AB380: Bill Text

AB380,89,2 782.28 (title) Transfer from circuit court commissioner. If the writ is returnable before a circuit court commissioner, either party may make a request for transfer to the court in which the matter is filed. Upon receipt of such request the circuit court commissioner shall forthwith transmit all papers and records in the proceedings to the court.

AB380, s. 234 Section 234. 799.03 of the statutes is amended to read:

AB380,89,5 799.03 Definition. In this chapter unless otherwise designated, "court" means circuit court and "court" does not mean circuit court commissioner.

AB380, s. 235 Section 235. 799.05 (7) (intro.) of the statutes is amended to read:

AB380,89,11 799.05 (7) (title) Form; circuit court commissioner. (intro.) Except as provided in s. 799.22 (4) (b) 3., in counties establishing at least one part-time or full-time court commissioner position under s. 757.68 (1) (b) in which a circuit court commissioner is assigned to assist in small claims matters, the summons shall be substantially in the following form:

AB380, s. 236 Section 236. 799.06 (1) of the statutes is amended to read:

AB380,89,15 799.06 (1) Pleadings. All pleadings except the initial complaint may be oral. Any circuit court may by rule require written pleadings and any judge or circuit court commissioner may require written pleadings in a particular case.

AB380, s. 237 Section 237. 799.11 (3) of the statutes is amended to read:

AB380,89,23 799.11 (3) When, in any action under this chapter, it appears from the return of service of the summons or otherwise that the county in which the action is pending is not a proper place of trial and that another county would be a proper place of trial, the court or circuit court commissioner shall, on motion of a party or its own motion, transfer the action to that county unless the defendant appears and waives the improper venue. The clerk of the court to which the action is transferred shall issue a new notice of return date upon payment of the fee required by s. 814.61 (2) (a).

AB380, s. 238 Section 238. 799.20 (4) of the statutes is amended to read:

AB380,90,8 799.20 (4) Inquiry of defendant who appears on return date. If the defendant appears on the return date of the summons or any adjourned date thereof, the court or circuit court commissioner shall make sufficient inquiry of the defendant to determine whether the defendant claims a defense to the action. If it appears to the court or circuit court commissioner that the defendant claims a defense to the action, the court or circuit court commissioner shall schedule a trial of all the issues involved in the action, unless the parties stipulate otherwise or the action is subject to immediate dismissal.

AB380, s. 239 Section 239. 799.206 (1), (2) and (4) of the statutes are amended to read:

AB380,90,15 799.206 (1) In counties establishing at least one part-time or full-time a circuit court commissioner position under s. 757.68 (1) (b) (5m), all actions and proceedings commenced under this chapter shall be returnable before a circuit court commissioner appointed under s. 757.68 (1) and SCR chapter 75. In any other county, a circuit court commissioner may conduct return date proceedings if delegated such authority under s. 757.69 (1) (d).

AB380,90,17 (2) Judgment on failure to appear may be entered by the circuit court commissioner or the clerk upon the return date as provided in s. 799.22.

AB380,90,19 (4) Except as provided in sub. (3), the circuit court commissioner shall hear all matters using the procedures set forth in s. 799.207.

AB380, s. 240 Section 240. 799.207 (title) of the statutes is amended to read:

AB380,90,21 799.207 (title) Proceedings before circuit court commissioner.

AB380, s. 241 Section 241. 799.207 (1) (a) of the statutes is amended to read:

AB380,90,25 799.207 (1) (a) Any circuit court commissioner assigned to assist in the administration of small claims matters may hold a conference with the parties or their attorneys or both on the return date, examine pleadings and identify issues.

AB380, s. 242 Section 242. 799.207 (1) (b) of the statutes is amended to read:

AB380,91,6 799.207 (1) (b) Except as provided in par. (e), a decision shall be rendered by the circuit court commissioner on the return date if there is time available for a hearing, the parties do not intend to call witnesses, and the parties agree to such a hearing. If for any of the reasons stated in this paragraph, the matter cannot be heard on the return date, an adjourned date shall be set.

