Amendment ASA1-AB410

LRBs0300/1

GMM:kmg:fmh

1997 - 1998 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 1, TO 1997 ASSEMBLY BILL 410

November 6, 1997 - Offered by Committee on Children and Families.

AB410-ASA1,3,12 An Act to renumber and amend 938.183 (1m) (c) and 938.355 (6d); to consolidate, renumber and amend 938.183 (2) (intro.), (a) and (b); to amend 48.35 (1) (b) (intro.), 48.35 (1) (b) 1., 48.35 (1) (b) 2., 48.35 (1) (b) 3., 48.355 (2) (c), 48.396 (1), 48.66 (1), 48.78 (2) (b), 118.125 (1) (a), 118.125 (2) (cg), 118.125 (2) (e), 118.125 (2) (L), 118.125 (3), 118.125 (5) (a), 118.125 (5) (b), 118.127 (1), 118.127 (2), 118.163 (2) (b), 118.163 (2) (c), 125.07 (4) (d), 125.07 (4) (e) 1., 125.085 (3) (bt), 165.55 (14), 301.08 (1) (b) 3., 800.08 (4), 895.035 (2m) (a), 895.035 (2m) (b), 895.035 (3), 895.035 (6), 938.08 (2), 938.17 (2) (h) 2., 938.17 (2) (h) 3., 938.245 (2) (a) 5. a., 938.299 (4) (b), 938.32 (1t) (a) 1., 938.34 (5) (a), 938.34 (8), 938.342 (1) (b), 938.342 (1) (c), 938.343 (2), 938.343 (4), 938.346 (1) (a), 938.35 (1) (a), 938.35 (1) (c), 938.355 (2) (c), 938.355 (6) (b), 938.355 (6) (d) 2., 938.355 (6m) (a), 938.355 (6m) (b), 938.396 (1), 938.396 (1m) (a), 938.396 (1m) (am), 938.396 (1m) (ar), 938.396 (1m) (b), 938.396 (1m) (c), 938.396 (2) (d), 938.396 (6), 938.396 (7) (a), 938.396 (7) (b), 938.396 (7) (bm), 938.396 (7) (c), 938.45 (2), 938.78 (2) (b) 1., 938.78 (2) (b) 2., 938.78 (2) (e), 970.032 (title), 970.032 (1), 970.032 (2) (intro.), 970.032 (2) (a), 970.032 (2) (c), 970.035, 971.31 (13) (a) (intro.), 971.31 (13) (a) 1., 971.31 (13) (a) 3., 971.31 (13) (b), 972.14 (2), 972.15 (2s), 980.015 (2) (b) and 980.02 (2) (ag); to repeal and recreate 938.355 (6d) (title); and to create 48.396 (2) (dr), 48.396 (2) (g), 48.396 (2) (h), 118.125 (2) (ch), 165.55 (15), 938.067 (8m), 938.069 (1) (dm), 938.183 (1) (ar), 938.183 (1m) (c) 1., 938.183 (1m) (c) 2., 938.245 (2) (a) 5. am., 938.32 (1t) (a) 1m., 938.355 (6) (e), 938.355 (6g) (c), 938.396 (1m) (d), 938.396 (1x), 938.396 (2) (dr), 938.396 (2) (g), 938.396 (2) (h), 938.396 (2) (i), 938.396 (2) (j) and 938.45 (1r) of the statutes; relating to: original adult court jurisdiction over a juvenile who is alleged to have attempted or committed a violation of any state criminal law if that violation may be joined with an alleged assault, battery, homicide or attempted homicide over which the adult court has original jurisdiction, the imposition of a juvenile adjudication and disposition by an adult court on a juvenile who has been found to have committed a lesser offense or a joined offense, requiring the parent of a juvenile to make restitution for any damage or injury resulting from the juvenile's act or to pay a forfeiture for the juvenile's act, sanctions for a juvenile who violates a condition of his or her dispositional order, contempt of court by a juvenile who violates a condition of his or her dispositional order, the authority of an intake worker or dispositional staff member to take into custody a juvenile who has violated a condition of his or her dispositional order, the rules of evidence at postdispositional hearings under the juvenile justice code, access to juvenile court records, law enforcement agency records, social services agency records and pupil records by a fire investigator, disclosure by the victim-witness coordinator to the victim of a juvenile's act or alleged act of the name and address of the juvenile and the juvenile's parents, the confidential exchange of information between a law enforcement agency, a social welfare agency and the school attended by a child or juvenile, the disclosure of information relating to a child or a juvenile by a law enforcement agency, a social welfare agency or a juvenile court to the private school attended by the child or the juvenile, requesting the legislative audit bureau to audit the use of secure detention facilities, and the disclosure of juvenile court records to other juvenile courts for the purposes of preparing a presentence investigation, determining custody of a juvenile, setting bail, impeaching a witness and determining whether a juvenile who would otherwise be an heir has intentionally killed the decedent.

