Amendment ASA1-AB78

LRBs0044/1

CMH&PJH:kjf:md

2009 - 2010 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 1, TO 2009 ASSEMBLY BILL 78

April 23, 2009 - Offered by Representative Kessler.

AB78-ASA1,1,3 An Act to renumber and amend 968.26; to amend 753.075 (1) (a), 911.01 (4) (b), 972.08 (2) and 978.045 (1r) (intro.); and to create 753.075 (2m) and 968.26 (2) of the statutes; relating to: John Doe proceedings.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB78-ASA1, s. 1 Section 1. 753.075 (1) (a) of the statutes is amended to read:

AB78-ASA1,1,9 753.075 (1) (a) "Permanent reserve judge" means a judge appointed by the chief justice to serve an assignment. Except as provided in sub. (2m), an appointment shall be for a period of 6 months and permanent reserve judges may be reappointed for subsequent periods. Permanent reserve judges shall perform the same duties as other judges and may be reappointed for subsequent periods.

AB78-ASA1, s. 2 Section 2. 753.075 (2m) of the statutes is created to read:

AB78-ASA1,2,2 753.075 (2m) Reserve judges to review prison inmate complaints. The chief justice of the supreme court shall assign a permanent reserve judge to hear complaints under s. 968.26 (2) for not more than one 12-month period to be compensated as described under sub. (3) (b).

AB78-ASA1, s. 3 Section 3. 911.01 (4) (b) of the statutes is amended to read:

AB78-ASA1,2,5 911.01 (4) (b) Grand jury; John Doe proceedings. Proceedings before grand juries or a John Doe proceeding under s. 968.26.

AB78-ASA1, s. 4 Section 4. 968.26 of the statutes is renumbered 968.26 (1) and amended to read:

AB78-ASA1,3,2 968.26 (1) If Except as provided in sub. (2), if a person complains to a judge that he or she has reason to believe that a crime has been committed within his or her jurisdiction, the judge shall examine the complainant under oath and any witnesses produced by him or her and may, and at the request of the district attorney shall, subpoena and examine other witnesses to ascertain whether a crime has been committed and by whom committed. The extent to which the judge may proceed in the examination is within the judge's discretion. The examination may be adjourned and may be secret. Any witness examined under this section may have counsel present at the examination but the counsel shall not be allowed to examine his or her client, cross-examine other witnesses or argue before the judge. If it appears probable from the testimony given that a crime has been committed and who committed it, the complaint may be reduced to writing and signed and verified; and thereupon a warrant shall issue be issued for the arrest of the accused. Subject to s. 971.23, if the proceeding is secret, the record of the proceeding and the testimony taken shall not be open to inspection by anyone except the district attorney unless it is used by the prosecution at the preliminary hearing or the trial of the accused and then only to the extent that it is so used. A court, on the motion of a district attorney, may compel a person to testify or produce evidence under s. 972.08 (1). The person is immune from prosecution as provided in s. 972.08 (1), subject to the restrictions under s. 972.085.

AB78-ASA1, s. 5 Section 5. 968.26 (2) of the statutes is created to read:

AB78-ASA1,3,9 968.26 (2) (a) Unless the complainant is a district attorney, an individual who has reason to believe that a crime has been committed, or that a rule promulgated by the department or the department of health services has been violated, may complain only to a reserve judge assigned under s. 753.075 (2m) and only the process described under this subsection applies, if any of the following circumstances applies:

AB78-ASA1,3,11 1. The complaining individual was a prisoner, as defined in s. 46.011 (2), or was detained or committed under ch. 980, when the alleged crime or violation occurred.

AB78-ASA1,3,18 2. The complaining individual has reason to believe that the individual who allegedly committed the crime or violated the rule is an employee of the department, an employee of the department of health and family services, or a correctional officer; has contact in his or her official duties with prisoners, as defined in s. 46.011 (2) or with individuals detained or committed under ch. 980; and was working in his or her official duty at the time that the crime is alleged to have been committed or the rule is alleged to have been violated.

AB78-ASA1,3,22 (b) If an individual complains under par. (a) to a reserve judge that he or she has a reason to believe that a crime has been committed or a rule has been violated and any of the circumstances under par. (a) apply, the reserve judge shall do one of the following:

AB78-ASA1,3,24 1. If the reserve judge finds that no crime has been committed or no rule has been violated, dismiss the complaint.

AB78-ASA1,4,3 2. If the reserve judge finds probable cause that a rule has been violated, refer the complaint to the department or the department of health services, whichever promulgated the rule that has been violated.

AB78-ASA1,4,6 3. If the reserve judge finds probable cause that a crime has been committed, refer the complaint to the district attorney or to the circuit court of the county in which the crime allegedly occurred.

AB78-ASA1,4,17 (c) If a circuit court judge receives a complaint from a reserve judge under par. (b) 3., the circuit court judge shall conduct an investigation to determine whether a crime has been committed. In making the determination, the judge may, at his or her discretion, examine under oath the complainant or any witnesses produced by the complainant and subpoena and examine under oath other witnesses, as the judge determines is necessary to ascertain whether a crime has been committed and by whom committed. The examination may be adjourned and may be secret. Any witness examined may have counsel present but the counsel may not examine his or her client, cross-examine other witnesses, or argue before the judge. If the judge determines from the testimony that a crime has been committed and who committed it, he or she may issue a warrant for the arrest of the accused.

AB78-ASA1, s. 6 Section 6. 972.08 (2) of the statutes is amended to read:

AB78-ASA1,5,3 972.08 (2) Whenever a witness attending in any court trial or appearing before any grand jury or John Doe investigation under s. 968.26 fails or refuses without just cause to comply with an order of the court under this section to give testimony in response to a question or with respect to any matter, the court, upon such failure or refusal, or when such failure or refusal is duly brought to its attention, may summarily order the witness's confinement at a suitable place until such time as the witness is willing to give such testimony or until such trial, grand jury term, or John Doe investigation under s. 968.26 is concluded but in no case exceeding one year. No person confined under this section shall be admitted to bail pending the determination of an appeal taken by the person from the order of confinement.

AB78-ASA1, s. 7 Section 7. 978.045 (1r) (intro.) of the statutes is amended to read:

AB78-ASA1,5,14 978.045 (1r) (intro.) Any judge of a court of record, by an order entered in the record stating the cause for it, may appoint an attorney as a special prosecutor to perform, for the time being, or for the trial of the accused person, the duties of the district attorney. An attorney appointed under this subsection shall have all of the powers of the district attorney. The judge may appoint an attorney as a special prosecutor at the request of a district attorney to assist the district attorney in the prosecution of persons charged with a crime, in grand jury proceedings or John Doe proceedings under s. 968.26, in proceedings under ch. 980, or in investigations. The judge may appoint an attorney as a special prosecutor if any of the following conditions exists:

AB78-ASA1, s. 8 Section 8. Initial applicability.

AB78-ASA1,5,17 (1) The treatment of section 968.26 (2) of the statutes first applies to complaints made on the effective date of this subsection.

AB78-ASA1,5,18 (End)