AB380, s. 243 Section 243. 799.207 (1) (e) of the statutes is amended to read:

AB380,91,10 799.207 (1) (e) If the circuit court commissioner cannot reach a decision on the return or adjourned date, the commissioner shall mail the decision to each party within 30 days of the date of the hearing.

AB380, s. 244 Section 244. 799.207 (2) (intro.) of the statutes is amended to read:

AB380,91,14 799.207 (2) (intro.) The circuit court commissioner's decision shall become a judgment 11 days after rendering, if oral, and 16 days after mailing, if written, except that:

AB380, s. 245 Section 245. 799.207 (3) (b) of the statutes is amended to read:

AB380,91,18 799.207 (3) (b) The circuit court commissioner shall give each of the parties a form and instructions which shall be used for giving notice of an election to have the matter heard by the court.

AB380, s. 246 Section 246. 799.209 (1) to (4) of the statutes are amended to read:

AB380,91,23 799.209 (1) The court or circuit court commissioner shall conduct the proceeding informally, allowing each party to present arguments and proofs and to examine witnesses to the extent reasonably required for full and true disclosure of the facts.

AB380,92,5 (2) The proceedings shall not be governed by the common law or statutory rules of evidence except those relating to privileges under ch. 905 or to admissibility under s. 901.05. The court or circuit court commissioner shall admit all other evidence having reasonable probative value, but may exclude irrelevant or repetitious evidence or arguments. An essential finding of fact may not be based solely on a declarant's oral hearsay statement unless it would be admissible under the rules of evidence.

AB380,92,8 (3) The court or circuit court commissioner may conduct questioning of the witnesses and shall endeavor to ensure that the claims or defenses of all parties are fairly presented to the court or circuit court commissioner.

AB380,92,12 (4) The court or circuit court commissioner shall establish the order of trial and the procedure to be followed in the presentation of evidence and arguments in an appropriate manner consistent with the ends of justice and the prompt resolution of the dispute on its merits according to the substantive law.

AB380, s. 247 Section 247. 799.21 (3) (b) of the statutes is amended to read:

AB380,92,24 799.21 (3) (b) In counties establishing at least one part-time or full-time court commissioner position under s. 757.68 (1) (b) in which a circuit court commissioner is assigned to assist in small claims matters, except in eviction actions which shall be governed by par. (a), demand for trial by jury shall be made at the time a demand for trial is filed. If the party requesting a trial does not request a jury trial, any other party may request a jury trial by filing the request with the court and mailing copies to all other parties within 15 days from the date of mailing of the demand for trial or the date on which personal notice of demand is given, whichever is applicable. If no party demands a trial by jury, the right to trial by jury is waived forever. The fees prescribed in ss. 814.61 (4) and 814.62 (3) (e) shall be paid when the demand for a trial by jury is filed.

AB380, s. 248 Section 248. 799.21 (4) of the statutes is amended to read:

AB380,93,7 799.21 (4) Jury procedure. If there is a demand for a trial by jury, the judge or circuit court commissioner shall place the case on the trial calendar and a jury of 6 persons shall be chosen as provided in s. 345.43 (3) (b). The parties shall proceed as if the action had originally been begun as a proceeding under chs. 801 to 807, except that the court is not required to provide the jury with one complete set of written instructions under s. 805.13 (4) and the requirements for appearance by the parties shall be governed by s. 799.06 (2).

AB380, s. 249 Section 249. 799.24 (1) of the statutes is amended to read:

AB380,93,16 799.24 (1) Entry of judgment or order; notice of entry thereof. When a judgment or an order is rendered, the judge, circuit court commissioner or clerk of circuit court shall immediately enter it in the court record and note the date thereof which shall be the date of entry of judgment or order. The clerk of circuit court, except in municipal and county forfeiture actions, shall mail a notice of entry of judgment to the parties or their attorneys at their last-known address within 5 days of its entry. Upon payment of the exact amount of the fee prescribed in s. 814.62 (3) (c), the clerk of circuit court shall enter the judgment in the judgment and lien docket.

