Discovery
Currently, parties to a lawsuit may obtain evidence (discovery) by various
methods, including depositions, interrogatories (submission of written questions),
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 a lawsuit
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 lawsuit, the prisoner may not obtain discovery until the court determines
whether the lawsuit may continue. Under the bill, any discovery by a prisoner is
limited to what is essential to his or her case and may intrude only minimally in the
activities of the person subject to discovery. The bill limits the number of requests
a prisoner may make for discovery materials 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 court
order (injunction) to prevent another person from committing some act after giving
the other party a chance to comment regarding the proposed 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 specifies that the temporary injunction may require
only what is necessary to correct the harm, must be the least intrusive means
necessary to correct the harm and may 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
This bill allows an appellate court to dismiss an appeal without requiring a
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. Currently, the appellate court reviews the case
after the receipt of arguments from both parties.
Public records
Under current law, any person has the right to inspect and receive a copy of a
public record. Incarcerated persons do not have that right except in very limited
circumstances. 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 or to deny a request for a
record 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.
Litigation loans to prisoners
Under current law, DOC may make loans to a prisoner without sufficient funds
to pay for paper, photocopying and postage for correspondence with courts,
attorneys, parties in litigation, the inmate complaint review system or the parole
board.
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 certify to the circuit court for the county
in which the institution is located the amount of the loans that are unpaid. The
certified amount constitutes a judgment against the prisoner unless the prisoner
submits a written objection to the certification. The prisoner's written objection
serves to commence a civil lawsuit by the prisoner, and the prisoner bears the burden
of proving that the certified amount is incorrect.
Petitions for a writ of habeas corpus
Currently, a person may petition a court for a writ of habeas corpus if he or she
believes that he or she is unlawfully imprisoned or otherwise subject to an unlawful
restriction on his or her liberty. However, under current law a person generally may
not use a habeas corpus proceeding to challenge a commitment or detention under
a final judgment or order of any competent tribunal of civil or criminal jurisdiction.
In addition, a writ of habeas corpus is generally not available if there is another legal
procedure that the person may use to challenge the restriction on his or her liberty.
For example, a person who is in custody under a sentence of imprisonment may not
use a habeas corpus proceeding to seek relief from the sentence unless he or she has
first filed a motion for postconviction relief with the sentencing court, unless such a
motion is inadequate or ineffective to test the legality of the imprisonment.
Current law does not provide a specific time limit for filing a petition for a writ
of habeas corpus, although a court may dismiss a petition if there is an unreasonable
delay in filing the petition. Upon receiving a petition for a writ of habeas corpus, the
court must issue the writ and require the person who has custody of the petitioner
to appear in court with the petitioner so that the court can make a determination of
the legality of the restriction on the petitioner's liberty. If there is no legal cause
shown for the restriction, the court must order the petitioner discharged from the
restriction.
This bill makes the following changes relating to petitions for a writ of habeas
corpus:
1. The bill provides that a person may not file a petition for a writ of habeas
corpus to challenge a revocation of probation or parole or a denial of parole if there
is another adequate legal remedy available to challenge the revocation or denial. The
bill also provides that no person is entitled to a writ of habeas corpus unless he or she
has first sought relief using any adequate remedies that are available through state
administrative agencies.
2. The bill provides a time limit for a person to file a petition for a writ of habeas
corpus if the person is imprisoned in a prison or jail and is seeking relief from a
judgment of conviction for a crime, from a sentence for a crime, from a revocation of
parole or probation or from an action by a government officer, employe or agent that
affects the person's imprisonment or status as a probationer or parolee. The person
must file the petition within one year of whichever of the following happens last: a)
the time expires for appealing or seeking postconviction relief or, if the person did
appeal or seek postconviction relief, the final adjudication of the appeal or
postconviction proceeding; b) the date on which any state law that prevented the
person from filing a petition is declared to be unconstitutional; c) if the petition is
based on a newly recognized rule of constitutional law, the date on which that rule
was recognized by a court; or d) the date on which the facts on which the petition is
based could have been discovered by the petitioner through the exercise of due
diligence.
3. The bill restricts successive petitions by a person who is imprisoned in a
prison or jail and seeking relief from a judgment of conviction for a crime, from a
sentence for a crime, from a revocation of parole or probation or from an action by a
government officer, employe or agent that affects the person's imprisonment or
status as a probationer or parolee. If the person has previously filed a petition, he
or she may not file another petition based on a claim that was raised in the previous
habeas corpus proceeding. In addition, the person may not file a petition raising a
claim that was not raised in the previous petition unless the later petition is based
on a new, retroactive rule of constitutional law or the facts on which the petition is
based were not previously discoverable and establish that, absent some
constitutional error in the proceeding leading to the imprisonment, no reasonable
factfinder would have found against the petitioner.