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

AB410-ASA1, s. 1 Section 1. 48.35 (1) (b) (intro.) of the statutes is amended to read:

AB410-ASA1,3,16 48.35 (1) (b) (intro.) The disposition of a child, and any record of evidence given in a hearing in court, shall not be admissible as evidence against the child in any case or proceeding in any other court except for the following:

AB410-ASA1, s. 2 Section 2. 48.35 (1) (b) 1. of the statutes is amended to read:

AB410-ASA1,3,20 48.35 (1) (b) 1. In sentencing proceedings after conviction of a felony or misdemeanor and then only for the purpose of a presentence study and report; investigation.

AB410-ASA1, s. 3 Section 3. 48.35 (1) (b) 2. of the statutes is amended to read:

AB410-ASA1,3,23 48.35 (1) (b) 2. In a proceeding in any court assigned to exercise jurisdiction under this chapter and ch. 938; or.

AB410-ASA1, s. 4 Section 4. 48.35 (1) (b) 3. of the statutes is amended to read:

AB410-ASA1,4,4 48.35 (1) (b) 3. In a court of civil or criminal jurisdiction while it is exercising the jurisdiction of a over an action affecting the family court and is considering the custody of children a child.

AB410-ASA1, s. 5 Section 5. 48.355 (2) (c) of the statutes, as affected by 1997 Wisconsin Act 27, is amended to read:

AB410-ASA1,4,12 48.355 (2) (c) If school attendance is a condition of an order under par. (b) 7., the order shall specify what constitutes a violation of the condition and shall direct the school board of the school district, or the governing body of the private school, in which the child is enrolled to notify the county department that is responsible for supervising the child or, in a county having a population of 500,000 or more, the department within 5 days after any violation of the condition by the child.

AB410-ASA1, s. 6 Section 6. 48.396 (1) of the statutes is amended to read:

AB410-ASA1,5,6 48.396 (1) Law enforcement officers' records of children shall be kept separate from records of adults. Law enforcement officers' records of children shall not be open to inspection or their contents disclosed except under sub. (1b) or (1d) 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 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.

AB410-ASA1, s. 7 Section 7. 48.396 (2) (dr) of the statutes is created to read:

AB410-ASA1,5,12 48.396 (2) (dr) Upon request of the department of corrections or any other person preparing a presentence investigation under s. 972.15 to review court records for the purpose of preparing the presentence investigation, the court shall open for inspection by any authorized representative of the requester the records of the court relating to any child who has been the subject of a proceeding under this chapter.

AB410-ASA1, s. 8 Section 8. 48.396 (2) (g) of the statutes is created to read:

AB410-ASA1,5,19 48.396 (2) (g) Upon request of any other court assigned to exercise jurisdiction under this chapter and ch. 938, a district attorney or corporation counsel to review court records for the purpose of any proceeding in that other court, the court shall open for inspection by any authorized representative of the requester the records of the court relating to any child who has been the subject of a proceeding under this chapter.