AB380, s. 250 Section 250. 799.24 (3) of the statutes is amended to read:

AB380,93,23 799.24 (3) Stipulated dismissal. Prior to the entry of judgment, upon stipulation of the parties to a schedule for compliance with the stipulation, the court or circuit court commissioner may enter a stipulated judgment of dismissal in lieu thereof. Any such judgment may be vacated without notice to the obligated party, and the unsatisfied portion thereof entered, upon application by the prevailing party and proof by affidavit of noncompliance with the terms of the stipulation.

AB380, s. 251 Section 251. 799.26 (1) of the statutes is amended to read:

AB380,94,11 799.26 (1) When a judgment for money damages is entered under this chapter, the court or circuit court commissioner shall order the judgment debtor to execute under penalty of contempt a disclosure statement and to mail or deliver that statement to the judgment creditor or to the clerk of circuit court in the county where the judgment is entered within 15 days of entry of judgment unless the judgment is sooner satisfied. The statement shall disclose, as of the date of judgment, the debtor's name, residence address, employers and their addresses, any real property interests owned by the debtor, cash on hand, financial institutions in which the judgment debtor has funds on deposit, whether the debtor's earnings are totally exempt from garnishment under s. 812.34 (2) (b), and such other information as required by the schedules adopted under sub. (3).

AB380, s. 252 Section 252. 803.01 (3) (b) 1. of the statutes is amended to read:

AB380,94,17 803.01 (3) (b) 1. The guardian ad litem shall be appointed by a circuit court of the county where the action is to be commenced or is pending, except that the guardian ad litem shall be appointed by a family circuit court commissioner of the county in actions to establish paternity that are before the family circuit court commissioner.

AB380, s. 253 Section 253. 807.02 of the statutes is amended to read:

AB380,95,2 807.02 Motions, where heard; stay of proceedings. Except as provided in s. 807.13 or when the parties stipulate otherwise and the court approves, motions in actions or proceedings in the circuit court must be heard within the circuit where the action is triable. Orders out of court, not requiring notice, may be made by the presiding judge of the court in any part of the state. No order to stay proceedings after a verdict, report or finding in any circuit court may be made by a circuit or supplemental court commissioner. No stay of proceedings for more than 20 days may be granted except upon previous notice to the adverse party.

AB380, s. 254 Section 254. 807.04 (1) of the statutes, as affected by 1997 Wisconsin Act 133, is amended to read:

AB380,95,9 807.04 (1) Except as provided under sub. (2), all trials, and all hearings at which oral testimony is to be presented, shall be held in open court. The court may make any order which a judge or a circuit or supplemental court commissioner has power to make. Court commissioners shall have the powers provided in ch. 753 or by other statute.

AB380, s. 255 Section 255. 807.09 (1) of the statutes is amended to read:

AB380,95,16 807.09 (1) A circuit judge of the circuit court of any county may appoint and remove at any time, any retired or former circuit or county court judge to act, in matters referred by the judge and in conciliation matters. When a matter for conciliation is referred for such purpose, the conciliator shall have full authority to hear, determine and report findings to the court. Such conciliators may be appointed circuit court commissioners as provided in s. 757.68 under SCR 75.02 (1).

AB380, s. 256 Section 256. 812.30 (2) of the statutes is amended to read:

AB380,95,19 812.30 (2) "Court" includes a circuit court commissioner assigned to preside at a proceeding under this subchapter.

AB380, s. 257 Section 257. 813.025 (1) of the statutes is amended to read:

AB380,95,25 813.025 (1) No circuit or supplemental court commissioner shall may issue any injunction or order suspending or restraining the enforcement or execution of any statute of the state or of any order of an administrative officer, board, department, commission or other state agency purporting to be made pursuant to the statutes of the state. If so issued such, the injunction or order shall be void.

AB380, s. 258 Section 258. 813.12 (2) (a) of the statutes is amended to read:

AB380,96,13 813.12 (2) (a) No action under this section may be commenced by complaint and summons. An action under this section may be commenced only by a petition described under sub. (5) (a). The action commences with service of the petition upon the respondent if a copy of the petition is filed before service or promptly after service. If the judge or family a circuit court commissioner extends the time for a hearing under sub. (3) (c) and the petitioner files an affidavit with the court stating that personal service by the sheriff or a private server under s. 801.11 (1) (a) or (b) was unsuccessful because the respondent is avoiding service by concealment or otherwise, the petitioner may serve the respondent by publication of the petition as a class 1 notice, under ch. 985, and by mailing if the respondent's post-office address is known or can with due diligence be ascertained. The mailing may be omitted if the post-office address cannot be ascertained with due diligence.

