. (4g), award the compensation specified in the
18decision and order disbursement of the award to the petitioner or any other
19individual who is entitled to receive a payment from the appropriation under s.
2020.505 (4) (d), except that the total amount of the award may not exceed $1,000,000.
SB322,13 21Section 13. 775.05 (4g) of the statutes is created to read:
SB322,11,522 775.05 (4g) (a) As a condition of eligibility for compensation under sub. (4), a
23petitioner shall automatically assign to the claims board his or her right to any
24settlement, judgment, or award that may be obtained against any 3rd party in any
25federal or state action for damages related to wrongful imprisonment for the crime

1specified in sub. (2) (a). The petition shall, in itself, constitute an assignment by
2operation of law. The assignment shall be considered a statutory lien on any
3settlement, judgment, or award received by the petitioner from a 3rd party in an
4amount equal to the amount of the settlement, judgment, or award, or the amount
5of compensation awarded under sub. (4), whichever is less.
SB322,11,106 (b) If a petitioner obtains, before the claims board awards compensation under
7sub. (4), a final judgment, settlement, or award for damages in a federal or state
8action related to wrongful imprisonment for the crime specified in sub. (2) (a), the
9claims board shall subtract the amount of the judgment, settlement, or award from
10the compensation.
SB322,14 11Section 14. 775.05 (4m) and (4r) of the statutes are created to read:
SB322,11,1712 775.05 (4m) (a) On April 1 of each year, the claims board shall adjust the
13amount of yearly compensation specified in sub. (4) to reflect any changes in the U.S.
14consumer price index for all urban consumers, U.S. city average, as determined by
15the U.S. department of labor, for the 12-month period ending on the preceding
16December 31. The board shall publish the adjusted amount so determined in the
17Wisconsin administrative register.
SB322,11,2018 (b) On January 1, 2022, and once every 5 years thereafter, the claims board
19shall make a recommendation to the legislature as to whether the dollar amount of
20the maximum award under sub. (4) should be changed.
SB322,11,23 21(4r) At any hearing conducted under this section, the petitioner may be
22represented by counsel of his or her own choosing. The department of administration
23shall represent the interests of the state.
SB322,15 24Section 15. 775.05 (5) of the statutes is amended to read:
SB322,12,4
1775.05 (5) The claims board shall keep a complete record of its the proceedings
2in each case petition under this section and of all the evidence related to the petition.
3The findings and decision of the division of hearings and appeals and the award of
4the claims board shall be subject to review as provided in ch. 227.
SB322,16 5Section 16. 808.085 of the statutes is created to read:
SB322,12,8 6808.085 Wrongful imprisonment; relief. (1) If a court acts under s. 808.08
7to release a person from confinement in a prison, the person may petition the court
8for any or all of the following:
SB322,12,109 (a) A court order directing the department of corrections to create a transition
10to release plan.
SB322,12,1311 (b) A financial assistance award not to exceed 133 percent of the federal poverty
12level for up to 14 months, or while proceedings under s. 775.05 are pending,
13whichever is shorter.
SB322,12,1614 (c) Sealing of all records related to the case. Records sealed under this section
15shall be accessible to the person but may not be available for public inspection or
16through the consolidated court automation program case management system.
SB322,12,20 17(2) The court shall, within 10 days after it receives the petition under sub. (1),
18grant the relief sought if the person's criminal conviction was reversed, set aside, or
19vacated for reasons not inconsistent with the person's innocence of the crime for
20which he or she was convicted.
SB322,12,24 21(3) If a person who is granted relief under this section is subsequently convicted
22of the same charges for which he or she was granted relief, or if his or her conviction
23is reinstated, the person shall repay any financial assistance award granted under
24this section and all records related to the case shall be unsealed.
SB322,13,6
1(4) To the extent it is not contrary to or inconsistent with federal law, financial
2assistance a person receives pursuant to this section may not be included as income
3for the purpose of determining whether the person is indigent under rules
4promulgated under ch. 977 or for the purpose of determining the person's eligibility
5for any program for which the department of health services or the department of
6children and families provides services, benefits, or other assistance under ch. 49.
SB322,17 7Section 17. 977.05 (4) (jr) of the statutes is created to read:
SB322,13,108 977.05 (4) (jr) At the request of a person determined by the state public
9defender to be indigent or upon referral of any court, represent the person in
10proceedings under s. 775.05.
SB322,18 11Section 18. 977.05 (4) (jw) of the statutes is created to read:
SB322,13,1412 977.05 (4) (jw) At the request of an inmate determined by the state public
13defender to be indigent or upon referral of any court, represent the person in
14proceedings under s. 808.085.
SB322,19 15Section 19. Nonstatutory provisions.
SB322,14,216 (1) Medical Assistance for wrongfully imprisoned persons. Notwithstanding
17the eligibility criteria under section 49.471 (4) (a) of the statutes, any individual who
18receives compensation under section 775.05 of the statutes after the effective date
19of this subsection is eligible for the Medical Assistance program under section 49.471
20of the statutes during the period before January 1, 2017. The department of health
21services shall request any approval from the federal department of health and
22human services that is necessary to provide Medical Assistance benefits to those
23individuals. If federal approval is not necessary or if federal approval is received, the
24department of health services shall provide benefits under section 49.471 of the
25statutes to those individuals. If federal approval is not received, the department of

1health services is not required to provide Medical Assistance benefits to those
2individuals.
SB322,20 3Section 20. Initial applicability.
SB322,14,134 (1) Except as provided in subsections (2) and (3), this act first applies with
5respect to petitions filed by persons who are released on or after January 1, 1990,
6from imprisonment for crimes of which they claim to be innocent. If a person was
7released from imprisonment on or after January 1, 1990, and accepted compensation
8from this state for wrongful imprisonment prior to the effective date of this
9subsection, the person may petition for additional compensation. The claims board
10may, at its discretion, consider the petition and may award compensation to the
11extent payable under section 775.05 of the statutes notwithstanding any release
12signed by the claimant as a condition precedent to receiving an initial compensation
13award.
SB322,14,1814 (2) The treatment of section 71.05 (6) (b) 52. of the statutes first applies to
15taxable years beginning on January 1 of the year in which this subsection takes
16effect, except that if this subsection takes effect after July 31, section 71.05 (6) (b) 52.
17of the statutes first applies to taxable years beginning on January 1 of the year
18following the year in which this subsection takes effect.
SB322,14,2019 (3) The treatment of section 775.05 (4g) (a) of the statutes first applies to
20petitions filed on or after the effective date of this subsection.
SB322,14,2121 (End)
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