AB410-ASA1, s. 9 Section 9. 48.396 (2) (h) of the statutes is created to read:

AB410-ASA1,6,2 48.396 (2) (h) Upon request of the court having jurisdiction over an action affecting the family or of an attorney for a party or a guardian ad litem in an action affecting the family to review court records for the purpose of considering the custody of a child, the court assigned to exercise jurisdiction under this chapter and ch. 938 shall open for inspection by an authorized representative of the requester the records of the court relating to any child who has been the subject of a proceeding under this chapter.

AB410-ASA1, s. 10 Section 10. 48.66 (1) of the statutes, as affected by 1997 Wisconsin Act 27, is amended to read:

AB410-ASA1,6,21 48.66 (1) The department shall license and supervise child welfare agencies, as required by s. 48.60, group homes, as required by s. 48.625, shelter care facilities, as required by s. 938.22, and day care centers, as required by s. 48.65. The department may license foster homes or treatment foster homes, as provided by s. 48.62, and may license and supervise county departments in accordance with the procedures specified in this section and in ss. 48.67 to 48.74. The department of corrections may license a child welfare agency to operate a secured child caring institution, as defined in s. 938.02 (15g), for holding in secure custody children juveniles who have been convicted under s. 938.183 or adjudicated delinquent under s. 938.183 or 938.34 (4d), (4h) or (4m) and referred to the child welfare agency by the court or the department of corrections and to provide supervision, care and maintenance for those children juveniles. A license issued under this subsection, other than a license to operate a foster home, treatment foster home or secured child caring institution, is valid until revoked or suspended. A license issued under this subsection to operate a foster home, treatment foster home or secured child caring institution may be for any term not to exceed 2 years from the date of issuance. No license issued under this subsection is transferable.

AB410-ASA1, s. 11 Section 11. 48.78 (2) (b) of the statutes is amended to read:

AB410-ASA1,7,9 48.78 (2) (b) Paragraph (a) does not apply to the confidential exchange of information between an agency and another social welfare or agency, a law enforcement agency, a public school or a private school regarding an individual in the care or legal custody of one of the agencies the agency. A social welfare agency that obtains information under this paragraph shall keep the information confidential as required under this section and s. 938.78. A law enforcement agency that obtains information under this paragraph shall keep the information confidential as required under ss. 48.396 (1) and 938.396 (1). A public school that obtains information under this paragraph shall keep the information confidential as required under s. 118.125 and a private school that obtains information under this paragraph shall keep the information confidential in the same manner as is required of a public school under s. 118.125.

AB410-ASA1, s. 12 Section 12. 118.125 (1) (a) of the statutes is amended to read:

AB410-ASA1,7,17 118.125 (1) (a) "Behavioral records" means those pupil records which include psychological tests, personality evaluations, records of conversations, any written statement relating specifically to an individual pupil's behavior, tests relating specifically to achievement or measurement of ability, the pupil's physical health records other than his or her immunization records or any lead screening records required under s. 254.162, law enforcement officers' records obtained under s. 48.396 (1) or 938.396 (1) or (1m) and any other pupil records that are not progress records.

AB410-ASA1, s. 13 Section 13. 118.125 (2) (cg) of the statutes is amended to read:

AB410-ASA1,7,24 118.125 (2) (cg) The school district clerk or his or her designee shall provide a law enforcement agency with a copy of a pupil's attendance record if the law enforcement agency certifies in writing that the pupil is under investigation for allegedly committing a criminal or delinquent act and that the law enforcement agency will not further disclose the pupil's attendance record except as permitted under s. 938.396 (1) to (1r) (1x).