AB380, s. 259 Section 259. 813.12 (2) (b) of the statutes is amended to read:

AB380,96,23 813.12 (2) (b) A petition may be filed in conjunction with an action affecting the family commenced under ch. 767, but commencement of an action affecting the family or any other action is not necessary for the filing of a petition or the issuance of a temporary restraining order or an injunction. A judge or family circuit court commissioner may not make findings or issue orders under s. 767.23 or 767.24 while granting relief requested only under this section. Section 813.06 does not apply to an action under this section. The respondent may respond to the petition either in writing before or at the hearing on the issuance of the injunction or orally at that hearing.

AB380, s. 260 Section 260. 813.12 (3) (a) of the statutes is amended to read:

AB380,97,7 813.12 (3) (a) A judge or family circuit court commissioner shall issue a temporary restraining order ordering the respondent to refrain from committing acts of domestic abuse against the petitioner, to avoid the petitioner's residence, except as provided in par. (am), or any premises temporarily occupied by the petitioner or both, or to avoid contacting or causing any person other than a party's attorney to contact the petitioner unless the petitioner consents in writing, or any combination of these remedies requested in the petition, if all of the following occur:

AB380,97,9 1. The petitioner submits to the judge or family circuit court commissioner a petition alleging the elements set forth under sub. (5) (a).

AB380,97,18 2. The judge or family circuit court commissioner finds reasonable grounds to believe that the respondent has engaged in, or based on prior conduct of the petitioner and the respondent may engage in, domestic abuse of the petitioner. In determining whether to issue a temporary restraining order, the judge or family circuit court commissioner shall consider the potential danger posed to the petitioner and the pattern of abusive conduct of the respondent but may not base his or her decision solely on the length of time since the last domestic abuse or the length of time since the relationship ended. The judge or family circuit court commissioner may grant only the remedies requested or approved by the petitioner.

AB380, s. 261 Section 261. 813.12 (3) (am) of the statutes is amended to read:

AB380,98,2 813.12 (3) (am) If the petitioner and the respondent are not married, the respondent owns the premises where the petitioner resides and the petitioner has no legal interest in the premises, in lieu of ordering the respondent to avoid the petitioner's residence under par. (a) the judge or family circuit court commissioner may order the respondent to avoid the premises for a reasonable time until the petitioner relocates and shall order the respondent to avoid the new residence for the duration of the order.

AB380, s. 262 Section 262. 813.12 (3) (c) of the statutes is amended to read:

AB380,98,12 813.12 (3) (c) The temporary restraining order is in effect until a hearing is held on issuance of an injunction under sub. (4). The temporary restraining order is not voided if the respondent is admitted into a dwelling that the order directs him or her to avoid. A judge or family circuit court commissioner shall hold a hearing on issuance of an injunction within 7 days after the temporary restraining order is issued, unless the time is extended upon the written consent of the parties or extended once for 14 days upon a finding that the respondent has not been served with a copy of the temporary restraining order although the petitioner has exercised due diligence.

AB380, s. 263 Section 263. 813.12 (3) (d) of the statutes is amended to read:

AB380,98,18 813.12 (3) (d) The judge or circuit court commissioner shall advise the petitioner of the right to serve the respondent the petition by published notice if with due diligence the respondent cannot be served as provided under s. 801.11 (1) (a) or (b). The clerk of circuit court shall assist the petitioner with the preparation of the notice and filing of the affidavit of printing.

