AB688: Bill Text

LRB-4463/1

RPN&JEO:mfd:km

1997 - 1998 LEGISLATURE

1997 Assembly BILL 688

December 30, 1997 - Introduced by Representatives Goetsch, Green, Porter, Dobyns, Kaufert, F. Lasee, Ziegelbauer, Harsdorf, Owens, Staskunas, Brandemuehl, Otte, Ainsworth, Sykora, Olsen, Ott, Kedzie, Nass, Gunderson, Walker, Skindrud, Jeskewitz, Musser, Robson, Hasenohrl, Baumgart, Hahn, Gronemus, Ladwig, Albers, Grothman, Seratti, Powers and Plouff, cosponsored by Senators Moen, Drzewiecki, Huelsman and Roessler, by request of Attorney General James Doyle. Referred to Committee on Criminal Justice and Corrections.

AB688,1,11 An Act to repeal 808.04 (5); to renumber and amend 801.02 (7) and 807.04; to amend 19.35 (3) (f), 301.048 (3) (d), 302.11 (1), 302.11 (2) (c), 302.11 (7) (b), 302.43, 303.07 (3), 304.06 (1) (b), 801.09 (2) (a), 802.06 (1), 802.06 (2) (a) (intro.), 804.01 (1), 804.05 (1), 804.06 (1) (a), 804.08 (1) (a), 804.09 (2), 804.11 (1) (a), 814.24, 814.245 (3), 814.29 (1) (a), 814.29 (3) (b), 893.16 (1) and 893.82 (3); and to create 19.35 (3) (g), 301.328, 302.11 (1q), 801.02 (7) (a), (b), (d) and (e), 802.05 (3), 802.06 (1m), 804.015, 806.025, 807.04 (2), 807.15, 809.103, 813.02 (1) (c), 813.40, 814.25, 814.29 (1m), 893.735, 893.82 (3m), 895.45 and 895.76 of the statutes; relating to: litigation by persons incarcerated, imprisoned, confined or detained in a jail or prison, immunity from civil liability, the time period for the state to respond to an action and limiting access to public records.

Analysis by the Legislative Reference Bureau

This bill makes changes in current law relating to litigation brought by prisoners (persons incarcerated, imprisoned, confined or detained in a jail or prison). Among the changes made by the bill are the following:

Limitations on commencing lawsuits

Currently, certain persons with a "disability" who are entitled to bring a lawsuit may have the time period extended for commencing the lawsuit until a certain length of time after the person's disability ceases if the person had the disability at the time the action accrued. The disability applies to persons under the age of 18 years, the insane and prisoners, and allows persons to commence an action within 2 years after they become 18 years of age and within 5 years after they are no longer insane or are no longer in prison. This bill removes being a prisoner as a disability for purposes of delaying the commencement of a lawsuit.

The bill requires a prisoner to commence an action related to prison or jail conditions for which there are administrative remedies available, including a petition for a writ of certiorari, within 30 days after the cause of action accrues or the action is barred.

Limits on remedies

The bill provides that a petition for a writ of certiorari is a prisoner's only method of challenging certain official actions. A petition for a writ of certiorari involves asking a court to review an action taken by an administrative agency or a lower court based on the information used by the agency or lower court and without presenting any additional information to the reviewing court. Under the bill, the decisions that must be challenged using a petition for a writ of certiorari are related to the following: 1) prison discipline; 2) revocation of probation; 3) denial or revocation of parole; and 4) the disposition of a complaint regarding prison or jail conditions.

In addition, under the bill, a prisoner may not recover damages for mental or emotional injury unless the prisoner shows that he or she suffered a physical injury as a result of the same incident that caused the mental or emotional injury.

Exhaustion of administrative remedies

Currently, a prisoner is prohibited from commencing a civil action against department of corrections (DOC) personnel until the prisoner has exhausted all administrative remedies promulgated by DOC by rule. This bill expands that prohibition to apply to all civil actions by prisoners related to prison or jail conditions against any person for which there are administrative remedies available.

Pleading requirements

The bill requires a prisoner, at the time of filing any action related to prison or jail conditions, to provide all of the following: 1) documentation showing that he or she has exhausted all administrative remedies; 2) copies of all of the written materials that he or she provided to the administrative agency; and 3) copies of all written materials the administrative agency provided to him or her as part of the administrative proceeding.

Limit on filing of actions by certain persons

Except when the prisoner is in danger of serious injury, the bill requires a court that receives papers from a prisoner commencing a civil action to dismiss the action if the prisoner has had a court proceeding dismissed on 3 or more prior occasions because the proceeding was frivolous, was used for an improper purpose, such as to harass, sought monetary damages from a person immune from such damages, or failed to state a claim upon which relief could be granted.