AB410-ASA1, s. 14 Section 14. 118.125 (2) (ch) of the statutes is created to read:

AB410-ASA1,8,7 118.125 (2) (ch) The school district clerk of his or her designee shall provide a fire investigator under s. 165.55 (15) with a copy of a pupil's attendance record if the fire investigator certifies in writing that the pupil is under investigation under s. 165.55, that the pupil's attendance record is necessary for the fire investigator to pursue his or her investigation and that the fire investigator will use and further disclose the pupil's attendance record only for the purpose of pursuing that investigation.

AB410-ASA1, s. 15 Section 15. 118.125 (2) (e) of the statutes is amended to read:

AB410-ASA1,8,15 118.125 (2) (e) Upon the written permission of an adult pupil, or the parent or guardian of a minor pupil, the school shall make available to the person named in the permission the pupil's progress records or such portions of the pupil's behavioral records as determined by the person authorizing the release. Law enforcement officers' records obtained under s. 48.396 (1) or 938.396 (1) or (1m) may not be made available under this paragraph unless specifically identified by the adult pupil or by the parent or guardian of a minor pupil in the written permission.

AB410-ASA1, s. 16 Section 16. 118.125 (2) (L) of the statutes is amended to read:

AB410-ASA1,8,20 118.125 (2) (L) A school board shall disclose the pupil records of a pupil in compliance with a court order under s. 48.345 (12) (b), 938.34 (7d) (b), 938.396 (1m) (c) or (d) or 938.78 (2) (b) 2. after making a reasonable effort to notify the pupil's parent or legal guardian.

AB410-ASA1, s. 17 Section 17. 118.125 (3) of the statutes is amended to read:

AB410-ASA1,9,9 118.125 (3) Maintenance of records. Each school board shall adopt rules in writing specifying the content of pupil records and the time during which pupil records shall be maintained. No behavioral records may be maintained for more than one year after the pupil ceases to be enrolled in the school, unless the pupil specifies in writing that his or her behavioral records may be maintained for a longer period. A pupil's progress records shall be maintained for at least 5 years after the pupil ceases to be enrolled in the school. A school board may maintain the records on microfilm, optical disk or in electronic format if authorized under s. 19.21 (4) (c), or in such other form as the school board deems appropriate. A school board shall maintain law enforcement officers' records and other information obtained under s. 48.396 (1) or 938.396 (1) or (1m) separately from a pupil's other pupil records. Rules adopted under this subsection shall be published by the school board as a class 1 notice under ch. 985.

AB410-ASA1, s. 18 Section 18. 118.125 (5) (a) of the statutes is amended to read:

AB410-ASA1,9,14 118.125 (5) (a) Except as provided in par. (b), nothing in this section prohibits the use of a school district from using a pupil's records in connection with the suspension or expulsion of the pupil or the use of such records by a multidisciplinary team under ch. 115.

AB410-ASA1, s. 19 Section 19. 118.125 (5) (b) of the statutes is amended to read:

AB410-ASA1,9,21 118.125 (5) (b) Law enforcement officers' records and other information obtained under s. 48.396 (1) or 938.396 (1) or (1m) and records of the court assigned to exercise jurisdiction under chs. 48 and 938 obtained under s. 938.396 (7) shall may not be used by a school district as the sole basis for expelling or suspending a pupil or as the sole basis for taking any other disciplinary action, including action under the school district's athletic code.

AB410-ASA1, s. 20 Section 20. 118.127 (1) of the statutes is amended to read:

AB410-ASA1,9,25 118.127 (1) Upon receipt of information from a law enforcement agency under s. 48.396 (1) or 938.396 (1) or (1m), the school district administrator or private school administrator who receives the information shall notify any pupil named in the information, and the parent or guardian of any minor pupil named in the information, of the information.

