AB688: Bill Text

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

The bill provides immunity from civil liability for any public official, employe or agent for his or her acts or omissions committed in reliance upon a written opinion of the attorney general.

Litigation loans to prisoners

Under current law, DOC may make loans to a prisoner without sufficient funds in his or her general account to pay for paper, photocopying and postage for correspondence with courts, attorneys, parties in litigation, the inmate complaint review system or the parole board. Generally, no inmate may receive more than $200 in such loans annually, except that any amount of the debt the inmate repays during the year may be advanced to the inmate again and the $200 loan limit may be exceeded in cases of extraordinary need.

This bill provides that if a prisoner fails to repay a loan made by DOC to pay expenses associated with litigation commenced by the prisoner, the warden of the institution where the prisoner is located may submit, to the circuit court for the county in which the institution is located, a certification of the amount of the loans that are unpaid. The certified amount of the unpaid loans then becomes a judgment against the prisoner unless the prisoner submits a written objection within 20 days after the court receives the warden's certification. If the prisoner submits a written objection, the court must treat the objection as the commencement of a civil action by the prisoner, and the prisoner bears the burden of proving that the certified amount of the unpaid loans is incorrect.

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:

AB688, s. 1 Section 1. 19.35 (3) (f) of the statutes is amended to read:

AB688,6,6 19.35 (3) (f) An authority may require prepayment by a requester of any fee or fees imposed under this subsection if the total amount exceeds $5 or if the requester is a prisoner, as defined in s. 301.01 (2), or is a person confined in a federal correctional institution located in this state, and he or she has failed to pay any fee that was imposed by the authority for a request made previously by that requester.

AB688, s. 2 Section 2. 19.35 (3) (g) of the statutes is created to read:

AB688,6,11 19.35 (3) (g) If a prisoner, as defined in s. 301.01 (2), or a person confined in a federal correctional institution located in this state has failed to pay any fee imposed by the authority for a previous request, the authority may deny a request by the prisoner or person.

AB688, s. 3 Section 3. 301.048 (3) (d) of the statutes is amended to read:

AB688,6,17 301.048 (3) (d) A person may seek review of a final decision of the department of corrections, or of the division of hearings and appeals in the department of administration acting under s. 304.06 (3), relating to denials of eligibility for or placement in sanctions, or relating to discipline or revocation under or termination from the intensive sanctions program only by the common law writ of certiorari.

AB688, s. 4 Section 4. 301.328 of the statutes is created to read:

AB688,6,22 301.328 Judgment for litigation loans to prisoners. (1) In this section, "litigation loan" means a loan made to a prisoner by the department to pay for paper, photocopying, postage or other expenses associated with litigation commenced by the prisoner.

AB688,7,9 (2) If a prisoner fails to repay a litigation loan to the department, the warden of the institution where the prisoner is incarcerated, imprisoned, confined or detained may submit a certification under oath to the clerk of circuit court in the county where the institution is located. The certification shall state the amount of litigation loans unpaid, the name and location of the prisoner and such other information as the court considers necessary. The court shall order that the amount certified by the warden be a judgment on behalf of the state and against the prisoner if the prisoner fails to submit a written objection to the court within 20 days after the court receives the certification from the warden. If the prisoner timely submits a written objection to the certification, the court shall consider the objection to be a complaint in a civil action and proceed under the rules of procedure under ch. 799, without requiring the service of a summons or the payment of filing fees.

AB688,7,13 (3) At the same time that the warden submits the certification to the court, the warden shall provide the prisoner with a copy of the certification. The warden shall attach to the certification provided to the prisoner a notice informing the prisoner of all of the following:

AB688,7,17 (a) That if the prisoner fails to submit a written objection to the court within 20 days after the court receives the certification from the warden, the court shall order that the amount certified by the warden be a judgment on behalf of the state and against the prisoner.

AB688,7,19 (b) The name and address of the circuit court where the certification was submitted.

AB688,7,22 (c) That if the prisoner timely objects to the certification, the objection will be considered a complaint for purposes of the commencement of a civil suit under ch. 799.

AB688,7,24 (d) That the prisoner is required to submit a copy of the objection to the warden at the time he or she submits the objection to the clerk of circuit court.

AB688, s. 5 Section 5. 302.11 (1) of the statutes is amended to read:

AB688,8,6 302.11 (1) The warden or superintendent shall keep a record of the conduct of each inmate, specifying each infraction of the rules. Except as provided in subs. (1g), (1m), (1q), (7) and (10), each inmate is entitled to mandatory release on parole by the department. The mandatory release date is established at two-thirds of the sentence. Any calculations under this subsection or sub. (1q) (b) or (2) (b) resulting in fractions of a day shall be rounded in the inmate's favor to a whole day.