Waiver of answer

Currently, if a person, including a prisoner, commences an action, the defendant in the action has 20 days after service of the complaint to serve an answer in response to the complaint. In certain cases the state has 45 days to answer a complaint. This bill gives a defendant in an action commenced by a prisoner the right to waive any response to the complaint. Under the bill, the failure to respond to an action related to prison or jail conditions is an affirmative defense against all of the allegations made in the complaint. The court is required by the bill to review the pleadings and, if the court determines the plaintiff may prevail on the merits, order the defendant to respond to the pleadings.

Costs and fees in prisoner actions

The bill provides that, if a prisoner brings an action related to prison or jail conditions, no costs may be awarded against an employe of the state or a public agency who is acting in his or her official capacity or against the state or a public agency. If the state or public agency prevails in an action brought by a prisoner related to prison or jail conditions, the bill provides that the prisoner must pay the court costs and filing fees. If a prisoner bringing an action requests permission to bring the action without the payment of fees, the bill requires the prisoner to do all of the following:

1. Submit an affidavit that shows that he or she is unable to pay the fees.

2. Submit an affidavit stating that he or she has paid all previously assessed court costs and fees.

3. Provide a certified copy of his or her prison trust fund account statement.

If the court determines that the prisoner has some money in a trust fund account, the court must order the prisoner to pay part of the court fees immediately, based on the amount available in the prisoner trust fund account, and pay the rest over time from the prisoner trust fund account. The bill allows the court to waive the payment of fees and the submission of the required documents if the prisoner is in danger of serious physical harm.

Payment of judgments

Under the bill, if a court enters a judgment for a monetary award to a prisoner, the court shall order that the award be paid in the following order:

1. To satisfy any unpaid court order of restitution.

2. To pay any civil judgment in favor of a crime victim.

3. To reimburse the department of justice for any awards made to crime victims.

4. To pay any unpaid court costs or filing fees.

5. To reimburse DOC for any loans made to the prisoner to enable him or her to engage in litigation.

6. To victims of the prisoner's crimes who are notified of the award and petition the court for payments.

7. To the prisoner.

Change in mandatory release date; loss of good time

Under current law, with certain exceptions, a person sentenced to prison is entitled to mandatory release on parole after he or she has served two-thirds of his or her prison sentence. A prison inmate's mandatory release date is subject to extension if he or she violates any regulation of the prison or refuses or neglects to perform a required or assigned duty.

In addition, under current law, a person sentenced to jail is eligible to earn "good time" in the amount of one-fourth of his or her term if he or she maintains good behavior. A jail inmate may lose good time if he or she violates any regulation of the jail or refuses or neglects to perform a required duty.

This bill allows a court to order that a prison inmate's mandatory release date be extended or that a jail inmate be deprived of good time if the court finds that the inmate commenced an action or special proceeding for a malicious purpose or solely to harass the other party or that the inmate testified falsely or provided false evidence or information to the court. The court must specify the number of days by which a inmate's mandatory release date is extended or the number of days of good time a jail inmate is to lose.

Discovery

Currently, parties to an action may obtain discovery by various methods, including depositions, interrogatories, production of documents and physical examinations. The frequency and use of these methods is not limited unless the court orders otherwise. Under this bill, in an action commenced by a prisoner, the prisoner may not obtain discovery before the court receives a copy of the defendant's responsive pleading, unless the court orders a party to submit to discovery. If the defendant waives his or her answer, or moves to dismiss the action, the prisoner may not obtain discovery until the court determines if the action may continue. Under the bill, any discovery by a prisoner is limited to what is essential to his or her case, and must result in minimal intrusion in the activities of the person subject to discovery. The bill limits the number of requests a prisoner may make for interrogatories, production of documents or admissions to 15, unless good cause is shown for additional requests.

Injunctive relief

Currently, as part of an action, a party may seek and receive a temporary injunction to prevent another person from committing some act after giving the other party a chance to comment regarding the injunction. This bill requires a court, before issuing an injunction in an action regarding prison or jail conditions, to give the attorney representing the prison or jail the opportunity for a hearing. Under the bill, any temporary injunction issued regarding prison or jail conditions expires 90 days after it is issued unless the court orders that the injunction be extended. The bill requires that the temporary injunction require only what is necessary to correct the harm, is the least intrusive means necessary to correct the harm and does not require a governmental official or agent to exceed his or her authority or violate state law or a local ordinance except under limited circumstances.

Appeals

The bill allows the appellate court to dismiss an appeal without requiring the reply by the respondent if the appeal is frivolous, used for an improper purpose, seeks monetary damages from a person immune from such damages or if there is no ground upon which relief may be granted.

Public records

Under current law, a person has the right to inspect and receive a copy of a public record. The custodian of the record may impose a fee for a copy of the record and may require prepayment if the fee imposed is over $5. This bill allows the custodian of the record to require prepayment of the fee if the copy of the record is requested by a person confined in a local, state or federal prison and that person has failed to pay any fee for a previously requested record. The bill also allows the custodian of the record to deny a request for a record made by a person confined in a local, state or federal prison if the person has not paid any fee imposed for a previously requested record.

Attorney general opinions