AB410-ASA1, s. 21 Section 21. 118.127 (2) of the statutes, as affected by 1997 Wisconsin Act 27, is amended to read:

AB410-ASA1,10,20 118.127 (2) A school district shall or private school may disclose information from law enforcement officers' records obtained under s. 938.396 (1m) only to persons employed by the school district who are required by the department under s. 115.28 (7) to hold a license, to persons employed by the private school as teachers and to other school district or private school officials who have been determined by the school board or governing body of the private school to have legitimate educational interests, including safety interests, in that information. In addition, if that information relates to a pupil of the school district or private school, the school district shall or private school may also disclose that information to those employes of the school district or private school who have been designated by the school board or governing body of the private school to receive that information for the purpose of providing treatment programs for pupils enrolled in the school district or private school. A school district may not use law enforcement officers' records obtained under s. 938.396 (1m) as the sole basis for expelling or suspending a pupil or as the sole basis for taking any other disciplinary action, including action under the school district's athletic code, against a pupil.

AB410-ASA1, s. 22 Section 22. 118.163 (2) (b) of the statutes is amended to read:

AB410-ASA1,10,24 118.163 (2) (b) An order for the person to participate in counseling or to participate for not more than 25 hours in a supervised work program or other community service work under s. 938.34 (5g).

AB410-ASA1, s. 23 Section 23. 118.163 (2) (c) of the statutes is amended to read:

AB410-ASA1,11,5 118.163 (2) (c) An order for the person to remain at home for not more than 30 days except during hours in which the person is attending religious worship or a school program, including travel time required to get to and from the school program or place of worship. The order may permit a person to leave his or her home if the person is accompanied by a parent or guardian.

AB410-ASA1, s. 24 Section 24. 125.07 (4) (d) of the statutes is amended to read:

AB410-ASA1,11,10 125.07 (4) (d) A person who is under 18 17 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).

AB410-ASA1, s. 25 Section 25. 125.07 (4) (e) 1. of the statutes is amended to read:

AB410-ASA1,11,13 125.07 (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.

AB410-ASA1, s. 26 Section 26. 125.085 (3) (bt) of the statutes is amended to read:

AB410-ASA1,11,18 125.085 (3) (bt) A person who is under 18 17 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).

AB410-ASA1, s. 27 Section 27. 165.55 (14) of the statutes is amended to read:

AB410-ASA1,12,12 165.55 (14) The state fire marshal, any deputy fire marshal or, any fire chief or his or her designee may require an insurer, including the state acting under ch. 619, to furnish any information in its possession relating to a fire loss involving property with respect to which a policy of insurance issued or serviced by the insurer may apply. Any insurer, including the state, may furnish to the state fire marshal, any deputy fire marshal or, any fire chief or designee information in its possession relating to a fire loss to which insurance issued by it may apply. In the absence of fraud or malice, no insurer furnishing information under this subsection, state fire marshal, deputy fire marshal or, fire chief or designee, and no person acting on behalf of the insurer, state fire marshal, deputy fire marshal or , fire chief or designee, shall be liable in any civil or criminal action on account of any statement made, material furnished or action taken in regard thereto. Information furnished by an insurer under this subsection shall be held in confidence by the state fire marshal, deputy fire marshal or, fire chief or designee and all subordinates until release or publication is required pursuant to a civil or criminal proceeding. Information obtained by the state fire marshal, any deputy fire marshal or, fire chief or designee during their investigations of fires determined to be the result of arson may be available to the insurer of the property involved.

AB410-ASA1, s. 28 Section 28. 165.55 (15) of the statutes is created to read:

AB410-ASA1,12,19 165.55 (15) The state fire marshal, any deputy fire marshal, any fire chief or his or her designee may obtain information relating to a juvenile from a law enforcement agency, a court assigned to exercise jurisdiction under chs. 48 and 938 or an agency, as defined in s. 938.78 (1), as provided in ss. 938.396 (1x) and (2) (j) and 938.78 (2) (b) 1. and may obtain information relating to a pupil from a public school as provided in ss. 118.125 (2) (ch) and (L) and 938.396 (1m) (d).

AB410-ASA1, s. 29 Section 29. 301.08 (1) (b) 3. of the statutes is amended to read:

AB410-ASA1,13,6 301.08 (1) (b) 3. Contract with public, private or voluntary agencies for the supervision, maintenance and operation of secured correctional facilities, as defined in s. 938.02 (15m), child caring institutions, as defined in s. 938.02 (2c), and secured child caring institutions, as defined in s. 938.02 (15g), for the placement of juveniles who have been convicted under s. 938.183 or adjudicated delinquent under s. 938.183 or 938.34 (4d), (4h) or (4m). The department may designate a secured correctional facility, child caring institution or a secured child caring institution contracted for under this subdivision as a Type 2 secured correctional facility, as defined in s. 938.02 (20), and may designate a child caring institution or secured child caring institution contracted for under this subdivision as a Type 2 child caring institution, as defined in s. 938.02 (19r).

AB410-ASA1, s. 30 Section 30. 800.08 (4) of the statutes is amended to read:

AB410-ASA1,13,9 800.08 (4) Municipal Except as provided in s. 938.17 (2) (h) 3., municipal courts shall be bound by the rules of evidence specified in chs. 901 to 911.

AB410-ASA1, s. 31 Section 31. 895.035 (2m) (a) of the statutes is amended to read:

AB410-ASA1,14,5 895.035 (2m) (a) If a child or a parent with custody of a child fails to pay restitution under s. 938.245, 938.32, 938.34 (5), 938.343 (4) or, 938.345 or 938.45 (1r) (a) as ordered by a court assigned to exercise jurisdiction under chs. 48 and 938, a court of criminal jurisdiction or a municipal court or as agreed to in a deferred prosecution agreement or if it appears likely that the child or parent will not pay restitution as ordered or agreed to, the victim, the victim's insurer, the representative of the public interest under s. 938.09 or the agency, as defined in s. 938.38 (1) (a), supervising the child may petition the court assigned to exercise jurisdiction under chs. 48 and 938 to order that the amount of restitution unpaid by the child or parent be entered and docketed as a judgment against the child and the parent with custody of the child and in favor of the victim or the victim's insurer, or both. A petition under this paragraph may be filed after the expiration of the deferred prosecution agreement, consent decree, dispositional order or sentence under which the restitution is payable, but no later than one year after the expiration of the deferred prosecution agreement, consent decree, dispositional order or sentence or any extension of the consent decree, dispositional order or sentence. A judgment rendered under this paragraph does not bar the victim or the victim's insurer, or both, from commencing another action seeking compensation from the child or the parent, or both, if the amount of restitution ordered under this paragraph is less than the total amount of damages claimed by the victim or the victim's insurer.

AB410-ASA1, s. 32 Section 32. 895.035 (2m) (b) of the statutes, as affected by 1997 Wisconsin Act 27, is amended to read:

AB410-ASA1,14,23 895.035 (2m) (b) If a child fails to pay a forfeiture or surcharge as ordered by a court assigned to exercise jurisdiction under chs. 48 and 938, a court of criminal jurisdiction or a forfeiture as ordered by a municipal court, if a child fails to pay a surcharge as ordered by a court assigned to exercise jurisdiction under chs. 48 and 938 or a court of criminal jurisdiction or if it appears likely that the child or the parent will not pay the forfeiture or surcharge as ordered, the representative of the public interest under s. 938.09, the agency, as defined in s. 938.38 (1) (a), supervising the child or the law enforcement agency that issued the citation to the child may petition the court assigned to exercise jurisdiction under chs. 48 and 938 to order that the amount of the forfeiture or surcharge unpaid by the child or parent be entered and docketed as a judgment against the child and the parent with custody of the child and in favor of the county or appropriate municipality. A petition under this paragraph may be filed after the expiration of the dispositional order or sentence under which the forfeiture or surcharge is payable, but no later than one year after the expiration of the dispositional order or sentence or any extension of the dispositional order or sentence.