LRB-0210/2
RPN&JEO:kmg&md:ijs
1997 - 1998 LEGISLATURE
December 30, 1997 - Introduced by Senators Moen, Weeden, Roessler, Panzer,
Huelsman and Drzewiecki, cosponsored by Representatives Goetsch,
Musser, Staskunas, Robson, Skindrud, Hasenohrl, Ainsworth, Baumgart,
Hahn, Gunderson, Jeskewitz, Gronemus, Dobyns, Ladwig, Albers, Porter,
Green, Otte, Walker, Grothman, Sykora, Nass, Seratti, Brandemuehl,
Kedzie, Powers, Plouff, Ziegelbauer, F. Lasee, Olsen, Ott, Kaufert,
Harsdorf and Owens, by request of Attorney General James Doyle. Referred
to Committee on Judiciary, Campaign Finance Reform and Consumer Affairs.
SB388,1,11
1An Act to repeal 808.04 (5);
to renumber and amend 801.02 (7) and 807.04;
2to amend 19.35 (3) (f), 301.048 (3) (d), 302.11 (1), 302.11 (2) (c), 302.11 (7) (b),
3302.43, 303.07 (3), 304.06 (1) (b), 801.09 (2) (a), 802.06 (1), 802.06 (2) (a) (intro.),
4804.01 (1), 804.05 (1), 804.06 (1) (a), 804.08 (1) (a), 804.09 (2), 804.11 (1) (a),
5814.24, 814.245 (3), 814.29 (1) (a), 814.29 (3) (b), 893.16 (1) and 893.82 (3); and
6to create 19.35 (3) (g), 301.328, 302.11 (1q), 801.02 (7) (a), (b), (d) and (e), 802.05
7(3), 802.06 (1m), 804.015, 806.025, 807.04 (2), 807.15, 809.103, 813.02 (1) (c),
8813.40, 814.25, 814.29 (1m), 893.735, 893.82 (3m), 895.45 and 895.76 of the
9statutes;
relating to: litigation by persons incarcerated, imprisoned, confined
10or detained in a jail or prison, immunity from civil liability, the time period for
11the 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
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:
SB388, s. 1
1Section
1. 19.35 (3) (f) of the statutes is amended to read:
SB388,6,62
19.35
(3) (f) An authority may require prepayment by a requester of any fee or
3fees imposed under this subsection if the total amount exceeds $5
or if the requester
4is a prisoner, as defined in s. 301.01 (2), or is a person confined in a federal
5correctional institution located in this state, and he or she has failed to pay any fee
6that was imposed by the authority for a request made previously by that requester.
SB388, s. 2
7Section
2. 19.35 (3) (g) of the statutes is created to read:
SB388,6,118
19.35
(3) (g) If a prisoner, as defined in s. 301.01 (2), or a person confined in a
9federal correctional institution located in this state has failed to pay any fee imposed
10by the authority for a previous request, the authority may deny a request by the
11prisoner or person.
SB388, s. 3
12Section
3. 301.048 (3) (d) of the statutes is amended to read:
SB388,6,1713
301.048
(3) (d) A person may seek review of a final decision of the department
14of corrections, or of the division of hearings and appeals in the department of
15administration acting under s. 304.06 (3), relating to
denials of eligibility for or
16placement in sanctions
, or relating to discipline or revocation under or termination
17from the intensive sanctions program only by the common law writ of certiorari.