4. The bill provides that a court hearing a habeas corpus petition is bound as
to all issues of law and fact decided by the final adjudication of an appeal,
postconviction motion or other proceeding undertaken to challenge the
imprisonment unless there is a material fact that did not appear in the record of the
appeal, postconviction motion or other proceeding, the fact would probably change
the outcome of the appeal, postconviction motion or other proceeding and by
exercising due diligence the petitioner could not have caused that fact to appear in
the record.
5. Finally, the bill prohibits a court from granting a default judgment
discharging the petitioner in a habeas corpus proceeding if the person who has
custody of the petitioner fails to appear in court with the petitioner for the hearing
on the legality of the restriction on the petitioner's liberty. Instead, the bill requires
the court to use existing methods of compelling the person to appear with the
petitioner and, if necessary, to hold a hearing on the legality of the restriction before
ordering the petitioner discharged.
EDUCATION
Primary and secondary education
Current law requires the state superintendent of public instruction to adopt or
approve examinations designed to measure pupil attainment of knowledge and
concepts in the 4th and 8th grades. Each school board must administer the 4th and
8th grade examinations each year.
Beginning with examinations administered in the 2002-03 school year, this bill
allows a school board to adopt and administer its own 4th and 8th grade
examinations in addition to the state-approved examinations. Beginning in the
2002-03 school year, the bill prohibits a school board from promoting a 4th grade
pupil to the 5th grade or an 8th grade pupil to the 9th grade unless the pupil passes
(scores at the basic level or above, as determined by the state superintendent) the
state examination or, if the school district also administers its own examination,
passes that examination. A pupil who is excused from taking the examination
required for promotion must satisfy alternative criteria developed by the school
board in order to be promoted.
Beginning in the 1999-2000 school year, this bill directs the department of
public instruction (DPI) to pay to each licensed teacher who becomes certified by the
National Board for Professional Teaching Standards while employed as a teacher in
this state $3,000 plus an amount equal to one-half the costs of obtaining national
certification. The bill also prohibits DPI from requiring a licensed teacher who has
received national certification in the preceding 5 years to earn continuing
professional education credits or their equivalent in order to renew his or her
teaching license.
This bill authorizes DPI to award grants to cooperative educational service
agencies (CESAs), which provide services to school districts, and to consortia
consisting of 2 or more school districts or CESAs to provide technical assistance and
training for teachers to implement peer review and mentoring programs. DPI may
not award more than $25,000 to an applicant in a fiscal year. As a condition of
receiving the grant, each CESA or consortium must provide matching funds in an
amount equal to at least 20% of the amount of the grant awarded. The matching
funds may be in the form of money or in-kind services or both.
Under current law, beginning in the 1998-99 fiscal year the joint committee on
finance (JCF) determines the amount appropriated as general school aid. This bill
specifies the amount appropriated as general aid in the 1998-99 fiscal year and
directs JCF to determine the amount in each fiscal year thereafter.
Higher education
The department of administration (DOA) currently administers the college
tuition prepayment program. Under the program, an individual may contract with
DOA to purchase tuition units on behalf of a beneficiary named in the contract. DOA
may not enter into more than one contract on behalf of the same beneficiary. Either
the individual or the beneficiary must be a Wisconsin resident, and the beneficiary
must be the child or grandchild of the individual. To the extent possible, the cost of
each tuition unit, which is determined by DOA, must be an amount that, in the
academic year in which the beneficiary intends to enroll in an accredited institution
of higher education, is equal to 1% of the weighted average tuition of bachelor's
degree-granting institutions within the University of Wisconsin (UW) System.
When the beneficiary enrolls in an accredited institution of higher education in the
United States, each tuition unit purchased on his or her behalf entitles the
beneficiary to apply toward tuition at the institution an amount equal to 1% of the
weighted average tuition of bachelor's degree-granting institutions within the UW
System in that academic year, as estimated at the time of purchase.
This bill makes the following changes to the program:
1. The bill allows the beneficiary to be the nephew or niece of the individual
purchasing the tuition units.
2. The bill allows an individual to purchase tuition units on his or her own
behalf; allows a legal guardian to purchase on behalf of a child who is under the legal
guardianship of the legal guardian; and allows a trust to purchase on behalf of the
beneficiary of the trust.
3. The bill requires that the beneficiary or the individual purchasing the units
be a Wisconsin resident; if the purchaser is a legal guardian that is not an individual,
the legal guardian must be organized under the laws of this state; and if the
purchaser is a trust, the trust must be created under the laws of this state.
4. The bill allows a purchaser to purchase a sufficient number of tuition units
to cover the cost of mandatory student fees in addition to the cost of tuition.
5. The bill allows DOA to adjust the value of a tuition unit based on actual
earnings, less expenses, if the beneficiary wishes to use the unit in a year other than
the year specified in the purchase contract, or if the beneficiary or the purchaser
wishes to receive a refund in a year other than the one specified in the purchase
contract.
6. The bill allows DOA to impose refund deductions or to increase the specified
refund deductions if DOA determines that such action is necessary to maintain the
program's status as a qualified state tuition program under federal law. Under a
qualified state tuition program, federal income taxes on program earnings are
deferred.
7. The bill allows DOA to keep personal and financial information pertaining
to a purchaser or to a beneficiary closed to the public. Currently, such information
is open to the public unless DOA demonstrates that the public interest in
withholding the information outweighs the strong public interest in providing access
to it.
8. Finally, the bill eliminates the prohibition against DOA entering into more
than one contract on behalf of the same beneficiary.
This bill authorizes a technical college district board to lease facilities to others
for school purposes. No lease may be entered into after June 30, 1999.
Other educational and cultural agencies
Under current law, the technology for educational achievement in Wisconsin
board administers an educational telecommunications access program under which
the board pays a specified portion of the cost for a school district to obtain access to
a data circuit providing access to the internet or to a 2-way interactive video circuit.
If a school district had in effect on October 14, 1997, a contract for obtaining such
access, the school district is not eligible for assistance under the program. However,
until June 30, 2002, the board may award an annual grant to such a school district
that equals the amount of assistance that the school district would receive if it were
participating in the program.
This bill specifies that an annual grant awarded to a school district that is not
eligible to participate in the program may not be greater than the cost that the school
district incurs under the contract that it had in effect on October 14, 1997.
Employment
Under current law, in local government employment other than law
enforcement and fire fighting employment, if a dispute relating to the terms of a
proposed collective bargaining agreement has not been settled after a reasonable
period of negotiation and after mediation by the Wisconsin employment relations
commission (WERC), either party, or the parties jointly, may petition WERC to
initiate compulsory, final and binding arbitration by an arbitrator or arbitration
panel with respect to any dispute relating to wages, hours and conditions of
employment. If WERC determines, after investigation, that an impasse exists,
arbitration is required. An arbitrator or arbitration panel must adopt the final offer
of one of the parties on all disputed issues, which is then incorporated into the
collective bargaining agreement.
Under current law, however, this process does not apply to a dispute over
economic issues involving a collective bargaining unit consisting of school district
professional employes if WERC determines, subsequent to an investigation, that the
employer has submitted a qualified economic offer (QEO). Under current law, a QEO
consists of a proposal to maintain the percentage contribution by the employer to the
employes' existing fringe benefit costs and the employes' existing fringe benefits and
to generally provide, with certain exceptions, for an annual average salary increase
having a cost to the employer at least equal to 2.1% of the existing total compensation
and fringe benefit costs for the employes in the collective bargaining unit.
This bill revises the QEO provisions in current law, providing that a QEO
consists of a proposal to maintain the percentage contribution by the employer to the
employes' existing fringe benefit costs and the employes' existing fringe benefits and
to provide for an annual average salary increase having a cost to the employer at
least equal to 2.1% of the existing total compensation and fringe benefit costs for the
employes in the collective bargaining unit plus any fringe benefit savings. Under the
bill, fringe benefit savings is that amount, if any, by which 1.7% of the total
compensation and fringe benefit costs for all employes in a collective bargaining unit
for any 12-month period covered by a proposed collective bargaining agreement
exceeds the increased cost required to maintain the percentage contribution by the
employer to the employes' existing fringe benefit costs and to maintain all fringe
benefits provided to the employes.
Environment
Hazardous substances and environmental cleanup
Under current law, the owners of certain dry cleaning facilities are eligible to
be reimbursed by the department of natural resources (DNR) for a portion of the costs
of interim remedial equipment to begin the cleanup of dry cleaning solvent
discharges before the completion of full cleanup plans. An owner who is eligible for
reimbursement for this interim remedial equipment is not required to complete the
cleanup until funding is available to reimburse the owner for the costs of the
completion of the cleanup.
This bill eliminates the provision that allows the owner of a dry cleaning facility
who is eligible for reimbursement for interim remedial equipment to delay the rest
of the cleanup until reimbursement is available for the costs of the completion of the
cleanup.
Current law limits a qualified party's liability for property contaminated with
a hazardous substance. This exemption from liability does not apply to any
hazardous waste disposal facility that has been issued a license for a period of
long-term care following closure of the facility if the license was issued on or before
October 14, 1997.
Under this bill, this exemption from liability does not apply to any hazardous
waste disposal facility that has been issued a license for a period of long-term care
following closure of the facility, regardless of when the license was issued.
Under current law, DNR may agree to limit a party's financial liability for
cleaning up property that is contaminated by a hazardous substance if the party
acquired the contaminated property from a municipality that acquired the
contaminated property: 1) through tax delinquency proceedings; 2) as the result of
an order of a bankruptcy court; or 3) from another municipality that acquired the
contaminated property in such a manner.
Under this bill, DNR may agree to limit a party's financial liability for cleaning
up contaminated property if the party acquired the property from a municipality that
acquired the contaminated property: 1) through condemnation proceedings; 2) for
the purpose of slum clearance or blight elimination; or 3) from another municipality
that acquired the contaminated property in such a manner.
Under current law, a local governmental unit (a municipality or a qualified
redevelopment authority, public urban renewal body or housing authority) is exempt
from certain environmental liabilities if the local governmental unit acquired the
property: 1) through tax delinquency proceedings; 2) as the result of an order of a
bankruptcy court; 3) through condemnation proceedings; 4) for purposes of slum
clearance or blight elimination; or 5) from another local governmental unit that
acquired the contaminated property in one of those 4 ways. However, as discussed
above, a party that acquires the contaminated property is entitled to limit its
financial liability for cleaning up the property only if the party acquires the
contaminated property from a municipality. A party that acquires contaminated
property from a qualified redevelopment authority, public urban renewal body or
housing authority is not able to limit its financial liability under an agreement with
DNR. This bill allows a party to limit its financial liability for cleaning up
contaminated property under an agreement with DNR if the party acquired the
property from such an authority or body that acquired the contaminated property in
one of the 5 ways listed above.
Under current law, the department of commerce administers PECFA, a
program to reimburse owners of certain petroleum product storage tanks for a
portion of the costs of cleaning up discharges from those tanks. Under current law,
a person who contests a decision of the department of commerce under PECFA is
entitled to an administrative hearing. The decision after a hearing is made in writing
and may be appealed to the courts.
This bill allows a person who contests a decision of the department of commerce
under PECFA to choose arbitration, rather than an administrative hearing, if the
amount at issue is $20,000 or less. The decision is subject to court review only on the
ground that the decision was obtained by corruption or fraud.
Water quality
Under the clean water fund program, this state provides financial assistance
for projects to control water pollution, including sewage treatment plants and
sewage collection systems. Under this program, the state provides financial
hardship assistance using only state funds to communities that meet certain
financial criteria to reduce the costs of financing projects below the costs that would
be incurred using the usual clean water fund assistance. A federal law enacted in
1996 established a hardship grants program for rural communities under which
states may receive federal grants to improve wastewater treatment services in poor,
rural communities with populations of 3,000 or fewer.
This bill establishes eligibility criteria, consistent with federal law, for federal
hardship assistance under the clean water fund program. Under the bill, the amount
of subsidy provided to a community receiving federal hardship assistance equals the
amount of subsidy that the community would receive as state hardship assistance
under current law.
Health and social services
Alcohol and other drug abuse
Under current law, the department of health and family services (DHFS) is
required to distribute to counties, from substance abuse prevention and treatment
funds received from the federal government (SAPT funds), not more than $9,702,400
in fiscal year 1997-98 and not more than $8,641,100 in fiscal year 1998-99 for the
prevention and treatment of substance abuse. This bill requires DHFS to distribute,
from SAPT funds, not more than an additional $791,500 in fiscal year 1997-98 and
not more than an additional $1,583,000 in fiscal year 1998-99 to Milwaukee County.
Children
This bill makes various changes relating to children in out-of-home care,
termination of parental rights (TPR) and adoption to conform Wisconsin law to Title
IV-E of the federal Social Security Act, as affected by the federal Adoption and Safe
Families Act of 1997.
Specifically, under current law, if an order of the juvenile court places a child
outside of his or her home, the order must include a finding as to whether the county
department of human services or social services (county department), DHFS, in a
county having a population of 500,000 or more, or the agency primarily responsible
for providing services under a juvenile court order (agency) has made reasonable
efforts to prevent the removal of the child from the home or, if applicable, to make
it possible for the child to return to his or her home.
This bill requires an agency, if a child is placed outside of his or her home, to
have made reasonable efforts to prevent the removal of the child from the home,
while assuring that the health and safety of the child are the paramount concerns, or,
if applicable, to make reasonable efforts to make it possible for the child to return
safely to his or her home. The bill also permits an agency, at the same time as the
agency is making those reasonable efforts, to work with an agency authorized to
place the child for adoption in making reasonable efforts to place the child for
adoption, with a guardian or in some other alternative permanent placement.
The bill also specifies certain circumstances under which an agency is not
required to make those reasonable efforts. Specifically, an agency is not required to
make those reasonable efforts with respect to a parent if the juvenile court finds that
the parent has subjected his or her child to aggravated circumstances, which include
abandonment, torture, chronic abuse and sexual abuse; that the parent has
committed first-degree intentional or reckless homicide, felony murder or
2nd-degree intentional homicide and that the victim of that homicide or felony
murder is a child of the parent; that the parent has committed battery, first-degree
or 2nd-degree sexual assault, sexual assault of a child, repeated sexual assault of a
child or child abuse and that violation has resulted in great bodily harm or
substantial bodily harm to a child of the parent; or that the parental rights of the
parent to another child have been involuntarily terminated. If a juvenile court
determines that an agency is not required to make those reasonable efforts, the
juvenile court must hold a hearing within 30 days after that determination to
determine a permanency plan, as described below, for the child.
Under current law, if a child is placed outside of his or her home, DHFS, the
county department or the licensed child welfare agency that placed the child or
arranged the placement of the child or the agency primarily responsible for providing
services for the child must prepare a permanency plan for the child that describes,
among other things, the services provided for the child and his or her family and the
conditions, if any, upon which the child will be returned to his or her home. The
juvenile court or a panel appointed by the juvenile court must review the
permanency plan every 6 months to determine, among other things, the continuing
necessity and appropriateness of the child's placement, the progress being made
under the plan and whether reasonable efforts are being made to make it possible
for the child to return to his or her home.
This bill requires a permanency plan and a permanency plan review to address
the safety of a child's placement and the safety of returning the child to his or her
home. The bill also requires a permanency plan to describe the efforts made by the
agency to place the child for adoption, with a guardian or in some other alternative
permanent placement, if the permanency plan calls for such a placement.
Current law provides various grounds for involuntary TPR. Those grounds
include different forms of abandonment and the commission of a serious felony
against a child of the parent. A serious felony for these purposes is first-degree
intentional or reckless homicide, felony murder, 2nd-degree intentional homicide,
first-degree or 2nd-degree sexual assault, sexual assault of a child, intentional or
reckless child abuse causing great bodily harm, sexual exploitation of a child, incest,
soliciting a child for prostitution or child neglect, if death is a consequence of the
neglect.
This bill provides that abandonment of an infant, that is, leaving a child under
3 years of age without provision for the child's care or support, is a ground for
involuntary TPR. The bill also provides that the commission of a battery causing
great bodily harm or substantial bodily harm to a child of the parent is a ground for
involuntary TPR.
In addition, subject to certain exceptions, the bill requires DHFS, a county
department or a licensed child welfare agency, or the district attorney, corporation
counsel or other appropriate official designated by the county board to prosecute TPR
proceedings (person responsible for filing TPR petitions), to file a TPR petition with
respect to a child or, if a TPR petition with respect to a child has already been filed,
to join in the petition if the child has been placed in an out-of-home placement for
15 of the last 22 months, if the child was abandoned as an infant or if the parent has
committed a serious felony against a child of the parent. A person responsible for
filing TPR petitions need not file or join in a TPR petition with respect to such a child,
however, if the child is being cared for by a relative, if a TPR is not in the best interests
of the child or if the agency primarily responsible for providing services to the child
and the family, consistent with the time period in the child's permanency plan, has
not provided the services necessary for the safe return of the child to the home. The
bill requires the person responsible for filing TPR petitions in each county to file, or
join in, a TPR petition for not less than 33% of the children in the county who, as of
November 17, 1997, have been placed in out-of-home care for 15 out of the last 22
months by July 1, 1999, for not less than 67% of those children by January 1, 2000,
and for all of those children by July 1, 2000.