AB688, s. 6 Section 6. 302.11 (1q) of the statutes is created to read:

AB688,8,11 302.11 (1q) (a) An inmate who files an action or special proceeding, including a petition for a common law writ of certiorari, to which s. 807.15 applies shall have his or her mandatory release date extended by the number of days specified in the court order prepared under s. 807.15 (3).

AB688,8,14 (b) Upon receiving a court order issued under s. 807.15, the department shall recalculate the mandatory release date of the inmate to whom the order applies and shall inform the inmate of his or her new mandatory release date.

AB688, s. 7 Section 7. 302.11 (2) (c) of the statutes is amended to read:

AB688,8,17 302.11 (2) (c) No extension under this section subsection may require the inmate to serve more days in prison than provided for under the sentence.

AB688, s. 8 Section 8. 302.11 (7) (b) of the statutes is amended to read:

AB688,9,2 302.11 (7) (b) A parolee returned to prison for violation of the conditions of parole shall be incarcerated for the entire period of time determined by the department of corrections in the case of a waiver or the division of hearings and appeals in the department of administration in the case of a hearing under par. (a), unless paroled earlier under par. (c). The parolee is not subject to mandatory release under sub. (1) or presumptive mandatory release under sub. (1g). The period of time determined under par. (a) may be extended in accordance with sub. subs. (1q) and (2).

AB688, s. 9 Section 9. 302.43 of the statutes is amended to read:

AB688,9,15 302.43 Good time. Every inmate of a county jail is eligible to earn good time in the amount of one-fourth of his or her term for good behavior if sentenced to at least 4 days, but fractions of a day shall be ignored. An inmate shall be given credit for time served prior to sentencing under s. 973.155, including good time under s. 973.155 (4). An inmate who violates any law or any regulation of the jail, or neglects or refuses to perform any duty lawfully required of him or her, may be deprived by the sheriff of good time under this section, except that the sheriff shall not deprive the inmate of more than 2 days good time for any one offense without the approval of the court. An inmate who files an action or special proceeding, including a petition for a common law writ of certiorari, to which s. 807.15 applies shall be deprived of the number of days of good time specified in the court order prepared under s. 807.15 (3).

AB688, s. 10 Section 10. 303.07 (3) of the statutes is amended to read:

AB688,9,24 303.07 (3) Each prisoner serving a sentence under this section who could have been sentenced to a state prison is subject to s. 302.11 (1), (1g) , (1q) and (2). Each prisoner serving such a sentence may be transferred to a state prison upon recommendation of the superintendent and approval of the department. The county board may, pursuant to its regulations approved by the department, extend to all other prisoners similar pecuniary earnings and rewards, subject to similar conditions and limitations as those prescribed by s. 302.12 for prisoners in the Wisconsin state prisons.

AB688, s. 11 Section 11. 304.06 (1) (b) of the statutes is amended to read:

AB688,10,15 304.06 (1) (b) Except as provided in sub. (1m) or s. 302.045 (3), 961.49 (2) or 973.0135, the parole commission may parole an inmate of the Wisconsin state prisons or any felon or any person serving at least one year or more in a county house of correction or a county reforestation camp organized under s. 303.07, when he or she has served 25% of the sentence imposed for the offense, or 6 months, whichever is greater. Except as provided in s. 939.62 (2m) or 973.014, the parole commission may parole an inmate serving a life term when he or she has served 20 years, as modified by the formula under s. 302.11 (1) and subject to extension using the formulas under s. 302.11 (2) (1q) and (2), if applicable. The person serving the life term shall be given credit for time served prior to sentencing under s. 973.155, including good time under s. 973.155 (4). The secretary may grant special action parole releases under s. 304.02. The department or the parole commission shall not provide any convicted offender or other person sentenced to the department's custody any parole eligibility or evaluation until the person has been confined at least 60 days following sentencing.

AB688, s. 12 Section 12. 801.02 (7) of the statutes is renumbered 801.02 (7) (c) and amended to read:

AB688,11,3 801.02 (7) (c) No prisoner, as defined in s. 301.01 (2), may commence a civil action or special proceeding against an officer, employe or agent of the department of corrections in his or her official capacity or as an individual for acts or omissions committed while carrying out his or her duties as an officer, employe or agent or while acting within the scope of his or her office, employment or agency , including a petition for a common law writ of certiorari, with respect to the prison or jail conditions in the facility in which he or she is or has been incarcerated, imprisoned or detained until the person has exhausted any all available administrative remedies that the department of corrections has promulgated by rule. Except for petitions for a common law writ of certiorari, a prisoner commencing an action or special proceeding shall first comply with the provisions of s. 893.80 or 893.82.

AB688, s. 13 Section 13. 801.02 (7) (a), (b), (d) and (e) of the statutes are created to read:

AB688,11,5 801.02 (7) (a) In this subsection:

AB688,11,11 1. "Correctional institution" means any state or local facility that incarcerates or detains any adult accused of, charged with, convicted of, or sentenced for any crime or that incarcerates or detains any juvenile alleged to be delinquent or adjudicated to be delinquent on the basis of conduct that, if committed by an adult, would be a crime. A correctional institution includes a Type 1 prison, as defined in s. 301.01 (5), a Type 2 prison, as defined in s. 301.01 (6), a county jail and a house of correction.

AB688,11,14 2. "Prisoner" means any person who is incarcerated, imprisoned or otherwise detained in a correctional institution or who is arrested or otherwise detained by a law enforcement officer.

AB688,11,17 3. "Prison or jail conditions" means any matter related to the conditions of confinement or to the effects of actions by government officers, employes or agents on the lives of prisoners, but excluding the fact or duration of the confinement.

AB688,11,19 (b) Review by the common law writ of certiorari is a prisoner's exclusive remedy for doing any of the following:

AB688,11,21 1. Challenging the validity of a decision relating to prisoner discipline, the revocation of probation or the denial or revocation of parole.

AB688,11,25 2. Challenging the disposition of a complaint concerning prison or jail conditions, including a complaint concerning a program assignment, institution assignment or security classification, for which there is an adequate administrative remedy.

AB688,12,12 (d) At the time of filing the initial pleading to commence an action or special proceeding, including a petition for a common law writ of certiorari, related to prison or jail conditions, a prisoner shall include, as part of the initial pleading, documentation showing that he or she has exhausted all available administrative remedies. The documentation shall include copies of all of the written materials that he or she provided to the administrative agency as part of the administrative proceeding and all of the written materials the administrative agency provided to him or her related to that administrative proceeding. The documentation shall also include all written materials included as part of any administrative appeal. The court shall deny a prisoner's request to proceed without the prepayment of fees and costs under s. 814.29 (1m) if the prisoner fails to comply with this paragraph or if the prisoner has failed to exhaust all available administrative remedies.

AB688,12,21 (e) The court shall dismiss any action or special proceeding, including a petition for a common law writ of certiorari, commenced by any prisoner if that prisoner has, on 3 or more prior occasions, while he or she was incarcerated, imprisoned, confined or detained in a jail or prison, brought an appeal, writ of error, action or special proceeding, including a petition for a common law writ of certiorari, that was dismissed by a state or federal court for any of the reasons listed in s. 802.05 (3) (b) 1. to 4. The court may permit a prisoner to commence the action or special proceeding, notwithstanding this paragraph, if the court determines that the prisoner is in imminent danger of serious physical injury.

AB688, s. 14 Section 14. 801.09 (2) (a) of the statutes is amended to read:

AB688,13,3 801.09 (2) (a) Within 20 days, or within 45 days if the defendant is the state or an officer, agent, employe or agency of the state in an action or special proceeding brought within the purview of s. 893.82 or 895.46, exclusive of the day of service, after the summons has been served personally upon the defendant or served by substitution personally upon another authorized to accept service of the summons for the defendant; or

AB688, s. 15 Section 15. 802.05 (3) of the statutes is created to read:

AB688,13,7 802.05 (3) (a) A court shall review the initial pleading as soon as practicable after the action or special proceeding is filed with the court if the action or special proceeding is commenced by a prisoner, as defined in s. 801.02 (7) (a) 2.

AB688,13,10 (b) The court may dismiss the action or special proceeding without requiring the defendant to answer the pleading if the court determines that the action or special proceeding meets any of the following conditions:

AB688,13,11 1. Is frivolous, as determined under s. 814.025 (3).

AB688,13,13 2. Is used for any improper purpose, such as to harass, to cause unnecessary delay or to needlessly increase the cost of litigation.

AB688,13,14 3. Seeks monetary damages from a defendant who is immune from such relief.

AB688,13,15 4. Fails to state a claim upon which relief may be granted.

AB688,13,19 (c) If a court dismisses an action or special proceeding under par. (b), the court shall notify the department of justice or the attorney representing the political subdivision, as appropriate, of the dismissal by a procedure developed by the director of state courts in cooperation with the department of justice.

AB688,13,22 (d) The dismissal of an action or special proceeding under par. (b) does not relieve the prisoner from paying the full filing fee related to that action or special proceeding.