AB380, s. 264 Section 264. 813.12 (4) (a) (intro.) of the statutes is amended to read:

AB380,99,2 813.12 (4) (a) (intro.) A judge or family circuit court commissioner may grant an injunction ordering the respondent to refrain from committing acts of domestic abuse against the petitioner, to avoid the petitioner's residence, except as provided in par. (am), or any premises temporarily occupied by the petitioner or both, or to avoid contacting or causing any person other than a party's attorney to contact the petitioner unless the petitioner consents to that contact in writing, or any combination of these remedies requested in the petition, if all of the following occur:

AB380, s. 265 Section 265. 813.12 (4) (a) 3. of the statutes is amended to read:

AB380,99,12 813.12 (4) (a) 3. After hearing, the judge or family circuit court commissioner finds reasonable grounds to believe that the respondent has engaged in, or based upon prior conduct of the petitioner and the respondent may engage in, domestic abuse of the petitioner. In determining whether to issue an injunction, the judge or family circuit court commissioner shall consider the potential danger posed to the petitioner and the pattern of abusive conduct of the respondent but may not base his or her decision solely on the length of time since the last domestic abuse or the length of time since the relationship ended. The judge or family circuit court commissioner may grant only the remedies requested by the petitioner.

AB380, s. 266 Section 266. 813.12 (4) (am) of the statutes is amended to read:

AB380,99,20 813.12 (4) (am) If the petitioner and the respondent are not married, the respondent owns the premises where the petitioner resides and the petitioner has no legal interest in the premises, in lieu of ordering the respondent to avoid the petitioner's residence under par. (a) the judge or family circuit court commissioner may order the respondent to avoid the premises for a reasonable time until the petitioner relocates and shall order the respondent to avoid the new residence for the duration of the order.

AB380, s. 267 Section 267. 813.12 (4) (b) of the statutes is amended to read:

AB380,99,25 813.12 (4) (b) The judge or family circuit court commissioner may enter an injunction only against the respondent named in the petition. No injunction may be issued under this subsection under the same case number against the person petitioning for the injunction. The judge or family circuit court commissioner may not modify an order restraining the respondent based solely on the request of the respondent.

AB380, s. 268 Section 268. 813.12 (4m) (a) 2. of the statutes is amended to read:

AB380,100,15 813.12 (4m) (a) 2. Except as provided in par. (ag), require the respondent to surrender any firearms that he or she owns or has in his or her possession to the sheriff of the county in which the action under this section was commenced, to the sheriff of the county in which the respondent resides or to another person designated by the respondent and approved by the judge or family circuit court commissioner. The judge or circuit court commissioner shall approve the person designated by the respondent unless the judge or circuit court commissioner finds that the person is inappropriate and places the reasons for the finding on the record. If a firearm is surrendered to a person designated by the respondent and approved by the judge or family circuit court commissioner, the judge or family circuit court commissioner shall inform the person to whom the firearm is surrendered of the requirements and penalties under s. 941.29 (4).

AB380, s. 269 Section 269. 813.12 (4m) (b) (intro.) of the statutes is amended to read:

AB380,100,19 813.12 (4m) (b) (intro.) A firearm surrendered under par. (a) 2. may not be returned to the respondent until a judge or family circuit court commissioner determines all of the following:

AB380, s. 270 Section 270. 813.12 (4m) (b) 2. of the statutes is amended to read:

AB380,100,24 813.12 (4m) (b) 2. That the person is not prohibited from possessing a firearm under any state or federal law or by the order of any federal court or state court, other than an order from which the judge or family circuit court commissioner is competent to grant relief.

AB380, s. 271 Section 271. 813.12 (5) (c) of the statutes is amended to read:

AB380,101,2 813.12 (5) (c) A judge or family circuit court commissioner shall accept any legible petition for a temporary restraining order or injunction.

AB380, s. 272 Section 272. 813.12 (6) (a) of the statutes is amended to read:

AB380,101,9 813.12 (6) (a) If an order is issued under this section, upon request by the petitioner the court or family circuit court commissioner shall order the sheriff to accompany the petitioner and assist in placing him or her in physical possession of his or her residence or to otherwise assist in executing or serving the temporary restraining order or injunction. The petitioner may, at the petitioner's expense, use a private process server to serve papers on the respondent.

AB380, s. 273 Section 273. 813.12 (7m) of the statutes is amended to read:

AB380,101,13 813.12 (7m) Transcripts. The judge or family circuit court commissioner shall record the temporary restraining order or injunction hearing upon the request of the petitioner.

AB380, s. 274 Section 274. 813.122 (3) (a) of the statutes is amended to read: